TERMS AND CONDITIONS

1. Scope; Construction. The Order Form and these Terms and Conditions (these “Ts&Cs”) (collectively, the “Agreement”) are by and between Dealerware, LLC (“Dealerware”), and the Retailer identified in the Order Form (“Retailer”). Retailer and Dealerware are the “Parties”, and each is a “Party” and collectively, the “Parties.” The words “include,” “includes” and “including” will be deemed to be followed by the phrase “without limitation.” The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation.

2. Definitions. The following terms have the following meanings for purposes of this Agreement:

a. “Acceptance of the Agreement”: Payment of the invoice and/or signature of the Order Form pertaining to the purchase of subscriptions to the Dealerware Management System outline in this agreement shall constitute acceptance of the terms and conditions set forth herein. By remitting the payment or signing the Order Form, the Parties acknowledge that they have read, understood and agreed to be bound by the terms of this Agreement.

b. “Access” means access to the Dealerware Management System hosted by Dealerware. Retailer will have access to the Dealerware Management System modules elected by Retailer, as indicated on the applicable Order Form.

c. “Additional Products” has the meaning set forth in Section 4.

d. “Authorized User” means any individual employee, agent or contractor of Retailer, in each case, that will access or use the Licensed Products or the Access solely on behalf of, and for the benefit of, Retailer in the operation of the Program, provided that any such individual has entered into an agreement with Retailer, which agreement is no less protective of Dealerware and its proprietary rights and Confidential Information than the provisions of this Agreement.

e. “Confidential Information” has the meaning set forth in Section 6.

f. “Connected Car Services” means the Dealerware Management System service for collecting and managing usage and vehicle data regarding Vehicles Under Management, as described in applicable documentation. Connected Car Services may require the use and installation of hardware provided by Dealerware to Retailer.

g. “Dealerware” has the meaning set forth in Section 1.

h. “Dealerware Management System” means Dealerware’s cloud-based management system composed of proprietary hardware, software, services and business designs, individually or in combination, for vehicle fleet or courtesy car management. The Dealerware Management System comprises functional modules for providing the services elected by Retailer, including Mobile Contracts, Connected Car Services, Toll Management, Lot Management, Fleet Valuation, Lite Valet and such other modules as Dealerware may offer to Retailer. Retailer will have access to the Dealerware Management System modules elected by Retailer, as indicated on the applicable Order Form.

i. “Default” has the meaning set forth in Section 7.

j. “Feedback” has the meaning set forth in Section 29.

k. “Fees” means the fees set forth in Retailer’s Order Form or in this Agreement.

l. “Fleet Valuation” means the Dealerware Management System service for providing valuation data regarding Vehicles Under Management, as described in applicable documentation.

m. “Improvement” has the meaning set forth in Section 29.

n. “Indemnified Party” has the meaning set forth in Section 21.

o. “Indemnifying Party” has the meaning set forth in Section 21.

p. “Intellectual Property” means all intellectual property, including (i) all trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, corporate names, trade styles, and other source or business identifiers and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, along with all applications, registrations, renewals, and extensions thereof, (ii) all copyrights and all mask works, databases, and design rights, whether or not registered or published, all registrations and recordations thereof, and all applications in connection therewith, along with all reversions, extensions, and renewals thereof, (iii) all trade secrets, know-how, licensing rights and/or any other intellectual or proprietary rights recognized by any jurisdiction, and (iv) all patents and applications therefor, including all continuations, divisionals, and continuations-in-part thereof and patents issuing thereon, along with all reissues, reexaminations, and extensions thereof.

q. “Initial Term” has the meaning set forth in Section 6.

r. “Legal Requirements” means all applicable federal, provincial and municipal laws, regulations, rules, and rulings and all applicable orders of courts or governmental agencies, including laws, regulations, rules, orders, rulings, guidance and policies relating to privacy, global positioning systems, event data recorders, or electronic surveillance technology.

s. “Licensed Products” means the Licensed Software and any hardware provided by Dealerware to Retailer.

t. “Licensed Software” means the Dealerware toolkit app and any other software or other computer or program code, as well as the related documentation, provided by Dealerware to Retailer for use in the Program to provide functionality for (i) reservation and Retailer management, (ii) vehicle fleet operations, (iii) reporting and business intelligence and (iv) billing and settlement.

u. “Lot Management” means the Dealerware Management System service for Retailer’s dealership or similar lot, as described in applicable documentation.

v. “Mobile Contracts” means the Dealerware Management System service for managing Retailer’s fleet vehicle contracts with its customers, as described in applicable documentation.

w. “Operational Data” has the meaning set forth in Section 15.

x. “Order Form” means an order evidencing the purchase of subscriptions to the Dealerware
Management System and its modules. Each Order Form shall be governed by and become part of this Agreement, and is hereby incorporated by this reference. If there is a direct conflict between the Order Form and this Ts&Cs, the terms of the Order Form shall prevail. The payment of the invoice constitutes acceptance to the terms of this Agreement.

y. “PII” means personally identifiable information. This information consists specifically of name, email address, home and/or business address, telephone number, date of birth, payment information, driver’s license information, and insurance information.

z. “Program” means the Retailer’s vehicle fleet program (including its courtesy vehicle program), which is owned, operated by, maintained and managed by the Retailer.

aa. “Renewal Term” has the meaning set forth in Section 6.

bb. “Retailer” has the meaning set forth in Section 1.

cc. “Start Date” means the start date indicated on the applicable Order Form.

dd. “Technology License” has the meaning set forth in Section 3.

ee. “Term” has the meaning set forth in Section 6.

ff. “Third-Party Software” means software owned or licensed by a third party which is provided to Retailer in connection with the Dealerware Management System.

gg. “Toll Management” means the Dealerware Management System service for integrating Vehicles Under Management with the local tolling authority so that tolls incurred by a Vehicle Under Management can be charged to Retailer’s customer or the Retailer, as described in applicable documentation.

hh. “Ts&Cs” has the meaning set forth in Section 1.

ii. “Vehicle” means a vehicle that Retailer owns or leases from a third party.

jj. “Vehicle Under Management” means a Vehicle that is utilized in the Program.

3. Technology License. For so long as Retailer is in compliance with this Agreement, Dealerware will provide to Retailer a limited, non-exclusive, non-transferable, non- sublicenseable license during the Term (as defined in Section 6 of these Ts&Cs): (i) to install and use the Licensed Products for the limited purpose of operating the Program in accordance with applicable documentation and instructions provided by
Dealerware; (ii) to permit Authorized Users to access and use the Access and Licensed Software solely for Retailer’s operation of the Program; and (iii) to make a reasonable number of copies of the Licensed
Software solely in connection with the exercise of the foregoing rights (the “Technology License”). For the avoidance of doubt, Retailer shall only be permitted to use the Dealerware Management System for vehicles that the Retailer owns, leases or otherwise has authority to use in the Program, and Retailer shall not enroll any other vehicle in the Dealerware Management System.

4. Additional Products and Services. Dealerware may agree to provide and Retailer may agree to receive additional Dealerware products and services in the future (“Additional Products”). If the Parties mutually agree that such Additional Products shall be covered by these Ts&Cs, the Parties shall document the fees and any special terms and conditions relating to such products and services in a written document which references this Agreement and is signed by both Parties. The Ts&Cs shall be applicable to any such Additional Products.

5. Ownership. Subject to the limited rights granted to Retailer in the Technology License, Dealerware and its licensors retains all right, title and interest in and to the Licensed Products, the Access, the Dealerware Management System, all documentation, and all associated rights in Intellectual Property. Retailer acknowledges that it does not own any of the foregoing and, except to extent of the limited rights granted through the Technology License, Retailer does not have any rights in any of the foregoing. All rights not expressly granted in this Agreement are reserved by Dealerware and its licensors. Retailer shall not remove, obscure or modify any copyright, trademark or other proprietary or intellectual property rights notices contained in the Licensed Products and the Dealerware Management System or on any media embodying the Licensed Products and the Dealerware Management System.

6. Term. The initial term of this Agreement shall begin on the Start Date and continue for thirty (30) days after the Start Date (the “Initial Term”). The term of this Agreement shall then automatically be extended for additional terms of thirty (30) days each (each a “Renewal Term”). The Initial Term and any Renewal Term(s) collectively constitute the “Term”. Dealerware shall provide the Technology License to Retailer commencing on the Start Date. Retailer shall incur the Fees from the Start Date through the later of (i) the last day of the Term and (ii) the date that use of all of the Licensed Products ceases and such products are properly returned to Dealerware. At any time after the Initial Term, either Party may terminate this Agreement for any or no reason by providing thirty (30) days’ advance notice of the desired termination date.

7. Default; Termination. A “Default” shall occur if a Party (i) breaches any covenant, representation or warranty made by it under this Agreement or defaults in the performance of any of its non-payment obligations under this Agreement and such non-payment breach or default is not cured within thirty (30) days of the receipt by the breaching/defaulting Party of written notice of such breach or default, or (ii) breaches or defaults on any of its obligations to make a payment under this Agreement and such breach or default is not cured within five (5) days of the receipt by the breaching/defaulting Party of written notice of such breach or default. If a Party Defaults, the other Party may terminate this Agreement by delivery of written notice of such termination to the Party that committed the Default. If Retailer Defaults, Dealerware may also take any or all of the following actions with no liability to Retailer: suspend or discontinue the provision of the Technology License, the Licensed Products or the Access; disable access to the Dealerware Management System or other Licensed Products or technology; or exercise any other right or remedy under law or in equity. Either Party may terminate this Agreement immediately by written notice to the other Party if the other Party is unable to pay its debts as they become due, is insolvent, files or has filed against it a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, or applies for or consents to the appointment of a receiver or trustee or has a receiver or trustee appointed to it for all or a substantial part of its business or assets.

8. Termination or Expiration. Immediately upon termination or expiration of this Agreement, Retailer shall return to Dealerware in good condition (i) any Dealerware hardware that Dealerware has provided to Retailer, (ii) all copies of the Licensed Software, and (iii) all documentation or property of Dealerware. Upon termination or expiration of this Agreement, Dealerware shall disable the access by or through Retailer or any of its Authorized Users to the Licensed Products and the Dealerware Management System.

9. Payment Terms. Retailer shall pay to Dealerware the Fees for the Technology License pursuant to this Agreement. Invoices are due and payable in U.S. dollars within thirty (30) days of the date of an invoice that Dealerware sends to Retailer’s billing address (as specified on the Order Form or as otherwise delivered in writing to Dealerware). Retailer shall pay each invoice by the applicable due date via credit cards or wire transfer to the Dealerware account information specified on the Order Form or any other account required by Dealerware in writing. In the event that the Retailer chooses to make invoice payments using a credit card, there will be an additional processing fee equal to 3.5% of the invoice amount. If any invoice is not paid in full to Dealerware when due, a late charge will accrue, and will be paid by Retailer, on all past due amounts at a rate of 1.5% per month (or the maximum legal rate, if less) until all past due amounts are paid in full. Retailer agrees to review each invoice promptly and to notify Dealerware in writing of any billing dispute within thirty (15) days of receipt of the invoice. If Retailer does not report a dispute in writing to Dealerware
within such fifteen (15) day period, then Retailer will waive forever its right to dispute the invoice and will be deemed to be in agreement with the invoice. Retailer shall pay all sales, value-added, gross receipts, use, excise and all other applicable taxes, surcharges, assessments, fees and charges, however designated (excluding taxes on Dealerware’s income), in connection with the provision, sale, or use of the Technology License, the Licensed Products and the Access. Retailer’s obligation to pay the Fees and all amounts incurred pursuant to this Agreement prior to any termination or expiration of this Agreement shall survive such termination or expiration, and Retailer shall remain liable for the payment of all amounts payable hereunder. The Fees, as set forth in the applicable Order Form and in this Agreement, shall be fixed for the Initial Term. Thereafter, Dealerware reserves the right to adjust such Fees, not to exceed once annually, upon sixty (60) days’ written notice to Retailer. All reimbursements under this Agreement shall be processed exclusively via ACH transfers, unless otherwise agreed upon in writing by both parties.  A transaction processing fee of 5% will be applied to all transactions facilitated or enabled by Dealerware’s platform. Retailer hereby authorized Dealerware to automatically charge a credit card provided by Retailer or ACH account, for any Fees incurred under this agreement.

10. Certain Retailer Responsibilities and Duties. This Agreement is subject to, and Retailer agrees to use, and to ensure the use by or through Retailer or any Authorized User, of the Technology License, any Licensed Product, the Access or the Dealerware Management System (including any related service, system, hardware, software, product, technology or network provided by or through Dealerware) in compliance with all Legal Requirements and all documentation provided by Dealerware. Retailer shall be solely responsible and have all liability with respect to and for (i) any violation of this Agreement by or through Retailer or any Authorized User, (ii) any unauthorized, improper or illegal access to or use of the Technology License, any Licensed Product, the Access or the Dealerware Management System or any related system, network, technology, software, hardware or product by or through Retailer, any Authorized User or any of Retailer’s employees, customers, users, contractors or agents, (iii) any unauthorized, improper or illegal access, use or disclosure of any data relating to any use or location of a Vehicle or of any Operational Data by or through Retailer or any Authorized User or any of Retailer’s employees, customers, users, contractors or agents, whether accessed or obtained through the Technology License or otherwise,
and (iv) any data breach relating to any use of the Technology License or the Access by or through Retailer, any Authorized User or any of Retailer’s employees, customers, users, contractors or agents. Retailer promptly shall notify Dealerware of any reasonably suspected or actual unauthorized, improper or illegal access, use, disclosure or data breach. Retailer shall and shall cause the Authorized Users and its employees, agents and contractors to install and un-install any Dealerware hardware provided to Retailer only in compliance with the documentation provided by Dealerware and all Legal Requirements. Retailer shall not and shall not allow any of the Authorized Users or any of its employees, customers, users, contractors or agents to (i) make any Licensed Product, Access or the Dealerware Management System available to anyone other than Authorized Users, (ii) sell, resell, rent, license or lease or any Licensed Product, the Access or the Dealerware Management System, (iii) prepare derivative works of the Licensed Product or the Dealerware Management System, (iv) interfere with or disrupt the integrity or performance of the Licensed Products, the Access, the Dealerware Management System, any Operational Data or any related software, system, network, hardware or technology, (v) attempt to gain unauthorized access to the Dealerware Management System, any Operational Data or any related software, system, network, hardware or technology, (vi) copy, decompile, modify or reverse engineer any Licensed Product, the Access, the Dealerware Management System, or any related software, system, network, hardware or technology or any part, feature, function or user interface thereof cause or allow discovery of the source code or underlying ideas or algorithms of the same or attempt to do so or (vii) violate any Legal Requirement with respect to any access to, use of or disclosure of any data related to any Vehicle. To the extent permissible by law, Retailer waives any rights that it may have to do any of the foregoing. Retailer shall use and maintain commercially reasonable security precautions in connection with the use of the Licensed Software. Retailer shall cooperate with Dealerware’s reasonable investigation of any service outage, security issues, or any suspected breach of this Agreement.

11. Operation of Courtesy Car Program; Risk of Loss. Retailer solely shall be responsible for and have all liability with respect to and for (i) the Program and its operations, (ii) the accuracy, quality, integrity and legality of all data that Retailer, any Authorized User or any of Retailer’s employees, customers, users, contractors or agents provides, including any driver’s license or insurance information, and (iii) the ownership or lease and maintenance, operation and repair of the Vehicles. Retailer shall be solely responsible and have all liability for providing all technical support to its Authorized Users, employees, customers, users, contractors and agents. Retailer bears all risk of loss, damage, destruction or theft to any Vehicle from any cause whatsoever.

12. Subordination. Retailer agrees that it has no and will have no right or claim to or lien against any Licensed Product, the Access, the Dealerware Management System or any Dealerware software, hardware, technology, system, network or Intellectual Property or any other personal property of Dealerware that may be utilized by or through Retailer or provided at Retailer’s premises. Retailer agrees that no third party (including any Retailer lender or landlord) has any such right, claim or lien through Retailer. Retailer agrees that it will promptly execute and deliver and will have its lenders and any landlord of any part of Retailer’s premises promptly execute and deliver to Dealerware any subordination agreement, waiver or other document that any lender or lessor of Dealerware may require regarding any Licensed Products, the Access, the Dealerware Management System, any Dealerware software, hardware, technology, system, network or Intellectual Property or any other personal property of Dealerware.

13. Use of Name. Without the other Party’s prior written consent, neither Party shall use any of the other Party’s names, logos, trademarks, service marks, or any variations thereof for any purpose; provided, however, that Dealerware is authorized to refer to Retailer as a customer of Dealerware and licensee of the Technology License.

14. Insurance. Dealerware will maintain comprehensive general liability insurance, including blanket contractual liability insurance covering the obligations of Dealerware under this Agreement through the Term and for at least two years thereafter, which insurance will afford limits of not less than US$1,000,000 for each occurrence for bodily injury liability, personal injury liability, products liability, property damage liability, contractual liability and completed operations liability with an aggregate annual cap of at least US$2,000,000. Upon request, Dealerware will provide Retailer with a certificate of insurance evidencing the above and showing the name of the issuing company, the policy number, the effective date, the expiration date and the limits of liability. Dealerware will cause its general liability insurance policy to name Retailer as an additional insured and a loss payee.

15. Operational Data. Retailer acknowledges that the Licensed Products and Dealerware Management System collect information from Retailer, Authorized Users, and Retailer’s employees, customers, users, contractors and agents, including telematics data generated by vehicles, other vehicle related information and driving
information (such as, for example, GPS location, speed, mileage, and other similar information) (collectively, “Operational Data”) in order to provide the Dealerware Management System services.

16. Consent to Collect and Use Operational Data. Retailer acknowledges that Operational Data may be collected by Dealerware’s service providers (including applicable original equipment manufacturers) from the Vehicles Under Management for Dealerware’s use in its products and services. Retailer hereby consents to such collection and use of Operational Data. If Retailer wishes to unenroll a Vehicle Under Management (due to a sale or other cause) from such collection and use of Operational Data, Retailer will notify Dealerware within forty-eight (48) hours of such sale or other cause. Retailer agrees to use any Operational Data it receives for the Vehicles Under Management only in Dealerware products and services. Retailer shall comply with all applicable laws, regulations, and administrative requirements governing Retailer’s
access, storage, sharing, and use of Operational Data that may be provided to Retailer.

17. License Grants to Dealerware for Operational Data. In order to enable provision of the Dealerware Management System services, Retailer grants Dealerware a limited-term license to host, copy, process and display Operational Data for the purpose of providing Dealerware Management System services. Retailer grants Dealerware a perpetual, irrevocable, non-exclusive right and license to use Operational Data that has been anonymized, aggregated or de-identified, without restriction, except to the extent prohibited by any Legal Requirement.

18. Personal Information. Any PII collected in connection with the Operational Data will be used at the direction of the Retailer and will be treated in accordance with Dealerware’s Privacy Policy, as may be amended from time to time, which is available at Dealerware’s website, www.Dealerware.com. For the avoidance of doubt, Dealerware will use PII only for the purposes of providing the Dealerware Management System services, and will not use PII to directly market to Retailer’s customers. The Parties acknowledge and agree that PII may be stored in the United States and other countries and, as a result, may be used, stored, or accessed in the United States and other countries and therefore may be subject to the laws of that country.

19. Notice, Consents. Retailer shall fully disclose to Authorized Users, and Retailer’s employees, customers, users, contractors and agents, and each driver of a Vehicle Under Management, the types of information that may be collected by Retailer and/or Dealerware and, with respect to Operational Data, Dealerware’s service providers, and the ways that such information will be used and shared, including that such information will be shared with Dealerware and Dealerware’s service providers. Such disclosure to drivers of Vehicles Under Management shall be in writing. Retailer agrees to and shall provide all notices and obtain all rights, releases and consents required by Legal Requirements to allow Operational Data and/or PII to be collected, used and disclosed in the manner contemplated by this Agreement and to grant Dealerware the rights granted herein. In addition, Retailer agrees to obtain all rights, permissions, consent and acknowledgement to the collection, transfer and use of Operational Data (or any other acknowledgment or consent required by applicable law) from each driver of a Vehicle Under Management. Retailer agrees to retain copies of each driver disclosure, notice and consent for a period of seven (7) years after the unenrollment of a Vehicle Under Management. Retailer shall promptly notify Dealerware if any driver consent is withdrawn.

20. Confidential Information. “Confidential Information” means the contents of this Agreement (but not the existence of this Agreement) and all non-public information disclosed or provided by one Party (the disclosing Party) to the other Party (the receiving Party) related to this Agreement, including all information in whatever form transmitted relating to past, present or future business affairs, research, development, know-how, processes, designs, inventions, ideas, products, pricing information, intellectual property, business plans, financial information, marketing methods, audits and security reports, plans and studies, operations or systems of a disclosing Party or another party whose information the disclosing Party has or may have in its possession under obligations of confidentiality. Confidential Information will also include all analyses, compilations, data, studies, trade secrets or any other documents prepared by a receiving Party containing or based on any Confidential Information received from a disclosing Party. Confidential Information does not include: (i) information that is generally publicly available other than through a breach of this Agreement by the receiving Party; (ii) information that the receiving Party can show with contemporaneous written evidence was, prior to receipt thereof from the disclosing Party, lawfully in the possession of the receiving Party and not then subject to any obligation on the part of the receiving Party to maintain the confidentiality thereof; or (iii) information that was independently developed by employees, agents or consultants of the receiving Party without any knowledge or use of the information disclosed by the disclosing Party. A receiving Party will safeguard the disclosing Party’s Confidential Information and will disclose it only in accordance with the terms of this Agreement. During the Term of this Agreement and thereafter for as long as Confidential Information does not fall within the exceptions listed in (i) through (iii) above, the receiving Party will use commercially reasonable efforts to keep the disclosing Party’s Confidential Information confidential, provided, however that a receiving Party’s obligation to protect and keep confidential any and information with respect to a trade secret of a disclosing Party shall never expire. The receiving Party will not, directly or indirectly, deal with, use, exploit or disclose such Confidential Information to any person or entity for any purpose except as permitted by this Agreement or expressly authorized in writing by the disclosing Party. Either Party may disclose Confidential Information of the other Party to any of its contractors, employees, directors, officers, affiliates, consultants or advisors who have a need to know such Confidential Information. Each Party will ensure that any persons or entities that are provided access to Confidential Information by such Party are bound under an agreement or obligation of confidentiality to effectuate the terms and conditions of this Section. The disclosure of Confidential Information hereunder does not: (i) grant to the receiving Party any license or other right under any rights in intellectual property held by the disclosing Party; or (ii) constitute any representation, warranty, assurance, guarantee, or inducement of any kind by the disclosing Party as to the non-infringement or non-appropriation of any rights in intellectual property or as to any other matter. All Confidential Information will remain the property of the disclosing Party. A receiving Party may disclose Confidential Information in a legal action to enforce its rights under this Agreement, or to the extent legally compelled to do so by any judicial or administrative body having authority to compel such disclosure. Upon the expiration or termination of this Agreement, at the disclosing Party’s written request, the receiving Party shall promptly return all copies of the disclosing Party’s Confidential Information or destroy all such copies and certify in writing the destruction of such information. In addition to all other remedies available at law for any breach of this Section by a receiving Party, the disclosing Party may seek specific performance and injunctive relief.

21. INDEMNIFICATION. Each Party will defend, indemnify and hold the other Party, each of its affiliates and each of the other Party’s and its affiliate’s directors, managers, investors, agents, contractors, advisors, customers, users, representatives, officers and employees (the “Indemnified Party”) harmless from and against any and all damages, liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees, incurred as a result of any third party assertion arising out of or related to (i) any breach of any representation or warranty by the Indemnifying Party, (ii) any violation of any Legal Requirement by the Indemnifying Party; (iii) any negligence or willful misconduct by the Indemnifying Party; (iv) in the case of Retailer, any action arising from the operation or ownership of the business or assets of Retailer or the Program; (v) in the case of Retailer, any event, occurrence, violation, action, omission or inaction for which Retailer has responsibility or liability pursuant to Section 10 or Section 11 of these Ts&Cs; (vi) in the case of Retailer, any infringement or misappropriation of Dealerware’s or a third-party’s Intellectual Property enforceable in the country in which the Licensed Software is licensed and (vii) in the case of Dealerware, any infringement or misappropriation of a third-party Intellectual Property right in connection with the provision of the Licensed Software. Promptly after receipt of notice of any claim or the commencement of any action or proceeding with respect to which an Indemnified Party is entitled to indemnity hereunder, such Indemnified Party will notify the person from whom indemnification is sought (the “Indemnifying Party”) in writing of such claim or of the commencement of such action or proceeding, and the Indemnifying Party will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory to the Indemnified Party and will pay the fees and expenses of such counsel. In addition, if Dealerware, in its reasonable discretion, determines that such claim is likely to result in any adverse ruling, then Dealerware may elect to: (1) obtain a right to Retailer to continue to use the Licensed Product, (2) modify the Licensed Product to make it non-infringing or (3) replace the Licensed Product to make it non-infringing. The Indemnifying Party will have the exclusive right to settle the claim or proceeding provided that the Indemnifying Party will not settle any such claim, action or proceeding without the prior written consent of the Indemnified Party, which will not be unreasonably withheld. Dealerware will have no liability under Section 21 for any claim resulting or arising from: (1) modifications of the Licensed Software that were not performed or authorized by or on behalf of Dealerware or (2) the combination, operation or use of the Licensed Software in connection with any Third-Party Software.

22. DISCLAIMER OF WARRANTIES. Unless expressly provided herein, Dealerware makes no warranty to Retailer or any other person or entity, whether express, implied or statutory, as to the description, quality, merchantability, completeness, fitness for any purpose, non- infringement, non-misappropriation, course of dealing or usage of trade, or relating to the performance of or any other matter of or related to the Technology License, any Licensed Product, the Access, the Dealerware Management System, Additional Products, or any related network, service, product or rights in Intellectual Property, and all such warranties are hereby excluded and disclaimed by Dealerware. Neither Dealerware nor its affiliates, warrants that the operation of the software, its performance or the services will be error-free, free of virus, worms or other harmful components or program limitations or the performance of the services will be uninterrupted. Neither the software nor the services are designed, manufactured, or intended for high risk activities.

23. LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, neither Dealerware nor its affiliates shall be liable under this Agreement for any lost revenues, profits, or indirect, special, incidental, consequential, exemplary, or punitive damages (“Indirect Damages”), including any Indirect Damages arising out of Dealerware’s indemnity obligations as set forth in Section 21 above. To the maximum extent permitted by applicable law, the aggregate liability of Dealerware arising out of or relating to any and all of this Agreement (including Dealerware’s indemnity obligations as set forth in Section 21 above), the Technology License, any Licensed Product, the Access, the Dealerware Management System (or any related system, network, technology, software, hardware or product), and the Additional Products shall not exceed the greater of (i) US$5,000 or (ii) the highest amount actually paid by Retailer to Dealerware for the monthly Fees for any consecutive twelve month period or (iii) in the case of a data breach incident, the actual amount of insurance coverage provided by Dealerware’s cyber insurance policy. If any Legal Requirement prohibits any limitation, exclusion or disclaimer contained in this Section 23 or in Section 22 of this Agreement, the Parties agree that such limitation, exclusion or disclaimer will be automatically modified, but only to the extent so as to make it compliant with all Legal Requirements. Retailer agrees that these limitations, exclusions and disclaimers set forth in this Section 23 or in Section 22 are agreed allocations of risk constituting in part the consideration for Dealerware providing the Technology License to Retailer and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if a party has been advised of the possibility of such liabilities or failures.

24. Force Majeure; Interruption or Failure. Dealerware shall not be liable for any delay in, breach of or failure of performance under this Agreement due to any cause beyond its reasonable control including, but not limited to: acts of God or of public enemy; explosion; pandemic, epidemic or outbreak; vandalism; pest or animal damage; power surge, fluctuation or failure; shortages; exercise of sovereign power; inability to obtain labor, materials or vehicles on a commercially reasonable basis; fire, flood, storm or other catastrophe; any Legal Requirement or direction, action, or request of any governmental, judicial, regulatory, or civil or military authority; national emergency; insurrection; riot; war; or strike, lock out, or work stoppage. In no event will any interruption of the Technology License, any Licensed Product, the Access or the Dealerware Management System (including any related service, system, hardware, software, product, technology or network provided by or through Dealerware) constitute a failure of performance, default or breach by Dealerware.

25. Governing Law; Venue. This Agreement shall be governed by the laws of the State of New York without regard to choice of law principles. The sole, exclusive venue for any dispute arising out of or relating to this Agreement or the Technology License shall be in a court of competent jurisdiction located in New York, New York.

26. Notices. Any notice required to be given under this Agreement must be in writing and will be deemed given (i) five (5) days after deposited in the U.S. Mail, postage paid, via certified mail, return receipt requested, (ii) upon receipt via email delivery, if received during the recipient’s normal business hours, or at the beginning of the recipient’s next business day after receipt if not received during the recipient’s normal business hours, (iii) one (1) day after sending by overnight service with a reputable overnight courier, or (iv) upon receipt when delivered in person. Notice to a Party must be sent to such Party’s delivery address or email address set forth on the signature page of the Order Form, except that a Party may change the address or email address to which notices will be sent by giving written notice of such change to the other Party in accordance with the provisions of this Section 26.

27. Assignment; Successors. Retailer shall not assign or transfer all or any part of this Agreement or its rights or obligations hereunder by operation of law or contract or otherwise, without Dealerware’s prior written consent. No consent will be required for any assignment or transfer by Dealerware. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

28. Third-Party Software. The Licensed Software may include or be bundled with Third-Party Software, the use of which is subject to additional terms and conditions provided by the licensors thereof. The limited warranties as expressly set out herein shall not apply to such Third-Party Software. For the applicable warranty, if any, refer to the applicable terms and conditions governing the use of such Third-Party Software.

29. Feedback. Each Party may from time to time provide to the other Party feedback or suggestions regarding the technology or Confidential Information of the other Party, which may include suggestions for, or feedback concerning, improvements, modifications, corrections, enhancements, derivatives or extensions, as well as branding ideas (“Feedback”). It is agreed that each Party receiving such Feedback shall have a perpetual, royalty free, exclusive, and transferable license to use such Feedback, without any obligation to compensate the Party providing the Feedback or their personnel. The Party receiving Feedback may develop technology, modifications, correction, enhancements, derivatives or extensions (“Improvements”), and further may also develop branding elements, based on such Feedback, and such Improvements and branding elements, and any intellectual property rights therein, as well as any related intellectual property registrations, shall be owned exclusively by the Party receiving the Feedback. The Party providing Feedback agrees to sign such further documents as may be required reasonably to confirm such ownership by the Party receiving Feedback.

30. No Third Party Benefit Intended. This Agreement is not enforceable by any third parties and, unless specifically provided for, is not intended to convey any rights or benefits to anyone who is not a party to this Agreement.

31. Injunctive Relief. Retailer acknowledges that the use, copying, disclosure or dissemination of the Licensed Product, the Access, the Dealerware Management System (or any related system, network, technology, software, hardware or product), the Additional Products, or the confidential or proprietary information embodied therein, in a manner not authorized by this Agreement would cause irreparable harm to Dealerware that could not be fully remedied by monetary damages. Retailer therefore agrees that Dealerware shall be entitled, in addition to any other remedies available to it at law or in equity, to such injunctive or other equitable relief as may be necessary or appropriate to prevent such unauthorized use, copying, disclosure or dissemination without the necessity of proving actual or irreparable harm and without requirement of posting a bond or other security in connection therewith.

32. Survival. The terms and conditions of this Agreement, which by reasonable or necessary implication are intended to survive termination or expiration of this Agreement, shall survive such termination or expiration, including Sections 5, 8, 10, 11, and 19-31 of these Ts&Cs.

33. Amendments; Entirety; Severability; Counterparts. This Agreement may only be amended or modified by a writing signed by both Parties. If any of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement. This Agreement and any amendment hereto may be executed in any number of counterparts. Signatures of the Parties transmitted by facsimile or by email transmission in pdf or other electronic format will be deemed to be their original signatures for all purposes.

[End of Terms and Conditions]