AMSI Terms and Conditions

1. DEFINITIONS.

 

As used in these Terms and Conditions, the following capitalized terms and phrases shall have the definitions set forth below:
 
“Actual Start Date” means the first date that the Products will be provided. For the avoidance of doubt, the Actual Start Date with respect to Paid Media-Based Products will be the first date that Ads begin running with one or more Publishers. The Company will spend the authorized monthly budget between the Actual Start Date and the end of the calendar month.
 
“Ads” shall refer to one or more advertisements submitted by Company as part of Paid Media-Based Products.
 
“Advertising” means the placing of Ads by Company with Publishers on behalf of Customer.
 
“Agreement” means, collectively, these Terms and Conditions (as may be modified as set forth above) and all Order Forms.
 
“Claims” means all claims, actions, causes of action, suits, debts, demands, damages, judgments, costs, expenses, liabilities, duties, bonds, losses, exposures any kind whatsoever, whether direct or indirect, known or unknown, matured or unmatured, and whether based on any Laws.
 
“CRM” shall refer to the Customer’s customer relationship management data and systems.
 
“Customer Products & Services” shall refer to the various business categories that Customer has selected to promote through the Products.
 
“Customer Data” means Confidential Information as defined in the NDA, Dealership Data and Personal Information, and Agreement Data as detailed in Section 10.
 
“DMS” shall refer to the Customer’s Dealer Management System, including any DMS data.
 
“Fees” means, collectively, Subscription Fees and any Set-Up Fees, and any other fees provided for in any Order Form
 
“Laws” means any applicable local, state, Federal, international, or non-U.S. law, statute, ordinance, regulation, rule, order, judgment, or opinion by any government, governmental agency, quasi-governmental agency, or any private body with any rulemaking authority granted by any government, including laws intended to protect consumer data, customer information, personal data and information (collectively, “Privacy Data”), including without limitation under the Gramm-Leach-Bliley Act (as well as its implementing regulations and Privacy Rule) (“GLBA”), the Fair Credit Reporting Act, the Federal Trade Commission Act, the Health Insurance Portability and Accountability Act of 1996, the CAN-SPAM Act, the privacy laws of any state, Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”), the Data Protection Act of 2018, and the General Data Protection Regulation.
 
“L2T Confidential Information” means information concerning the business of the Company, its agents, affiliates and/or third party vendors, whether or not reduced to writing, including without limitation information in any Order Form and information pertaining to any protectible intellectual property (including any software, source code, and computer programs), developments, techniques, data, know-how, methodology, formulations, benchmarks, research, processes, technology, designs, materials, ideas, plans, trade secrets, customers, proprietary information, accounting data, and other information relating to the business of the Company provided that it does not include Customer Data.
 
“L2TMedia Technology” means those Products, including but not limited to the L2T Confidential Information, as well as L2T’s AutoQuity platform, and any other L2TMedia Technology which contain or use software and other technology of L2TMedia or its licensors.
 
“NDA” shall mean that certain Non-Disclosure Agreement, dated February 22, 2025, between AMSI and L2T, attached to and made part of this Agreement, amended by (1) deleting the last sentence on page 3 of the NDA (“In the event of any inconsistency or conflict between this Agreement any other contracts between Dealer and Vendor, the terms and conditions of the Agreement shall govern and control.”), and (2) deleting the first full paragraph on page 3 of the NDA pertaining to indemnification.
 
“Order Form” means a document signed by Customer, and accepted by Company, setting forth those Products which Customer is purchasing from Company, the cost of such Products for each Subscription Term, the Target Start Date and such other terms and conditions as set forth therein.
 
“Paid Media-Based Products” means those Products with respect to which Company pays Publishers for Advertising (sometimes, “Ad” or “Ads”) on behalf of Customer, including Paid Search, Display, Video Advertising and Paid Social.
 
“Performance Tracking Codes” means code streams or scripts added to a Customer’s website in connection with the provision of the Products.
 
“Products” means any and all Company products or services which Customer has contracted for pursuant to an Order Form, which may include some or all of the following: Paid Media Based Products, Search Engine Optimization (SEO), Reputation Management and Social Impact Services.
 
“Publishers” shall refer to one or more online businesses where Company shall place Advertising on behalf of Customer.
 
“Set-Up Fees” means a one-time charge to establish one or more Products as set forth in an Order Form.
 
“Subscription Fees” means the Company’s charges for the Products for each Subscription Term, as set forth in an Order Form, and as subject to adjustment as provided in Section 4.
 
“Subscription Term” means each successive period, as provided in Section 3, during which the Products will be provided.
 
“Target Start Date” shall refer to the day Customer has requested that provision of the Products commence.
 
“Usage Statistics” means any non-customer or consumer identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use of any website (such as metadata, aggregated data, analytics, security findings or discoveries, etc.), including as may be derived from any aspect of Products.

2. CONTRACTING FOR PRODUCTS.

 

(A)      Customer has agreed to purchase, and Company has agreed to provide to Customer, a subscription to those Products indicated on an Order Form during the Subscription Terms. Customer’s execution of an Order Form is its authorization for Company to enter into such agreements on behalf of Customer with third parties as necessary to provide the Products. The Order Form will stipulate Customer’s requested Target Start Date for Products ordered. Customer acknowledges that, for Paid Media-Based Products, Company requires receipt of the executed Order Form at least ten (10) business days prior to the Target Start Date of such Products or to otherwise set up and launch Customers account with Company on all advertising networks (e.g., Google, Amazon, Meta, etc.). Customer agrees that the Company shall have no liability or be deemed in breach of this Agreement (and no refund of Fees shall be due) if the Actual Start Date is later than the Target Start Date and the specified monthly budget is spent between the Actual Start Date and the last day of the month.

 

(B)      Customer acknowledges that Company’s provision of the Products is subject to the following: (i) Customer’s provision to Company of reliable, accurate, current and complete information as required by Company to provide the Products, (ii) Customer’s making of reasonably timely decisions and obtaining of required management approvals and (iii) Customer following the reasonable directions and instructions provided to Customer regarding the Products; and (iv) Customer’s compliance with the terms of this Agreement.

3. SUBSCRIPTION TERM AND TERMINATION.

 

(A)      The initial Subscription Term shall commence on Company’s acceptance of an Order Form and shall continue for thirty (30) days from Customer’s Target Start Date. The Subscription Term shall then automatically renew for each calendar month thereafter until the Order Form is terminated by either Customer or Company on no less than 30 days’ prior written notice. Notwithstanding the foregoing, Company may stop providing a Product at any time due to the actions of a Publisher, upon written notice to Customer. In the event that the provision of any Product is stopped without cause by Company prior to the end of a Subscription Term, Customer’s remedy and Company’s liability for such termination shall be Company’s issuance of a refund in the amount of the unused portion of the Subscription Fee for the applicable Product for the then-current Subscription Term. The refund shall be in the form of a credit against future Subscription Fees unless the Subscription Term is not renewed, in which case the refund will be paid within ten (10) business days after the end of the then-current Subscription Term.

 

(B)       Upon termination of the Agreement, (i) the provision of and Customer’s access to the Products shall immediately cease, (ii) Customer’s My Access Point account password shall be disabled and (iii) and all related information, files and content associated with or inside its account (or any part thereof) shall be deleted. All sections of these Terms and Conditions which by their nature should survive termination of this Agreement shall survive such termination, including, without limitation, the provisions of Sections 3(A)-(B), 12(A), 13, 14, 15, 16, 17, and 18 through 25. Either Party may terminate this Agreement (subject to the NDA’s termination provisions) in the event that either Party violates any material term of this Agreement, upon notice and opportunity to cure of ten (10) business days.

 

(C)       During the existence of this Agreement, and for a period of five (5) years thereafter, Customer acknowledges and agrees that it: (i) may receive or be exposed to L2T Confidential Information as a result of this Agreement and/or underlying Products for Customer; (ii) shall not use L2T Confidential Information for any purpose other than to fulfill any obligations under any Order Form or this Agreement; and (iii) and shall not disclose L2T Confidential Information to any third party, or Customer employees, agents or independent contractors, except if such persons need to know such information and are bound by confidentiality obligations at least as restrictive as those contained herein. Customer shall take all steps necessary to protect L2T Confidential Information to, at least, the same extent it protects its own similar information, but in no event using less than reasonable care. The Customer’s obligations of confidentiality shall not apply to information which: (i) is obtained from a third party, unless such third party is subject to a nondisclosure obligation known to Customer; (ii) is in or enters the public domain not as a result of action by the Customer; (iii) is independently developed by Customer without use of or access to L2T Confidential Information; (iv) was in the Customer’s lawful possession prior to the disclosure by Company, unless Customer is under a nondisclosure obligation to the Company with respect to such possession; or (v) is required to be disclosed by Laws or court order. For avoidance of doubt, Company shall have the right to use Customer’s data provided in connection with this Agreement or performing under any Order Form, as necessary to provide the Products and as otherwise permitted by this Agreement. Nothing in this Agreement is intended to prohibit Company from using the general knowledge and experience gained by Company in the provision of Products or performing under any Order Form.

 

(D)       For the avoidance of doubt, L2T Confidential Information does not include Customer Data, and Customer Data does not include L2T Confidential Information.

4. FEES AND PAYMENT TERMS.

 

(A)      In consideration of Company’s provision of the Products, Customer agrees to pay Company the Fees. Company will issue an invoice for Products on a monthly basis commencing on the date of the Order Form for the first month of the initial Subscription Term and, thereafter, in advance, on the first business day of each calendar month during the Subscription Term. Payment is due on receipt of invoice. Each invoice will be for the full Subscription Fee for the Products for the Subscription Term and any Set-Up Fees or other amounts set forth in the Order Form. Subscription Fees will not be pro-rated to the extent that the Actual Start Date differs from the first of the calendar month provided that the budget established by Customer is spent between the Actual Start Date and the end of the calendar month. All charges for Products are payable in U.S. dollars and are exclusive of any sales, use or similar applicable taxes. Customer shall promptly pay all such taxes and any associated interest and penalties.

 

(B)       Any payment not received from Customer within fifteen (15) days after the date of the invoice may accrue, at Company’s discretion, late charges at the rate of twelve percent (12%) per annum, or the maximum rate permitted by Law, whichever is lower, after such fifteenth (15) day until the date paid. If Customer’s account is more than thirty (30) days past due, Company reserves the right to suspend the provision of Products.

5. CUSTOMER WEBSITE.

 

In connection with the provision of the Products, it will be necessary for Company to place Performance Tracking Codes on Customer’ website. Customer agrees not to prevent the installation or removal while Company is providing Products to Customer of such Performance Tracking Codes. Customer further agrees not to prevent and to provide access to its website for purposes of SEO implementation and fulfillment (“SEO Services”). Customer acknowledges that Company is not a website provider and that Company will rely upon Customer’s website provider or Customer staff for placement of the Performance Tracking Codes and for ensuring that the Performance Tracking Codes are not removed. Company will not be liable in the event that Customer’ website provider fails to assist in placement of the Performance Tracking Codes or removes the Performance Tracking Codes. Nothing in this Agreement entitles the Customer to rely on the Company for advice as to its website(s) and Company shall not be liable in the event that Customer’s website provider or other website staff fails to assist in placement of the Performance Tracking Codes/SEO Services or removes or impedes the Performance Tracking Codes/SEO Services. Furthermore, in the event that Customer changes website providers or support staff, website URLs or website layout, Customer agrees to provide at least ten (10) business days advance written notice to Company of such changes. Company, upon request by Customer and subject to an additional fee, to be determined, will update existing content within thirty (30) days after such changes are implemented.

6. ADVERTISING INFORMATION, MATERIALS & MODIFICATIONS.

 

(A)      Company shall determine which Publishers to use in connection with the Paid Media-based Products. Customer acknowledges that Company does not produce, operate or transmit the Internet sites or services on which Ads may appear or control how the Ads are positioned. In addition, Customer agrees that the rules for displaying Ads are controlled by the Publisher and, as such, Company makes no guarantee about when or where Ads will be displayed. Company shall use its reasonable commercial efforts to prevent failure of proper performance by Publishers with which Company has entered into agreements on behalf of Customer, but shall not be liable or responsible for such failure of performance or for any delay, omission or error in any Ad unless caused by Company’s negligence or willful misconduct.

 

(B)       All contents of Products are subject to Company’s approval. Company reserves the right to reject or cancel any Ads, URL link, website copy or Publisher position commitment, at any time, for any reason whatsoever. Customer shall not be charged in the event that an Ad is rejected or cancelled.

 

(C)       Customer agrees that Company may make modifications to Ads and further understands that once Ads are delivered to Publisher, Customer may be limited in its ability to make further modifications to said Ads. Customer hereby grants to Company a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit and distribute Products (including Ads) and any derivative works based thereon created by Company as well as the right to sublicense all rights necessary for the Ads to be published by the Publisher on behalf of the Customer.
 

(D)     Customer understands that Company is under no obligation and may not be able to provide any samples of Ads in the context of any Publisher’s website.

7. STATISTICS AND REPORTING.

 

Company makes no warranty or guarantee with respect to usage, visit, or cost per visit statistics for any Products or as to Usage Statistics. Customer acknowledges that any Usage Statistics provided by Company shall be conclusive and binding on Customer for all purposes of this Agreement and not subject to review or challenge by Customer for any reason, including in any dispute resolution forum. In addition, Company makes no representation and Customer shall not rely as to any Usage Statistics or any data derived from sources that use Google Analytics codes, conversion codes, or remarketing tags from which reporting accuracy is dependent on proper code placement by any website provider or support personnel. Customer acknowledges that Company may use and promote Usage Statistics for any purpose, including enhancing Products, the delivery or provision of Products, and/or in any other manner.

8. LOCAL CITATION SERVICE.

 

Company shall determine, based on its expertise, which local citation websites to use in connection with Products ordered. Customer agrees to provide Company with access to their local citations in order to update listings. In the event that access to a Customer’s local citations cannot be granted, Company will inform Customer.

9. OEM COMPLIANCE.

 

Company will use its reasonable commercial efforts to provide the Products in accordance with Customer OEM’s compliance guidelines. Company is not responsible for submitting any documentation directly to the OEM for co-op reimbursement.

10. MANAGED DATA SERVICES.

 

In order to ensure optimal performance of certain Products, Company must have access to Customer’s DMS, which is hosted by a third party vendor (the “DMS Vendor” or the “CRM Vendor,” and collectively, “DMS/CRM Vendors”). Customer hereby consents to Company’s and the DMS/CRM Vendors’ access to and use the data fields attached hereto as SCHEDULE “A” from the DMS and/or CRM (“DMS/CRM Data”) to provide the Products, and shall provide such other written consents or authorizations as may be needed in connection therewith. Company shall be entitled to appoint an agent (“Company Agent”) to access the Customer’s DMS on Company’s behalf, and the foregoing consent shall apply to the Company Agent.
All data, records, intellectual property, tangible or intangible rights, customer information, dealership information, financial information, trade secrets, information, and reports provided by or on behalf of Customer, or its affiliates, to Company or generated in connection with the Services by Company and relating to Customer’s business or the customers of Customer, including but not limited to derivative works, web traffic, web traffic analysis, website tagging, behavioral and/or tag tracking, data analytics, aggregated data, and/or compilations, (collectively referred to as “Dealership Data”), whether in existence at the Effective Date of this Agreement or compiled thereafter in the course of performing the Services, shall be treated by Company and its affiliates, employees, agents, and subcontractors as the exclusive property of Customer. Company, its employees, subcontractors, and agents providing services to Customer and each Company Agent shall agree to abide by the terms of the NDA.

 

(A)      Customer shall at all times, including through any website that it maintains, or utilizes, in any fashion, maintain and protect, and implement all necessary safeguards (including consumer facing and other privacy policies) Privacy Data, Benchmark Data and DMS/CRM Data (collectively, the “Agreement Data”), including under any Laws. Customer represents and warrants to Company that it shall implement such measures and steps as to any Agreement Data that it maintains, processes, obtains, or otherwise has access to for any reason, including Agreement Data that it transmits or is transmitted to the Company. Customer shall further ensure that all consumers, customers, providers, and sources of Agreement Data shall take all steps necessary, including the provision of comprehensive notices and/or permits as to (i) the use of Agreement Data, (ii) the collection of Agreement Data, and (iii) the Company’s or the Company’s Agent’s collection and use of Agreement Data and its use of L2TMedia Technology and any Agreement Data collected therefrom. Customer shall also include in any policy or other measures contemplated hereby as to Google Analytics, including any agreement that Customer may have that pertains to Google Analytics.

 

(B)      Company acknowledges that it is Customer’s business practices to conduct marketing and promotional campaigns, including through its engagement of Company to provide Products. Company shall use its best commercial but reasonable efforts not to take any actions that contradict or impede the violation of any Laws applicable to Agreement Data, including providing Customer with prompt notice in the event of any known and verified privacy or security breach(es) relating to Agreement Data. Customer shall have the right to terminate this Agreement for Company noncompliance with any Laws applicable to Agreement Data.

 

(C)      By accepting the Terms and Conditions, and hence this Agreement, Customer consents to the transfer of Agreement Data and to the processing of same in the United States and other jurisdictions in which Company operates. Customer represents and warrants that it has the authority to provide Agreement Data for the purposes contemplated in this Agreement. Company shall implement appropriate safeguards to prevent unauthorized access to, use of, or disclosure of Customer’s Agreement Data. The Parties acknowledge, however, that the security of transmissions over the internet cannot be guaranteed, and, as such, Company shall not be responsible for (i) Customer’s access to the internet, (ii) any interception or interruption of any communications or Agreement Data through the internet, or (iii) changes to or losses of Agreement Data through the internet. Customer shall not transfer, shall take reasonable steps to prevent the transfer of, and shall indemnify Company (per the terms of Section 15) for any transfer of Agreement Data for customers, consumers, or persons who have opted out of solicitations by Customer.

 

(D)      Company shall keep and maintain all information received or made available to Company concerning customers of Customer, including information that: (i) identifies or can be used to identify an individual (name, signature, employee identification numbers, government-issued identification numbers, addresses, telephone numbers, zip codes, e-mail addresses, etc.); (ii) relates to an individual’s finances or accounts (loan information, financial account numbers, credit report information, income, payment passwords/PINs, answers to security questions, etc.; or (iii) any list, description, or other grouping of customers (and publicly available information pertaining to them) that is derived using any personally identifiable financial information that is not publicly available (collectively, “Personal Information”) shall be kept and maintained in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure.

 

(E)      Company represents and warrants that all Personal Information will be used and disclosed solely and exclusively for the purpose for which the Personal Information, or access to it, is provided pursuant to the terms of this Agreement and the Services that it is providing, and Company will not sell, rent, transfer, distribute, or otherwise disclose or make Personal Information available without Customer and the applicable customer’s prior express written consent. Further, if Company is pulling data from the Customer’s DMS, it will pull and retain only those data fields necessary to provide the Services within the scope of this Agreement. Company represents and warrants that its collection, access, use, storage, processing, disposal, and disclosure of Personal Information does and will comply with all federal, state, and local privacy and data protection laws, as well as all other applicable regulations and directives, including the GLBA and associated regulations. Company shall implement administrative, physical, and technical safeguards to protect Personal Information that are no less rigorous than accepted industry practices, and shall ensure that all such safeguards, including the manner in which Personal Information is collected, accessed, used, stored, processed, disposed of, and disclosed, comply with applicable data protection and privacy laws. At a minimum, Company’s safeguards for the protection of Personal Information shall include: (i) limiting access of Personal Information to Authorized Users (as defined herein); (ii) securing business facilities, data centers, paper files, servers, back-up systems and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability; (iii) implementing network, device application, database and platform security; (iv) securing information transmission, storage and disposal; (v) implementing authentication and access controls within media, applications, operating systems and equipment; (vi) implementing appropriate personnel security and integrity procedures and practices, including, but not limited to, conducting background checks consistent with applicable law; and (vii) providing appropriate privacy and information security training to Company’s Authorized Users. In addition, Company shall promptly affirm compliance with any amendments or modifications to the GLBA, upon request of Customer. “Authorized Users” means (i) Company’s employees who have a need to know or otherwise access Personal Information to enable Company to perform its obligations under this Agreement; and (ii) Company’s agents, affiliates, or subcontractors who have a need to know or otherwise access Personal Information to enable Company to perform its obligations under this Agreement, and who are bound in writing by confidentiality obligations sufficient to protect Personal Information in accordance with the terms of this Agreement.

 

(F)      For purposes of this Agreement, “Security Breach” shall mean (i) any act or omission that compromises either the security, confidentiality, or integrity of Customer Data , or the physical, technical, administrative, or organizational safeguards that protect Customer Data, (ii) a third-party allegation of such an act or omission, (iii) receipt of a complaint about the privacy practices of Company or any Authorized Users, or (iv) Agreement Data (as defined in this Section 10). Company shall notify Customer of a Security Breach promptly, but in no event less than 48 hours after Company becomes aware of said breach. Company will fully cooperate with Customer in the handling of any Security Breach, including, without limitation: (i) assisting with any investigation; (ii) providing Customer with physical access to the facilities and operations affected; (iii) facilitating interviews with Company’s employees and others involved in the matter; and (iv) making available all relevant records, logs, files, data reporting and other materials required to comply with applicable law, regulation, industry standards or as otherwise reasonably required by Customer. Company shall use best efforts to immediately remedy any Security Breach at Company’s expense in accordance with applicable privacy rights, laws, regulations, and standards. Company shall fully cooperate with Customer in any litigation or other formal action deemed reasonably necessary by Customer to protect Customer’s rights relating to the use, disclosure, protection, and maintenance of Customer Data.

 

(G)      Personal Information. If requested, Company shall promptly and accurately complete a written information security questionnaire provided by Customer or an authorized third-party regarding Company’s business practices, policies, and procedures on protection of Personal Information and information technology environment in relation to Personal Information. In addition, Company shall provide Customer with the results of any audit performed by, or on behalf of Company, that assesses the effectiveness of Company’s information security program as relevant to the security and confidentiality of Personal Information during the course of this Agreement. In the event of any Security Breach, Company shall promptly use its best efforts to prevent a recurrence of any such Security Breach.

 

(H)      As a condition precedent to furnishing the Services, Company shall present such insurance as is indicated on the Service Request Form, unless such has already been provided to Customer, and shall update Customer should any change in applicable insurance take place. All policies must offer coverage for the Services to be provided and Customer shall be named as an additional insured on such policies. Copies of such insurance policies shall be furnished to Customer prior to Company furnishing any Services. At any time during the Term hereof Company shall also provide copies of such insurance policies upon request by Customer.

11. BENCHMARK DATA.

 

In connection with the provision of Products, Company shall be entitled (including using L2TMedia Technology) to collect and use any performance metrics, data, or other information collected or otherwise generated or obtained by Company at any time regarding or in connection with the use or results of Products or the activity resulting from this Agreement (including, without limitation, information regarding “clicks,” “click-throughs,” searches or queries, the percentage of searches that resulted in “hits,” visits to the target website, relevant statistic, sale conversions, or similar data) (collectively, “Benchmark Data”) (i) for purposes of providing the Products, and (ii) for Company’s reasonable legitimate business purposes, including to: (a) develop, use, aggregate and distribute generalized trend, benchmarking, statistical analyses, and usage information (collectively, “Service Analyses”); and (b) market Products of Company; provided, that any such Product Data that is disclosed by Company to third parties shall not contain any information that identifies, or that could reasonably be used to identify, any consumer, customer or any other individual or person, including under any Laws. Company retains all rights in such Service Analyses and to any L2TMedia Technology.

12. OWNERSHIP OF L2TMEDIA TECHNOLOGY.

 

(A)      Company (or, where applicable, Third Party Licensors, defined below) owns, and shall retain, all rights, title and interest in and to the L2TMedia Technology, and all intellectual property rights therein. Customer will not, and will not allow any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the L2TMedia Technology; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the L2TMedia Technology, (iii) transfer, lend, lease, sublicense, allow access to or pledge the L2TMedia Technology to or by third parties; (iii) use the L2TMedia Technology in a service bureau or outsourcing manner; or (iv) remove any proprietary notices, affixed labels, or product warnings or statements of rights as to or thereon, or related to L2TMedia Technology.

 

(B)       Company has entered into that certain Interface Agreement with THE REYNOLD AND REYNOLDS COMPANY (“REYNOLDS”), pursuant to which the Company, to enhance its Product offerings, utilizes REYNOLDS Interface for data transfer (“Reynolds Interface”) and its Interfaced Product (“Interfaced Product”) in its Products. Each Customer, to utilize Company’s Products, agrees and acknowledges as follows:

 

(i)       Customer is entitled only to a limited license as to the Interfaced Product that (a) authorizes the operation of the Reynolds Interface only with the Interfaced Product and only for itself; (b) prohibits Customer from copying, disassembling, decompiling, and/or reverse engineering the Interfaced Product and the Reynolds Interface; (c) reserves all rights, title and interest in and to the Reynolds Interface to REYNOLDS; and (d) prohibits the Customer from (i) transfer of or access to the Interfaced Product and the Reynolds Interface to or by third-parties, (ii) lending, leasing, sublicensing or pledging the Interfaced Product and the Reynolds Interface, or (iii) from outsourcing uses of the Interfaced Product and Reynolds Interface.

 

(ii)       REYNOLDS product(s) provided in connection with the Company Products contain portions of program code owned by third party licensors and such licensors will be entitled to enforce any such license as an intended third party beneficiary and the obligations of the licensee cannot be modified or terminated without the written consent of such third party licensors; and that ALL LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

(iii)       That all rights to use or maintain possession of the Interfaced Product and Reynolds Interface will terminate upon the termination of the agreement between REYNOLDS and Company or the termination of this Agreement, whichever comes earlier.

 

(iv)       That Customer, Company, and Company’s Agent shall comply with all Laws, including the GLBA, the PIPEDA, and any other relevant privacy laws of any relevant jurisdiction.

 

(v)       To the greatest extent permitted by applicable law, Customer and its DMS Vendor, Company, and Company’s Agent grant permission to access Customer’s new product introductions (“NPI”) to the extent necessary to provide the Products to the Customer (including the Interfaced Product and the Reynolds Interface) and specifically permits REYNOLDS, Company, and Company’s Agent to provide access to Customer’s NPI to one another for that purpose.

 

(C)      To the extent that L2TMedia Technology contains portions of program code (“Third Party Code”) owned by third party licensors (“Third Party Licensors”), such Third Party Licensors will be entitled to enforce these Terms and Conditions as relates to such Third Party Code as an intended third party beneficiary and the obligations of Customer with respect to such Third Party Code cannot be modified or terminated without the written consent of such Third Party Licensors. ALL THIRD PARTY LICENSORS DISCLAIM ALL WARRANTIES RELATING TO THE THIRD PARTY CODE, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND WILL IN NO EVENT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM USE, OR INABILITY TO USE SUCH THIRD PARTY CODE, EVEN IF THEY KNEW OF THE POSSIBILITY OF SUCH DAMAGES.

13. CUSTOMER REPRESENTATIONS AND WARRANTIES.

 

Customer represents, warrants and covenants that: (i) it has the right to enter into this Agreement, to perform its obligations hereunder and to grant the rights granted herein; (ii) it holds or has obtained all necessary rights, licenses and consents necessary to permit the use, reproduction, distribution, transmission, display and creation of derivative rights of the Ads and any other materials delivered by Company pursuant to this Agreement and (iii) none of the Products including Ads will contain material that is libelous, defamatory, pornographic, or contains or will contain any other material that would violate any applicable laws or governmental rules or regulations

14. COMPANY WARRANTIES.

 

(A)      Company warrants that: (i) it has the right to enter into this Agreement and to perform its obligations hereunder and (ii) the Products will be provided in a good and workmanlike manner. Customer agrees and acknowledges that Company makes no guarantee, financial or otherwise, with respect to the results of any Product, and that Company cannot assure Customer that Products placed in any manner and for whatever reason will achieve any desired result or objective of the Customer.

 

(B)      EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS OR ANY SERVICES HEREUNDER. WITHOUT LIMTING THE GENERALITY OF THE FOREGOING, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND AS TO THE LEVEL OF SALES, PURCHASES, CLICKS, SALES LEADS OR OTHER PERFORMANCE THAT CUSTOMER CAN EXPECT FROM THE PRODUCTS OR THAT THE PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED.

15. INDEMNIFICATION.

 

Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its subsidiaries, affiliates, shareholders, owner, directors, officers, agents, and other employees (the “Indemnified Parties”), harmless from and against any and all third party claims, demands, causes of action, liability, loss or damage, including the Indemnified Party’s reasonable legal fees and expenses in connection therewith, arising out of or related to any (i) breach (or alleged breach) of any of the Indemnifying Party’s representations, warranties, covenants or undertakings in this Agreement, (ii) any claim that any materials or information (including Ads) provided by either Indemnifying Party under this Agreement infringes, misappropriates or violates any copyright, trade secret, trademark, right of privacy or other intellectual property right, (iii) any of The Indemnifying Party’s Products & Services, and (iv) breach of any of Customer OEM’s compliance guidelines. Notice of any claim shall be provided thirty (30) days after knowledge of a claim. An Indemnifying Party shall have the right to assume the defense of a claim only in cases where the Indemnifying Party fails to reasonably defend the claim. No Party handling the defense of claims may settle or compromise such claims with the written consent of the other Party, which consent shall not be unreasonably withheld.

16. LIMITATION OF LIABILITY.

 

(A)      CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE UNDER THIS AGREEMENT, ANY ORDER FORM, OR IN CONNECTION WITH THE PRODUCTS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES REGARDLESS OF THE CAUSE OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SHALL HAVE NO LIABILITY FOR DAMAGES RESULTING FROM (i) THE USE OR THE INABILITY TO USE THE SERVICE, (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES SO PROCURED.

 

(B)      IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR IN CONNECTION WITH ANY UNDERTAKING CONTEMPLATED BY THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY RECEIVED BY COMPANY FROM BUSINESS FOR SUCH UNDERTAKING. In the event that Company fails to publish an Ad in accordance with this Agreement, or in the event that Company fails to spend, on behalf of Customer, the full budget allocated for the Products by the termination date, or in the event of any other failure, technical or otherwise of such Ad, the sole liability of Company and exclusive remedy of Customer shall be limited to the issuance of a credit. Notwithstanding the foregoing language in this Section 16, the collective aggregate liability of Company for any losses from any Security Breach caused in whole or in part by the acts or omissions of Company shall be limited to the amount of insurance coverage available and covered by the insurer pursuant to insurance coverage for such acts or omissions of Company (the “Super Cap”).

 

(C)      Customer acknowledges that Company has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties. The limitation of liability set forth in this Paragraph 16 shall not apply to Company’s indemnity obligations under Paragraph 15 for acts or omissions of the Company which constitute gross negligence and/or intentional misconduct, except for any Security Breach (as defined in Section 10), in which case the Super Cap applies. For purposes of this Section 16(C), “gross negligence and/or willful misconduct” means such willful or reckless misconduct as constitutes a complete and utter disregard for harmful, foreseeable and avoidable consequences, but shall not include any simple negligence or mistake or good faith error in judgment including resulting in a Security Breach (in which case the Super Cap applies).

17. FORCE MAJEURE.

 

Company shall have no liability for any failure or delay in performing this Agreement resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, acts of Publishers or any third party, or any other condition affecting production or delivery in any manner beyond the control of Company (a “Force Majeure Event”). In the event of a Force Majeure Event, Company shall notify Customer in writing as promptly as is practicable of the occurrence and cessation thereof. Performance of the affected obligations of a Party will be extended for a period equal to the duration of the Force Majeure Event.

18. CHOICE OF LAW.

 

This Agreement shall be governed by the laws of the State of Illinois, without regards to conflicts of law principles.

19. JURISDICTION AND VENUE.

 

Any action, suit or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced and prosecuted only in a federal or state court sitting in (i) Palm Beach County, Florida or (ii) Cook County, Illinois, and the Parties each consent to the jurisdiction of such court. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY APPLICABLE ORDER FORM OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY OR DAMAGES OF ANY SORT WHATSOEVER).

20. WAIVER.

 

Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Any waiver in a particular instance shall not constitute a waiver of the same or different rights or breaches in any other instance. Failure, neglect or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such Party’s rights under this Agreement and will not prejudice such Party’s right to take subsequent action.

21. SEVERABILITY OF TERMS.

 

If any term, condition or provision in this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable to any extent, then it is the intent of the Parties that such court apply a rule of reasonableness and modify the provision in question so it will remain in effect to the greatest extent permitted by law. In the event a court finds such procedure to be inappropriate, then such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

22. TRANSFERABILITY.

 

Neither Company nor Customer may assign this Agreement or delegate or otherwise transfer any of its rights, obligations or duties of performance hereunder, and any purported assignment, delegation or other transfer shall be null and void, except if such assignment, delegation or transfer is to a successor-in-interest to the business of Company (or the portion of the business which performs this Agreement). Company may subcontract or delegate its obligations hereunder to the extent that such subcontracting or delegation is of a type which Company undertakes in the normal course of its operations. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.

23. NO USE OF DEALER’S NAME.

 

Service Provider agrees that it shall not use the name or trademarks or mention or describe this Agreement or its relationship with Customer or its affiliate dealerships in any press release, advertising, marketing or promotional materials, or any other publications or public disclosure without Customer’s prior written consent.

24. NOTICES.

 

Any notice, demand or consent to be given hereunder shall be in writing and delivered personally or sent by facsimile transmission (provided a copy is contemporaneously sent by regular mail), registered or certified mail, postage prepaid, or overnight courier service, to the address set forth below the appropriate Party’s signature, or such other address as either Party may designate in accordance with this Section. Notices shall be deemed received at the earlier of actual receipt, three business days following mailing, one business day after facsimile transmission (provided automatic confirmation of transmission is received by the sender) or one business day after deposit with an overnight courier service.

25. ENTIRE AGREEMENT.

 
The Agreement and the NDA constitute the entire agreement between the Parties with respect to the subject matter hereof. The Agreement supersedes all prior agreements, proposals or representations, written or oral, concerning its subject matter. In the event of a conflict between the provisions in these Terms and Conditions and an Order Form, or the NDA, the provisions in this Agreement shall take precedence and control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (other than an Order Form) shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void. No modification or amendment of any provision of the Agreement shall be effective unless in writing and signed by the Party against whom the modification or amendment is to be asserted. Customer has read an understands this Agreement, and has had the opportunity to consult with legal advisors, counselors, or other professionals, before entering into this Agreement, and has been provided with all information requested from the Company, and is accepting these Terms and Conditions freely, voluntarily, and without reliance on any representations by the Company, or any of its managers, officers, equity owners, agents and representatives, other than as expressly set forth in this Agreement.

 

[End of Terms and Conditions of Service]

SCHEDULE A – DATA FIELDS BEING CONSUMED.

• CRM
  • Lead submission date
  • Lead source
  • First name
  • Last name
  • Email address(es)
  • Phone number(s)
  • Home address (if available)
  • Vehicle(s) of interest: Make, Model, Year
  • Vehicle of interest type: New, CPO, Used

• DMS
  • First name
  • Last name
  • Email address(es)
  • Phone number(s)
  • Year
  • Make
  • Model
  • Trim
  • VIN
  • City
  • State
  • New/Used
  • Zip Code
  • Transaction date
  • Deal Category
  • Deal/Lease Status
  • Lease expiration date
  • APR
  • Car body class: SUV, Sedan, Truck

 

NDA
Attached separately