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HAYSTAK DIGITAL MARKETING TERMS AND CONDITIONS

 

These terms and conditions (hereinafter “Terms”) shall be applicable to all Order Forms entered into by and between AutoTrader.com, Inc. d/b/a Haystak Digital Marketing (“Provider”) and the Customer set forth on the Order Form (“Customer”). Provider and Customer are each referred to as a “Party” and collectively as the “Parties”. The Order Form shall be subject to the Terms which are incorporated therein by reference. The Order Form and these Terms together shall be collectively referred to as the “Agreement”. In consideration of the mutual covenants set forth herein, the sufficiency of which is hereby acknowledged by each Party, Provider and Customer hereby agree as follows:

 

  1. Services: Subject to all terms and conditions set forth herein, Provider shall provide the marketing services, campaigns, advertising and programs (collectively, the “Services”) set forth in the Order Form expressly made subject to the Terms and executed by both Parties hereto. In the event of any conflict between these Terms and the terms of the Order Form, the terms of the Order Form shall control. Descriptions of the available Services and corresponding additional terms (“Additional Terms”) are provided in the Exhibits attached hereto, which are incorporated herein by reference. The Exhibits may be updated from time-to-time as additional services are introduced along with any corresponding additional terms for such service, which shall be effective upon execution of a new order form for the respective service. Customer acknowledges and agrees that Customer shall only receive the Services set forth in the applicable Order Form and purchased by Customer. Customer agrees and acknowledges that the Services may be provided to Customer via Provider’s third party vendors and/or partners. Customer acknowledges and agrees that the Services may be dependent on timely receipt by Provider of certain information, content and materials from Customer. Provider will determine the method, details, and means of performing the Services. Customer is responsible for implementing any recommendations, HTML code, server side code, sitemaps, and/or content, as applicable, provided by Provider in connection with the Services. Such recommendation by Provider and implementation by Customer may involve modifying certain web pages, making configuration changes to the web server, site navigation or content management system. In addition to implementing code recommendations, Customer will be responsible for uploading/implementing the appropriate webmaster “validation keys” necessary to monitor the website(s) on the applicable search engines (i.e. Google, Bing, etc.).
  2. Authorization: Customer hereby authorizes Provider to act on behalf of Customer in connection with provision of the Services to Customer under the Agreement. Such authority, includes, but is not limited to, ordering the Services from third parties. For the avoidance of doubt, Customer grants Provider all rights necessary for Provider to facilitate the provision of the Services to Customer hereunder. Customer shall direct communications regarding the Services only to Provider, unless instructed otherwise by Customer. Customer agrees to comply with all reasonable requests of Provider necessary for the performance of the Services.
  3. Third Party Service: Customer acknowledges that Provider cannot accept any responsibility or liability for the performance, policies or actions of third party digital marketing networks including, but not limited to, search engines, display networks, social networks or directories. Customer acknowledges that third party digital marketing networks may drop listings, suspend accounts, impose additional requirements or terms and conditions, or undertake other actions, which may impact the Services, at their discretion. Customer agrees that Provider shall not be responsible or liable for any of the foregoing.
  4. Placements: Customer acknowledges that Provider cannot guarantee specific delivery or positioning of any creative/advertising placements in connection with the Services.
  5. Access: Provider may require access to, and Customer agrees to provide such access or otherwise make available, any systems, hardware, services, hosting, FTP software or similarly functioning software or content management systems, or other resources deemed necessary by Provider to fulfill its obligations under this Agreement.
  6. Co-op / Marketing Program Management: In the event that Customer participates in a manufacturer or other co-op/ marketing program, Customer agrees that it is Customer’s responsibility to ensure that any Services provided hereunder are in compliance with any standards and policies of such program. Provider will not be responsible for any terms, conditions, policies, requirements or standards of any such co-op/marketing program, including, but not limited to, marketing material approval, materials submissions or program maintenance or management. Upon specific request by Customer, Provider will make available to Customer information and materials requested by Customer in connection with Customer’s participation in such co-op/ marketing programs. Any agreement Customer has with a third party to receive reimbursement or other compensation for marketing efforts is solely between Customer and third party. Provider shall have no responsibility for assisting with or the collection of any reimbursement or compensation for such marketing efforts. Further, Customer shall be responsible for payment for any and all marketing purchased pursuant to the Order Form regardless of any third party refusal or failure to provide reimbursement or other compensation. In no event shall Provider be liable if any Services fail to meet any such third party requirements even if Customer advised Provider of this or requested the assistance of Provider to revise any marketing for compliance with third party requirements for reimbursement or other compensation.
  7. Fees: Provider will charge the account management fee(s) set forth on the Order Form(s) to perform the Services selected on the Order Form. Account management fees are on a monthly basis and invoiced in arrears. Account management fees shall be prorated if the Effective Date is not on the first day of a month. In addition to account management fees, Provider may charge Customer a one-time technology fee to initiate the Services selected on the Order Form, which fees shall be invoiced on the Effective Date. All account management fees and technology fees are nonrefundable. In addition to the account management fees and technology fees, Provider shall invoice Customer the monthly advertising budget (“Advertising Budget”) set forth on the Order Form, media spend on Google, BING and/or any additional advertising platform in arrears. Advertising Budget may be adjusted during the Term. Any modification to the Advertising Budget must be made in writing via email from Customer and acknowledged in writing via email by Provider’s designated account manager. Advertising Budget modifications must be submitted and acknowledged in accordance with the previous sentence, at least three (3) business days prior to commencement of the applicable month. Unless otherwise agreed in writing by the parties, the Advertising Budget set forth on the Order Form, as modified in writing via email as set forth above, will automatically be designated as the Advertising Budget during the Term. Within 30 days of the end of each month, Provider shall provide Customer with a report summarizing the costs and charges for the digital media, content and advertising placement purchased in connection with the Services with the Advertising Budget for such month, which costs and charges may include additional markup to account for volume commitments and contractual obligations undertaken by Customer in exchange for more favorable rates. Any unused Advertising Budget shall carry over as a credit to be used in the following month.
  8. Payment Terms: All payments are net 30 days from the date of invoice. Customers on post-pay or credit accounts who exceed a 30 day balance may be moved to a secured account requiring an upfront payment equal to one (1) month’s account management fee plus the Advertising Budget. In the event Customer fails to make any payments in a timely manner, the Provider has the right, but is not obligated to, terminate the Agreement with written notice. Such remedy is in addition to any other remedies which may be available to Provider under the Agreement or under applicable law. Late payments will be charged a late fee equal to the lesser of 1.5% or the maximum interest rate allowable by law multiplied by past due amount. In addition to the late payment penalty set forth above, in the event Customer fails to make any of the payments in accordance with the Agreement, Provider may suspend the Services until payment is paid in full. In addition to any outstanding balance, Customer shall be liable for all collection agency fees and reasonable attorneys’ fees payable by Provider in connection with enforcing Customer’s performance of its payment obligations set forth in this Agreement. Customer shall be responsible for all taxes due in connection with the transactions contemplated hereunder, except for taxes based on Provider’s income.
  9. Reimbursements: Provider shall be entitled to reimbursement for reasonable brokerage fees, customs fees and other business expenses incurred by Provider in the performance of this Agreement and Customer shall have the right to require Provider to supply reasonable documentation supporting the incurrence of such expenses. Customer agrees to reimburse Provider for installation fees, set up fees, development fees and other fees or charges resulting from the installation of tracking and analytic codes in connection with the Services or use of the Services.
  10. Security / Credit: Post-pay accounts and credit accounts are provided at Provider’s discretion. Customer may be required to submit a credit application to obtain a post-pay or credit account. Such accounts require an upfront payment equal to one (1) month’s account management fee plus the Advertising Budget.
  11. Term of Agreement: The Agreement shall remain in effect during the term set forth in the Order Form (“Term”). Unless terminated as provided for in Section 12, the Agreement will automatically renew for an additional term of equal length to the Term.
  12. Termination: Either party may terminate this Agreement by providing the other party with written notice at least thirty (30) days prior to the end of the Term. The Agreement may be terminated by a Party if the other Party materially breaches the Agreement and does not cure such breach within thirty (30) days following written notice thereof from the non-breaching Party. In the event of a breach of the Agreement by Customer, Services may be suspended by Provider until the breach of the Agreement is cured. The Agreement or a particular Service may be terminated by Provider upon: (i) termination or expiration of the relationship between Provider and the vendor/partner that enables the Services; or (ii) thirty (30) days advance written notice. Upon termination of this Agreement, Provider may remove any tracking codes and the like installed by Provider in connection with the Services. The provisions of the Agreement, which expressly or by implication are intended to survive termination or expiration, will survive and continue to bind the Parties.
  13. Usage and Ownership.
    1. The rights and licenses granted hereunder to Customer are non-transferrable. Customer will not, and will not permit any third party to, use or disclose the Services, unless expressly permitted under this Agreement. Without limitation of the foregoing, Customer will not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services. Provider, its partners and/or vendors exclusively retain all right, title and interest in and to the Services, in all forms, and all copies, modifications, edits, improvements, additions, and derivative works prepared from or relating to the same, including all worldwide rights to patents, copyrights, trademarks, trade secrets or other intellectual property rights in or relating to the same. The Services shall not constitute “work for hire.” Customer is not acquiring any right, title or interest of any nature whatsoever in any Services except the right to use the Services as contemplated in this Agreement. Provider will have the exclusive rights in making any derivative works from the Services or its related work.
    2. Customer owns, or is authorized to use, any keywords, combination of keywords, Customer advertising materials, artwork, links, domain names (URLs), websites, data and content provided by Customer to Provider, including Customer’s trademarks, service marks, names and logos and the content of any creative material created by Provider that Customer approves (collectively, “Content”). Customer hereby grants to Provider and its Affiliates a perpetual, non-exclusive, royalty-free, irrevocable right and license (i) to use, copy, perform, display, distribute and modify the Content in any manner or medium, now known or hereafter developed, for Provider to perform the Services, and (ii) to prepare statistical analyses which Provider and its Affiliates may use to improve their services and may combine with other similar data from other customers and disseminate and otherwise use in aggregate form.
  14. Use of Material for Services and Promotional Purposes: Customer grants Provider the right to (i) use any Content provided by Customer in connection with the Services and/or (ii) cross-link (i.e. by placing a tag on Customer’s website) any such Content with other advertising developed by Provider. Customer grants Provider the right to list, reference or otherwise identify Customer as a client of Provider in Provider’s advertising and marketing. In connection with the provision of certain Services, Customer agrees and acknowledges that Provider identification may be annotated, and remain within the code or on Customer’s web site, identifying Provider as the author and/or service provider. Customer also agrees to put Provider’s copyright notices on any reports generated in connection with the Services and the relevant content therein.
  15. Confidentiality: “Confidential Information” means any confidential and/or proprietary information provided by Provider to Customer under this Agreement, including without limitation, any information relating to Provider’s products, Services, costs, prices, vendors, partners, finances, marketing plans, business opportunities, personnel, research, development or know-how; that is (i) clearly designated by Provider as confidential in writing on the materials at the time of disclosure, (ii) if disclosed orally, designated as confidential at the time of disclosure and reduced to writing and designated as confidential in writing within thirty (30) days after oral disclosure, or (iii) given the nature of the information and the circumstances of disclosure, a reasonable person would deem to be confidential. Confidential Information includes, but is not limited to, the Services and all associated intellectual property and know-how. Customer will not use any portion of the Confidential Information provided by Provider hereunder for any purpose other than the purposes contemplated by the Agreement. Customer shall protect all Confidential Information received from Provider with the same degree of care with which it protects its own Confidential Information, which in no event shall be less than reasonable care. Customer shall promptly notify Provider of any actual or suspected misuse or unauthorized disclosure of the Provider’s Confidential Information. Customer shall not disclose Provider’s Confidential Information to any person except as authorized in writing by Provider. Upon termination of this Agreement and/or upon request by Provider, Customer shall promptly return to Provider all of Provider’s Confidential Information in its possession (including all copies and extracts thereof). In connection with a breach of the confidentiality provisions herein, Provider shall be entitled to seek injunctive relief, in any court having proper jurisdiction, in addition to any other remedy that the Provider may have.
  16. Customer Representations and Warranties: Customer represents and warrants that: (a) the Content will not infringe upon or violate any intellectual property or other rights of any third party, and that Customer has all necessary licenses and clearances to use, and to allow Provider to use, the Content; (b) Customer has all rights, title, interest, consents, authorizations, permits, licenses, registrations, notices and rights to perform its obligation under this Agreement, including, but not limited to, provision of the Content hereunder in connection with the Services and provision of the Services to its customers and website users; (c) Customer shall comply with all applicable laws, rules, regulations (including, but not limited to, laws regarding the collection, use, and disclosure of information from visitors to Customer’s websites) and industry best practices in connection with its use of the Services; (d) Customer’s website’s privacy policy and terms of use shall comply with all applicable laws, rules and regulations and industry best practices regarding the Services; (e) Customer shall comply with all applicable privacy policies (including Customer’s privacy policy), privacy settings, and any other policies, terms of use, terms of service and guidelines (including, but not limited to, those of search engines, display networks, social networks or directories such as Facebook and Twitter, as applicable) in connection with use of the Services under this Agreement; and (f) Customer has the full power and authority to enter into this Agreement, and the execution and performance by Customer of this Agreement does not and will not breach or cause a default under any other agreement, contract or joint venture agreement to which it is a party.
  17. Limited Warranty: If the Services are not provided by Provider in accordance with the description of Services herein, Provider shall re-perform the Services without unreasonable delay, at Provider’s sole expense and without charge to Customer, to bring the Services into conformance with the description of Services herein. This warranty shall be the exclusive warranty available to Customer. Customer waives any other warranty, express or implied. Customer acknowledges that Provider does not warrant that the Services will work on all platforms or in every circumstance. Customer acknowledges and agrees that Provider will not be responsible for the results, productivity or any other measurable metric of the Services. EXCEPT AS EXPRESSLY PROVIDED HEREIN IN THIS SECTION, PROVIDER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO ANY SERVICE OR ITEM PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, TITLE, DESIGN, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM CONDUCT, COURSE OF DEALING, CUSTOM, OR USAGE IN TRADE.
  18. Indemnification: Customer will defend, indemnify and hold harmless Provider, its vendors, partners, parents, subsidiaries, affiliates and their officers, directors, employees and agents and their successors and assigns (collectively, “Indemnitees”) against any and all claims, demands, losses, costs or liability (including without limitation reimbursement for reasonable attorneys’ fees and disbursements) which Indemnitees, may incur as a result of, arising from or relating to: (a) any breach of the Agreement by Customer or any of its officers, directors, employees and agents; (b) use of the Services and/or Content; (c) infringement by the Content of a patent, copyright, trademark right or other intellectual property right of a third party or misappropriation of any third party trade secret; (d) any violation of any law by Customer in connection with the transactions contemplated by the Agreement; (e) Customer’s products/services, including, but not limited to, defective products sold via the Services; (f) problems/disruptions with the Services caused by third-party services that Customer may use, such as merchant accounts, shopping carts, shipping, hosting services, real-time credit card processing and other services that relate to or impact Customer’s use of the Services; (g) use of digital tracking measures in connection with any applicable Services, including but not limited to, conversion tracking, call tracking, reverse proxies and analytic applications, (h) the web pages linked to from Customer website or advertisements and the content therein; (i) the products or services promoted or offered in, or the web pages linked to, from Customer website or advertisements; and (j) the collection and use by Customer of personally identifiable information collected from users of Customer website or advertisements.
  19. Limitations of Liability. IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS, LOST OR DESTROYED DATA, LOST REVENUES, LOST OPPORTUNITY COSTS, DIMINISHED BRAND OR ANY OTHER ECONOMIC LOSS, OF ANY TYPE OR NATURE, OR FOR EVENTS OR CIRCUMSTANCES BEYOND PROVIDER’S CONTROL, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER OCCASIONAL SHORT TERM INTERRUPTIONS OF SERVICE NOR INTERRUPTIONS OF SERVICE RESULTING FROM EVENTS OR CIRCUMSTANCES BEYOND PROVIDER’S REASONABLE CONTROL SHALL BE CAUSE FOR ANY LIABILITY OR CLAIM AGAINST PROVIDER HEREUNDER, NOR SHALL ANY SUCH OCCASION RENDER PROVIDER IN DEFAULT UNDER THIS AGREEMENT. PROVIDER’S CUMULATIVE, AGGREGATE LIABILITY IN CONNECTION WITH OR ARISING IN ANY WAY OR IN ANY DEGREE FROM THIS AGREEMENT, OR OTHERWISE FROM THE ACTS OR OMISSIONS OF PROVIDER UNDER ANY AND ALL LEGAL THEORIES WILL NOT EXCEED THE LESSER OF (I) $50,000 OR (II) THE TOTAL AMOUNT PAID BY CUSTOMER TO PROVIDER IN THE 12 MONTHS BEFORE SUCH CLAIM AROSE. CUSTOMER HEREBY ACKNOWLEDGES THAT THE REMEDIES SET FORTH ABOVE ARE REASONABLE AND WILL NOT FAIL OF THEIR ESSENTIAL PURPOSE.
  20. Force Majeure. No failure, delay, or default in performance of any obligation under this Agreement (other than payment obligations) will constitute a breach of this Agreement if it is caused by strike, fire, shortage of materials, act of a public authority, civil disorder, riot, work stoppage, labor strife, cessation of third party supplies or services, vandalism, war, severe weather, natural disaster or other act of God; terrorism; or other cause that is beyond the reasonable control of the Party otherwise chargeable, for so long as such cause continues and for a reasonable period of time thereafter.
  21. All notices, authorizations and consents with respect to this Agreement shall be deemed given (i) on the day personally delivered, (ii) on the third (3rd) business day after deposited in the United States mail, postage prepaid, certified or registered, return receipt requested, and (iii) on the business day after sent by nationally recognized overnight courier, charges prepaid, return receipt requested. All notices, authorizations and consents to be sent to (a) Licensor shall be sent to 1525 Hendry Street, Fort Myers, Florida, 33901 and to the attention of President, with a copy to AutoTrader.com, Inc., 3003 Summit Blvd., Suite 200, Atlanta GA 30319, Attn: VP & General Counsel, and (b) Licensee shall be sent to the principal place of business set forth on the applicable Order Form to the attention of the person set forth thereon.
  22. Miscellaneous. Section titles are for convenience only and will not affect the meaning of this Agreement. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, without regard to or application of any conflict of law rules or principles. The Parties agree to the exclusive jurisdiction of federal and state courts located in Fulton County, Georgia and waive all claims that such jurisdiction is inconvenient, lacks jurisdiction or other claims which seek to change the agreed upon venue. In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs. This Agreement constitutes the entire agreement between the Parties relating to the subject matter herein and supersedes all prior oral or written agreements, understandings, and representations relating thereto. No change, modification or amendment to this Agreement will be effective or binding unless signed by Customer and a duly authorized officer of Provider. Provider shall be retained as an independent contractor. Nothing contained in this Agreement will be construed to create a joint venture, partnership, or like relationship between the Parties, and their relationship is and will remain that of independent Parties. In no event will either Party be liable for the debts or obligations of the other Party. This Agreement shall be binding upon and inure to the benefit of Customer and Provider and their respective successors and assigns. Provider may assign this Agreement. Customer may not assign this Agreement. The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement. Except as explicitly set forth herein, none of the provisions of this Agreement will be for the benefit of or enforceable by any third party. If any term of this Agreement is held invalid, illegal or unenforceable for any reason, the remainder of the provision shall continue in full force and effect, and it is the intent of the parties that a valid, legal and enforceable provision with the same intent and economic effect be substituted. Except as may be required by law or contemplated herein, neither Party shall disclose, publicize or advertise in any manner the discussions and/or negotiations giving rise to the Agreement or the existence or terms of the Agreement without the prior written consent of the other Party as to the timing, medium and content of such disclosure. The Order Form may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument.

 

Exhibits Follow.

 


EXHIBIT A

SERVICE DESCRIPTIONS AND ADDITIONAL TERMS

 

 

SERVICES:

  • Advanced Analytics. Provider shall provide Customer with access to the online reporting tool (Adobe Site Catalyst) (a report within our system) to view the performance of the Services (e.g. a summary of results for a given time period, insights into website performance, number of visitors, keywords performance, time spent on website, etc.).
    • Additional Terms: Customer shall use Advanced Analytics for its internal purposes only.
  • Behavioral Content. Provider shall place a tag on Customer’s Website to track and use visitor behavior to dynamically serve relevant content on the Website.
    • Additional Terms: The terms set forth in Exhibit D shall apply.
  • Call Tracking: Provider will provide unique toll free phone number (“Toll Free Number”) for each SEM Campaign or Website, as applicable, and provide reporting on metrics such as time of call, caller id, duration of call, and whether call was answered.
    • Additional Terms: The Toll Free Number is the property of Provider or its licensors and may be removed, modified or terminated at any time.
  • Chat: Provider or its agent will provide functionality on the Website that allows visitors to communicate with Customer in real time.
    • Additional Terms: Customer acknowledges and agrees that communications that occur and information provided through the Chat functionality may be collected and used by Provider and its agent.
  • Dedicated Account Manager: Provider will assign an account manager who will be responsible for maintaining and optimizing digital marketing campaigns based on the Customer’s expectations. The Dedicated Account Manager will maintain weekly/monthly communications with Customer via email and/or phone.
  • Display Creative: Provider will create display banners based on information provided by the Customer. Provider will develop all display banner sizes needed for the Display/Retargeting campaign. Client will need to provide Content, logos, phone numbers, and draft of message.
    • Additional Terms: Display banners created by Provider are property of Provider, excluding any Content.
  • Display/Retargeting: Provider will create campaigns, which may include retargeting, to promote the Customer’s products and services utilizing display networks selected by the Provider. Development of creative materials is not included in the Display/Retargeting Service.
    • Additional Terms: Campaigns created by Provider are property of Provider, excluding any Content. Customer represents and warrants that Customer shall comply with all applicable laws, rules and regulations and industry best practices regarding retargeting programs and that Customer’s website (a) contains a privacy policy that (1) permits the operation of a retargeting consumer marketing program, including, but not limited to, the provision of anonymous consumer information to a third-party provider of such a program and (2) provides a link to the Network Advertising Initiative’s consumer opt-out page located at networkadvertising.org/managing/opt_out.asp allowing the consumer to opt-out of such retargeting programs, and (b) provides clear and conspicuous disclosure regarding such retargeting practices. Customer understands that the technology required to operate the retargeting program may utilize a pixel (“Pixel”) placed on the Customer’s website to set a cookie on the browser of visitors to the Customer’s website. Customer will place the Pixel on its website in accordance with Provider’s instructions and Customer agrees that it shall not remove, modify or move the Pixel.
  • Hosted Website: Provider shall host, store, and publish the Website for Customer.
    • Additional Terms: Customer will provide a written privacy statement to Provider to post on the Website that complies with applicable law and that contains the Privacy Policy Required Provisions set forth in Exhibit B, which may be updated by Provider from time to time, which shall comply with applicable law.
  • Incentives Data: Provider shall include data regarding Incentives from Manufacturers or their Captive Lenders in the Website.
    • Additional Terms: The terms set forth in Exhibit C shall apply.
  • Inventory Services: Provider shall provide develop vehicle listings, postings, advertisements and/or other content for use on authorized websites and platforms.
    • Additional Terms: The terms set forth in Exhibit E shall apply.
  • Online Reporting. Provider will provide to Customer about reporting on digital marketing campaigns.
    • Additional Terms: Customer shall use Online Reporting for its internal purposes only.
  • Proxy Pages: Provider shall replicate pages from Customer’s website to direct visitors who interact with SEM Campaigns for reporting purposes.
    • Additional Terms: Customer grants all necessary license and permission to Provider and its agency to replicated Customer’s website for the Proxy Pages. No personally identifying information (PII) of consumers/visitors shall be collected by, through, or on the Proxy Pages. If Customer requests use of Proxy Pages where PII could be collected, Customer agrees to indemnify Provider and its agency against (i) a data breach affecting the PII or (ii) any use of the PII in violation of Customer’s Website privacy policy or any applicable law.
  • Search Engine Marketing (SEM) Campaigns:
    • Dynamic Inventory Campaigns: Provider will use automated technology to create search engine marketing campaigns based on the Customer’s used car inventory (“Inventory Data”) as provided through a feed by a Provider-selected third party.
      • Additional Terms: Customer shall provide its Inventory Data, or authorize such third-party to provide Inventory Data, to Provider. Provider shall not be responsible or liable for fees incurred for or related to providing such access to, delayed access to, or failure to provide, Inventory Data.
    • Managed Campaigns: Provider will create search engine marketing campaigns to promote Customer’s products and services on Provider selected search engines and digital advertising networks. Specific optimization for desktop, tablet, and mobile devices is included.
    • Mobile Optimized Campaigns: Provider will create search engine marketing campaigns which are optimized for performance on mobile devices.
  • Search Engine Optimization (SEO): Provider will provide search engine optimization services.
    • Additional Terms: Customer shall provide Provider with access to raw log files or existing statistical reporting to facilitate Website traffic reporting. Provider may not be able to perform the SEO Service if the raw log files or existing statistical reporting are unavailable. Customer agrees to allow Provider to modify keyword density, positioning and other SEO related aspects of the Content without restriction. Provider shall not be responsible for delays, costs, or errors attributable to changes to the website made by Customer.
  • Social Integrations
    • Social Advertising: Provider will create advertising campaigns on Facebook and Twitter to promote ‘Likes’ and ‘Follows’ and/or promote social content and traffic to the Customer’s Website. This service does not include the creation of social content for Customer.
      • Additional Terms: Customer shall assist Provider
    • Facebook Fan Generation: Provider will manage campaigns to generate fans for Customer on the Facebook platform. These campaigns will promote followers to “Like” Customer’s page on Facebook.
      • Additional Terms: (must comply with Platform terms, conditions, and policies)
    • Facebook Sponsored Stories: Provider will manage Sponsored Stories campaigns for Customer on the Facebook platform. These campaigns will promote specific messages for Customer on targeted news feed and timelines.
      • Additional Terms: (must comply with Platform terms, conditions, and policies)
    • Facebook Display/Pay-Per-Click (PPC): Provider will manage Display/PPC campaigns for Customer on the Facebook platform. These campaigns will help drive targeted users to Customer’s Website.
      • Additional Terms: (must comply with Platform terms, conditions, and policies)
    • Video: Provider shall add functionality to Website to display video, and create videos from photos or images of vehicles in Customer’s inventory.
      • Additional Terms: Customer grants all necessary license and permission to Provider and its agency to use photos or images of vehicles in Customer’s inventory for the purposes of creating and publishing videos.
    • Website: Provider shall create or convert a website for Customer using a Provider owned template.
      • Additional Terms: Websites created by Provider are the exclusive property of Provider, excluding any Content. Additional fees will apply if any custom work is required by Provider to achieve a Customer request.
    • Website Management Services and Updates: Provider will assist Customer with standard (non-custom) management of and updates to the Website. Additional fees will apply if any custom (non-standard) work is required by Provider to achieve a Customer request.

 

 

EXHIBIT B

Privacy Statement Required Provisions

Privacy Statement Required Provisions:

  1. Visitors Consent. Visitors consent to use of their information and information about them in accordance with this Privacy Statement.
  2. Site Operator Access. The website is operated by Haystak Digital Marketing (“Haystak”). Haystak may have access to information (including personal information). Please visit http://www.haystak.com/privacy-policy/ for more information about Haystak’s privacy practices.
  3. Type of Information Collected. The following information may be collected when visitors: register for products or services, which may include your name, address, telephone number, email address, Social Security Number, and credit information; make information available to us via social networking logins, such as Facebook or Twitter; express an interest in buying, selling or trading in a car (such as completing an online quote or lead form); participate in chats, web forums or other interactive sessions; apply for credit on our website.
  4. Automated Information. Information regarding your use of the website may be collected and/or aggregated through the use of automated means, which may include information such as: visitor IP address, the type of browser and operating system used; date and time visitors access our website and pages visited, and if linked from or to another website, the address of that website; emails opened and links clicked on within those emails; and visitor’s ISP or mobile carrier, and the type of handheld or mobile device used.
  5. Data Technologies Used and Descriptions. Various technologies are used to automatically collect information, such as cookies, local shared objects, and web beacons (generally referred to as “Data Technologies”). “Cookies” are small identifiers sent from a web server that are stored on your device for the purpose of identifying your browser or storing information or settings in your browser. “Local shared objects,” sometimes known as Flash cookies, may be used to store your preferences or display content based upon what you have viewed on various websites to personalize your visit. A “web beacon,” also known as an Internet tag, pixel tag or clear GIF, links web pages to web servers and their cookies. Anonymous advertising identifiers are increasingly being used on mobile devices and otherwise in a manner similar to cookies. Data Technologies include all current and similar future technologies.

One or more Data Technologies may be used on our website and other websites and mobile applications (that may not be our website) by us, by another party on our behalf, or by third parties in accordance with their privacy policies. Data Technologies may be used by us and others, on our behalf and on their own behalf, to transmit information to you or about you and connect information about you from different sources, websites, devices, and mobile applications.

  1. Call Tracking. We may use a uniquely generated trackable toll-free telephone number on our website or in advertisements. This uniquely generated toll-free telephone number may be used to contact us. If you call us using one of these toll-free numbers, we (or a service provider acting on our behalf) may collect non-personally identifiable information about the call (e.g. date, time, duration), as well as personally identifiable information (e.g. your name, the number from which your call originated).
  2. Location Information. Haystak may collect information that is sufficiently precise to allow us to locate a specific person or device (“Location Information”). Haystak will only collect Location Information after receiving your permission (e.g., when you agree to provide it after initial access to, or downloading of, the site). Haystak may use Location Information and provide it to third parties to provide content and services relevant to a particular location, such as advertising, search results, dealers in the area, and directions.
  3. Combined Information and Information from Other Sources. We may combine information that you provide to us with information we receive from affiliates and other sources, as well as with other information that is automatically collected. The combined information may include information about your use of this website or other websites, devices and mobile applications and information from affiliates and other sources.
  4. How Information May Be Used. Information collected may be used:
  5. for everyday business purposes, such as to establish and manage your user account, provide products and services you request, and provide customer support;
  6. to offer our other products or services and/or the products or services of others to you;
  7. to evaluate and improve our business, including developing new products and services and analyzing the effectiveness of products, services, applications and websites;
  8. to perform data analyses, including market and consumer research, trend analysis, demographic analysis and financial analysis;
  9. to deliver content (including advertising) correlating to your interests and browsing and usage history, both within our website and on other websites and applications; and
  10. to comply with applicable legal requirements and our policies.
  11. Targeted Advertisements. We may partner with advertising networks, which are companies that deliver targeted advertisements to consumers and generate statistics and metrics related to the delivery of interest-based advertisements. They may utilize information collected through a variety of Data Technologies to provide customization, auditing, research and reporting for us, our affiliates and other advertisers. This data collection takes place both on our website and on third-party’s websites and mobile applications. You can opt out of delivery of targeted advertising to you by multiple companies by visiting www.aboutads.info/choices, www.networkadvertising.org/managing/opt_out.asp and www.evidon.com.
  12. Information Sharing:
  13. Affiliates and Manufacturers. Information collected, including personal information and from Data Technologies, may be shared with affiliates and manufacturers, and their agents and third party service providers, who will use that information in accordance with their own privacy policies.
  14. Our Service Providers. We may engage third parties to provide the services offered through or in connection with our website on our behalf. We require such providers to maintain information about you as confidential and to use the information only to perform the services specified by us in a manner consistent with this Privacy Statement.
  15. Credit Applications. If you apply for credit on our website or via any third party link from our website, it will be necessary for you to provide personal information to complete the application, including your address, credit information and history, employment and other financial information. We may share your application information with the our financial partners so that they can process your application and otherwise use it in accordance with their privacy policies, however, we will not use your personal financial information for interest based advertising.
  16. We may access or disclose information, including personal information, to: protect or defend our interests and the legal rights or property of Haystak and its affiliates; protect the rights, interests, safety and security of users of our website or members of the public; protect against fraud or for risk management purposes; or comply with prudent legal practice as we may determine, and applicable law or legal process.
  17. Online Tracking for California Residents. As of the effective date of this Privacy Statement, there is no commonly accepted response for Do Not Track signals initiated by browsers, therefore we do not respond to them.
  18. Disputes. If you choose to visit our website, your visit and any dispute regarding privacy is subject to this Privacy Statement and any terms of use or visitor agreement, including limitations on damages, resolution of disputes, and application of the law of the state of Georgia.
  19. Updates to Privacy Statement. This Privacy Statement may be updated to provide clarification or notice of changes to our practices. If changes are made, the date at the top of this Privacy Statement will be revised. Additional notice of material changes will be provided by posting notice of the changes for thirty (30) days before those changes are implemented.

 


 

 

EXHIBIT C

Incentives Data Additional Terms

  1. Definitions.
  2. “R&I Data” shall mean the data provided by Provider regarding one or more programs established by Manufacturers or their Captive Lenders as incentives or rebates offered to a Consumer in conjunction with the purchase or lease of a new vehicle such as: Rebates, Consumer Cash, Bonus Cash, Factory Supported Interest Rates (APR) and other ancillary special programs (College Grad, Loyalty, Military, etc.), or for a lease of a new vehicle such as: Residual Value, Money Factor or Cash; some offers may require the consumer to meet certain eligibility criteria.
  3. “Manufacturer” shall mean a company that manufactures and sells vehicles to licensed vehicle dealers for resale.
  4. “Captive Lender” shall mean a financial institution associated with a particular Manufacturer and used by such Manufacturer to promote special finance and lease offers to its franchised dealerships.
  5. Grant of License. During the Term, Provider hereby grants to Customer, subject to Customer’s continued compliance with all of the Agreement, including, without limitation, the payment of all Fees and other amounts payable to Provider pursuant hereto or thereto, a non-exclusive, non-transferable, fee-bearing license, to integrate, access and use The R&I Data on its website and in inventory listings advertised on third party websites or search engines. Customer shall make no other use of the R&I Data except as specifically set forth in this Addendum and no other license or right is hereby granted or shall be deemed granted except as expressly set forth in this Section 2. Customer shall not modify, edit, or otherwise change any of the R&I Data. Customer acknowledges that any use of the R&I Data, or portion thereof, other than as provided for herein, shall be a material breach of this Agreement.
  6. Proprietary Information Rights and Retention of Ownership. The R&I Data, and all improvements, additions, derivatives and other modifications thereto, and any information pertaining to the foregoing, are the exclusive property of Provider or its Providers and shall be considered and treated by Customer as the confidential proprietary information of Provider or its Providers. Except as authorized herein, Customer agrees not to, directly or indirectly, disclose, sell or otherwise transfer or exploit the R&I Data, or any portion thereof, to any other person or entity or allow any other person or entity to use the R&I Data, or any portion thereof, without the prior written consent of Provider, which may be withheld in the sole discretion of Provider.
  7. R&I Data Usage Requirements.
  8. Disclaimer. Customer must provide an appropriate disclaimer to accompany the R&I Data displayed on its website and in inventory listings advertised on third party websites or search engines, e.g. limited time offer, must qualify, etc.
  9. Limitation on Use of R&I Data. Except as otherwise licensed herein, no R&I Data shall be posted or otherwise accessible on any Web site or other property, electronic or physical, owned, created, utilized or operated, directly or indirectly, by, on behalf of or for the benefit of Customer.
  10. Customer Cooperation. Customer agrees to reasonably cooperate with Provider’s efforts to update any incorrect R&I Data. Such cooperation may include, without limitation, granting Provider access to Customer’s systems to confirm such Incentive payment information. Customer agrees to provide Provider with a copy of incentive data provided by the applicable Manufacturer or its Captive Lender for use by Provider to update any R&I Data.
  11. No Warranties. NEITHER PROVIDER NOR ITS LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING WITHOUT LIMITATION, WITH RESPECT TO THE R&I DATA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL MATERIAL PROVIDED BY PROVIDER OR ITS LICENSORS HEREUNDER, INCLUDING, WITHOUT LIMITATION, THE R&I DATA, IS PROVIDED ON AN “AS-IS, AS AVAILABLE” BASIS AND NEITHER PROVIDER NOR ITS LICENSOR REPRESENTS OR WARRANTS THAT THE R&I DATA WILL BE ACCURATE, ERROR-FREE OR PROVIDED ON ANY UNINTERRUPTED BASIS. THE R&I DATA MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DEALER EXPRESSLY UNDERSTANDS AND AGREES THAT: ITS USE OF THE R&I DATA IS AT ITS SOLE RISK ON AN “AS IS” AND “AS AVAILABLE” BASIS; NEITHER PROVIDER NOR ITS LICENSORS GUARANTEES THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM OR RELATED TO THE R&I DATA IS FREE OF VIRUSES, WORMS, OR OTHER HARMFUL COMPONENTS.
  12. Limitation of Liability. NEITHER PROVIDER NOR ITS LICENSORS SHALL BE RESPONSIBLE FOR THE ACCURACY OR INTERRUPTION OF, OR ANY ERRORS OR MALFUNCTION IN, THE R&I DATA. NEITHER PROVIDER NOR ITS LICENSORS SHALL BE LIABLE FOR ANY DAMAGES, WHETHER FORESEEABLE, UNFORESEEABLE, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHERWISE, OR ANY COSTS OR EXPENSES INCURRED BY DEALER OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO, IN CONNECTION WITH OR AS A RESULT OF ANY R&I DATA OR THE INACCURACY OR OMISSION THEREOF OR THEREFROM (INCLUDING, WITHOUT LIMITATION, FOR THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF BUSINESS OR LOSS OF PROFITS), EVEN IF DEALER OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITIES THEREOF. DEALER HEREBY WAIVES ANY RIGHTS AGAINST PROVIDER, ITS LICENSORS, OR ANY OF ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND ADVISORS THAT DEALER (OR ANY PERSON OR ENTITY CLAIMING ANY RIGHT BY, THROUGH OR ON BEHALF OF) MAY OTHERWISE HAVE, AT LAW, IN EQUITY, UNDER THIS AGREEMENT CREATED BY LAW OR OTHERWISE, TO ANY SUCH DAMAGES, COSTS OR EXPENSES. NEITHER PROVIDER NOR ITS LICENSORS SHALL BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS; AND NEITHER PROVIDER NOR ITS LICENSORS SHALL BE LIABLE IN ANY WAY FOR ITS OR THEIR FAILURE TO PERFORM HEREUNDER IF SUCH FAILURE IS OCCASIONED BY ANY OF THE FOLLOWING: WAR; FIRE; FLOOD; INTERRUPTION OF TRANSPORTATION; EMBARGO; ACCIDENT; EXPLOSION; GOVERNMENTAL ORDERS, REGULATIONS, RESTRICTIONS, PRIORITIES OR RATIONING; STRIKE, LOCKOUT OR OTHER LABOR PROBLEMS; OR ANY REASONABLE CAUSE BEYOND THE CONTROL OF PROVIDER.

 

EXHIBIT D
Behavioral Content Additional Terms

  1. Definitions
    1. Adobe Technology: means Adobe’s technology, including software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, toolkits, plug-ins (i.e.. software components that add specific functionality to a larger software application), objects and documentation (both printed and electronic), network designs, processes, know-how, methodologies, trade secrets and any related intellectual property rights throughout the world (whether owned by Adobe, a subsidiary or affiliate of Adobe, or licensed to Adobe by a third party) and also including any derivatives, modifications, improvements, enhancements or extensions thereto, regardless of when developed. Adobe Technology includes third party licensed materials incorporated into or provided with Adobe Technology.
    2. Customer Content: means all audio, video, multimedia, data, text, images, documents, computer programs, and any other information or materials that (i) is created, generated or provided by Customer, Customer’s users, or by visitors to the Customer Site(s), and supplied or made available by Customer to Adobe via Provider or third party vendors for delivery and/or indexing in connection with the provision of Behavioral Content Services or (ii) is uploaded by or on behalf of Customer in connection with Customer’s use of the Behavioral Content Services.
    3. Behavior Data: means (i) any and all data and information collected from the Customer Site(s), or from Customer’s search engine providers, via the Distributed Code, or (ii) any and all data and information that the Customer chooses to import from Customer’s internal data stores or other sources not supplied by Adobe, via Provider, for the Behavioral Content Services, or (iii) any and all data provided by, or made available to Adobe by Customer or its vendors, partners and/or third-party providers.
    4. Customer Site(s): means the current and future website(s) and applications which are owned and operated by Customer, or hosted or operated by a third party (including Adobe) on Customer’s behalf; provided that, in all cases, such websites and applications contain Customer’s brand or logo and Customer creates, maintains, controls, and is responsible for the relevant privacy statement and/or related disclosures displayed in or linked from such websites and applications.
    5. Distributed Code: means HTML tags, JavaScript code, object code, plugins, or other code provided to Customer to enable usage of the Behavioral Content Services.
    6. Reports: means all graphical or numerical displays of Behavior Data generated by the Behavioral Content Services which contain Adobe’s proprietary design, look, and feel.
    7. Users: means employees of Customer.
    1. License Grant from Provider. Subject to the Terms and payment of the Fees, Provider grants to Customer, during the License Term, the nontransferable, nonexclusive, worldwide limited right to (i) permit Users to access the Behavioral Content Services through the applicable interface(s); and (ii) use and distribute Reports internally. This license grant is provided solely in connection with Behavioral Content Services and for Customer’s own internal business operations, and nothing in this section grants any express or implied license to use, distribute, modify, copy, link, or translate the Distributed Code other than in connection with the Customer’s use of the Behavioral Content Services.
      1. License Restrictions. Customer agrees as a condition of the license not to: (i) copy, use, reproduce, distribute, republish, download, display, post or transmit in any form or by any means the Behavioral Content Services, Distributed Code, or Reports, except as expressly stated herein; (ii) sell, rent, lease, host, or sublicense the Behavioral Content Services, the Distributed Code, or the Reports; (iii) make Customer’s login ID’s or passwords available to any third-party, unless expressly permitted herein, (iv) use, modify, copy, link, translate, or reverse engineer the Distributed Code to enhance or enable usage of any third party product or service; (v) remove, obscure, or alter any proprietary notices associated with the Behavioral Content Services, Distributed Code, Reports; (vi) use the Behavioral Content Services, Distributed Code, or Reports in violation of applicable laws (including but not limited to use on websites that contain unlawful material such as material that violates applicable obscenity, defamation, harassment, privacy, or intellectual property laws).
    2. License Grant from Customer. Customer grants to Provider and Provider’s third party providers and their affiliates and subsidiaries, during the License Term, the non-exclusive, worldwide, royalty-free, limited right to (i) use, copy, transmit, index, store and/or display Behavior Data and Customer Content solely to the extent necessary to provide the Behavioral Content Services and Reports to Customer and to enforce its rights set forth hereunder; and (ii) use, copy, transmit, index, model, aggregate (including combination with similar data of other customers of Adobe and its affiliates), publish, display, resell and distribute anonymous information derived from Behavior Data, or portions thereof (which information may include but is not limited to web browser, screen resolution, and mobile device type), provided that no such use(s) shall include any information that identified Customer or its Customer Site visitors.
  2. Intellectual Property
      1. Provider. Customer acknowledges and agrees that Provider’s third party provider, Adobe, and its third party suppliers, as applicable, retain all right, title and interest in and to the Adobe Technology and all intellectual property rights embodied in or with respect to the Adobe Technology. Provider reserves all rights not expressly granted to Customer herein.
      2. Customer. Customer owns all right, title and interest in and to, as well as derived from, (i) all Behavior Data; and (ii) Customer Content. Nonetheless, Adobe reserves all ownership rights in the Behavioral Content Services, Adobe Technology, and Reports (excluding Behavior Data).
    1. No Modifications, No Reverse Engineering. Customer will not modify, port, create derivative works of, adapt or translate the Behavioral Content Services. Customer will not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Behavioral Content Services delivered in object code. Notwithstanding the foregoing, decompiling the Behavioral Content Services delivered in object code is permitted solely to the extent the law governing the Order Form gives Customer the right to do so to obtain information necessary to render the decompiled technologies interoperable with other software.
  3. Provider may terminate the Behavioral Content Services, in whole or in part, upon written notice to Customer if Customer is in breach of the “No Modifications, No Reverse Engineering” Section above, or uses the Behavioral Content Services beyond the scope of the license stated herein. Any continued use of the Distributed Code and/or Behavioral Content Services after termination or expiration of the Order Form or Term shall be deemed a breach of these Terms, and Customer will be liable for Fees for all Behavioral Content Services which remain active after such termination or expiration, which will be billed at the rate set forth in the Order Form for the applicable Behavioral Content Services.
  4. Privacy
    1. Privacy Policy. For Customer Site(s) on which Behavior Data is collected or Customer Content is served, Customer hereby agrees that the Customer Site(s) will feature a privacy policy or other notice, displayed conspicuously from the primary interface, that contains the Privacy Policy Required Provisions set forth in Exhibit B. Provider reserves the right to recommend to Customer that it modify its privacy disclosures to address updates or changes to applicable law, industry self-regulation, or best practices, and Customer agrees to undertake a good faith effort to address such recommendation(s).
    2. Sensitive Personal Information. Customer represents and warrants that it will not transmit, provide, or otherwise make available to Provider or Adobe sensitive personal information of its employees, customers, partners, or Customer Site visitors, which includes but is not limited to information regarding a minor, sexual orientation, financial information, and medical or health information.
  5. Customer Content Monitoring. Customer agrees to implement a process through which infringing, abusive or otherwise unlawful content can be reported to Customer and removed in accordance with industry best practices and applicable law. If Customer Content or content from Customer Site visitors are hosted by Adobe, and if Customer becomes aware of possible violations regarding content its customers upload to the service, Customer agrees to promptly notify Provider. Customer acknowledges that, though Adobe, via Provider, is providing access to Customer Content hereunder, it acts only as a passive conduit. Although Provider and Adobe may be involved in modifying or editing the Customer Content to be posted and/or integrated into Customer Site(s) on Customer’s behalf, Customer retains complete discretion and responsibility, including compliance with all applicable laws and regulations, for its website and all content accessible thereon. Customer acknowledges and agrees that nothing in the foregoing paragraph prevents Provider from suspending any Services to comply with that applicable court order.
  6. Third Party Claims. Customer agrees to defend Provider, third party providers, their affiliates (and its and their directors, employees and agents) and third party data and service providers, from any and all claims, demands, losses, costs or liability (including without limitation reimbursement for reasonable attorneys’ fees and disbursements) which may incur as a result of, arising from or relating to any third party claim (i) that Customer’s actions in connection with the Behavioral Content Services violate Customer’s privacy policy or any third party’s rights of privacy, or violate any privacy laws; and/or (ii) the Behavior Data or Customer Content. Any limitation on damages provision shall not apply to Customer’s indemnification obligations herein.
  7. Limitation of Liability. Customer’s sole remedy for a breach of the Behavioral Content Services is limited to supplying the Behavioral Content Services again, or the payment of the cost of having the Behavioral Content Services supplied again. Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any law which cannot lawfully be excluded or limited. This may include any consumer law of the applicable territory which contains guarantees that protect the purchasers of goods and services in certain circumstances.
  8. General Provisions
    1. Third Party Beneficiaries. Customer acknowledges and agrees that Provider may use third parties to perform some or all of its obligations under the Order Form. Customer further acknowledges and agrees that under certain circumstances a third party service provider of Provider may provide the Behavioral Content Services ordered by Customer. Customer agrees that such third party providers are third party beneficiaries hereunder and may enforce the applicable terms as necessary to protect such third party provider’s intellectual property and other rights.
    2. Export Rules. Customer acknowledges that the Behavioral Content Services are subject to the U.S. Export Administration Regulations and other applicable export laws, restrictions, and regulations and agrees to comply with them.
    3. S. Government Licensing. For U.S. Government End Users, Customer acknowledges that the Behavioral Content Services are “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as the terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Customer agrees, consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
    4. Provider or Adobe may, at its expense, appoint its own personnel or a qualified third party to verify that Customer’s use of the Behavioral Content Services complies with the Terms. Such verification may also include an onsite audit conducted at Customer’s relevant places of business upon seven (7) business days’ prior notice, during regular business hours, and shall not unreasonably interfere with Customer’s business activities. If such verification shows that Customer is using the Behavioral Content Services in any way not permitted under the Terms and which would require additional license fees, Customer shall pay the applicable fees within thirty (30) days of invoice date. If underpaid fees are in excess of five percent (5%) of the value of the fees paid under the Order Form, then Customer shall pay Provider such underpaid fees and shall pay Provider or Adobe, as applicable, the reasonable costs of conducting the verification. This provision will survive termination or expiration of the Order Form or agreement into which these terms have been incorporated.

EXHIBIT E
Inventory Services Additional Terms

  1. Definitions:
    1. Customer Identifying Information means the Customer’s name and address presented in text, graphic and/or image form.
    2. Customer Inventory Data means vehicle inventory and other related data of Customer, including vehicle specifications, Vehicle Identification Number (VIN) data, vehicle pricing information, photographs and other data and information relating to Customer’s vehicle inventory.
    3. Generated Content means vehicle listings, postings, advertisements or other content or materials that may be generated by or through the Inventory Services.
  2. License Grant. Customer hereby grants to Provider, its affiliates, and its designated third party service providers, a limited, non-exclusive, worldwide, license and right to: a) access any dealer management system or similar platform used in connection with Customer’s automotive business (“DMS”) for the purpose of accessing, polling, copying, formatting, extracting and downloading Customer Inventory Data; b) use the Customer Identifying Information and logo (if provided) in connection with the Generated Content; and c) use the Customer Inventory Data for or in connection with: (i) VIN decoding; (ii) the aggregation of data and information (including Customer Inventory Data) for the purpose of assembling and developing Generated Content; and (iii) exporting, publishing or otherwise distributing or disseminating Generated Content to authorized websites and third parties. Customer shall promptly notify Provider in writing in the event that Customer identified any errors or omissions with respect to any Customer Inventory Data.
  3. Nature of Inventory Services. The Inventory Services are intended to assist dealers in the management of their online vehicle marketing by integrating into sales processes and aggregating various data in order to generate digital vehicle display ads and other content that can be distributed to third party websites and marketplaces. The Inventory Services are not a referral or advisory service and do not recommend or endorse any particular transaction, sales strategy or other approach to managing vehicle inventory or Customer’s business generally. The Inventory Services are intended only to facilitate the process by which Customer manages its online vehicle marketing. Neither Provider nor the Inventory Services offer any advice regarding the value, costs, profit targets, quality or suitability of any particular transaction or sales strategy. Customer is solely and exclusively responsible for ensuring the accuracy and integrity of any data or information that may be input or otherwise loaded into its DMS. Customer also assumes sole and complete responsibility for any Generated Content, and Customer shall ensure the accuracy and completeness of all Generated Content (including any vehicle description and pricing information included or displayed in any Generated Content) prior to publishing or otherwise making such Generated Content available on the Internet or to any third party. Customer alone is responsible for ensuring that it complies with all federal, state and local laws, regulations, rules, ordinances and other decrees of any governmental authority in connection with their use of the Inventory Services and any Generated Content, and do not infringe or violate the intellectual property rights or any other rights of any third party.
  4. Third Party Claims. Customer agrees to defend Provider, third party providers, its and their affiliates (and its and their directors, employees and agents), from any and all third party claims, demands, losses, costs or liability (including without limitation reimbursement for reasonable attorneys’ fees and disbursements) which may incur as a result of, arising from or relating to: (i) Customer Inventory Data or other data provided by Customer; (ii) mistakes, errors or omissions contained in any material, including, without limitation, any report, output or result generated in connection with the use of the Services provided by Provider and provided to such third party by Customer; (iii) any third party action related to Customer’s unauthorized use of all or part of the Services; and (iv) in connection with the designation of any vehicle as “certified” pursuant to a particular manufacturer’s certification program(s).
    1. Provider does not have any duty or obligation to review any Customer Inventory Data or Generated Content. Provider disclaims any and all liability arising from, or in connection with, the download or use of any Customer Inventory Data by Customer or any of its current or potential customers, clients or users, including any and all responsibility for (i) the functionality, performance, truthfulness, accuracy, completeness, or compliance with any law, of any Customer Inventory Data or Generated Content, or (ii) for any claims that any Customer Inventory Data or Generated Content infringes or misappropriates any copyright, trademark, service mark or other intellectual property right, misappropriates or violates any right of privacy or publicity, defames any person or business, or is obscene or otherwise offensive or inappropriate. Notwithstanding the foregoing, Provider and its representatives may from time to time and at any time, in its sole discretion, review any Customer Inventory Data or Generated Content.
    2. Provider shall not be responsible for any inability to provide the Inventory Polling or delay in the Services caused by or resulting from: Customer’s failure to provide Provider or its designated service provider with access to Customer’s DMS or Customer Inventory Data; corrupt or otherwise unacceptable Customer Inventory Data; the inability of Provider or its designated service provider to access Customer’s DMS; or from the failure of a Customer’s computer system to meet Provider’s technical specifications required to interoperate with the Services or to perform according to their technical specifications. Customer acknowledges that performance by Provider is subject to any delays caused by Customer and time for performance may be extended for any such delays. If extracted Customer Inventory Data is corrupt, not to Provider’s specifications or otherwise unacceptable, Provider or its designated third party service provider will attempt to notify Customer. The foregoing notice may be by email. If the Customer Inventory Data is not extracted, the export of Inventory Listings will be delayed and Customer shall still be responsible for the fees pursuant to the Order Form.
    3. Routine maintenance and periodic system repairs, upgrades and reconfigurations may result in temporary impairment or interruption in the services. As a result, Provider does not guarantee continuous or uninterrupted service and reserves the right from time to time to temporarily reduce or suspend Services without notice. Provider will, however, use commercially reasonable efforts to notify Customer in advance of any scheduled temporary reduction or suspension of Services. Provider reserves the right to take emergency administrative measures including, but not limited to deletion of logs, core dumps, and file purges to ensure proper and optimum server operation.

The ability to transfer files to the third parties is subject to approval by the third party owner(s). Provider is not responsible for delays in file transfers due to response time, inability, or unwillingness to accept file transfers by a third party.