AutoGravity – Dealer Terms of Service

BY EXECUTING ANY EXHIBITS, SERVICE AGREEMENTS (AS DEFINED BELOW) OR RELATED AUTOGRAVITY-DEALER SERVICE AGREEMENT FORMS THAT INCORPORATES THE TERMS OF THIS AUTOGRAVITY DEALER TERMS OF SERVICE (“DEALER TERMS OF SERVICE”) BY REFERENCE, DEALER (AS IDENTIFIED IN A RELATED SERVICES AGREEMENT, AS “DEALER” OR “YOU” OR “YOUR”) AGREES TO BE BOUND BY ALL OF THE FOLLOWING TERMS AND CONDITIONS AS PUBLISHED ON AUTOGRAVITY’S WEBSITE AT WWW.AUTOGRAVITY.COM (OR ANY SUCCESSOR WEBSITE). THESE TERMS AND CONDITIONS TOGETHER WITH ANY SUCH SERVICE AGREEMENTS OR RELATED SERVICE AGREEMENT FORMS, INCLUDING WEB-WIDGET INTEGRATION TERMS & CONDITIONS (“WEB WIDGET TERMS & CONDITIONS”) WHERE APPLICABLE, AS MAY BE AMENDED FROM TIME TO TIME, SHALL BE KNOWN AS THE “AGREEMENT”. THE AGREEMENT GOVERNS YOUR USE OF THE AUTOGRAVITY SERVICES. BY ENTERING INTO THE AGREEMENT, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE DEALER TO APPLICABLE TERMS AND CONDITIONS.

Background

i. AutoGravity Corporation (“AutoGravity”) maintains a software platform (the “AutoGravity Network”) that allows individual consumers (a “Shopper”) to search vehicle inventories of Dealers and then allows the Shopper to request vehicle financing or leasing offers from one or more financial institutions that participate on AutoGravity Network (“Lenders”).

ii. Dealer is a licensed automotive vehicle dealer or dealer group as defined in the relevant AutoGravity – Dealer Services Agreement (the “Services Agreement”), and wishes to have AutoGravity display to Shoppers its vehicle inventory on the AutoGravity Network and other Third Party Listing Sites (as defined below) and generate sales leads to the Dealer, some of which may result in the purchase or lease of a vehicle from Dealer.

iii. AutoGravity and Dealer (individually a “Party” and collectively the “Parties) wish to establish the terms and conditions under which the activities described above will occur.

1. Scope of Agreement . The Agreement outlines the terms and conditions that govern the obligations of AutoGravity and the Dealer and the terms and conditions that apply when Dealer receives sales leads, some of which may result in the purchase or lease of a vehicle from Dealer.

2. Obligations of AutoGravity . AutoGravity will provide the following services to Dealer (“Services”). This section does not impose upon AutoGravity an obligation to develop or deliver services not generally implemented for its other users.

a. Inventory Views and Placement on AutoGravity Network and Third Party Listing Sites . AutoGravity will, to the extent provided by Dealer, make Dealer’s vehicle inventory available for search by Shoppers on the AutoGravity Network and other inventory listing sites (“Third Party Listing Sites”). Specific vehicles from Dealer’s inventory may be displayed to a Shopper according to the Shopper’s search criteria and AutoGravity’s own display criteria or the Third Party Listing Sites’ criteria (an “Inventory View”). The placement or prominence of an Inventory View within a returned search result, if displayed, shall be at the sole discretion of AutoGravity and the Third Party Listing Sites. Nothing in the Agreement will obligate AutoGravity to provide any specific or minimum volume of Inventory Views.

b. Credit Application Decision Placed into Dealer Credit Portal . Shoppers may submit a credit application via the AutoGravity Network for further consideration by Lenders in connection with the potential purchase or lease of a vehicle from Dealer. If a Lender provides a response to the credit application (a “Credit Decision”) through the AutoGravity Network, AutoGravity will place the Credit Decision into the platform that Dealer uses to manage such auto finance transactions (“Credit Portal”). In some circumstances, AutoGravity may submit a Shopper’s credit application to Lender on behalf of Dealer directly through the Dealer’s Credit Portal and a Credit Decision may be returned directly to Dealer from Lender via the Portal. AutoGravity will use commercially reasonable efforts to integrate with Dealer’s Credit Portal or to provide Credit Decisions to Dealer in a mutually agreed upon format.

c. Sales Lead Placed into Dealer Customer Relationship Management Platform or Otherwise Made Available . Shoppers may voluntarily express interest in the purchase or lease of a vehicle via the AutoGravity Network. AutoGravity may collect directly, or receive from a third party, the contact information of such Shoppers, together with consent to share this information with Dealer (a “Sales Lead”), and place the Sales Lead into Dealer’s Customer Relationship Management platform (“CRM”) or otherwise make the Sales Lead available to Dealer. AutoGravity will use commercially reasonable efforts to integrate with Dealer’s CRM or to provide Sales Leads to Dealer in a mutually agreed upon format.

d. Reporting of Additional Data . AutoGravity may aggregate anonymized usage data of its AutoGravity Network and may, at its sole discretion, share abstracts or reports of this data to Dealer. Such abstracts or reports under this section will remain the property of AutoGravity and shall be treated as Confidential Information under the Agreement.

e. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, EACH SERVICE IS PROVIDED “AS IS,” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED.

3. Obligations of Dealer . Before AutoGravity begins providing the Services described in the Agreement, Dealer must provide, and continue to provide during the term of the Agreement, the following.

a. Dealer Feed of Accurate Inventory . Dealer will maintain and make electronically available to AutoGravity accurate and descriptive vehicle inventory information, including but not limited to VIN, stock number, sale and list pricing, vehicle images, features, vehicle condition, mileage, availability, and all other information Dealer customarily provides and may be necessary to market a specific unit of vehicle inventory (an “Inventory Feed”). Dealer shall provide the Inventory Feed to AutoGravity either directly through the platform Dealer uses to manage such inventory (“Inventory Portal”) or indirectly through a third-party aggregator of such inventory (“Inventory Aggregator”). Dealer agrees to execute any documents or provide authorization necessary for AutoGravity to receive inventory data from its Inventory Portal or Inventory Aggregator. If AutoGravity is unable to accept Dealer’s Inventory Feed through Dealer’s Inventory Portal or Inventory Aggregator, Dealer agrees to use commercially reasonable efforts to provide AutoGravity its Inventory Feed in a mutually agreed upon format. Dealer shall use commercially reasonable efforts to keep the Inventory Feed immediately up-to-date, but at least updating inventory no less than daily.

b. License to the Inventory Feed. Dealer grants to AutoGravity, during the term of the Agreement, a non-exclusive, non-sublicensable, non-transferrable, royalty-free and fully paid up, perpetual and irrevocable, worldwide right to use and display the Inventory Feed provided by Dealer hereunder to perform AutoGravity’s obligations under the Agreement.

c. Credit Portal Access . Dealer shall allow AutoGravity to directly post Credit Decisions into Dealer’s Credit Portal, or where applicable, allow AutoGravity to submit credit applications on behalf of Dealer via Dealer’s Credit Portal and allow Credit Decisions to be returned into the Credit Portal by Lender. Dealer agrees to execute any documents or provide authorization necessary for AutoGravity to access Dealer’s Credit Portal for this purpose. If AutoGravity is unable to directly post Credit Decisions into Dealer’s Credit Portal, Dealer agrees to use commercially reasonable efforts to accept Credit Decisions in a mutually agreed upon format.

d. Customer Relationship Management Access . Dealer shall allow AutoGravity to directly post Sales Leads into Dealer’s CRM. Dealer agrees to execute any documents or provide authorization necessary for AutoGravity to access Dealer’s CRM for this purpose. If AutoGravity is unable to directly post Sales Leads into Dealer’s CRM, Dealer agrees to use commercially reasonable efforts to accept Sales Leads in a mutually agreed upon format.

e. Dealer to Provide Attribution Reports . Dealer agrees to provide attribution to AutoGravity for all transactions originating from Sales Leads or Credit Decisions provided by AutoGravity. Attribution shall apply even if Dealer converts the Sales Lead or Credit Decision into a transaction with terms that differ from the original lead or decision, including but not limited to finalizing the transaction with a different vehicle, different Lender, differing finance or lease terms, or at a different dealership under the common ownership by the Dealer. Dealer shall provide a monthly report to AutoGravity providing such transaction details as necessary for AutoGravity to attribute a particular vehicle transaction to a specific Sales Lead provided by AutoGravity.

f. Service to Shoppers . Dealer shall engage Shoppers with customer service that is consistent with Dealer’s own business practices and policies affecting all other customers, and Dealer agrees that such practices and policies shall meet or exceed industry standards and applicable laws and regulations. Dealer agrees to not discriminate against or disadvantage a Shopper, including, among other things, due to Shopper’s use of the AutoGravity Network or Shopper’s choice of Lender. Dealer covenants to use best efforts to covert a Sales Lead or Credit Decision into a finalized transaction that is mutually agreeable to Dealer and Shopper. Dealer acknowledges that AutoGravity is a technology platform and not a party to any transaction between Dealer and Shopper, and Dealer agrees that it will comply with all automotive retailing laws, including but not limited to laws concerning advertising, disclosures, anti-fraud, anti-discrimination, and financing.

g. Cooperation with AutoGravity . Dealer shall identify one or more of its employees to serve as administrators to Dealer’s account on the AutoGravity Network. Dealer shall make available to AutoGravity one or more employees that may be trained in using the AutoGravity Network and providing customer service to Shoppers. Dealer will promptly notify AutoGravity of changes in its Inventory Portal, Inventory Aggregator, Credit Portal, or CRM platforms and execute new documents or provide authorizations for AutoGravity to maintain access. Dealer will promptly contact AutoGravity to resolve AutoGravity Network related service issues or Shopper complaints.

h. Taxes . Any Fees paid under the Agreement do not reflect taxes. Dealer shall be solely responsible for any taxes or other amounts levied or assessed in connection with the use of the AutoGravity Network and the Services provided under the Agreement, including any applicable sales, use, transfer or other similar types of taxes. If AutoGravity is required to remit any such taxes, then Dealer shall be required to pay the amount of such taxes to AutoGravity in addition to the Fees.

4. Licenses . AutoGravity grants to Dealer during the term of the Agreement a limited, non-exclusive, non-sub-licensable, non-transferable, royalty-free, worldwide right to use Dealer’s account on the AutoGravity Network and the Shopper data solely in accordance with the Agreement and solely for Dealer’s internal business purposes. Dealer may not and will not (a) copy or modify any portion of the AutoGravity Network; (b) distribute any portion of the AutoGravity Network to any third party; or (c) use any portion of the AutoGravity Network in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Agreement. Dealer acknowledges that the AutoGravity Network and its underlying technology constitute AutoGravity trade secrets and Dealer agrees not to reverse engineer any components of the AutoGravity Network or its underlying technology.

5. Marks . Each Party grants to the other a limited, non-exclusive, non-sub-licensable, non-transferable, royalty-free and fully paid-up, worldwide license to use the other Party’s logos, trademarks and service marks (“Marks”), but solely in connection with performance under the Agreement or for cross-marketing purposes and in compliance with the licensing Party’s reasonable trademark usage guidelines. Any use of such Marks will inure to the benefit of the licensing Party.

6. Consumer Consent to Share Consumer Information . Before delivering any non-public personally identifiable information (“NPPI”) of Shopper to Dealer, AutoGravity will, either directly or through a third party, present to Shopper a disclosure that AutoGravity is collecting and sharing information, including NPPI, with Dealer and that Dealer is sharing information, including NPPI, with AutoGravity or any applicable Lenders. Consents to share information may be collected from the Shopper when and in the manner required by law. Dealer acknowledges that such disclosure and consent may be generic and apply to all similarly situated Dealers.

7. Protection of Consumer Information . Each Party will materially comply with its privacy notices and policies, which shall be consistent with industry best practices, applicable law, and any instructions of the Shopper whose NPPI is affected. Dealer covenants to use Shopper data for the sole purpose of converting a Sales Lead or Credit Decision into a finalized automotive sales or lease transaction that is mutually agreeable to Dealer and Shopper. Dealer will not share Shopper data with any third party for the purpose of marketing any other products or services to the Shopper unless Dealer separately obtains consent from Shopper to do so. Dealer will use all information received from AutoGravity in compliance with the Gramm-Leach-Bliley Act (“GLBA”), and all other laws governing the access, handling, processing, and use of such information, including laws: (a) ensuring the security and confidentiality of Dealer’s information (including that of its customers); (b) protecting against any anticipated threats or hazards to the security or integrity of such information; and (c) protecting against unauthorized access to or use of such information. AutoGravity will have no responsibility for any Shopper data in Dealer’s possession from the time it is delivered by AutoGravity to Dealer.

8. Consumer Consent to be Contacted . Before a Sales Lead or Credit Decision concerning a Shopper is delivered to Dealer, AutoGravity will, either directly or through a third party, collect from the Shopper consent to be contacted by Dealer to initiate a vehicle purchase or lease transaction (an “Initial Consent”). Dealer acknowledges that such message may be generic and apply to all similarly situated Dealers and that the Initial Consent does not extend to non-transactional, marketing or any other continuing communications. Dealer agrees to comply with instructions of Shopper concerning their communications preferences and to collect and maintain consent from Shopper for communications not covered by the Initial Consent. AutoGravity will inform Dealer if the Initial Consent is revoked by Shopper, and Dealer agrees to comply with such revocation as applicable. Dealer agrees that all communications with Shopper using information provided in a Sales Lead will be in compliance with all applicable laws concerning communications with consumers, including but not limited to the Telephone Consumer Protection Act, the Telemarketing Sales Rule, and the CAN-SPAM Act. AutoGravity will have no responsibility for collecting, maintaining, or documenting any consents other than the Initial Consent.

9. Confidentiality and Non-Disclosure . Except as and when a Party may otherwise give its prior written consent, each Party will: (a) hold in strict confidence and not disclose to any third party the Confidential Information of the other; (b) only permit access to the Confidential Information of the disclosing Party to its employees, contractors, or agents, who each have a need to know and are bound by the confidentiality obligations contained in theAgreement; (d) only use Confidential Information to carry out the purposes of the Agreement and for no other purpose; and (e) use at least the same degree of care it would use to protect its own Confidential Information of like importance, but in no event less than a reasonable degree of care. Confidential Information includes all NPPI, information marked “Confidential” or “Proprietary”, and information that a reasonably prudent business would understand to be confidential even without being marked.

If a Party is required by a governmental agency or law to disclose Confidential Information of the other Party, it shall, to the extent it is not legally prohibited from doing so, provide the other Party with prompt written notice of the order and take reasonable steps to allow the other Party to protect the confidentiality of the Confidential Information, and then only disclose that part of the Confidential information it is required to disclose. The foregoing requirements do not apply to or limit a Party’s ability to fully comply with requests for information from its regulators or the Internal Revenue Service.

10. Sanctions . Each Party represents and warrants (which representations and warranties shall be deemed to be continuing and re-made at all times during the term of the Agreement) that: (a) it is not included on the list of Specially Designated Nationals and Blocked Persons or the Foreign Sanctions Evaders List maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), or any other applicable sanctions lists (together the “Blocked Entities Lists”); (b) more than 50% of Dealer ownership is comprised of individuals, Persons, or entities not appearing on the Blocked Entities Lists; and (c) it is not directly or indirectly controlled by any individual, Person, or entity appearing on the Blocked Entities Lists. Dealer agrees to immediately notify AutoGravity in writing if any of the foregoing representations and warranties become untrue during the term of the Agreement. Additionally, Dealer represents and warrants that the Ownership Disclosure attached to the Agreement as Exhibit 1 is complete and accurate and agrees to immediately provide an updated Ownership Disclosure if a change in ownership affects the Ownership Disclosure.

11. Indemnity . Each Party will indemnify, defend, and hold harmless the other Party and the other Party’s equity holders, managers, directors, officers, employees, agents, and affiliates from and against all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) (collectively “Claims”) arising out of or related to any third-party claim, suit, or action asserted against the indemnified Party as a result of any breach by the indemnifying Party of the Agreement.

12. LIMITATION OF LIABILITY . EXCEPT FOR FRAUD, WILLFUL MISCONDUCT, DEALER’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO SHOPPER DATA, OR A BREACH OF OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, OR PROFITS), COSTS, OR EXPENSES (INCLUDING LEGAL FEES AND EXPENSES), WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THE AGREEMENT UNDER ANY THEORY. EXCEPT FOR THE MATTERS COVERED IN THE PRECEDING SENTENCE AND FOR NONCOMPLIANCE WITH APPLICABLE LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY EXCEED THE AMOUNT OF THE FEES PAID AND OWED BY EITHER PARTY UNDER THE AGREEMENT IN THE ONE-YEAR PERIOD PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.

13. Material Breach . AutoGravity may block use of the AutoGravity Network immediately and without required notice for failure to comply with any part of the Agreement. Additionally, any of the following actions shall constitute a material breach of the Agreement: (a) nonpayment of fees; (b) fraud or acts of dishonesty against AutoGravity; (c) materially inaccurate reporting of Inventory Feeds; (d) misuse of NPPI; (e) modifying, exporting, or re-displaying any content contained in any AutoGravity service; (f) using any automated methodology to abusively access, index, search, copy, monitor or deny service to any AutoGravity service; (g) accessing any AutoGravity product or service for competitive purposes; (h) fraudulently or deceptively accessing any AutoGravity product or service or allowing others to do the same; (i) distributing harmful computer code; (j) using an AutoGravity product or services for any purpose in violation of local, state, national, international laws or regulations; or (k) circumventing any measures implemented AutoGravity aimed at preventing violations of the Agreement.

14. Governing Law and Arbitration . The Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. Any dispute, claim or controversy arising out of or relating to the Agreement, including the determination of the scope or applicability of the Agreement to arbitrate, shall be determined by arbitration in Orange County before an arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The prevailing party shall be entitled to recover its attorney’s fees and costs incurred in connection with any dispute under the Agreement.

15. CLASS ACTION WAIVER . THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION. TO THE EXTENT EITHER PARTY IS PERMITTED BY COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (A) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS' FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION; AND (B) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.

16. Due Authorization . Each Party represents and warrants to the other that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it operates; (b) it is duly authorized by all requisite company or individual action to execute and deliver the Agreement; and (c) the Agreement has been duly executed and delivered, and is valid and binding against each Party.

17. General Provisions . The Agreement, together with its attachments and exhibits, constitute the entire agreement between the Parties. If for any reason a court of competent jurisdiction finds any provision of the Agreement invalid or unenforceable, that provision of the Agreement will be replaced with a valid provision having similar effect and the other provisions of the Agreement will remain unaffected. The failure by any Party to enforce any provision of the Agreement will not constitute a waiver of future enforcement of that or any other provision. The Parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will havethe power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent. Neither Party shall be liable to the other for any delay or failure to perform any obligations under the Agreement (except for a failure to pay Fees) if the delay or failure is due to unforeseen events, which occur after the signing of the Agreement and which are beyond the reasonable control of the Parties, in so far as such an event prevents or delays the affected Party from fulfilling its obligations and such Party is not able to prevent or remove the force majeure at reasonable cost. Neither Party may assign or transfer any right or obligation under the Agreement without the other’s prior written consent; notwithstanding the foregoing, any change in control of either Party shall not be deemed an assignment requiring the consent of the other Party, however, each Party shall provide notice to the other of such change in control. The Agreement may be executed by electronic signature and in multiple counterparts, all of which will together constitute one agreement. The provisions of Sections 5, 9, 10, 11, 13, 14, 16, 17, and 18 of this AutoGravity – Dealer Terms of Service will survive indefinitely the termination or expiration of the Agreement.