COMPETITIVE PERFORMANCE

AUTOFLYTE PLATFORM
TERMS & CONDITIONS

Updated January 19, 2021

YOU MUST ACCEPT THESE TERMS AND CONDITIONS OF USE BEFORE USING AN AUTOFLYTE PLATFORM. If you do not agree to these Terms, you should not use any portion of the Platform.

This Agreement covers the subscription to and use of the EDGE platform and any other AUTOFLYTE Platform provided by AUTOFLYTE. By accessing the EDGE Platform or other AUTOFLYTE Platform or clicking to “Accept” or “Agree” to these Terms & Conditions, the Customer accepts and agrees to be bound and abide by the Terms and Conditions of this Agreement. If Customer does not agree with these Terms and Conditions, Customer may not use EDGE Platform or other AUTOFLYTE Platform. The Terms and Conditions remain in full force and effect while you use the EDGE Platform, unless terminated earlier in accordance with the Terms and Conditions. The Company may revise and update these Terms and Conditions from time to time in its sole discretion. All changes are effective immediately when posted and apply to all access and use of the EDGE Platform or other AUTOFLYTE Platform thereafter. Customer’s continued use of the EDGE Platform or other AUTOFLYTE Platform following the posting of revised Terms and Conditions means that the Customer accepts and agrees to the changes. Customers should check periodically so that they are aware of any changes, as they are binding upon Customer.

If you register for a free trial of our Services, this Agreement also governs that free trial.

If the Customer is entering into this Agreement on behalf of a company or other legal entity, Customer represents that Customer has the authority to bind such entity and its affiliates to these Terms and Conditions, in which case the terms “Customer” shall refer to such entity and its affiliates. If Customer does not have such authority, or if Customer does not agree with these Terms and Conditions, Customer must not accept this agreement and may not use EDGE Platform.

Customer may not access the Services if Customer is Company’s direct competitor, except with Company’s prior written consent. In addition, Customer may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

These Customer Terms & Conditions, together with an Order Form (“Order Form”) and related Additional Terms, constitute the entire agreement between the parties (the “Agreement”).

Definitions.

Capitalized terms in the Agreement if not otherwise defined shall have the meaning set forth below:

“Deliverables” shall mean materials, tools, website access and other resources necessary for an End User to use, access and receive the Product(s).
“Company” or “AUTOFLYTE” shall mean AUTOFLYTE, LLC, a Tennessee limited liability company, with its principal place of business at 750 Old Hickory Boulevard, Building Two, Suite 180, Brentwood, TN 37027.
“Customer” shall mean any person or organization with whom the Company enters into an Agreement subject to these terms and conditions.
“End User” means an individual or entity to which the Product(s) and Services are made available for ordinary business.
“Error” means a problem with the Product(s) to the extent that it fails to comply with the applicable documentation in all material respects.
“Intellectual Property” shall mean any and all intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including all: (i) trade dress, trademark, and service mark rights and the goodwill and applications associated therewith; (ii) patents, patent applications and patent rights; (iii) rights associated with works or authorship including copyrights, copyright applications, copyright registrations, mask works rights, mask works applications, mask works registrations; (iv) rights relating to trade secrets and confidential information; (v) any rights analogous to those set forth in this section and any other proprietary rights relating to intellectual property; (vi) divisional, continuations, renewals, reissues and extension of the foregoing (as and to the extent applicable) now existing, hereafter filed, used or acquired, and whether registered or unregistered; (vii) domain names; and (viii) rights relating to derivative works.
“Product(s)” shall mean the Company products, software or services listed on the Order Form, as they may be changed from time to time upon mutual agreement of the parties.
“Services” shall mean the services provided by Company or other provider to the Customer or End User.
“Company Tools” shall mean Company’s pre-existing Intellectual Property Rights including its know how, design tools, methodologies, research, processes, commercially available “shrink wrap” Product(s) or fonts, or other means that may be used to conceive, design, assemble, manage or deliver the Deliverables, and improvements or modifications to such Company Tools.
“Upgrade” means any and all major and minor releases or other modifications to the service, including but not limited to maintenance fixes, modifications, new modules, enhancements and/or other additional features.
“Urban Science” shall mean Urban Science Applications, Inc., a Michigan corporation, with its principal place of business at 400 Renaissance Center, Suite 2900, Detroit, MI 48243.
“US” shall mean the United States of America.

GRANT OF LICENSE.

Subject to the terms and conditions of the Agreement, Company hereby grants to the Customer a non-exclusive, non-transferrable license, during the term of the Agreement, to use the Product(s) for Customer’s own business purposes.

Access.

During the term of the Agreement, provided that Customer has paid all fees due and owing and is in compliance with the terms of the Agreement, Customer will be able to access the Product(s). As necessary, the Product(s) may prompt Customer for its login and password information and, if correct, will provide Customer access to the Product(s).

Unauthorized Duplication or Use.

Customer shall use reasonable efforts to prevent its employees or other third parties from making authorized copies of any content on the Product(s) or improperly using the Product(s) in violation of the Agreement or any federal, state, or local law or regulation. If Customer discovers any such problems, it will promptly notify Company and take reasonable actions to resolve the problem as soon as possible.

Restrictions.

Customer is not permitted to sublicense its rights or to allow any of its customers or other third parties to use or access the Product(s). Customer agrees not to reverse engineer, disassemble, decompile or otherwise attempt to derive source code, trade secrets, programming methods or Confidential Information (as defined herein) from the Product(s). Customer may not use the Intellectual Property of Company without prior written approval. Customer is not permitted to promote, suggest, or otherwise publicize that it has access to or utilizes data provided by Urban Science. Customer is not permitted to access the Product(s) for Dealer views other than those for which the Customer is employed, owns, or has Agency. Customer is not permitted to access the Product(s) to use on behalf of Ford Motor Company or Lincoln Motor Company and/or any of their associated dealers or dealer groups.

SUPPORT AND ENHANCEMENTS.

Technical Support.

Customer will be entitled access to customer support personnel by email or online support platform from 9:00 AM – 5:00 PM CST, Monday through Friday, excluding major US holidays, for reporting issues of all types associated with the Product(s).

Modifications and Enhancements.

Company shall utilize commercially reasonable steps to furnish Upgrades for the Product(s) if, as and when publicly released by Company during the term of the Agreement.

INTELLECTUAL PROPERTY; OWNERSHIP.

Subject to the licenses and rights granted herein, Customer acknowledges and agrees that the Product(s) and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. No right, title, or interest in or to the Product(s) is transferred to Customer, and all rights not expressly granted are reserved by the Company.

TERMINATION.

Termination by Customer.

Customer may stop using the Products and Services consistent with the terms of their subscription agreement. Termination of Customer account does not relieve Customer of any obligation to pay any and all outstanding amounts and fees in full.

Termination by Company.

If Company terminates these Terms and Conditions for reasons other than for cause, then Company will make reasonable effort to notify Customer at least 30 days prior to termination.

Effect of Termination.

Upon termination of the Agreement for any reason, Company shall discontinue access, license and use of the Product(s), Contractor will terminate Services, and Customer shall cease using the Product(s). Each Party shall promptly return Confidential Information to the Delivering Party or destroy such. Customer shall pay in full any and all outstanding amounts and fees incurred prior to termination or amounts otherwise owing. Sections (and all included sub-sections) 4, 5, 7, 8, 9, 10.4, and 10.6 shall survive termination of the Agreement.

REPRESENTATIONS AND WARRANTIES.

The Parties each represent and warrant that:

It has the power and authority to enter into the Agreement and perform its obligations hereunder, and such performance will not breach any separate agreement by which it is bound;
It will comply with the laws, rules and regulations, as applicable, in connection with the conduct of its business, the use, license, and delivery of the Product(s); and
Customer separately and additionally represents and warrants that it will not use the Product(s) in any manner prohibited by the Agreement, other third-party agreements, or in any way violate or tamper with the security of the Product(s).

DISCLAIMER.

CUSTOMER’S USE OF THE PRODUCT(S), ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE COMPANY IS AT CUSTOMER’S OWN RISK. THE PRODUCT(S), ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PRODUCT(S) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE PRODUCT(S). WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE PRODUCT(S), ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PRODUCT(S) WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PRODUCT(S) OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PRODUCT(S) WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Customer understands that it is responsible for implementing sufficient procedures and checkpoints to satisfy its particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Company’s Product(s) for any reconstruction of any lost data.

CONFIDENTIALITY; SECURITY.

Confidential Information.

The parties understand and agree that in the performance of the Agreement each party may have access to private or confidential information of the other Party, including, but not limited to, trade secrets, marketing and business plans, technical information, client information, which is designated as confidential by the disclosing party in writing or which the receiving party knew or should have known was confidential, including all data and information obtained by Company that is related to, or provided by, Customer (collectively, “Confidential Information”).

Exceptions.

Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes a part of the public domain through no act or omission on the part of the receiving party, (ii) is disclosed to a third person by the disclosing party without restriction on such third person, (iii) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under or in connection with the Agreement, whether received prior to or after the date of the Agreement, (iv) is disclosed to the receiving party by a third person having no obligation of confidentiality with respect thereto, (v) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (vi) is released from confidential treatment by written consent of the disclosing party, or (vii) is required to be disclosed by law, provided that, to the extent practicable under the circumstances, the receiving party gives sufficient notice to the disclosing party in advance of such disclosure to enable the disclosing party to seek legal recourse to prevent such disclosure.

Obligations of Confidentiality.

As between the parties, all Confidential Information shall remain the exclusive property of the disclosing or owning party, as applicable and each party shall use commercially reasonable efforts to protect the Confidential Information of the other party, including ensuring that its employees and agents do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information.

LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE, OR INABILITY TO USE, THE PRODUCT(S), INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING SHALL NOT SERVE TO LIMIT, IN ANY WAY, (I) EITHER PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, AND (II) EITHER PARTY’S RIGHTS TO STATUTORY DAMAGES BASED ON INFRINGEMENT BY THE OTHER PARTY OF THE TRADEMARK OR COPYRIGHT RIGHTS OF THE AGGRIEVED PARTY. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR CONDITIONS OR THE PRODUCT(S) MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

TERM OF AGREEMENT.

These Terms and Conditions shall remain in full force and effect for as long as Customer retains the right to access the EDGE Platform. The provisions of these Terms and Conditions related to confidentiality and your representations and warranties, indemnification obligations and payment obligations will survive any termination of these Terms and Conditions until such obligations are fully performed.

USE OF INFORMATION.

Company collects and stores information from and about Customers of the EDGE Platform for the purposes of verifying association with a dealership. Company does not disclose such information to third parties without the consent of the Customer.

MISCELLANEOUS.

Notices.

All notices, consents, approvals, requests, claims, demands and other communications hereunder (collectively, “Notices”) shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by telecopy, by national overnight courier service (such as, Federal Express, DHL, Airborne, UPS), or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the addresses on the signature page of the Agreement (or at such other address for a party as shall be specified in a Notice given in accordance with this Section).

Severability.

The Agreement shall be enforced to the fullest extent permitted by applicable law. If any provision of the Agreement is held to be invalid, illegal or incapable of being enforced to any extent, then such provision shall be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision, and while all other terms and provisions of the Agreement shall nevertheless remain in full force and effect.

Assignment.

No Party shall assign or transfer the Agreement by operation of law or otherwise without the prior written consent of the other Party, except in connection with a change of control in which case such assignment shall not be required unless the change of control involves a direct competitor of the non-assigning Party. The Agreement shall be binding upon and inure to the benefit of the successors and the permitted assigns of the respective Parties hereto.

Governing Law.

All disputes under the Agreement shall be governed by the law of the State of Delaware, without reference to its conflicts of law provisions, and shall be resolved exclusively in the state or federal courts in Nashville, Davidson County, Tennessee. Each Party agrees to accept services of process by mail, consent to the jurisdiction of such courts, and hereby waive any jurisdictional or venue defenses otherwise available to it. The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

Waiver.

Failure or delay by any party to enforce compliance with any term or condition of the Agreement shall not constitute a waiver of such term or condition. All waivers hereunder shall be in writing and executed by an authorized representative on behalf of the party against whom such waiver is asserted. A waiver of a breach or a term under the Agreement shall not be deemed a waiver of any other or subsequent breach, or a waiver of any other term.

Headings.

Section headings are for the convenience of the parties and shall not affect the meaning, construction or interpretation of the text of the Agreement.

No Agency.

Nothing in the Agreement shall be construed to constitute or appoint either party as the agent or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever.

Controlling Language.

The Agreement is in English only, which language shall be controlling in all respects. All documents exchanged under the Agreement shall be in English.

Authority.

The person signing the Agreement on behalf of each Party below acknowledges that he or she is binding the entire company or entity and has the authority to do so.

AUTOFLYTE PLATFORM
TERMS & CONDITIONS

Updated January 19, 2021

YOU MUST ACCEPT THESE TERMS AND CONDITIONS OF USE BEFORE USING AN AUTOFLYTE PLATFORM. If you do not agree to these Terms, you should not use any portion of the Platform.

This Agreement covers the subscription to and use of the EDGE platform and any other AUTOFLYTE Platform provided by AUTOFLYTE. By accessing the EDGE Platform or other AUTOFLYTE Platform or clicking to “Accept” or “Agree” to these Terms & Conditions, the Customer accepts and agrees to be bound and abide by the Terms and Conditions of this Agreement. If Customer does not agree with these Terms and Conditions, Customer may not use EDGE Platform or other AUTOFLYTE Platform. The Terms and Conditions remain in full force and effect while you use the EDGE Platform, unless terminated earlier in accordance with the Terms and Conditions. The Company may revise and update these Terms and Conditions from time to time in its sole discretion. All changes are effective immediately when posted and apply to all access and use of the EDGE Platform or other AUTOFLYTE Platform thereafter. Customer’s continued use of the EDGE Platform or other AUTOFLYTE Platform following the posting of revised Terms and Conditions means that the Customer accepts and agrees to the changes. Customers should check periodically so that they are aware of any changes, as they are binding upon Customer.

If you register for a free trial of our Services, this Agreement also governs that free trial.

If the Customer is entering into this Agreement on behalf of a company or other legal entity, Customer represents that Customer has the authority to bind such entity and its affiliates to these Terms and Conditions, in which case the terms “Customer” shall refer to such entity and its affiliates. If Customer does not have such authority, or if Customer does not agree with these Terms and Conditions, Customer must not accept this agreement and may not use EDGE Platform.

Customer may not access the Services if Customer is Company’s direct competitor, except with Company’s prior written consent. In addition, Customer may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

These Customer Terms & Conditions, together with an Order Form (“Order Form”) and related Additional Terms, constitute the entire agreement between the parties (the “Agreement”).

Definitions.

Capitalized terms in the Agreement if not otherwise defined shall have the meaning set forth below:

“Deliverables” shall mean materials, tools, website access and other resources necessary for an End User to use, access and receive the Product(s).
“Company” or “AUTOFLYTE” shall mean AUTOFLYTE, LLC, a Tennessee limited liability company, with its principal place of business at 750 Old Hickory Boulevard, Building Two, Suite 180, Brentwood, TN 37027.
“Customer” shall mean any person or organization with whom the Company enters into an Agreement subject to these terms and conditions.
“End User” means an individual or entity to which the Product(s) and Services are made available for ordinary business.
“Error” means a problem with the Product(s) to the extent that it fails to comply with the applicable documentation in all material respects.
“Intellectual Property” shall mean any and all intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including all: (i) trade dress, trademark, and service mark rights and the goodwill and applications associated therewith; (ii) patents, patent applications and patent rights; (iii) rights associated with works or authorship including copyrights, copyright applications, copyright registrations, mask works rights, mask works applications, mask works registrations; (iv) rights relating to trade secrets and confidential information; (v) any rights analogous to those set forth in this section and any other proprietary rights relating to intellectual property; (vi) divisional, continuations, renewals, reissues and extension of the foregoing (as and to the extent applicable) now existing, hereafter filed, used or acquired, and whether registered or unregistered; (vii) domain names; and (viii) rights relating to derivative works.
“Product(s)” shall mean the Company products, software or services listed on the Order Form, as they may be changed from time to time upon mutual agreement of the parties.
“Services” shall mean the services provided by Company or other provider to the Customer or End User.
“Company Tools” shall mean Company’s pre-existing Intellectual Property Rights including its know how, design tools, methodologies, research, processes, commercially available “shrink wrap” Product(s) or fonts, or other means that may be used to conceive, design, assemble, manage or deliver the Deliverables, and improvements or modifications to such Company Tools.
“Upgrade” means any and all major and minor releases or other modifications to the service, including but not limited to maintenance fixes, modifications, new modules, enhancements and/or other additional features.
“Urban Science” shall mean Urban Science Applications, Inc., a Michigan corporation, with its principal place of business at 400 Renaissance Center, Suite 2900, Detroit, MI 48243.
“US” shall mean the United States of America.

GRANT OF LICENSE.

Subject to the terms and conditions of the Agreement, Company hereby grants to the Customer a non-exclusive, non-transferrable license, during the term of the Agreement, to use the Product(s) for Customer’s own business purposes.

Access.

During the term of the Agreement, provided that Customer has paid all fees due and owing and is in compliance with the terms of the Agreement, Customer will be able to access the Product(s). As necessary, the Product(s) may prompt Customer for its login and password information and, if correct, will provide Customer access to the Product(s).

Unauthorized Duplication or Use.

Customer shall use reasonable efforts to prevent its employees or other third parties from making authorized copies of any content on the Product(s) or improperly using the Product(s) in violation of the Agreement or any federal, state, or local law or regulation. If Customer discovers any such problems, it will promptly notify Company and take reasonable actions to resolve the problem as soon as possible.

Restrictions.

Customer is not permitted to sublicense its rights or to allow any of its customers or other third parties to use or access the Product(s). Customer agrees not to reverse engineer, disassemble, decompile or otherwise attempt to derive source code, trade secrets, programming methods or Confidential Information (as defined herein) from the Product(s). Customer may not use the Intellectual Property of Company without prior written approval. Customer is not permitted to promote, suggest, or otherwise publicize that it has access to or utilizes data provided by Urban Science. Customer is not permitted to access the Product(s) for Dealer views other than those for which the Customer is employed, owns, or has Agency. Customer is not permitted to access the Product(s) to use on behalf of Ford Motor Company or Lincoln Motor Company and/or any of their associated dealers or dealer groups.

SUPPORT AND ENHANCEMENTS.

Technical Support.

Customer will be entitled access to customer support personnel by email or online support platform from 9:00 AM – 5:00 PM CST, Monday through Friday, excluding major US holidays, for reporting issues of all types associated with the Product(s).

Modifications and Enhancements.

Company shall utilize commercially reasonable steps to furnish Upgrades for the Product(s) if, as and when publicly released by Company during the term of the Agreement.

INTELLECTUAL PROPERTY; OWNERSHIP.

Subject to the licenses and rights granted herein, Customer acknowledges and agrees that the Product(s) and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. No right, title, or interest in or to the Product(s) is transferred to Customer, and all rights not expressly granted are reserved by the Company.

TERMINATION.

Termination by Customer.

Customer may stop using the Products and Services consistent with the terms of their subscription agreement. Termination of Customer account does not relieve Customer of any obligation to pay any and all outstanding amounts and fees in full.

Termination by Company.

If Company terminates these Terms and Conditions for reasons other than for cause, then Company will make reasonable effort to notify Customer at least 30 days prior to termination.

Effect of Termination.

Upon termination of the Agreement for any reason, Company shall discontinue access, license and use of the Product(s), Contractor will terminate Services, and Customer shall cease using the Product(s). Each Party shall promptly return Confidential Information to the Delivering Party or destroy such. Customer shall pay in full any and all outstanding amounts and fees incurred prior to termination or amounts otherwise owing. Sections (and all included sub-sections) 4, 5, 7, 8, 9, 10.4, and 10.6 shall survive termination of the Agreement.

REPRESENTATIONS AND WARRANTIES.

The Parties each represent and warrant that:

It has the power and authority to enter into the Agreement and perform its obligations hereunder, and such performance will not breach any separate agreement by which it is bound;
It will comply with the laws, rules and regulations, as applicable, in connection with the conduct of its business, the use, license, and delivery of the Product(s); and
Customer separately and additionally represents and warrants that it will not use the Product(s) in any manner prohibited by the Agreement, other third-party agreements, or in any way violate or tamper with the security of the Product(s).

DISCLAIMER.

CUSTOMER’S USE OF THE PRODUCT(S), ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE COMPANY IS AT CUSTOMER’S OWN RISK. THE PRODUCT(S), ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PRODUCT(S) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE PRODUCT(S). WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE PRODUCT(S), ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PRODUCT(S) WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PRODUCT(S) OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PRODUCT(S) WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Customer understands that it is responsible for implementing sufficient procedures and checkpoints to satisfy its particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Company’s Product(s) for any reconstruction of any lost data.

CONFIDENTIALITY; SECURITY.

Confidential Information.

The parties understand and agree that in the performance of the Agreement each party may have access to private or confidential information of the other Party, including, but not limited to, trade secrets, marketing and business plans, technical information, client information, which is designated as confidential by the disclosing party in writing or which the receiving party knew or should have known was confidential, including all data and information obtained by Company that is related to, or provided by, Customer (collectively, “Confidential Information”).

Exceptions.

Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes a part of the public domain through no act or omission on the part of the receiving party, (ii) is disclosed to a third person by the disclosing party without restriction on such third person, (iii) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under or in connection with the Agreement, whether received prior to or after the date of the Agreement, (iv) is disclosed to the receiving party by a third person having no obligation of confidentiality with respect thereto, (v) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (vi) is released from confidential treatment by written consent of the disclosing party, or (vii) is required to be disclosed by law, provided that, to the extent practicable under the circumstances, the receiving party gives sufficient notice to the disclosing party in advance of such disclosure to enable the disclosing party to seek legal recourse to prevent such disclosure.

Obligations of Confidentiality.

As between the parties, all Confidential Information shall remain the exclusive property of the disclosing or owning party, as applicable and each party shall use commercially reasonable efforts to protect the Confidential Information of the other party, including ensuring that its employees and agents do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information.

LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE, OR INABILITY TO USE, THE PRODUCT(S), INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING SHALL NOT SERVE TO LIMIT, IN ANY WAY, (I) EITHER PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, AND (II) EITHER PARTY’S RIGHTS TO STATUTORY DAMAGES BASED ON INFRINGEMENT BY THE OTHER PARTY OF THE TRADEMARK OR COPYRIGHT RIGHTS OF THE AGGRIEVED PARTY. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR CONDITIONS OR THE PRODUCT(S) MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

TERM OF AGREEMENT.

These Terms and Conditions shall remain in full force and effect for as long as Customer retains the right to access the EDGE Platform. The provisions of these Terms and Conditions related to confidentiality and your representations and warranties, indemnification obligations and payment obligations will survive any termination of these Terms and Conditions until such obligations are fully performed.

USE OF INFORMATION.

Company collects and stores information from and about Customers of the EDGE Platform for the purposes of verifying association with a dealership. Company does not disclose such information to third parties without the consent of the Customer.

MISCELLANEOUS.

Notices.

All notices, consents, approvals, requests, claims, demands and other communications hereunder (collectively, “Notices”) shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by telecopy, by national overnight courier service (such as, Federal Express, DHL, Airborne, UPS), or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the addresses on the signature page of the Agreement (or at such other address for a party as shall be specified in a Notice given in accordance with this Section).

Severability.

The Agreement shall be enforced to the fullest extent permitted by applicable law. If any provision of the Agreement is held to be invalid, illegal or incapable of being enforced to any extent, then such provision shall be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision, and while all other terms and provisions of the Agreement shall nevertheless remain in full force and effect.

Assignment.

No Party shall assign or transfer the Agreement by operation of law or otherwise without the prior written consent of the other Party, except in connection with a change of control in which case such assignment shall not be required unless the change of control involves a direct competitor of the non-assigning Party. The Agreement shall be binding upon and inure to the benefit of the successors and the permitted assigns of the respective Parties hereto.

Governing Law.

All disputes under the Agreement shall be governed by the law of the State of Delaware, without reference to its conflicts of law provisions, and shall be resolved exclusively in the state or federal courts in Nashville, Davidson County, Tennessee. Each Party agrees to accept services of process by mail, consent to the jurisdiction of such courts, and hereby waive any jurisdictional or venue defenses otherwise available to it. The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

Waiver.

Failure or delay by any party to enforce compliance with any term or condition of the Agreement shall not constitute a waiver of such term or condition. All waivers hereunder shall be in writing and executed by an authorized representative on behalf of the party against whom such waiver is asserted. A waiver of a breach or a term under the Agreement shall not be deemed a waiver of any other or subsequent breach, or a waiver of any other term.

Headings.

Section headings are for the convenience of the parties and shall not affect the meaning, construction or interpretation of the text of the Agreement.

No Agency.

Nothing in the Agreement shall be construed to constitute or appoint either party as the agent or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever.

Controlling Language.

The Agreement is in English only, which language shall be controlling in all respects. All documents exchanged under the Agreement shall be in English.

Authority.

The person signing the Agreement on behalf of each Party below acknowledges that he or she is binding the entire company or entity and has the authority to do so.

Stingray Chevrolet

VIEW CASE STUDY

The partnership between our store, Stingray Chevrolet in Plant City, Florida, and AUTOFLYTE has been one of the easiest and most beneficial relationships I’ve ever had the pleasure to be involved with in my entire career. Unlike many vendors who simply offer you a service, a subpar (or average at best) implementation process, and then become ghosts or new names and faces you’ll never learn as soon as you’re up and running, AUTOFLYTE has built a great relationship with our store and the same team that convinced us to give them a try remains the team that I still work and communicate with almost weekly, several years later.

The digital display ads and SEM that AUTOFLYTE’s creative team comes up with are outstanding and the turn around time from when I send out the top model offers at the beginning of each month until the ad creatives are ready for approval and to go live is never longer than 2-3 days, which is paramount in the digital advertising world. We have even had our own local competitors spend so much time looking into our social media ads that they’ve accidentally ‘shared’ one of our ads on their page!

The EDGE tool that offers market insights is a personal favorite of mine. Through EDGE I am able to see detailed breakdowns of where our business is coming from and what our customers are buying. Better yet, I am able to drill down by model and zip code to see what our sales are and what (and how many) other dealers are selling within our own 50 mile radius. This tool has been instrumental in catering and adjusting our advertising efforts to increase our digital impact and ultimately gain more business.

Above all, the team that I am fortunate enough to work with from AUTOFLYTE is incredible. They’re always available to help me with anything I need, even if it isn’t specific to the services they provide. They are incredibly proactive and reach out to me any time a new development or idea arises so that we can make swift changes when necessary or, at the very least, have a conversation about it. I cannot say enough good things about Brenda Davis, Steve Leh, and Jeremy Anderson. They’ve made our experience working with AUTOFLYTE such a positive partnership that I cannot imagine doing what my job demands without them.

Our overall advertising spend has been significantly reduced since we first partnered with AUTOFLYTE and our new and used sales are at a record high. We have dominated our market for over a year, increasing the gap between our store and the next best performing store more every month!

Thank you,
Caitlin Hurley

Stingray Chevrolet | Business Development Director

MASTER SUBSCRIPTION AGREEMENT

THIS MASTER SUBSCRIPTION AGREEMENT (“SA”), dated as of _____________(the “Effective Date”), is by and between AUTOFLYTE, LLC (“AUTOFLYTE”) and the enterprise named in the signature block below (“Group”).

Insight Tool

AUTOFLYTE’s proprietary EDGE insight tool (“Insight Tool”) aggregates daily new vehicle sales records from the majority of automotive brands in the U.S. in a mechanism that provides daily marketing insights to automotive dealers.
Group wishes to enter into an agreement to enable it to deploy the Insight Tool (each instance of deployment of the Insight Tool shall be deemed a “Usage”) by and among certain of its dealerships (each, a “Dealer”), on a per-Dealer basis, subject to the terms and conditions herein.
Group wishes to facilitate deployment and utilization of the Insight Tool by providing access to certain of Group’s consultants and agents (collectively, the “Agents”), subject to the terms and conditions herein.
As between AUTOFLYTE and Group (including any applicable Agents), the Insight Tool shall be deemed the sole and exclusive property of AUTOFLYTE. AUTOFLYTE hereby grants to Group (and any applicable Agents) a limited, personal, nonexclusive, non-transferable license (with no right of resale) under AUTOFLYTE’s intellectual property rights to use the Insight Tool solely for the uses permitted in this SA.
Group (and any applicable Agents) may only use the Insight Tool for the internal identification and improvement of operations and processes with the intent of selling more new vehicles and for no other purpose. Except as permitted under this SA, Group (and any applicable Agents) is strictly prohibited from reproducing, copying, translating, publishing, or using the Insight Tool for the benefit of, or otherwise transferring the Insight Tool to, any third party. For the avoidance of doubt, no Group or Agent shall utilize or grant access to any third-party.
Group, on behalf of itself and any applicable Agents, acknowledges that all or part of the services provided by AUTOFLYTE as described herein incorporate pre-existing and independently developed materials and information generally used or useable by AUTOFLYTE in connection with the providing of products and services by AUTOFLYTE to other customers, including, without limitation, all data logic, proprietary methodologies, raw data and trade secrets contained therein, and AUTOFLYTE retains all ownership rights in all items, customizations, enhancements and configurations to the preexisting work made in connection with this SA, including, without limitation, ownership of all copyrights, patents, and all intellectual proprietary rights therein.

Pricing

Each of Group’s Dealers which are receiving an instance and Usage of the Insight Tool listed in “Appendix A” shall pay AUTOFLYTE an amount equal to Six Hundred and Ninety Five Dollars ($695.00) per month during the Term of this SA (the “Monthly Fee”). The Monthly Fee shall be due and payable on the last day of the month preceding the month to which such Monthly Fee applies. The Monthly Fee is exclusive of all applicable taxes. Any tax that may apply to the services rendered will be the sole and exclusive responsibility of Group.
Each Monthly Fee shall be paid immediately via credit card:
Group acknowledges and agrees that the Monthly Fee does not include and may be adjusted for any additional products acquired by AUTOFLYTE from third parties; provided, the Monthly Fee does include any upgrades or new versions of the Insight Tool as deployed by AUTOFLYTE.

Term; Termination

The term of this SA shall commence on the Effective Date and shall expire one (1) year after the start of the service (the “Initial Term”) Thereafter, this Agreement will automatically renew for successive one (1) year renewal terms (each an “Additional Term”), unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the then current term. For purposes of this SA, the term “Term” shall include the Initial Term along with any Additional Term (if applicable).
If either party commits a material breach, the other party by written notice may terminate the SA. Such termination notice shall take effect on the tenth (10th) day (in the case of failure to make timely payments) or thirtieth (30th) day (in all other cases) following the breaching party’s receipt of the notice unless the breaching party cures its breach within the applicable period, except that if the breach is not capable of cure within such period, termination notice shall take effect immediately upon receipt by the breaching party.
In the event AUTOFLYTE fails at any time to renew or maintain its license agreement with Urban Science Applications, Inc., a Michigan corporation (“USAI”), Group may terminate the SA upon thirty (30) days written notice.
Sections 4, 6, 7 and 8 shall survive the expiration or termination of the SA.

Confidentiality.

The term “Confidential Information” shall mean all confidential and proprietary information and trade secrets (whether or not in writing and whether or not patentable or copyrightable), owned or possessed by either party (the “Disclosing Party”) and disclosed by such party to the other party (the “Receiving Party”) prior to the expiration or termination of the SA, including without limitation any data processes, computer or software products or programs, data, know-how, marketing or business plans, analytical methods and procedures, hardware design, technology, financial information, manufacturing information and procedures; provided, that Confidential Information shall not include information supplied to the Receiving Party that (i) is or becomes available to the public other than as a result of disclosure by the Receiving Party or its employees in violation of this SA; (ii) was known to the Receiving Party prior to disclosure pursuant to the SA, as shown by written record, and was not otherwise restricted by contract or law; (iii) becomes available to the Receiving Party, as supported by documentary evidence, on a non-confidential basis from a third party not restricted by contract or law regarding such information; (iv) is disclosed with the prior written consent of the Disclosing Party. The Disclosing Party has the right to inspect the Receiving Party’s records to determine the source of any Confidential Information claimed to be within any of the above exceptions. If the Receiving Party is directed to disclose Confidential Information pursuant to a judicial order or decree, it shall first use reasonable efforts to provide the Disclosing Party with advance notice to permit the Disclosing Party to seek a protective order and otherwise restrict the disclosure of Confidential Information.
The Receiving Party shall use the Disclosing Party’s Confidential Information solely for the purposes contemplated in the SA and shall use the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses for its own confidential or like information. The Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any other party or use the Disclosing Party’s Confidential Information other than as required hereunder; provided, however, that such Confidential Information may be disclosed to or used by employees, consultants or agents of the Receiving Party who need to know or use the same for the purposes contemplated by the SA and who are subject to a contractual obligation not to disclose any of the Confidential Information obtained in the course of its relationship with the Receiving Party.
Except as otherwise provided herein, upon the written request of the Disclosing Party during the term of this SA or any time thereafter, the Receiving Party shall return to the Disclosing Party all electronic media and all written material in any form whatsoever which contains the Disclosing Party’s Confidential Information, including all internal notes, memoranda, and all copies, extracts or other reproductions thereof.
The Receiving Party shall promptly notify the Disclosing Party of any breach of these confidentiality provisions committed by any person to whom the Receiving Party has disclosed Confidential Information, shall cooperate with the Disclosing Party in its efforts to remedy the breach, and shall indemnify the Disclosing Party without limitation against all costs, expenses, and damages (including, without limitation, reasonable attorneys’ fees) attributable to any such breach.
The parties agree that remedies at law may be inadequate to protect against a breach of the provisions of this section and both parties hereby agree to the grant of injunctive relief or a restraining order in favor of the other party without proof of actual damages for any breach of this section.

Attribution. Group, Dealer or any applicable Agent, shall not display any attribution, indications of ownership, or other notices, or otherwise indicate or reference in any way that such Group, Dealer or Agent is utilizing any AUTOFLYTE products or materials at any time, and Group, Dealer or any applicable Agent, shall not reference the Insight Tool to third parties or the general public, including but not limited to any presentations, press releases, or marketing materials.
Warranties; Remedies. EXCEPT AS EXPRESSLY SET OUT IN THE SA, THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND AUTOFLYTE DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, CONDITION OR OTHER TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AUTOFLYTE DISCLAIMS ALL IMPLIED PROMISES WITH RESPECT TO THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED PROMISES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUIET ENJOYMENT, AND ANY PROMISES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. AUTOFLYTE WILL NOT BE HELD RESPONSIBLE FOR: (A) ANY ERRORS OR INACCURACIES IN ANY CUSTOMER MATERIAL(S) OR SITE(S) CONTENT; (B) SERVICE INTERRUPTIONS DUE TO FACTORS REPRESENTING INHERENT RISKS ASSOCIATED WITH THE USE OF ELECTRONIC COMMUNICATIONS, INCLUDING NETWORK INTERRUPTIONS (INCLUDING THE INTERNET), COMMUNICATIONS FAILURES, THIRD PARTY SERVER DOWNTIME, POWER OUTAGES OR SYSTEM FAILURES; OR (C) ANY UNAUTHORIZED ACCESS TO, USE OF, ALTERATION OF OR DELETION, DESTRUCTION, DAMAGE OR LOSS OF DEALER’S (OR ANY APPLICABLE AGENT’S) OR ANY THIRD PARTY USER(S)’ MATERIAL(S), SITE(S) CONTENT OR OTHER MATERIALS, DATA, IMAGES, SOUNDS, TEXT INFORMATION OR CONTENT. AUTOFLYTE MAY DISCONTINUE ANY ASPECT OF THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO, AT ANY TIME. AUTOFLYTE ALSO DOES NOT IN ANY WAY MAKE ANY PROMISES THAT THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO WILL BE PROVIDED IN AN UNINTERRUPTED MANNER, ERROR-FREE OR FREE FROM HARMFUL COMPONENTS. IN ADDITION, AUTOFLYTE MAKES NO PROMISES THAT THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR RESULT FROM USING THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO. DEALER (ON BEHALF OF ITSELF AND ANY AGENT) ACKNOWLEDGES AND AGREES THAT NEITHER DEALER, NOR ANY AGENT, NOR ITS THIRD PARTY USER(S) HAVE ENTERED INTO THE SA IN RELIANCE ON ANY PROMISES (WHETHER INNOCENT OR NEGLIGENT). ANY WRITTEN OR ORAL REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THE SA OR SIGNED BY THE PRESIDENT OF AUTOFLYTE SHALL NOT BE ENFORCEABLE BY DEALER.
Indemnity.

Indemnification of Group. In the event any third party claims that Group’s (or any applicable Agent’s) use of the Insight Tool for its intended purpose infringes the copyright, patent or other intellectual property rights of another, AUTOFLYTE shall indemnify Group, or any applicable Agent, from all costs, expenses, claims, damages, and fees (including reasonable attorneys’ fees) incurred by Group, or any applicable Agent, in defense against such claim, provided that AUTOFLYTE shall control the defense and settlement of such claim and shall receive the full cooperation and assistance of Group, or any applicable Agent, and provided that AUTOFLYTE’s obligation under this section shall be void as to any changes to the Insight Tool which are not performed by, or at the direction of, AUTOFLYTE.
Indemnification of AUTOFLYTE. Group, on behalf of itself and any applicable Agent, agrees that, at its expense, it shall defend AUTOFLYTE against any suit or proceeding brought against AUTOFLYTE insofar as such suit or proceeding is based on a claim that loss or injury was caused by the use, application, or interpretation of any reports, third party data, orders or other information generated by or resulting from the Insight Tool, or their use by Group or any applicable Agent, or any employees or agents thereof or any breach of this any representation, warranty or covenant of Group under the SA. Group, on behalf of itself and any applicable Agent, also agrees to indemnify and hold AUTOFLYTE harmless from any loss, liability or damage sustained by AUTOFLYTE as a result of and to the extent based on any such claim, including, but not limited to, AUTOFLYTE’s cost of litigation and reasonable attorneys’ fees, and shall reimburse AUTOFLYTE for the time of AUTOFLYTE’s employees to the extent they are requested or required to participate in matters related to such claim, suit or proceeding, whether by subpoena or by voluntary appearance. Such defense and/or indemnification shall not extend to damages or causes of action arising from the gross negligent acts or willful misconduct of AUTOFLYTE, its employees or agents.

Limitation of Liability.

IN NO EVENT SHALL AUTOFLYTE, ITS DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE TO DEALER, ANY APPLICABLE AGENT, OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) ARISING OUT OF THE SA OR THE SERVICES, EVEN IF DEALER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AUTOFLYTE’S LIABILITY EXCEED THE APPLICABLE FEES ACTUALLY PAID BY DEALER, OR ANY APPLICABLE AGENT. THEREFOR. THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR ANY LIMITED REMEDY.
AUTOFLYTE DOES NOT REPRESENT, WARRANT OR OTHERWISE ASSURE THE ACCURACY, LEGALITY, CORRECTNESS OR COMPLETENESS OF ANY THIRD PARTY DATA OR LISTS PROVIDED TO DEALER OR ANY APPLICABLE AGENT, AND AUTOFLYTE SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY CAUSED IN WHOLE OR IN PART BY SUCH DATA OR LISTS.
DEALER, ON BEHALF OF ITSELF AND ANY APPLICABLE AGENT, AGREES AND ACKNOWLEDGES THAT THE DISCLAIMER OF WARRANTY AND THE LIMITATION OF LIABILITY IN THIS SECTION ARE ESSENTIAL PARTS OF THE SA, WITHOUT WHICH AUTOFLYTE WOULD NOT ENTER INTO THE SA. DEALER, ON BEHALF OF ITSELF AND ANY APPLICABLE AGENT, ACKNOWLEDGES THAT THE LIMITATION OF LIABILITY CONTAINED IN THIS SECTION SETS FORTH AN ALLOCATION OF RISK REFLECTED IN THE FEES AND PAYMENTS DUE HEREUNDER.

Independent Status of Parties. Nothing contained in the SA, nor in the relationship created thereby, shall be interpreted to evidence a joint venture, partnership or principal-agent relationship between AUTOFLYTE and Group (or any applicable Agent). Neither party shall have any right or authority to act on behalf of, or incur any obligation for, the other party.
Miscellaneous Provisions.
Assignment. Neither party may assign its rights or obligations or subcontract any portion of its performance without the other party’s prior written consent; provided, however that AUTOFLYTE may subcontract all or a portion of the services to any of its affiliate, parent or subsidiary companies.
Sole Agreement; Amendments; Governing Law. The SA constitutes the entire agreement of the parties, and supersedes all prior discussions, negotiations, agreements and understandings between the parties with respect to the subject matter hereof. No amendment to the SA shall be effective unless it is in writing signed by both parties. The SA shall be governed by and construed in accordance with the laws of the State of Tennessee without regard to conflict of law principles. With respect to any action arising or stemming out of the SA, the parties submit to the jurisdiction of the federal or state courts sitting in Nashville, Davidson County, Tennessee and agree that venue shall be proper in such courts and waive any claims of forum non conveniens in respect of any claim or action brought in such courts.
Waiver; Severability. No waiver of any breach of any provision by either party or the failure of either party to insist on the exact performance of any provision shall constitute a waiver of any prior, concurrent or subsequent breach of performance of the same or any other provisions hereof, and no waiver shall be effective unless made in writing. If any of the provisions shall be deemed to be or become invalid or unenforceable under applicable law, the provision shall be deemed removed. Such removal, however, shall not invalidate or render unenforceable the remaining provisions. Instead, the entire SA shall be construed as though it never contained the particular invalid or unenforceable provision(s), and the rights and obligations of the parties shall be construed and enforced accord.

MASTER SUBSCRIPTION AGREEMENT

THIS MASTER SUBSCRIPTION AGREEMENT (“SA”), dated as of the date of purchase (the “Effective Date”), is by and between AUTOFLYTE, LLC (“AUTOFLYTE”) and the enterprise named in the signature block below (“Group”).

Insight Tool

AUTOFLYTE’s proprietary EDGE insight tool (“Insight Tool”) aggregates daily new vehicle sales records from the majority of automotive brands in the U.S. in a mechanism that provides daily marketing insights to automotive dealers.
Group wishes to enter into an agreement to enable it to deploy the Insight Tool (each instance of deployment of the Insight Tool shall be deemed a “Usage”) by and among certain of its dealerships (each, a “Dealer”), on a per-Dealer basis, subject to the terms and conditions herein.
Group wishes to facilitate deployment and utilization of the Insight Tool by providing access to certain of Group’s consultants and agents (collectively, the “Agents”), subject to the terms and conditions herein.
As between AUTOFLYTE and Group (including any applicable Agents), the Insight Tool shall be deemed the sole and exclusive property of AUTOFLYTE. AUTOFLYTE hereby grants to Group (and any applicable Agents) a limited, personal, nonexclusive, non-transferable license (with no right of resale) under AUTOFLYTE’s intellectual property rights to use the Insight Tool solely for the uses permitted in this SA.
Group (and any applicable Agents) may only use the Insight Tool for the internal identification and improvement of operations and processes with the intent of selling more new vehicles and for no other purpose. Except as permitted under this SA, Group (and any applicable Agents) is strictly prohibited from reproducing, copying, translating, publishing, or using the Insight Tool for the benefit of, or otherwise transferring the Insight Tool to, any third party. For the avoidance of doubt, no Group or Agent shall utilize or grant access to any third-party.
Group, on behalf of itself and any applicable Agents, acknowledges that all or part of the services provided by AUTOFLYTE as described herein incorporate pre-existing and independently developed materials and information generally used or useable by AUTOFLYTE in connection with the providing of products and services by AUTOFLYTE to other customers, including, without limitation, all data logic, proprietary methodologies, raw data and trade secrets contained therein, and AUTOFLYTE retains all ownership rights in all items, customizations, enhancements and configurations to the preexisting work made in connection with this SA, including, without limitation, ownership of all copyrights, patents, and all intellectual proprietary rights therein.

Pricing

Each of Group’s Dealers which are receiving an instance and Usage of the Insight Tool listed in “Appendix A” shall pay AUTOFLYTE an amount equal to Five Hundred and Ninety Five Dollars ($595.00) per month during the Term of this SA (the “Monthly Fee”). The Monthly Fee shall be due and payable on the last day of the month preceding the month to which such Monthly Fee applies. The Monthly Fee is exclusive of all applicable taxes. Any tax that may apply to the services rendered will be the sole and exclusive responsibility of Group.
Each Monthly Fee shall be paid immediately via credit card:
Group acknowledges and agrees that the Monthly Fee does not include and may be adjusted for any additional products acquired by AUTOFLYTE from third parties; provided, the Monthly Fee does include any upgrades or new versions of the Insight Tool as deployed by AUTOFLYTE.

Term; Termination

The term of this SA shall commence on the Effective Date and shall expire one (1) year after the start of the service (the “Initial Term”) Thereafter, this Agreement will automatically renew for successive one (1) year renewal terms (each an “Additional Term”), unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the then current term. For purposes of this SA, the term “Term” shall include the Initial Term along with any Additional Term (if applicable).
If either party commits a material breach, the other party by written notice may terminate the SA. Such termination notice shall take effect on the tenth (10th) day (in the case of failure to make timely payments) or thirtieth (30th) day (in all other cases) following the breaching party’s receipt of the notice unless the breaching party cures its breach within the applicable period, except that if the breach is not capable of cure within such period, termination notice shall take effect immediately upon receipt by the breaching party.
In the event AUTOFLYTE fails at any time to renew or maintain its license agreement with Urban Science Applications, Inc., a Michigan corporation (“USAI”), Group may terminate the SA upon thirty (30) days written notice.
Sections 4, 6, 7 and 8 shall survive the expiration or termination of the SA.

Confidentiality.

The term “Confidential Information” shall mean all confidential and proprietary information and trade secrets (whether or not in writing and whether or not patentable or copyrightable), owned or possessed by either party (the “Disclosing Party”) and disclosed by such party to the other party (the “Receiving Party”) prior to the expiration or termination of the SA, including without limitation any data processes, computer or software products or programs, data, know-how, marketing or business plans, analytical methods and procedures, hardware design, technology, financial information, manufacturing information and procedures; provided, that Confidential Information shall not include information supplied to the Receiving Party that (i) is or becomes available to the public other than as a result of disclosure by the Receiving Party or its employees in violation of this SA; (ii) was known to the Receiving Party prior to disclosure pursuant to the SA, as shown by written record, and was not otherwise restricted by contract or law; (iii) becomes available to the Receiving Party, as supported by documentary evidence, on a non-confidential basis from a third party not restricted by contract or law regarding such information; (iv) is disclosed with the prior written consent of the Disclosing Party. The Disclosing Party has the right to inspect the Receiving Party’s records to determine the source of any Confidential Information claimed to be within any of the above exceptions. If the Receiving Party is directed to disclose Confidential Information pursuant to a judicial order or decree, it shall first use reasonable efforts to provide the Disclosing Party with advance notice to permit the Disclosing Party to seek a protective order and otherwise restrict the disclosure of Confidential Information.
The Receiving Party shall use the Disclosing Party’s Confidential Information solely for the purposes contemplated in the SA and shall use the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses for its own confidential or like information. The Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any other party or use the Disclosing Party’s Confidential Information other than as required hereunder; provided, however, that such Confidential Information may be disclosed to or used by employees, consultants or agents of the Receiving Party who need to know or use the same for the purposes contemplated by the SA and who are subject to a contractual obligation not to disclose any of the Confidential Information obtained in the course of its relationship with the Receiving Party.
Except as otherwise provided herein, upon the written request of the Disclosing Party during the term of this SA or any time thereafter, the Receiving Party shall return to the Disclosing Party all electronic media and all written material in any form whatsoever which contains the Disclosing Party’s Confidential Information, including all internal notes, memoranda, and all copies, extracts or other reproductions thereof.
The Receiving Party shall promptly notify the Disclosing Party of any breach of these confidentiality provisions committed by any person to whom the Receiving Party has disclosed Confidential Information, shall cooperate with the Disclosing Party in its efforts to remedy the breach, and shall indemnify the Disclosing Party without limitation against all costs, expenses, and damages (including, without limitation, reasonable attorneys’ fees) attributable to any such breach.
The parties agree that remedies at law may be inadequate to protect against a breach of the provisions of this section and both parties hereby agree to the grant of injunctive relief or a restraining order in favor of the other party without proof of actual damages for any breach of this section.

Attribution. Group, Dealer or any applicable Agent, shall not display any attribution, indications of ownership, or other notices, or otherwise indicate or reference in any way that such Group, Dealer or Agent is utilizing any AUTOFLYTE products or materials at any time, and Group, Dealer or any applicable Agent, shall not reference the Insight Tool to third parties or the general public, including but not limited to any presentations, press releases, or marketing materials.
Warranties; Remedies. EXCEPT AS EXPRESSLY SET OUT IN THE SA, THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND AUTOFLYTE DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, CONDITION OR OTHER TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AUTOFLYTE DISCLAIMS ALL IMPLIED PROMISES WITH RESPECT TO THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED PROMISES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUIET ENJOYMENT, AND ANY PROMISES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. AUTOFLYTE WILL NOT BE HELD RESPONSIBLE FOR: (A) ANY ERRORS OR INACCURACIES IN ANY CUSTOMER MATERIAL(S) OR SITE(S) CONTENT; (B) SERVICE INTERRUPTIONS DUE TO FACTORS REPRESENTING INHERENT RISKS ASSOCIATED WITH THE USE OF ELECTRONIC COMMUNICATIONS, INCLUDING NETWORK INTERRUPTIONS (INCLUDING THE INTERNET), COMMUNICATIONS FAILURES, THIRD PARTY SERVER DOWNTIME, POWER OUTAGES OR SYSTEM FAILURES; OR (C) ANY UNAUTHORIZED ACCESS TO, USE OF, ALTERATION OF OR DELETION, DESTRUCTION, DAMAGE OR LOSS OF DEALER’S (OR ANY APPLICABLE AGENT’S) OR ANY THIRD PARTY USER(S)’ MATERIAL(S), SITE(S) CONTENT OR OTHER MATERIALS, DATA, IMAGES, SOUNDS, TEXT INFORMATION OR CONTENT. AUTOFLYTE MAY DISCONTINUE ANY ASPECT OF THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO, AT ANY TIME. AUTOFLYTE ALSO DOES NOT IN ANY WAY MAKE ANY PROMISES THAT THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO WILL BE PROVIDED IN AN UNINTERRUPTED MANNER, ERROR-FREE OR FREE FROM HARMFUL COMPONENTS. IN ADDITION, AUTOFLYTE MAKES NO PROMISES THAT THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR RESULT FROM USING THE INSIGHT TOOL, AND ANY SERVICES RELATED THERETO. DEALER (ON BEHALF OF ITSELF AND ANY AGENT) ACKNOWLEDGES AND AGREES THAT NEITHER DEALER, NOR ANY AGENT, NOR ITS THIRD PARTY USER(S) HAVE ENTERED INTO THE SA IN RELIANCE ON ANY PROMISES (WHETHER INNOCENT OR NEGLIGENT). ANY WRITTEN OR ORAL REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THE SA OR SIGNED BY THE PRESIDENT OF AUTOFLYTE SHALL NOT BE ENFORCEABLE BY DEALER.
Indemnity.

Indemnification of Group. In the event any third party claims that Group’s (or any applicable Agent’s) use of the Insight Tool for its intended purpose infringes the copyright, patent or other intellectual property rights of another, AUTOFLYTE shall indemnify Group, or any applicable Agent, from all costs, expenses, claims, damages, and fees (including reasonable attorneys’ fees) incurred by Group, or any applicable Agent, in defense against such claim, provided that AUTOFLYTE shall control the defense and settlement of such claim and shall receive the full cooperation and assistance of Group, or any applicable Agent, and provided that AUTOFLYTE’s obligation under this section shall be void as to any changes to the Insight Tool which are not performed by, or at the direction of, AUTOFLYTE.
Indemnification of AUTOFLYTE. Group, on behalf of itself and any applicable Agent, agrees that, at its expense, it shall defend AUTOFLYTE against any suit or proceeding brought against AUTOFLYTE insofar as such suit or proceeding is based on a claim that loss or injury was caused by the use, application, or interpretation of any reports, third party data, orders or other information generated by or resulting from the Insight Tool, or their use by Group or any applicable Agent, or any employees or agents thereof or any breach of this any representation, warranty or covenant of Group under the SA. Group, on behalf of itself and any applicable Agent, also agrees to indemnify and hold AUTOFLYTE harmless from any loss, liability or damage sustained by AUTOFLYTE as a result of and to the extent based on any such claim, including, but not limited to, AUTOFLYTE’s cost of litigation and reasonable attorneys’ fees, and shall reimburse AUTOFLYTE for the time of AUTOFLYTE’s employees to the extent they are requested or required to participate in matters related to such claim, suit or proceeding, whether by subpoena or by voluntary appearance. Such defense and/or indemnification shall not extend to damages or causes of action arising from the gross negligent acts or willful misconduct of AUTOFLYTE, its employees or agents.

Limitation of Liability.

IN NO EVENT SHALL AUTOFLYTE, ITS DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE TO DEALER, ANY APPLICABLE AGENT, OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) ARISING OUT OF THE SA OR THE SERVICES, EVEN IF DEALER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AUTOFLYTE’S LIABILITY EXCEED THE APPLICABLE FEES ACTUALLY PAID BY DEALER, OR ANY APPLICABLE AGENT. THEREFOR. THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR ANY LIMITED REMEDY.
AUTOFLYTE DOES NOT REPRESENT, WARRANT OR OTHERWISE ASSURE THE ACCURACY, LEGALITY, CORRECTNESS OR COMPLETENESS OF ANY THIRD PARTY DATA OR LISTS PROVIDED TO DEALER OR ANY APPLICABLE AGENT, AND AUTOFLYTE SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY CAUSED IN WHOLE OR IN PART BY SUCH DATA OR LISTS.
DEALER, ON BEHALF OF ITSELF AND ANY APPLICABLE AGENT, AGREES AND ACKNOWLEDGES THAT THE DISCLAIMER OF WARRANTY AND THE LIMITATION OF LIABILITY IN THIS SECTION ARE ESSENTIAL PARTS OF THE SA, WITHOUT WHICH AUTOFLYTE WOULD NOT ENTER INTO THE SA. DEALER, ON BEHALF OF ITSELF AND ANY APPLICABLE AGENT, ACKNOWLEDGES THAT THE LIMITATION OF LIABILITY CONTAINED IN THIS SECTION SETS FORTH AN ALLOCATION OF RISK REFLECTED IN THE FEES AND PAYMENTS DUE HEREUNDER.

Independent Status of Parties. Nothing contained in the SA, nor in the relationship created thereby, shall be interpreted to evidence a joint venture, partnership or principal-agent relationship between AUTOFLYTE and Group (or any applicable Agent). Neither party shall have any right or authority to act on behalf of, or incur any obligation for, the other party.
Miscellaneous Provisions.
Assignment. Neither party may assign its rights or obligations or subcontract any portion of its performance without the other party’s prior written consent; provided, however that AUTOFLYTE may subcontract all or a portion of the services to any of its affiliate, parent or subsidiary companies.
Sole Agreement; Amendments; Governing Law. The SA constitutes the entire agreement of the parties, and supersedes all prior discussions, negotiations, agreements and understandings between the parties with respect to the subject matter hereof. No amendment to the SA shall be effective unless it is in writing signed by both parties. The SA shall be governed by and construed in accordance with the laws of the State of Tennessee without regard to conflict of law principles. With respect to any action arising or stemming out of the SA, the parties submit to the jurisdiction of the federal or state courts sitting in Nashville, Davidson County, Tennessee and agree that venue shall be proper in such courts and waive any claims of forum non conveniens in respect of any claim or action brought in such courts.
Waiver; Severability. No waiver of any breach of any provision by either party or the failure of either party to insist on the exact performance of any provision shall constitute a waiver of any prior, concurrent or subsequent breach of performance of the same or any other provisions hereof, and no waiver shall be effective unless made in writing. If any of the provisions shall be deemed to be or become invalid or unenforceable under applicable law, the provision shall be deemed removed. Such removal, however, shall not invalidate or render unenforceable the remaining provisions. Instead, the entire SA shall be construed as though it never contained the particular invalid or unenforceable provision(s), and the rights and obligations of the parties shall be construed and enforced accord

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