TERMS AND CONDITIONS

1. Access to Systems and Information.
1.1. Dealer shall provide Xcel with electronic access to any dealership management, customer relationship management, inventory management, lender portal, credit bureau, Google Analytics or other system or account of Dealer (and shall grant any permissions or take any other actions necessary to authorize or enable such access) as reasonably required for Xcel to perform the services described in the cover page to this Agreement (“Services”). Dealer shall ensure that all data in such systems and accounts (“System Data”) is at all times true, complete and correct in all material respects. 

1.2. Dealer shall provide Xcel with any information or materials regarding Dealer or its products or services, including any printed copy, audio, video or graphical materials, as reasonably required for Xcel to perform the Services (“Product Information” and, together with the System Data, the “Dealer Materials”). Dealer shall ensure that the Product Information is at all times true, complete and correct in all material respects and not deceptive or misleading. 

1.3. Unless otherwise provided in the cover page to this Agreement, Xcel shall be solely responsible for determining the form and content of any advertisement or other communication deployed by Xcel hereunder. Dealer shall grant any permissions or take any other actions necessary to authorize or enable Xcel to deploy social media advertisements (including granting any permissions to Facebook or other social media platforms) as reasonably required for Xcel to perform the Services. 

2. License; Ownership.
2.1. Dealer hereby grants Xcel, for the term of this Agreement, a non-exclusive, royalty-free, worldwide, sublicensable, transferable right and license to use, reproduce, distribute, perform, display and make derivative works from the Dealer Materials, and to use Dealer’s name and trademarks, in each case as reasonably required for Xcel to perform the Services. 

2.2. Dealer agrees that, as between the parties, Xcel shall own all right, title and interest in and to any content, information or data generated by Xcel in the course of performing the Services (for clarity, excluding the Dealer Materials) (“Xcel Data”); provided, however, that Dealer may use the Xcel Data for its internal business purposes as reasonably required for Dealer to utilize the Services. Dealer shall, at Xcels expense, provide any information in its possession or assistance reasonably requested by Xcel for the purpose of evidencing, recording or perfecting its ownership of or rights to the Xcel Data. 

3. Term. The term of this Agreement is described in the cover page to this Agreement. Notwithstanding the foregoing, either party may terminate this Agreement for other party’s material breach of this Agreement upon thirty (30) days’ (or, in the case of payment breach, ten (10) days’) prior written notice to the other party, if such breach is not cured during such notice period. 

4. Fees. As consideration for Xcel’s performing the Services, Dealer shall pay Xcel the fees described in the cover page to this Agreement. In addition to such fees, Dealer shall pay any applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Xcel’s income. Any amount payable by Dealer to Xcel hereunder that is not paid on or before the date such amount is due shall bear interest at the rate of 10% per annum (or, if lower, the highest rate permitted under applicable law). 

5. Confidentiality. “Confidential Information” means any and all technical, business or other information disclosed by or on behalf of a party to the other party, directly or indirectly, in writing, orally, electronically or in any other form, under or in connection with this Agreement (whether before or after the Effective Date), including, without limitation, trade secrets, customer lists, business plans, technical data, product ideas or information, or personnel, contract or financial information; provided, however, that Confidential Information shall not include any information that (a) is generally known to the public through no fault of the receiving party, (b) is received by the receiving party, without confidentiality restrictions, from a third party without breach of any confidentiality obligations owed by such third party to the disclosing party, (c) was in the receiving party’s possession, without confidentiality restrictions, before it was disclosed to the receiving party by the disclosing party, or (d) is independently developed by the receiving party, without use of any Confidential Information of the disclosing party. Each party agrees that, except as reasonably required to exercise its rights or perform its obligations under this Agreement, it will not use in any way for its own account or the account of any third party, nor disclose to any third party, any Confidential Information of the other party. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party to the extent required by law or court order, so long as the receiving party notifies the disclosing party (including providing the disclosing party with a copy of any written request or order for disclosure) of such requirement reasonably prior to disclosure and provides the disclosing party with such assistance as the disclosing party may reasonably request in connection with its efforts to limit or restrict such disclosure. Each party shall use commercially reasonable efforts to protect the confidentiality of the other party’s Confidential Information, such precaution not to be less than the precautions each party takes to protect the confidentiality of its own Confidential Information. The Xcel Data shall be deemed the Confidential Information only of Xcel, and the terms of this Agreement shall be deemed Confidential Information of each party. In the event of any breach or threatened breach of this Section 5, in addition to any other rights or remedies that may be available to the non-breaching party, the non-breaching party shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving irreparable injury or actual damages and without the necessity of posting a bond. 

6. Dealer Representations and Warranties; Disclaimer.
6.1. Dealer represents and warrants to Xcel that (a) in connection with this Agreement, it will comply with all applicable laws, rules and regulations of any governmental authority, including any such applicable privacy or consumer protection laws; (b) each person included in Dealer’s DMS or CRM system, or in any other data set provided by or on behalf of Dealer to Xcel for use in performing the Services, has provided any consents or authorizations necessary for Xcel to make phone calls or send messages to such person as contemplated by the Services without violating any applicable laws, rules or regulations of any governmental authority; (c) it has all necessary rights to grant the rights and provide the access granted and provided to Xcel hereunder; and (d) Xcel’s use of the Dealer Materials and access to Dealer’s systems and accounts as contemplated hereby will not violate any applicable laws, rules or regulations or infringe any third party’s intellectual property, privacy or other rights. 

6.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND XCEL MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR OTHERWISE) WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY AS TO TITLE OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY, OR ANY WARRANTY AS TO UNINTERRUPTED OR ERROR-FREE PERFORMANCE OR CONFORMITY TO ANY SPECIFICATIONS. 

7. Indemnification. Dealer agrees to defend, indemnify and hold harmless Xcel, its affiliates, and its and their respective owners, directors, officers, employees and agents (“Indemnified Parties”) against any third party claim, demand, cause of action, costs, expenses or liability, including reasonable attorney’s fees, to the extent arising out of (a) any breach of Dealer’s representations, warranties or obligations hereunder; (b) any gross negligence or willful misconduct of Dealer in connection herewith; (c) any allegation that the Dealer Materials, or Xcel’s use thereof or access thereto in accordance with this Agreement, infringes or violates any intellectual property, privacy or other rights of any third party; or (d) Dealer’s products, services or business activities. The applicable Indemnified Party must notify Dealer promptly in writing of any claim for indemnification hereunder and provide, at Dealer’s expense (to the extent of out-of-pocket expenses only), all reasonably necessary assistance, information and authority to allow Dealer to control the defense and settlement of such claim; provided, however, that the failure of an Indemnified Party to promptly inform Dealer of any claim shall not excuse Dealer of its obligations under this Section 7 except to the extent such failure materially prejudices Dealer. Notwithstanding the foregoing, Dealer shall not enter into any settlement of the defense of such action, other than with respect to the payment of monies, without the applicable Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. The Indemnified party may participate at its expense in the defense and/or settlement of any such action with counsel of its choosing and at its sole expense. 

8. Limitation of Liability.
8.1. EXCEPT AS PROVIDED IN SECTION 8.3, THE TOTAL AND CUMULATIVE LIABILITY OF EACH PARTY AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FOR DAMAGES (WHETHER A CLAIM THEREFOR IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE, OR OTHERWISE) ARISING OUT OF, OR RELATING TO, THIS AGREEMENT SHALL BE LIMITED IN THE AGGREGATE FOR ALL CLAIMS TO THE TOTAL AMOUNT PAID BY DEALER TO XCEL UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO SUCH LIABILITY. 

8.2. EXCEPT AS PROVIDED IN SECTION 8.3, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT THAT MAY BE TO THE CONTRARY, NEITHER PARTY NOR ITS AFFILIATES OR ITS OR THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE TO THE OTHER PARTY, OR ITS AFFILIATES OR ITS OR THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS FOR CLAIMS FOR INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR SPECIAL DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF USE OR REVENUE, LOSS OF SAVINGS OR LOSS OF DATA, IN EACH CASE ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR THE PARTY SOUGHT TO BE HELD LIABLE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER A CLAIM IS BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE. 

8.3. The limitations set forth in Section 8.1 and the exclusion of certain damages set forth in Section 8.2 shall not apply to Dealer’s indemnification obligations under Section 7 or any liability arising from any breach of Dealer’s obligations under Section 4 or 5. 

9. Force Majeure. Any delay in the performance of any obligations of a party hereunder (except for the payment of money owed) shall not be considered a breach of this Agreement if such delay is caused by a war, terrorism, fire, natural disaster, or any other similar event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. 

10. Use of Name. Xcel shall have the right to refer to Dealer as a customer of Xcel and to include Dealer’s name and trademarks in a list of customers that it publicizes in its marketing materials or on its website. Except as expressly provided herein, neither party shall use the other party’s trade names, trademarks or other indicia of source without the prior written consent of the other party. 

11. Miscellaneous. The relationship of the parties is that of independent contractors, and except as expressly provided herein, neither party shall have the authority to bind or act on behalf of the other. This Agreement shall be governed by and construed in accordance with the laws of Washington without giving effect to any choice of law or conflict of law rules. For any action or proceeding arising out of, or relating to, this Agreement, Dealer consents to the exclusive jurisdiction and venue of the state and federal courts located in Sanford, FL and shall not bring any such action or proceeding in any other court. Neither party shall assign any of its rights under this Agreement, or delegate the performance of any of their duties hereunder, without the prior written consent of the other party; provided, however, that Xcel may, without such prior written consent, (a) use its affiliates or subcontractors to perform the Services and (b) assign this Agreement and all of its rights and obligations hereunder to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties’ successors and assigns. This Agreement is the entire agreement of the parties with respect to the subject matter hereof and supersedes any previous written or oral agreements or understandings relating thereto. No amendment, change or modification of this Agreement shall be valid unless in writing signed by the parties hereto, and no waiver under this Agreement shall be effective unless in writing signed by the waiving party. Expiration or termination of this Agreement shall not affect any rights or obligations of a party that accrued prior to such expiration or termination, and after any expiration or termination the provisions of Sections 2.2, 4 (solely as to amounts accrued as of termination) and 5 through 11 (inclusive) shall survive indefinitely.