TERMS AND CONDITIONS

1. Definitions.  Capitalized terms have the meaning as set forth or referred to in this clause, or in the clause in which they first appear in the Agreement.

1. “Agreement” means this Agreement, which consists of: (1) the Order Sheet; (2) the Terms and Conditions; and (3) any exhibits attached hereto.  In the event of a conflict between any of the components of the Agreement, the controlling order of priority shall be as follows:  first, these Terms and Conditions; second, the exhibits; and third, the Order Sheet.

2. “API” means Provider’s Application Program Interface.

3. “Consumer” means a customer or potential customer of Dealer who is authorized and consents to utilize or otherwise access the SBP Services.

4. “Criteria” means Dealer’s creditworthiness criteria (or Dealer-utilized lender or OEM promotional rates and terms, if applicable) which have been given to Provider by Dealer in accordance with Provider’s procedures.

5. “Dealer” has the meaning set forth in the Order Sheet.

6. “Dealer’s Website” means a group of World Wide Web pages owned and maintained by Dealer or Dealer’s representatives.

7. “Effective Date” means the effective date listed on the Order Sheet.

8. “Fees” means price paid by Dealer to Provider for use of the SBP Services, as further set forth in the Order Sheet.  The amount of the Fees may be modified by Provider in its sole discretion upon sixty (60) days’ written notice.

9. “Limited Consumer Information” means the information provided by a Consumer to Provider that reflects the Consumer’s interest in and consent to participating in the SBP Services.  Limited Consumer Information is provided by the Consumer and often includes, but may not always include, the Consumer’s name, address, e-mail address, income (self-reported), targeted monthly payment, targeted down payment, Social Security Number, and vehicle trade-in information.  Provider provides the Limited Consumer Information to Dealer following receipt of Consumer’s consent to participate in the SBP Services.  

10. “Rooftop Point” means a combination of a Dealer’s “Rooftop” and “Points.”  A “Rooftop” means a single-address location of a licensed franchised motor vehicle dealership which has a showroom or sales office.  A Point is defined as a dealer franchised make or combination of makes produced by the same manufacturer.  By way of example only, two Mazda stores within a dealer group with different locations would be two (2) Rooftop Points. A single location with Chrysler/Dodge/Jeep/ Ram is one (1) Rooftop Point. Three points at one location (e.g. Jaguar/Maserati/Lincoln) would be three (3) Rooftop Points.  Points are further defined on Exhibit A.

11. “Provider” has the meaning set forth in the Order Sheet.

12. “Provider IP” means the SBP Services and any and all intellectual property provided to Dealer in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Dealer’s and/or Consumer’s access to or use of the SBP Services, but does not include Limited Consumer Information.

13. “SBP Services” means the software-as-a-service offering whereby Provider, with the Consumer’s consent, determines on a preliminary basis whether the Consumer may be eligible for vehicle financing.  The SBP Services is not a complete credit approval system; the SBP Service is intended to provide a prediction or indication of whether a Consumer may be eligible for vehicle financing.  The content, features, or functionality of the SBP Services may be modified, altered, or suspended, or discontinued by Provider upon sixty (60) days’ written notice.

2. Access and Use. 

1. Provision of Access. Subject to and conditioned on Dealer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Dealer a non-exclusive, non-transferable (except in compliance with Section 11.7 right to access and use the SBP Services during the Term, solely for use by Consumers in accordance with the terms and conditions herein.  Provider will provide Dealer (or Dealer’s website provider) with integration instructions for the SBP Services, along with the software code and any accompanying assets.  Dealer (or Dealer’s website provider) must insert the code for the SBP Services into Dealer’s website.  Consumer will access the SBP Services through Provider’s API using Dealer’s website.  

2. Use Restrictions. Dealer shall not use the SBP Services for any purposes beyond the scope of the access granted in this Agreement. Dealer shall not at any time, directly or indirectly, and shall not permit any of Dealer’s employees, agents, contractors, consultants, or representatives to: (i) copy, modify, or create derivative works of the SBP Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the SBP Services except as provided in this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the SBP Services, in whole or in part; (iv) remove any proprietary notices from the SBP Services; or (v) use the SBP Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

3. Reservation of Rights. Provider reserves all rights not expressly granted to Dealer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Dealer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.

4. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Dealer’s and any Consumer’s access to any portion or all of the SBP Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Dealer’s or any Consumer’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Dealer, or any Consumer, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Dealer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the SBP Services to Dealer or any Consumer is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Dealer to access the SBP Services; or (iii) in accordance with Section 5.1(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Dealer and to provide updates regarding resumption of access to the SBP Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the SBP Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Dealer or any Consumer may incur as a result of a Service Suspension.

3. Consumer Information.

1. Consumer Consent.  A Consumer consents to participation in the SBP Services by affirmatively communicating such consent to Provider.  Consumers who provide such consent submit Limited Consumer Information to Provider and consent to Provider providing Limited Consumer Information to Dealer.  Provider will provide Limited Consumer Information to Dealer provided that Consumer has given such permission.  Provider is solely responsible for securing valid consent from the Consumer for Consumer’s use of the SBP Services, and Provider shall comply with all applicable U.S. laws and regulations addressing valid Consumer consent.  Dealer shall make no representations or statements inconsistent with the SBP Service and agrees to comply with all credit and consumer financing laws, including, without limitation, the Fair Credit Reporting Act.  

2. After receiving Consumer’s consent to participate in the SBP Services, Provider will make a soft inquiry of a credit bureau in order to gather basic credit eligibility information.  If Dealer is properly credentialed with the credit bureau utilized by Provider, Provider will use Dealer’s code to make the soft inquiry and Dealer will receive a secure link to the credit bureau report.  If Dealer is not properly credentialed, Dealer will receive basic credit eligibility information from Provider, but will not receive access to Consumer’s credit score.  

4. Privacy and Information Security.

1. Privacy. The Parties represent that they have and will maintain comprehensive policies for maintaining the privacy and security of any information provided by the Consumer, including but not limited to Limited Consumer Information.

2. Information Security.  The Parties represent that they have developed, implemented, and will maintain compliant and effective information security policies and procedures that include administrative, technical, and physical safeguards designed to: (i) ensure the security and confidentiality of information received within the operation of the SBP Services; (ii) protect against anticipated threats or hazards to the security or integrity of such information; and (iii) protect against unauthorized access or use of such information. Each Party’s policy will also address reasonable disposal of consumer information, including but not limited to Limited Consumer Information. All personnel handling such information have been trained in the implementation of each Party’s information security policies and procedures. Each Party represents that it regularly audits and reviews its information security policies and procedures to ensure their continued effectiveness and determines whether adjustments are necessary in light of circumstances, including but not limited to changes in technology, customer information systems or threats or hazards to stored information.

5. Fees and Payment.

1. Dealer shall pay Provider the fees (“Fees”) as set forth in the Order Sheet without offset or deduction. Dealer shall make all payments hereunder in US dollars on or before the due date. If Dealer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Dealer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Provider may suspend Dealer and its Consumer’s access to any portion or all of the SBP Services until such amounts are paid in full.

2. Taxes. All Fees and other amounts payable by Dealer under this Agreement are exclusive of taxes and similar assessments. Dealer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Dealer hereunder, other than any taxes imposed on Provider’s income.

6. Confidential Information.  

1. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information[, whether orally or in written, electronic, or other form or media/in written or electronic form or media], whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

2. Notwithstanding the foregoing, pursuant to 18 U.S.C. § 1833(b), an individual may not be held criminally or civilly liable under any federal or state trade secret law for disclosure of a trade secret: (i) made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; and/or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, an individual suing an employer for retaliation based on the reporting of a suspected violation of law may disclose a trade secret to his or her attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and the individual does not disclose the trade secret except pursuant to court order.

7. Intellectual Property Ownership; Feedback.

1. Provider IP. Dealer acknowledges that, as between Dealer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.  Furthermore, the Dealer acknowledges and agrees that all goodwill associated with, or that shall become associated with, said intellectual property, computer codes/programming, and/or the SBP Services shall inure to the sole benefit of Provider and be the sole property of Provider.  

2. If Dealer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Dealer hereby assigns to Provider on Dealer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

8. Warranty Disclaimer. THE PROVIDER IP IS PROVIDED “AS IS” AND “AS AVAILABLE” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, FAILURE OF PERFORMANCE, OR FREEDOM FROM QUIET ENJOYMENT, VIRUS, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CONSUMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.  DEALER HEREBY RELEASES PROVIDER FROM ANY AND ALL RESPONSIBILITY AND/OR LIABILITY WHICH MAY OTHERWISE BE ASSOCIATED THEREWITH.  

9. Limitations of Liability.

1. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

2. Dealer acknowledges that it is solely responsible for all data security and back-up in the event of a hardware or software malfunction.  Under no circumstances will Provider be responsible or held liable for the integrity of any software or data contained on Dealer’s hardware or for Dealer’s hardware failures.  Dealer will defend, indemnify, and hold harmless Provider for the loss of any data or software under any and all circumstances whatsoever.  

10. Term and Termination.

1. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for one (1) year from such date (the “Initial Term”). This Agreement will automatically renew for additional successive one (1) year term[s] unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).

2. Termination. In addition to any other express termination right set forth in this Agreement:

1. Either Party may terminate this Agreement, with or without cause, upon thirty (30) days’ written notice to the other party.  

2. Provider may terminate this Agreement, effective on written notice to Dealer, if Dealer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2.2, 2.3 or Section 6;

3. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or

4. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Dealer shall immediately discontinue use of the Provider IP and, without limiting Dealer’s obligations under Section 6, Dealer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Dealer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Dealer to any refund.

4. This Section 10.4 and Sections 1, 2.2, 5, 6, 7, 8, 9, 10.3, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

11. Miscellaneous.

1. Entire Agreement. This Agreement, together with the Order Sheet and all related exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile [or email] (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. 

3. Force Majeure. In no event shall Provider be liable to Dealer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo, or any other circumstances beyond the Provider’s control, whether or not similar in nature to those listed in this Section.

4. Amendment and Modification; Waiver. Except as otherwise provided herein, no amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in Hamilton County, Ohio, and each Party irrevocably submits to the exclusive venue and jurisdiction of such courts in any such suit, action, or proceeding.

7. Assignment. Dealer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.  Provider may assign this Agreement in its sole discretion.  

8. Export Regulation. The SBP Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Dealer shall not, directly or indirectly, export, re-export, or release the SBP Services or the underlying software or technology to, or make the SBP Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.

9. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Dealer, Section 2.2 or 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

10. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

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Exhibit A

Single Points
Acura
Alfa Romeo
Aston Martin
Audi
Bentley
BMW	Mini
Buick
Cadillac
Chevrolet
Chrysler	Dodge	Jeep	Ram
Ferrari
Fiat
Fisker
Ford	Lincoln
GMC
Honda
Hyundai
Infiniti
Isuzu
Jaguar
Kia
Lamborghini
Land Rover
Lexus
Lotus
Maserati
Mazda
Mercedes Benz	Smart
Mitsubishi
Nissan
Porsche
Rolls-Royce
Subaru
Suzuki
Toyota	Scion
Volkswagen
Volvo