END USER LICENSE AGREEMENT

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR LICENSE AND SERVICES.

BY ACCEPTING THIS AGREEMENT BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE LICENSE AND SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABLITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

THIS AGREEMENT WAS LAST UPDATED ON DECEMBER 17TH, 2013. IT IS EFFECTIVE BETWEEN YOU AND US AS OF THE DATE OF YOU ACCEPTING THIS AGREEMENT.

 

The customer submitting the Powersports Marketing Subscription Form through this website ("Customer") agrees that Customer's use of any products or services (the "Service" or "Services") offered by Powersports Marketing. ("Powersports Marketing") will be subject to these standard terms and conditions (this "Agreement").

1. Agreement and Services.

This Agreement governs Customer's use of all Services ordered from Powersports Marketing by Customer from time to time. These services will be identified in the subscription payment process. Subject to Customer's payment of any applicable Fees (as defined below), Powersports Marketing will provide to Customer the Services identified in each Subscription. As further specified in the applicable Subscription, the Services may consist of professional services, such as, but not limited to, website development and hosting services, and/or access to online products and services (including any hardware or equipment provided by Powersports Marketing) that Powersports Marketing may make available to its customers from time to time via this website or any other digital platform (collectively, the "Powersports Marketing Site").

2. Access to Powersports Marketing Online Services.

2.1. Grant of Rights. Subject to Customer's compliance with the terms of this Agreement, including, without limitation, the restrictions set forth in Section 2.2 below, Powersports Marketing grants to Customer and its Authorized Users a non-exclusive, non- transferable, limited license, during the Term of this Agreement, to access and use the Services on and through the Powersports Marketing Site, solely for the purpose of enhancing, managing, distributing, and displaying data and photos relating to motor vehicles Customer has in inventory or may acquire (collectively, "Inventory Data") via the Internet. Customer shall be responsible for compliance with, and any breach of, this Agreement by Customer's Authorized Users. For purposes of this Agreement, "Authorized Users" means (a) Customer's employees, officers, directors and/or contractors who access any Services on behalf of Customer, and (b) if Customer obtains website development and/or hosting services from Powersports Marketing, the end users of Customer's website(s).

2.2. Restrictions on Use. Customer acknowledges and agrees that the Services are licensed for use at a single dealer location, and Customer shall not use the Services for more than one dealer location unless Customer enters into a separate agreement with Powersports Marketing. Notwithstanding anything to the contrary in this Agreement, Customer may not (i) provide, disclose, make available or allow access to, or permit use of any Service by any third party; (ii) modify, adapt, translate, or create derivative works based upon, the underlying software code of any Service; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any Service except to the extent Customer may be expressly permitted to do so under applicable law; or (iv) use any Service to provide services to a third party.

3. Data Rights.

3.1. Inventory Data. Customer acknowledges that certain Services will require Powersports Marketing, its Affiliates (as defined in Section 9.1, below) and/or its service providers to access, store and manage Customer's Inventory Data. If Customer requests any such Service, Customer agrees that Powersports Marketing, its Affiliates and/or such service providers may access Customer's dealer management system for purposes of acquiring Inventory Data for use for their respective business purposes, which may include, without limitation, performing VIN decoding/enhancement, distributing Inventory Data, and preparing and distributing statistical analyses based on the Inventory Data. Customer alone is responsible for ensuring the accuracy and integrity of the Inventory Data. Customer must notify Powersports Marketing immediately of any problems with the Services or any errors in the Inventory Data. Powersports Marketing may be required by law, rule or regulation to make the following disclosure:

3.2. Performance/Transaction Data. Customer may use the Services to manage leads, transactions, and other customer interactions in connection with the operation of its motor vehicle dealership and to assess and enhance the performance of its marketing efforts (collectively, this data is referred to as the "Performance/Transaction Data"). Customer hereby grants to Powersports Marketing and its Affiliates a perpetual, non-exclusive, royalty-free, irrevocable right and license (i) to use, copy, perform, display, distribute and modify the Performance/Transaction Data in any manner or medium, now known or hereafter developed, for Powersports Marketing' and its Affiliates' business purposes, and (ii) to prepare statistical analyses based on such Performance/Transaction Data ("Statistical Data"), which Powersports Marketing 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.

3.3. Proprietary Rights in Customer Data. Subject to the licenses granted pursuant to Sections 3.1 and 3.2, above, as between the Customer and Powersports Marketing, Customer will own and retain all right, title and interest in and to all Inventory Data and Performance/Transaction Data (collectively, "Customer Data") provided or made available to Powersports Marketing, or otherwise collected or received by Powersports Marketing, in connection with Customer's use of the Services.

4. Term; Termination.

4.1. Term. The term of this Agreement will commence as of the date on which Customer assents to this Agreement by clicking the "I Agree" button on the Powersports Marketing Site and will remain in effect unless and until terminated as set forth below ("Term").

4.2. Termination for Cause. Powersports Marketing may terminate this Agreement and/or cancel any Service(s) ordered under a Subscription at any time in the event of a material breach by Customer that remains uncured for a period of five (5) days following Customer's receipt of written notice of such breach from Powersports Marketing. Customer may terminate this Agreement at any time in the event of a material breach of the terms of this Agreement by Powersports Marketing that remains uncured for a period of thirty (30) days following Powersports Marketing' receipt of written notice of such breach from Customer.

4.3. Termination for Convenience. Without limiting Section 4.2, above, either party may terminate this Agreement and/or cancel any Service(s) at any time, with or without cause.

4.4. Effects of Termination. Upon expiration or termination of this Agreement or any Order Schedule, (i) Customer's right to use the Services will immediately terminate, and (ii) all unpaid Fees outstanding from Customer will become immediately due and payable. Sections 2.2, 3, 4.4, 6, 7, 8, 9, 10, 11, 12 and 14 will survive any termination of this Agreement.

5. Fees; Payment.

5.1. Fees. Customer will pay Powersports Marketing the fees specified in each Subscription ("Fees"). All payments are due in advance. Fees are to be paid for by credit card. Powersports Marketing will charge the credit card as of the day the Customer requests the corresponding Services, and on the same day of each subsequent period (based on original subscription) thereafter, unless Customer cancels the applicable Service in accordance with Section 4.3, above. All amounts paid by Customer pursuant to this Agreement are non-refundable. Late payments may bear interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, if lower. If Customer fails to make payment when due, Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Powersports Marketing in collecting such amounts. Customer will be responsible for and will pay all federal, state and local taxes that are imposed on the Fees paid or Services provided hereunder. If Customer cancels any Service that was priced by Powersports Marketing as part of a bundle of Services, but does not cancel all of such Services, Powersports Marketing may adjust the Fees for the remaining Services. By accessing and/or using any Service after such adjustment, Customer agrees to pay the adjusted Fees for such Service.

6. Representations and Warranties.

6.1. Customer Warranties. Customer represents and warrants that (i) it is a legal entity duly organized, validly existing and in good standing; (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) it has all rights necessary to provide the Customer Data and any other materials (including any trademarks, service marks, logos, photographs, images, graphics, audio, video, or other creative materials (collectively, "Customer Materials")) provided or made available by Customer, and that such Customer Data and Customer Materials do not and will not infringe any rights of any third party, including, but not limited to, any contractual rights, copyright, trademark or trade secret rights or any right of privacy or publicity, (iv) Customer's use of the Services will comply with all applicable laws, rules and regulations, including, without limitation, any privacy laws; and (v) to the extent Customer purchases website hosting services from Powersports Marketing, Customer will provide Powersports Marketing with a written privacy statement to post on such website that complies with applicable law and that contains any terms that Powersports Marketing may, from time to time, provide to Customer for inclusion in such privacy statement.

6.2. Disclaimer. POWERSPORTS MARKETING MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND POWERSPORTS MARKETING MAKES NO WARRANTY THAT THE SERVICES (I) WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN CONNECTION WITH ANY PARTICULAR SOFTWARE, OR THAT ANY ERRORS WILL BE CORRECTED; (II) WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (III) WILL PRODUCE ACCURATE OR RELIABLE RESULTS; OR (IV) WILL BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE.

7. Indemnification.

Customer will indemnify, defend and hold harmless Powersports Marketing, its Affiliates, successors and assigns, and all of their respective officers, directors, employees and agents from and against any and all claims, losses, demands, causes of action, debts or liabilities, including reasonable attorneys' fees, arising out of a third-party claim resulting from (i) any breach or alleged breach of Customer's obligations, representations or warranties under this Agreement, (ii) Customer's use of the Services, or (iii) any claim that any Customer trademarks, service marks, trade names, logos or other content or materials furnished by Customer for use in connection with the Services, including, without limitation, any Customer Data and any Customer Materials (including, if Customer obtains any website development and hosting services from Powersports Marketing, any content or advertising posted on such website by Customer's end users), but excluding any content provided by Powersports Marketing, (a) misappropriates any third party's confidential information, (b) violates any applicable law, rule or regulation, (c) libels any person or entity, or (d) otherwise violates or infringes the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, or any right of privacy or publicity.

8. Limitation of Liability.

IN NO EVENT WILL POWERSPORTS MARKETING, ITS AFFILIATES, SUBSIDIARIES, OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOSS OF DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POWERSPORTS MARKETING', ITS AFFILIATES AND THEIR LICENSORS' TOTAL LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING THROUGH CUSTOMER FOR ANY CLAIM ARISING OUT OF POWERSPORTS MARKETING' PERFORMANCE UNDER THIS AGREEMENT OR ITS PROVISION OF THE SERVICES HEREUNDER WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO POWERSPORTS MARKETING WITH RESPECT TO THE SERVICE(S) OUT OF WHICH THE CLAIM ARISES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

9. Proprietary Rights.

9.1. Rights in Powersports Marketing Online Services. The Services constitute the intellectual property of and are owned by Powersports Marketing, its Affiliates and/or its licensors, and Powersports Marketing, its Affiliates and/or its or their licensors retain all rights, including all patent, copyright, trademark, trade secret, and other intellectual property or proprietary rights in and to the Services. The structure, organization and code of the Services are valuable trade secrets and Confidential Information of Powersports Marketing, its Affiliates and/or its or their licensors. Any user name or password provided to or created by Customer for use in connection with the Services are Confidential Information of Powersports Marketing and may not be shared with any third party without the prior written authorization of Powersports Marketing. Except as expressly stated herein, this Agreement does not grant Customer any intellectual property rights in any Services and all rights not expressly granted are expressly reserved by Powersports Marketing, its Affiliates and/or its or their licensors. Customer may not remove or authorize or permit its Authorized Users to remove or obscure any proprietary rights legends from the Services. Without limiting the generality of the foregoing, if Customer obtains website development and hosting services from Powersports Marketing, Customer acknowledges that Powersports Marketing owns all right, title, and interest in the code underlying any website it provides and in the design of such site, including any templates used in connection with such design ("Templates"). Customer is receiving only hosting services from Powersports Marketing with regard to the operation and display of such website solely during the Term and will not obtain any intellectual property rights from Powersports Marketing in connection with the operation and display of such website. Customer acknowledges that use of the Template is not exclusive to Customer, and that Powersports Marketing may operate websites for other customers using the same Templates. For purposes of this Agreement, "Affiliate" means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, Powersports Marketing, where "control" means the power to direct or cause the direction of the management and policies of such other entity, whether through the ownership of voting securities, by contract or otherwise.

9.2. Trademarks. Powersports Marketing, its Affiliates and/or its or their licensors own and retain all rights in any trademarks, service marks, trade names and logos, and all related products and service names, marks, and slogans used by Powersports Marketing in connection with the Services and excluding only any Customer trademarks, service marks, trade names and logos provided by Customer for use in connection with any website hosting and development services provide by Powersports Marketing. Any other trademarks, service marks, trade names or logos contained within any Services are owned by their respective owners.

10. Confidentiality.

10.1. Definition of Confidential Information. For purposes of this Agreement, "Confidential Information" means the terms and conditions of this Agreement, and all non-public information about Powersports Marketing' business or activities that is marked or designated by Powersports Marketing as "confidential" or "proprietary" at the time of disclosure or that reasonably would be understood to be confidential given the circumstances of disclosure. Without limiting the generality of the foregoing, Confidential Information will include, without limitation all Powersports Marketing business (including pricing), financial, technical and other similar information.

10.2. Use of Confidential Information. Customer agrees that during the Agreement Term and for three (3) years thereafter: (i) it will not disclose to any third party any Confidential Information disclosed to it by Powersports Marketing except as expressly permitted in this Agreement; (ii) it will not use any Confidential Information disclosed to it by Powersports Marketing except as necessary to perform its obligations under this Agreement; and (iii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of Powersports Marketing in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, Customer may disclose Confidential Information (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to request confidential treatment or a protective order before such disclosure; and (b) on a "need-to-know" basis to its legal counsel, accountants, employees and agents who are obligated to maintain the confidentiality of such information. Customer agrees that it shall remain liable for the compliance by such persons with the terms of this Agreement. Upon termination or expiration of this Agreement, or at the request of Powersports Marketing, Customer shall (at its option) return the Confidential Information to Powersports Marketing, or destroy it and, upon Powersports Marketing' request, certify that it has taken such action.

11. Notices.

Except as otherwise provided herein, any notice provided pursuant to this Agreement will be in writing, and will be sent by U.S. mail, postage prepaid, certified mail return receipt requested or by overnight courier addressed (if to Customer) to the address set forth on the Subscription Form or (if to Powersports Marketing) to Powersports Marketing., Attn: Daniel Lindsey, 825 Hwy 74 S, Peachtree City, GA 30269 or to such other address as maybe provided by notice by the applicable party in accordance with this Section.

12. Governing Law/Venue.

This Agreement and performance hereunder will be governed by the laws of the State of Missouri, without regard to its conflicts of laws rules. The parties hereby agree that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement will be an appropriate federal or state court located in Springfield, MO.

13. Assignment.

Customer may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights is void. Powersports Marketing may subcontract to any third party all or any part of the Services being provided by Powersports Marketing to Customer pursuant to this Agreement.

14. Changes to Agreement.

Powersports Marketing reserves the right to modify the terms of this Agreement from time to time and will post any such changes on the Powersports Marketing Site. Powersports Marketing will provide notice to Customer of any such modification, which notice may appear on the Powersports Marketing Site or be delivered via the Services. Customer agrees that Customer's use of any Services after notice of such modifications to this Agreement will constitute Customer's assent to any such modifications.

15. Miscellaneous.

Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party. Nothing in this Agreement shall be construed to constitute or appoint either party as the agent or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter, including, without limitation, the terms of any purchase order submitted by Customer to Powersports Marketing to procure Services hereunder. The waiver or failure of either party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. Except as otherwise set forth in Section 14, this Agreement may not be modified or altered except by written instrument duly executed by an authorized officer of each party, and any such other modification shall be null and void and of no legal effect. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement.