This Master Data License Agreement (“Master Data License” or “MDL”), entered into by and between Auto Acquire, Inc., a Delaware corporation (“AA”), and Licensee (“Licensee”) identified in the Master Services Agreement or in the Order Form, shall be effective as of the date signed by AA (“Effective Date”).
 
In addition to this Master Data License, the Licensed Data ordered pursuant to a certain Master Services Agreement or Order Form may be subject to data-specific terms and conditions (“Additional Terms”), referred as follows: Industry Internal Use, Consumer-Facing Website, Use Within Industry Software Application, Auto Acquire™ Branding Compliance Guidelines, Integration Partner Licensed Data and Integration Partner terms and conditions. A Master Services Agreement or an Order Form may also incorporate by reference certain attachments, addendums or Exhibits (collectively “Attachments”) that also govern them. All such Additional Terms and/or Attachments are deemed to be part of this Master Data License.
In consideration of the promises and mutual covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
 
1.              DEFINITIONS.
1.1    “AA Branding Compliance Guidelines” means AA terms and conditions pertaining to the use and display of AA Products and AA Marks, as well as Marks of AA Affiliates and Integration Partners by Licensee both for consumer facing use and for industry use platforms, or any other system.
1.2    “AA Products” means all the products offered by AA outlined in the Products and Services addendum attached hereto, and are incorporated in this MDL by reference.
1.3    “AA Services” means all the services offered by AA outlined in the Products and Services addendum attached hereto, and are incorporated in this MDL by reference.
1.4    “Affiliate” means any entity that directly or indirectly (through one or more intermediaries) Controls, is Controlled by, or is under common Control with AA or Licensee.
1.5       “Analytics Data” means data, other than Licensed Data, that may be generated by AA in connection with Licensee’s and (as applicable) Authorized Users’ access to and use of the Licensed Data, which may include log, performance, usage, referral, search term, pixel, session, cookie, flash local storage object, beacon, and other web analytics data.
1.6    “Authorized User” means a customer of Licensee that is a member of the automotive trade in AA’s reasonable determination, and not a member of the general public, for example, an Authorized User is not permitted to be a retail consumer (or potential retail consumer).
1.7    “Auto Acquire Platform™” or “AA Platform” means the system owned by AA through which the Licensed Data is displayed. 
1.8          “Change of Control” means the sale of all or substantially all the assets of Licensee; any merger, consolidation or acquisition of the Licensee with, by or into another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of the Licensee in one or more related transactions.
1.9       “Confidential Information” means all information or materials provided or otherwise disclosed by or on behalf of the Disclosing Party to the Receiving Party, whether orally or in writing, that are designated as confidential or that reasonably should be understood to be confidential given the nature of the information disclosed and the circumstances of disclosure. AA’s Confidential Information includes the Licensed Data, and all other information, whether tangible or intangible and in whatever form or medium and however disclosed, that is provided or otherwise communicated by AA or its Affiliates to Licensee or its Affiliates, to the extent such information relates to the Licensed Data or otherwise to this Master Data License, or to any aspect of the business, operations, customers, contractors, distributors, supply chain, software, technology, marketing or financial condition of  AA, its Affiliates or Integration Partner. Confidential Information does not include information that (a) is or becomes generally available to the public other than as a result of a wrongful disclosure by the Receiving Party; (b) was rightfully in the possession of, or was rightfully known by the Receiving Party without an obligation to maintain its confidentiality prior to receipt from the Disclosing Party; (c) becomes available to the Receiving Party on a non-confidential basis from a source which is not, to the Receiving Party’s knowledge, prohibited from disclosing such information; (d) is developed independently by the Receiving Party; or (e) was generally made available to Third Parties by the Disclosing Party without restrictions similar to those imposed under this Master Data License.
1.10    “Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity or the legal power to direct or cause the direction of the general management of such entity, whether by contract or otherwise.
1.11       “Credentials” means usernames, passwords and other log-in credentials that may be required to access or use Licensed Data.
1.12     “Disclosing Party” means the Party that provides Confidential Information (or on behalf of which Confidential Information is provided) to the Receiving Party in connection with this Master Data License.
1.13     “Dealer License” means a type of license that is granted specifically pertaining to dealers seeking to create custom vehicle values and deploy them on its customer and/or industry facing websites, and/or for internal use.
1.14    “including” means “including, without limitation”.
1.15    “Law” means all applicable federal, state and local laws, regulations, rules, ordinances and other decrees of any governmental authority in the Territory.
1.16    “License Fees” or “Fees” means the license fees and any other amounts payable by Licensee as provided for in the applicable Master Services Agreement,  Order Form or Rate Card.
1.17     “License Term” or “Term” means, with respect to any Licensed Data, the license term set forth in the applicable Master Services Agreement or Order Form covering such Licensed Data, together with any renewal license terms as may be provided for therein.
1.18     “Licensed Data” means the data to be made available to Licensee by AA as specifically described in the applicable Additional Terms, Master Services Agreement and/or Order Form.
1.19     “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
1.20    “Mark” or “Marks” means any name, logo, trademark or service mark of either Party, and in the case of AA, including those of its Affiliates or Integration Partners. 
1.21    “Party” means Licensee or AA, individually, as applicable; and “Parties” means Licensee and AA, collectively.
1.22    “Permitted Use” means, with respect to any Licensed Data, the permitted uses specifically set forth in the applicable Additional Terms, Master Services Agreement, or Order Form, for each of (a) Licensee and/or (b) Authorized Users. The Permitted Use can be granted to a Reseller (the “Reseller License”), or  to a Dealer (the “Dealer License”).
1.23    “Personnel” means agents, employees, officers, directors or contractors employed, engaged or appointed by a Party hereunder.
1.24    “Privacy Laws” means all applicable privacy laws and information security laws, and any other applicable federal, state, provincial or local laws, as they exist and are amended from time to time, relating to: (a) data privacy, security, integrity, confidentiality, communications, use, collection, processing and storage, and (b) spamming and other unsolicited communications, including, as applicable, the U.S. Gramm-Leach-Bliley Act of 1999 (e.g., 16 C.F.R. Part 313 (Privacy Rule) and 16 C.F.R. Part 314 (Safeguards Rule)), the U.S. Telephone Consumer Protection, Act of 1991 (TCPA), Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) and Canada’s Anti-Spam Legislation (CASL).
1.25    Rate Card means the pricing schedule that outlines the costs associated with AA’s Products or Services and serves as a standardized pricing guide for Resellers, Dealers or Authorized Users. The Rate Card will be provided to Licensee and AA  reserves the right to unilaterally modify the Rate Card upon giving Licensee 30 days' written notice of any changes.
1.26    “Receiving Party” means the Party that receives Confidential Information from the Disclosing Party in connection with this Master Data License.
1.27    “Reseller License” means the Permitted Use that may be granted to a Licensee that is authorized to use and display  AA Platform™ and the Licensed Data on its Websites, allowing consumer-facing access. The Reseller License may be restricted to a specific industry, location, or other limitations as outlined in the Master Services Agreement, also known as the “Approved Use Case”.
1.28     “Retention Period” means, for any particular Licensed Data, the License Term plus a period of one (1) year thereafter.
1.29    “Territory” means the United States unless otherwise specified in any Master Services Agreement or  Order Form.
1.30 “Third Party” (or “Third Parties”) means an entity or person that is not a Party.
1.31        “Integration Partner(s)” means an entity or individual that is not a Party (i.e., neither AA nor Licensee), but who has entered into a direct agreement with AA permitting AA to market the entity's or individual’s products and services. An Integration Partner may also be a data or service provider.
1.32    “Integration Partners Licensed Data” means the data displayed on the AA Platform and made available to Licensee, which is subject to its own licensing terms and conditions and is owned by an Integration Partner.
2.              RIGHTS TO LICENSED DATA; LICENSED DATA OWNERSHIP; AA PRODUCTS OWNERSHIP.
2.1           Rights to Licensed Data.
(a)            Conditioned expressly on Licensee’s compliance with this Master Data License (including, for clarity, any applicable Additional Terms, Master Services Agreement and Order Form), AA hereby grants to Licensee a limited, non-exclusive, revocable and non-transferable right and license during the applicable License Term to access and use Licensed Data solely for its Permitted Use, as provided for in any applicable Additional Terms, Master Services Agreement and Order Form. The Licensed Data will be provided or made available to Licensee in the manner, format and frequency as may be set forth in the applicable Master Service Agreement or Order Form, or (if not so set forth) as determined by AA in its sole discretion.
(b)            For purposes of this Master Data License, Licensee shall be responsible for the acts and omissions of the Authorized Users (including their Personnel). As such, if any Authorized User (or its Personnel) fails to comply with any of the provisions herein, Licensee will be deemed to have so failed to comply. Licensee may not provide access to any Licensed Data to an Authorized User unless the Authorized User has agreed to terms and conditions with respect to such Authorized User’s use of the Licensed Data that are at least as protective of AA or Affiliates, as those applicable to Authorized Users under this Master Data License, including any applicable Master Services Agreement and Order Form.
2.2           Credentials. AA will issue Credentials to Licensee, and Licensee will keep Credentials confidential and secure, and prevent such Credentials from being disclosed to or used by any person, system or party other than in accordance with this Master Data License and the applicable Master Services Agreement or Order Form. Licensee shall immediately report in writing to AA any unauthorized access to or use of any Credentials or the Licensed Data. Licensee will be responsible and liable for all actions taken through or under any Credentials issued to Licensee, whether such actions are taken by an Authorized User, system or otherwise.
2.3           Licensed Data Ownership;. Except for the rights expressly granted to Licensee (and, if applicable, Authorized Users) in Section 2.1, Licensee (and, if applicable Authorized Users) shall have no right, title or interest in or to the Licensed Data, or any technology, materials or intellectual property of AA or  its Affiliates (including APIs or other tools that may be made available hereunder to access the Licensed Data), including the data generated, developed or, in any format, created by Licensee while using AA Platform™; and nothing in this Master Data License shall effect a transfer of any ownership or proprietary right from AA or its Affiliates, on the one hand, to Licensee or Authorized Users, on the other hand. AA shall retain all ownership and proprietary rights in and to the Licensed Data. Integration Partner shall retain all ownership and proprietary rights in and to the Integration Partner Licensed Data. If, at any time, Licensee becomes aware of any actual or potential infringement or unauthorized use or disclosure of any Licensed Data or any other violation or infringement of the intellectual property rights or other proprietary rights of AA or its Affiliates, Licensee shall immediately notify AA in writing. If, at any time, Licensee becomes aware of any actual or potential infringement or unauthorized use or disclosure of any Integration Partner Licensed Data or any other violation or infringement of the intellectual property rights or other proprietary rights of Integration Partner, Licensee shall immediately notify AA in writing.
2.4           Analytics Data Ownership. Licensee acknowledges and agrees that, as among the Parties and Authorized Users, AA (along with its Affiliates) owns and has the right to freely use and disclose Analytics Data, provided that Analytics Data may not be disclosed in a manner that identifies, or could be used to identify, Licensee or Authorized Users, or otherwise associates Licensee or Authorized Users with such data.
2.5    AA Products and Services Ownership: Except for the rights expressly granted to Licensee (and, if applicable, Authorized Users) in Section 2.1, Licensee (and, if applicable Authorized Users) shall have no right, title or interest in or to AA Products, AA Services, or any technology, materials or intellectual property of AA, its Affiliates or Integration Partners, directly or indirectly related to AA Products or AA Services; and nothing in this Master Data License shall effect a transfer of any ownership or proprietary right from AA, its Affiliates or Integration Partners, on the one hand, to Licensee or any Authorized Users, on the other hand. AA shall retain all ownership and proprietary rights in and to AA Products and AA Services. Integration Partners shall retain all ownership and proprietary rights in and to its products and services. If, at any time, Licensee becomes aware of any actual or potential unauthorized use of any AA Products, Services or any other violation or infringement of the intellectual property rights or other proprietary rights of AA, its Affiliates or Integration Partners, directly or indirectly related to AA Products or Services, Licensee shall immediately notify AA in writing.
3.            USE RESTRICTIONS. Neither Licensee, Authorized Users (if applicable) nor any of its or their Personnel shall:
(a)    use any of the Licensed Data, or modify or create any derivative works of the Licensed Data, except and only to the extent as may be permitted in any applicable Master Services Agreement or Order Form pursuant to the Permitted Use;
(b)     use any of the Integration Partners Licensed Data, or modify or create any derivative works of the Integration Partners Licensed Data, except and only to the extent as may be permitted in any applicable Master Services Agreement or Order Form pursuant to the Permitted Use;
(c)    violate any Law or any intellectual property rights or other rights of any Third Party in connection with any use of or access to the Licensed Data or Integration Partners Licensed Data;
(d)    challenge, cooperate with any Third Party in challenging, or do anything to assist any Third Party in challenging any right or interest that AA, its Affiliates or Integration Partners may have in or to any of the Licensed Data or the Integration Partners Licensed Data;
(e)    except in each case as may be expressly permitted in the applicable Master Services Agreement, Order Form or Additional Terms pursuant to the Permitted Use:
(i)             transfer, license, display, distribute, resell, assign, commercialize or make available any of the Licensed Data or the Integration Partners Licensed Data in any form to any Third Party, or
(ii)            access or use the Licensed Data or the Integration Partners Licensed Data for any purpose that is competitive with AA or its Affiliates, or Integration Partners, or any products or services of AA or its Affiliates or products and services of Integration Partners, or for purposes of developing or promoting any competing product or service;
(e)            publish or publicly disclose the Licensed Data or the Integration Partners Licensed Data, including by placing any of the Licensed Data or the Integration Partners Licensed Data onto a server so that it is accessible to any Third Party or via a public network such as the Internet without AA’s prior written consent;
(f)             use the Licensed Data or the Integration Partners Licensed Data for purposes of product evaluation, benchmarking or other comparative analysis without AA’s prior written consent; or
(g)            integrate or embed the Licensed Data or the Integration Partners Licensed Data, or any of AA Products or Services in any product or service offered by Licensee without AA’s prior written consent.
The restrictions above also apply to any technology, materials or intellectual property provided to Licensee hereunder in connection with the Licensed Data (e.g., AA application program interfaces) or the Integration Partners Licensed Data. For purposes of clarity, unless expressly set forth otherwise in the applicable Additional Terms, Master Services Agreement or Order Form, the rights and licenses granted to Licensee with respect to the Licensed Data or the Integration Partners Licensed Data shall extend to Licensee only, and not to any Affiliate or related party of Licensee.
 
4.              TERM AND TERMINATION: SUSPENSION.
4.1           Term. This Master Data License shall commence on the Effective Date and, unless earlier terminated pursuant to Section 4.2, shall continue until the expiration or termination of all License Terms as set forth in the applicable Master Services Agreement or Order Form.
4.2           Termination. In addition to any other rights or remedies that a Party may have hereunder or under any Law, all of which are expressly reserved, and subject to Section 4.4 below, AA and Licensee shall each have the right to terminate this Master Data License: (a) if the other Party commits a material breach of this Master Data License, and such breach has not been cured within thirty (60) days after receiving written notice of such breach; or (b) upon the initiation of any bankruptcy, insolvency or other similar proceeding against the other Party or an entity that Controls the other Party.
Additionally, AA shall have the right to terminate this Agreement and/or any Master Services Agreement or Order From immediately in the event of a Change of Control. For purposes of clarity, (x) in the event of any termination of this Master Data License, each Master Services Agreement or Order Form entered into by the Parties hereunder shall also terminate contemporaneously with the termination of this Master Data License; and (y) in the event that only a particular Master Services Agreement or Order Form is terminated, this Master Data License and all other Master Services Agreement or Order Forms will remain in effect.
4.3           Effect of Termination. Upon the end of a License Term, or any termination of this Master Data License or a particularMaster Services Agreement or Order Form:
(a)            AA’s obligation to provide access to the applicable Licensed Data or Integration Partners Licensed Data (which, in the case of a termination of this Master Data License, is all Licensed Data) shall automatically terminate;
(b)            other than as set forth in any Additional Terms, Master Services Agreement or Order Form, (i) all rights and licenses to the applicable Licensed Data or Integration Partners Licensed Data granted to Licensee and Authorized Users hereunder shall terminate; and (ii) Licensee and Authorized Users shall immediately cease (and cause its Personnel to cease) any use or disclosure of the applicable Credentials and Licensed Data; and
(c)            Any unpaid License Fees with respect to the applicable Licensed Data will be immediately due and payable.
4.4           Temporary Suspension. AA may at any time suspend Licensee’s access to and use of the Licensed Data or Integration Partners License Data, if AA reasonably believes that such access or use presents a threat or harm to AA or its other customers, including based on the acts or omissions of any particular Authorized Users. AA will lift such suspension promptly after being reasonably assured that the threat or harm is no longer present.
5.          LICENSE FEES AND PAYMENTS.
5.1       License Fees.
(a)            In exchange for the rights and licenses granted to Licensee hereunder, Licensee will pay to AA (or the applicable AA Affiliate identified in the Master Services Agreement or Order Form) the License Fees. Unless otherwise set forth in the applicable Master Services Agreement or Order Form, (i) all License Fees are non-refundable and payable in United States Dollars; and (ii) Licensee shall pay all License Fees owed to AA within five (5) days of Licensee’s receipt of the applicable invoice.
(b)            If AA requires or permits payment via automated clearing house (ACH), Licensee acknowledges and agrees that the License Fees will be deducted from Licensee’s bank account via ACH at the time the License Fee is incurred. Licensee hereby authorizes AA (and/or its designee) to make such deductions.
5.2           Late Fees and Payment Disputes. AA may charge interest on any payment not made when due at a rate equal to the lesser of one and one half percent (1.5%) per month, or the maximum rate allowed under applicable Law. Licensee will also be liable for all collection agency fees and reasonable attorneys’ fees payable by AA or its Affiliates in connection with enforcing Licensee’s payment obligations. In the event of any dispute with respect to an invoice, Licensee must notify AA in writing of, and provide a good faith basis for, such dispute within sixty (60) days of the date such amounts are due.
5.3           Taxes. Except for franchise taxes, commerce taxes, and taxes based upon the net income and personal property of AA, Licensee will be solely responsible for any taxes or other assessments imposed by governmental authorities in connection with Licensee’s (or Authorized Users’) use of or access to any Licensed Data.
5.4           Fee Adjustments and Increases. AA reserves the right to increase the License Fees at any time, but only once each calendar year, by providing written notice to Licensee at least forty-five
(45) days in advance.
6.              REPRESENTATIONS AND WARRANTIES.
6.1           By AA. AA represents and warrants to Licensee that:
(a)            AA will comply at all times with all applicable Laws in connection with its making available the Licensed Data, including applicable Privacy Laws;
(b)            AA is the owner and/or the licensor of all intellectual property rights in and to the Licensed Data, and has all necessary rights and licenses to fulfill its obligations and grant all rights granted to Licensee herein; and
(c)            AA will use commercially reasonable efforts to avoid introducing any Malicious Code into the Licensed Data or other technology, materials or intellectual property made available to Licensee by AA hereunder in connection with Licensee’s use of the Licensed Data.
6.2           By Licensee. Licensee represents and warrants to AA that:
(a)            Licensee will comply at all times with all applicable Laws in connection with the use of and access to the Licensed Data and otherwise in connection with the exercise of its rights and performance of its obligations under this Master Data License, including all Privacy Laws and Laws relating to unfair competition, deceptive trade practices, and advertising;
(b)            Licensee’s entering into this Master Data License does not conflict with or violate any other agreement Licensee may have with any Third Party; and
(c)            Licensee will use commercially reasonable efforts to prevent any Malicious Code from being introduced into AA’s systems or environment through access to the Licensed Data by Licensee, Authorized Users, and/or their Personnel.
7.              CONFIDENTIALITY.
7.1           Confidentiality Obligations. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose other than as permitted under this Master Data License, and (except as otherwise authorized by the Disclosing Party in writing) agrees to disclose Confidential Information of the Disclosing Party only to its Personnel who need to know such information for purposes of carrying out the Receiving Party’s obligations or exercising its rights hereunder. The Receiving Party will keep the Confidential Information of the Disclosing Party confidential and secure, and protect it from unauthorized use or disclosure, by using at least the same degree of care as the Receiving Party employs to protect its own Confidential Information, but in no event less than reasonable care.
7.2           Compelled Disclosure. If the Receiving Party becomes legally compelled to disclose any Confidential Information of the Disclosing Party in a manner not otherwise permitted by this Master Data License, the Receiving Party will inform the Disclosing Party of the request with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy. If a protective order or similar order is not obtained by the date by which the Receiving Party must comply with the request, the Receiving Party may furnish that portion of the Confidential Information that it reasonably determines it is legally required to furnish. The Receiving Party will exercise reasonable efforts to obtain assurances that confidential treatment will be afforded to the Confidential Information so disclosed.
7.3           Injunctive Relief. Each Receiving Party acknowledges and agrees that the wrongful disclosure of any Confidential Information of the Disclosing Party may cause irreparable injury to such Party and its applicable Affiliates, and that remedies other than injunctive relief may be insufficient. Accordingly, the Disclosing Party will have the right to seek equitable and other injunctive relief to prevent any wrongful disclosure of any of its Confidential Information, as well as such damages and other relief to which such Party or its Affiliates may be entitled.
7.4           No Implied Rights. Each Party’s Confidential Information will remain the property of that Party. Nothing contained in this Section 7 will be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or by implication, any rights or license to the Confidential Information of the other Party.
8.              RECORD RETENTION; AUDIT RIGHTS; MATERIALS REVIEW.
8.1           Record Retention. Licensee shall maintain complete and accurate books and records of all uses of the Licensed Data and any other transactions that relate to the Licensed Data or otherwise take place in connection with this Master Data License, along with such other information and materials as may be necessary for AA to verify Licensee’s compliance with the terms and provisions of this Master Data License, which obligations shall apply during the Retention Period; provided, however, that if a dispute arises in connection with Licensee’s use of any Licensed Data or otherwise with this Master Data License, the Retention Period will be automatically extended until the final resolution of such dispute.
8.2           Audit Rights. AA or its designated Personnel shall be entitled to audit all books and records required to be maintained by Licensee pursuant to Section 8.1 at any time during the License Term, or during the Retention Period, in each case for purposes of verifying Licensee’s compliance with the terms and conditions of this Master Data License. Any audit performed by AA or its designated Personnel pursuant to this Section 8.2 shall be performed during normal business hours, unless otherwise agreed upon by the Parties. AA will bear the expenses of any audit conducted pursuant to this Section 8.2, unless such audit discloses that Licensee has failed to comply in any material respect with this Master Data License. Licensee agrees to cooperate, and to cause its Personnel to cooperate, in connection with any audit conducted by AA or its designated Personnel pursuant to this Section 8.2.
8.3           Marketing Material Review. Upon AA’s request, Licensee will make available for AA review and comment on any marketing, sales and/or promotional materials used by Licensee with respect to the Licensed Data. Licensee will incorporate AA’s reasonable suggestions into the materials.
9.              INDEMNIFICATION; LIMITATIONS OF LIABILITY.
9.1           Indemnification. Licensee shall indemnify and defend AA and its Affiliates against any damages, losses, costs and expenses (including reasonable attorneys’ fees, court costs, settlement costs and awarded amounts) incurred in connection with any Third Party claim to the extent such claim: (a) arises from or relates to the breach by Licensee or any Authorized User of any of its obligations under this Master Data License, including any Additional Terms, Master Services Agreement or Order Form, (b) arises from or relates to any use or disclosure by Licensee of the Licensed Data or the Integration Partners Licensed Data (even if such use or disclosure was in connection with a Permitted Use), unless such claim alleges that the Licensed Data or the Integration Partners Licensed Data, in the format made available to Licensee by AA and irrespective of any use or disclosure of such Licensed Data by Licensee, violates the intellectual property rights of any Third Party, or (c) is made by an Authorized User.
9.2           LIMITATIONS OF LIABILITY. AA AND ITS AFFILIATES SHALL IN NO EVENT BE LIABLE TO LICENSEE OR ITS AFFILIATES FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, MULTIPLE, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR IN CONNECTION WITH THIS MASTER DATA LICENSE (INCLUDING ALL ADDITIONAL TERMS AND ORDER FORMS HEREUNDER ADDENDA), EVEN IF AA OR ITS AFFILIATE, AS THE CASE MAY BE, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING BREACH OF CONTRACT OR WARRANTY, EQUITY, STRICT LIABILITY, TORT OR OTHERWISE), OR, (II) IN THE AGGREGATE, ANY DAMAGES OR OTHER AMOUNTS OF ANY KIND IN EXCESS OF THE LICENSE FEES PAID TO AA UNDER THIS MASTER DATA LICENSE, IF ANY, DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AT ISSUE FIRST AROSE.
9.3           DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THE LICENSED DATA WILL BE PROVIDED SOLELY ON AN “AS IS” AND “AS AVAILABLE” BASIS AND NEITHER AA NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION OR WARRANTY TO LICENSEE WITH RESPECT TO ANY LICENSED DATA OR THE USE THEREOF, EXPRESS OR IMPLIED, INCLUDING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF TITLE, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT. AA MAKES NO REPRESENTATION OR WARRANTY THAT THE LICENSED DATA (INCLUDING ACCESS THERETO) WILL BE AVAILABLE, ACCURATE OR ERROR-FREE, AND MAKES NO OTHER REPRESENTATION, WARRANTY OR COMMITMENT HEREUNDER OF ANY TYPE OR NATURE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
 
10.           PRESS RELEASES; MARKS.
10.1         Press Releases. Neither Party will issue any press release or make any other public announcement or disclosure concerning this Master Data License or any Additional Terms or Master Services Agreement or Order Forms (or the termination of this Master Data License, if this Master Data License is terminated), except with the prior written consent of the other Party and except for such disclosures as are required by Law, in which case the Party intending to make such disclosure shall provide the other Party with an advance copy and a reasonable opportunity to review and comment with respect thereto.
10.2         Marks. The Parties acknowledge and agree that, except as expressly provided herein (including in the applicable Additional Terms, Master Services Agreement or Order Form), (a) nothing herein grants or otherwise provides to the other Party any right or license to use or display any Marks of the other Party, or any Marks of an Integration Partner; and (b) any other use or display by either Party of any Marks, or any Marks of an Integration Partner, must be expressly pre-approved in writing by the other Party (or the Integration Partner) and any authorization, approval or consent that such Party (or the Integration Partner) may provide for the use or display of any Marks may be revoked by such Party (or the Integration Partner) at any time and for any reason. If AA authorizes Licensee to display any AA Products Marks, Licensee shall comply with AA™ Branding Compliance Guidelines.
11.           MISCELLANEOUS.
11.1         Notices. All notices required or permitted to be given under this Master Data License must be (a) in writing, (b) sent by commercial delivery service or certified mail, return receipt requested, (c) deemed to have been given on the date set forth in the records of the delivery service or on the return receipt, and (d) if (i) from Licensee to AA, then to Auto Acquire, Inc., Attention: Legal Department, at 7668 El Camino Real, #104-444, Carlsbad, CA 92009, or (ii) from AA to Licensee, then to the address set forth in the Master Services Agreement or Order Form or such other address that AA has on file for Licensee, or if no such address is on file, to the address of a physical location of Licensee known to AA, in either case with Attention: Legal.
11.2         Governing Law and Forum. Any disputes arising from or related to this Master Data License shall be governed and construed in accordance with the Laws of the State of Delaware, without regard to its conflict of Laws principles. Licensee hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the state and federal courts located in Delaware in any action commenced by or on behalf of Licensee in connection with this Master Data License. Licensee irrevocably and unconditionally waives any objection to the laying of venue of any action arising out of or relating to this Master Data License, in any such court. By entering into to this Master Data License, the Parties agree to waive the right to a jury trial.
11.3         Order of Precedence. In the event of any conflict in contract terms, the terms in a Master Services Agreement or an Order Form will take precedence over the terms of this MDL, with respect to such Master Services Agreement or Order Form only. Contract terms will not be interpreted strictly against a Party by virtue of such Party’s role in preparing or drafting them.
11.4         Amendments and Modifications. Any amendments or modifications of this Master Data License, including the Master Services Agreement or Order Form, will only be effective if in writing and signed by all the Party. AA reserves the rights to, in its sole discretion, amend or modify the Rate Card, the Additional Terms and the AA™ Branding Compliance Guidelines, as needed, upon notice to Licensee. 
11.5         Force Majeure. Neither Party will be liable for any failure or delay in performing any obligation to the extent such failure or delay is attributable to causes beyond its reasonable control. Such causes include natural catastrophes, strikes or labor difficulties, denial of service attacks, internet or Third Party hardware or service failures, telecommunication failures, any act of God or other condition or event outside a Party’s reasonable control, to the extent not occasioned by the fault or negligence of the delayed Party.
11.6         Entire Master Agreement. This Master Data License, along with any Additional Terms, Master Services Agreement and Order Form, contains the entire agreement of the Parties with respect to the subject matter hereof and thereof, and supersedes all other prior agreements and understandings between the Parties with respect to such matter, whether oral or written.
11.7         Non-Waiver and Severability. The failure of either Party to enforce any provision of this Master Data License will not be deemed a waiver of such provision or of the right of such Party thereafter to enforce such provision. If any provision of this Master Data License is held unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect and the Parties will negotiate in good faith a substitute valid and enforceable provision that most nearly gives effect to the Parties' intent in agreeing to this Master Data License.
11.8         Headings. The headings used in this Master Data License are used for convenience only and are not to be considered in construing or interpreting this Master Data License.
11.9         Remedies and Enforcement. Except as otherwise expressly provided herein, all remedies are cumulative and in addition to and not in lieu of any other remedies available to a Party in connection with this Master Data License, or at law or in equity. Each Party shall be responsible (and shall reimburse the other Party upon demand) for any and all costs and expenses (including attorneys’ fees and related costs) that may be incurred by the other Party or its Affiliates in connection with any efforts to enforce this Master Data License.
11.10           Survival. Any provisions of this Master Data License that should reasonably survive the applicable License Term or the termination of this Master Data License in accordance with their respective terms shall so survive, as well as any cause of action or claim of either Party, whether in law or in equity.
11.11      Assignment. Licensee may not assign any rights or obligations it has under this Master Data License or any Additional Terms or Master Services Agreement or Order Forms, whether by operation of Law or otherwise, without the prior written consent of AA (which may be withheld in its sole discretion). AA may assign any or all of its rights and obligations under this Master Data License, upon notice to Licensee.
11.12      Master Services Agreement and Order Form Effectiveness:
11.12.1  Master Services Agreements or Order Forms may be executed in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitute only one agreement. The signatures of the Parties need not appear on the same counterpart. A Party may submit an executed counterpart via scanned PDF, which will be treated as an originally-signed document.
11.12.2  Certain Master Services Agreements or Order Forms may be executed by means of electronic or digital signatures. Any such electronic or digital signature will be deemed to satisfy all requirements imposed on electronic or digital signatures under the Electronic Signatures in Global and National Commerce Act (E-SIGN), and any similar Laws relating to the validity or enforceability of electronic or digital signatures. 

 

 

ADDENDUM
PRODUCTS AND SERVICES

Product/ Service    Definition
“AA Appraisal™” or “Appraise”     Means a product sold within the AA platform desktop and Mobile App version which is owned by iOffer and may carry additional cost and licensing agreement(s) depending on the vehicle values selected.  This product requires a licensing agreement between the dealer using  the product  and iOffer a product of Sell Your Car Inc. 
“Acquisition Center”
    is an AA service available to clients with 4 or more locations within the same market (no further than 100 miles). Any of the AutoAcquire Pro packages combined. Exclusive Market for each franchise, 10 hours per month consulting and best practice services, any leads generated from non-Reseller partner sites in that market and discounts on Add On services.

“Exclusive Market”
    is an Auto Acquire, Inc. product. It means to exclude 3 competitors of the same brand in their defined geographic market. Exclusive Market is defined in this MDL for billing purpose only and it does not mean, convey or grant exclusive rights of AA Products to Licensee.

“AutoAcquire Lite (Service Drive)”
    
means offers generated for service customers. Appointments and Open Repair Orders on VINs will be sent an offer by Text and email. 90 days follow-up communication.

“AutoAcquire AI Pro:
Small (1-50 used vehicle sales per month)
Medium (51-100 used vehicle sales per month)
Large (100+ used vehicle sales per month)”    
means Acquisition Platform software and services: Automated Vehicle Acquisition email/text campaigns, inventory polling, Dynamic Vehicle Offer values, Offer Builder, Trade-In lead generation widgets, market Insights, ongoing messaging, integration platform for add-on products: transportation, money transfers, ID validation, tile/payoff validation, private party marketplaces, wholesale marketplaces built on an open API driven solution that allows hundreds of other integrated solutions.

AutoAcquire AI (Exclusive Market)
    
Any of the AutoAcquire Pro packages that allow the client to exclude 3 competitive dealers of the same new car franchise brand within their defined PMA from the manufacturer.

AutoAcquire AI (Acquisition Center)
    
Available to clients with 4 or more locations within the same market (no further than 100 miles). Any of the AutoAcquire Pro packages combined. Exclusive Market for each franchise, 10 hours per month consulting and best practice services, any leads generated from non-dealer partner sites in that market and discounts on Add On services.

DMS Integration
    Integration to clients DMS for extraction of Service Appointment, Repair Orders, Leads, Deals and Inventory (if available).

Remote Inspections
    Remotely generated comprehensive vehicle reports with up to 16 staged photos and checklists essential information about the condition of vehicles.

Vehicle Transportation

    
Ability to get quotes, order and track vehicle transportation via integrated partners directly from the AutoAcquire platform
Money Transfers    Payment system available via Pay-By-Text app.
Seller ID Verification    License verification and validation of seller with advanced fraud detection and facial recognition
Title and Payoff Validation    Validation of title and title status and payoff of liens or leases if applicable
AI Market Intelligence and Automated Buy List    AI trained intelligence that will make buy and sell recommendations based on market trends, identify the specific instant cash offers that will drive leads without overpaying all combined with a dynamic Buy List that will automatically identify any vehicle that matches the criteria and launch a campaign in an attempt to acquire them
“Service Drive”     means offers generated for service customers; appointments and open repair orders on VINs will be sent an offer by text and email. Offers also 90 days follow-up communication.

“KBB branded banner”    means Website code for client websites to generate leads from customers interested in selling or trading vehicles. Includes; branding of Kelly Blue Book, Kelly Blue Book display of vehicle value, customer dealership offers, ADF leads sent to client and custom configuration of the look and feel in the UI.  This product requires a licensing agreement between the dealer using  the product and iOffer a product of SellYourCar Inc. 
Website Banner and Landing Page    Website code for client websites to generate leads from customers interested in selling or trading vehicles. Includes customer dealership offers, ADF leads sent to client and custom configuration of the look and feel in the UI.
“iOffer™ Customizable Banner”
    means Website code for client websites to generate leads from customers interested in selling or trading vehicles. Includes customer dealership offers, ADF leads sent to client and custom configuration of the look and feel in the UI.

“Auto Acquire Platform™” (“AA Plaform”)
    means a AA Product that Licensee can use to call and access certain vehicle valuation (“iOffer API™”) and specifications information (“iOffer Data Insights™”).

“iOffer™”     means all data, software and systems encompassed in the iOffer Platform. It is also a single vehicle value generated by the iOffer Platform™ and/or iOffer API™. 
““iOffer+™”
    means the vehicle value created by adjusting iOffer™ values with iOffer Builder software to meet the needs of the Licensee. 
“iOffer API™”
    means the direct iOffer vehicle values data feed whereby Licensed Data can be accessed according to user agreement. 
“iOffer Builder™”
    means self-service automated bidding platform and syndication platform.  
“iOffer Data Insights™” 
    means specific data used in iOffer Platform to inform users of market conditions. 

“iOffer Marketplace Syndication API”     allows Auto Acquire, Inc. to have AA syndicates a dealer instant offer algorithm to a third party marketplace.  This will be limited to the normal use of API calls for the use case +localized for the specific dealers geographic area.  If a dealer wishes to syndicate on multiple areas then the Auto Acquire will be required to pay the fee for each geographic area.
“iOffer Markets Insights™”     means AA daily index data & analytics of the vehicle value market, which measures the changes in price across the automotive industry, including, but not limited to, retail, wholesale, MDS, and digital auction. It is available via API or as an executive dashboard. 

“iOffer Top Offers API”    is a AA Product that allows Auto Acquire, Inc to show the highest offers and Dealer information  on a specified VIN number. 

 “iOffer Vehicle Values™”     means all proprietary vehicle values owned by iOffer and offered in products and services within the AA platform

“iOffer Website Widget™”    means Vehicle Acquisition Instant Cash Offer Plug-in for your website. Adjust Cash Offers to your own values with iOffer Builder™
“Per Store Pricing iOffer API™ included”     Auto Acquire, Inc. will be required to hit the AA Size Ranking API to validate the dealer size for pricing.  The API calls per month will be limited to the use case of a single dealer's in-store service customers and internet leads.  If a dealer wishes to create a marketplace site or multiple rooftops Auto Acquire, Inc. will need to get permission in writing additional fees may apply. 

“PayByText™”    means AA payment system available via the iOffer platform. It is one of the AA Products.

 “Website White-Labeled Plug-in™”     means AA widget that allows the display of real-time offers on Licensee’s website which allows Licensee to adjust the vehicle offer based on Licensee’s specific needs through the iOffer Builder™. It is one of the AA Products.