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TERMS AND CONDITIONS

These Terms and Conditions (these “Terms”) are made and entered into by and between Automotive Market Data, LLC (“AMD”) and the individual or entity (“Subscriber”) specified on the applicable Credit Card Payment Form to which these Terms are attached (the “Order”), effective as of the date specified on the payment form (the “Effective Date”).  These Terms together with the Order are collectively referred to herein as this “Agreement”.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows:

  1.  Service. These Terms contain the terms upon which AMD will provide Subscriber the service described on the Order (the “Service”).  Subject to payment by Subscriber of the Fees (as defined below) and subject to all the terms and conditions of this Agreement, AMD will use commercially reasonable efforts to provide Subscriber with the Service, and the reports made available by AMD in connection with the Service (the “Reports”), for the term of this Agreement. 

  2. License. Subscriber acknowledges that the Services used to produce the Reports have been created by AMD utilizing data licensed by AMD under an agreement or agreements with its third-party data licensor(s) (each, a “Third Party License Agreement”).  Therefore, the Reports are being licensed to Subscriber for limited use as stated in this Agreement. As between AMD and Subscriber, the Reports will be deemed the sole and exclusive property of AMD.  AMD hereby grants to Subscriber a limited, personal, nonexclusive, non-transferable license (with no right of resale) under AMD’s intellectual property rights to use the Reports solely for Subscriber’s internal business purposes.

  3. Restrictions. Subscriber is strictly prohibited from reproducing, copying, translating, publishing, or using the Reports for the benefit of, or otherwise transferring the Reports to, any third party.  Except as otherwise provided herein, Subscriber agrees that it will not itself, or through any agent or other third party: (a) modify the Reports, or develop any derivative works based upon the Reports, or build a competitive product or service using similar ideas, features, functions or graphics as the Reports; (b) use the Report in a manner that is not contemplated by this Agreement or that constitutes a violation of any applicable law, rule or regulation (“Applicable Law”); or (c) remove, conceal or alter any identification, copyright or other proprietary rights notices or labels on the Reports.

  4. Payment. Subscriber agrees to pay AMD the fees described on the Order (the “Fees”). The Fees to be paid by Subscriber under this Agreement shall be payable as set forth in the Order, or, if not specified, thirty (30) days after date of invoice from AMD. Any late payment shall be subject to AMD’s costs of collection (including reasonable legal fees and costs) and shall also bear interest at the rate of one and one-half percent (1.5%) per month (or part thereof) or, if lower, the highest rate permitted by Applicable Law until paid. The Fees listed in this Agreement do not include taxes; if AMD is required to pay sales, use, property, value-added, or other federal, state or local taxes based on the services provided under this Agreement, but excluding taxes based on AMD’s income, then such taxes shall be billed to and paid by Subscriber.

  5. Nonpayment and Suspension. In addition to any other rights granted to AMD herein, AMD reserves the right to suspend or terminate this Agreement and Subscriber’s access to the Service if Subscriber’s account becomes delinquent and is not cured within thirty (30) days following receipt of notice of delinquency by Subscriber. Subscriber will continue to be charged the applicable Fees during any period of suspension.

  6. Confidentiality. “Confidential Information” means nonpublic information that AMD makes available, or has previously made available, to Subscriber in connection with this Agreement. Confidential Information includes, without limitation, all of AMD’s technology, websites, processes, know-how, software, data, passwords and other non-public materials, including the terms of this Agreement. Subscriber will secure and maintain the confidentiality of the AMD’s Confidential Information, which will include procedures at least as stringent as those Subscriber utilizes to protect its own Confidential Information. Subscriber will not use or disclose AMD’s Confidential Information, except as necessary to use the Services as authorized under this Agreement or as otherwise agreed in writing by AMD.

  7. Intellectual Property. As between Subscriber and AMD, AMD owns and shall retain all right, title and interest in and to the following: (a) all Confidential Information of AMD, the Service and Reports, and any software, applications, technologies, inventions and other works of authorship developed by AMD; (b) any and all modifications, improvements, enhancements and derivative works of the foregoing; and (c) any and all patents, copyrights, trademarks, trade secrets and other intellectual property rights in and to any of the foregoing. Subscriber may provide feedback or suggestions to AMD relating to the AMD Confidential Information, including ideas for new or improved products or technologies, product enhancements, processes, marketing plans or new product names (collectively “Feedback”). Subscriber hereby assigns, transfers and conveys to AMD, exclusively and perpetually, all rights, titles, and interests throughout the world that Subscriber may have or acquire in any Feedback, including all intellectual property rights therein. 

  8. Warranties. Each party represents and warrants to the other as follows: (a) it is an entity duly organized, valid, existing and in good standing under the laws of the jurisdiction of its incorporation or formation and has the corporate power to own its assets and properties and to carry on its business as currently conducted; (b) this Agreement is the legal, valid and binding obligation of such party, enforceable in accordance with its terms. AMD will use commercially reasonable efforts to remedy any reproducible error that causes the Service not to comply in all material respects with the Documentation. 

  9. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE AND REPORTS PROVIDED HEREUNDER ARE PROVIDED “AS-IS”, “WHERE-IS” AND “AS-AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. AMD HEREBY EXPRESSLY DISCLAIMS ON BEHALF OF ITSELF, ITS EMPLOYEES, DIRECTORS, MEMBERS AND OTHER AGENTS (COLLECTIVELY, “AMD PARTIES”) ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. NEITHER AMD NOR ANY OF THE AMD PARTIES REPRESENTS OR WARRANTS THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS, IF ANY, WILL BE CORRECTED, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; NOR DOES AMD OR ANY OF THE AMD PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, SECURITY, PERFORMANCE OR SUITABILITY OF THE SERVICE OR ANY DATA USED IN THE SERVICE. 

  10. Indemnification. Subscriber agrees to indemnify, defend and hold harmless AMD and each of the AMD Parties from and against any third party claim, suit, demand or action for damages arising from: (a) any use of the Service or Reports; (b) modification or alteration of the Reports by anyone other than AMD or otherwise authorized by AMD in writing; (c) any violation of Applicable Law; and (d) any breach of this Agreement by Subscriber. 

  11. Limitation of Liability. IN NO EVENT SHALL AMD OR ANY OF THE AMD PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, DIRECT, INDIRECT OR SPECIAL DAMAGES OF ANY NATURE ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, WHETHER IN TORT OR CONTRACT, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, INCLUDING WITHOUT LIMITATION, DAMAGES FROM INTERRUPTION OF BUSINESS, LOSS OF INCOME OR OPPORTUNITIES, LOSS OF USE OF THE SERVICE, OR COST OF CAPITAL. IN NO EVENT WILL AMD’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS MADE AGAINST IT UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY SUBSCRIBER TO AMD IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. 

  12. Term and Termination.

  1. Term. This Agreement will commence on the Effective Date and continue for the term set forth on the Order, unless specified as a one-time purchase.  Thereafter, and unless otherwise set forth in the Order, this Agreement will automatically renew for additional one (1) year periods and remain in full force and effect, until either party provides written notice to other party of its intent to terminate this Agreement at least thirty (30) calendar days prior to the expiration of the then-current term. 

  2. Termination. 

    1. This Agreement may be terminated prior to the expiration of the then-current term by either party upon a material breach by the other party which is not cured within thirty (30) days following the breaching party’s receipt of written notice from the non-breaching party describing the breach. 

    2. This Agreement may be terminated by AMD, in its sole and absolute discretion, immediately upon notice to Subscriber upon termination of a Third Party License Agreement.

  3. Effect of Termination. Upon termination or expiration of this Agreement, Subscriber shall immediately cease use of and return (or upon AMD’s election in writing, destroy) all copies, complete or partial, of any Confidential Information of AMD in Subscriber’s possession, if any, and shall certify in writing to AMD that all such materials have been returned, destroyed or deleted in accordance with this Agreement. Those provisions of this Agreement which by their nature show the parties intended them to survive the termination or expiration of this Agreement shall survive any termination or expiration of this Agreement

​13. Miscellaneous.

  1. Assignment. This Agreement and the licenses granted herein, which are personal to Subscriber, may not be sold, assigned, subcontracted, sub-licensed or otherwise transferred, including as a result of a change of control or operation of law (each, a “Transfer”) without the prior written consent of AMD. Any attempted Transfer without such consent shall be void. If AMD consents to a Transfer, this Agreement shall be binding on Subscriber’s successors and assigns.

  2. Relationship of Parties. In making and performing this Agreement, the parties are and shall act at all times as independent contractors, and nothing contained herein shall be construed or implied to create an agency, association, partnership or joint venture between the parties. At no time shall either party make commitments or incur any charges or expenses for or in the name of the other party.

  3. Force Majeure. AMD shall not be liable for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of AMD or its contractors, agents or suppliers, including, but not limited to, utility or transmission failures, failure of the internet, power failure, strikes or other labor disturbances, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.

  4. Notices. All notices, requests, demands and other communications that are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (i) upon receipt if delivered in person, or (ii) within three business days if mailed, first class certified, registered or express mail, return receipt requested and postage prepaid, or (iii) the following business day if sent by recognized courier, with proof of delivery requested and charges prepaid to the addresses set forth in the SOW, or to such other address as a party may specify by written notice to the other party. 

  5. Governing Law and Jurisdiction. Except with respect to that body of law relating to conflicts of law, the laws of the State of Delaware shall govern this Agreement. The parties agree to submit to jurisdiction and venue of the state and federal courts located in Delaware. Any award made by a court in conjunction with litigation between the parties regarding this Agreement shall include an award of all reasonable attorneys’ fees and legal costs incurred by the party in whose favor the final decision is rendered.

  6. Counterparts. This Agreement may be executed in one or more counterparts, including facsimile signatures, each of which shall be deemed an original, but all of which shall constitute the same instrument.

  7. Severability. If any provision of this Agreement or the application thereof to any person or circumstances shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application thereof to any person or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforced to the fullest extent of the law.

  8. Waiver and Amendment. Except as provided below, this Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written agreement between the parties. The waiver by any party hereto of a breach of any provision of this Agreement must be in writing and shall not operate or be construed as a waiver of any subsequent breach. Each party agrees that this Agreement shall be amended as necessary to comply with Applicable Law. 

  9. Publicity Reference. AMD may, with Subscriber’s written consent (email acceptable), include Subscriber in its general listing of Subscribers, reference lists, press releases, success stories and other marketing materials.

  10. Complete Agreement. This Agreement, which includes all schedules and attachments hereto, constitutes the complete Agreement between the parties and supersedes all previous communications and representations or agreements, either oral or written, with respect to the subject matter hereof.

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