1. Tool Use:

• Trade Range. If Dealer has selected to receive the Trade Range Tool, Hearst Autos shall: (i) provide Dealer with an active link to the Trade Range Tool, Hearst Autos’ online trade appraisal engagement tool, for placement on Dealer’s websites and distribution to Dealer’s customers who access the product through Dealer’s website or other distribution methods, including email newsletters (“End Users”); (ii) deliver trade range values to End Users who input requested automotive information into the Trade Range appraisal and provided their contact information including, first name, last name, email address and/ or phone number (“Prospect Information”); (iii) deliver the Prospect Information to Dealer for Dealer's exclusive use to contact such End Users in connection with an offer to purchase or sell automobiles.   

• Credit Score.  If Dealer has selected to receive the Credit Score Tool, Hearst Autos shall: (i) provide Dealer with an active link to Credit Score, Hearst Autos’ credit score engagement tool, for distribution to End Users, (ii) deliver a credit score to End Users who input the requisite information in Credit Score; (iii) deliver the Prospect Information to Dealer for Dealer's exclusive use to contact such End Users in connection with an offer to purchase or sell automobiles. Dealer acknowledges and agrees that it shall not have any access to a consumer’s credit score as part of Credit Score. 

• Hearst Autos grants Dealer a restricted, non-exclusive, non-transferable limited right to use the Tools throughout the Term so as to provide End Users with access to the Tool for the purposes set forth in subsection (a) and (b) above.  

• Except for Dealer’s End Users, as expressly permitted herein, Dealer shall not, and shall not permit any third party, including but not limited to Dealer’s affiliates or any third parties accessing the Tools to (i) disassemble, decompile, reverse engineer or otherwise modify or alter the Tools; (ii) copy or reproduce in any form or medium all or any part of the Tools; (iii) create any derivative work from the Tool; (iv) assign, transfer, lease, license, sell, or otherwise publish, communicate, distribute, reproduce or display to third parties in any form or medium all or any part of the Tool including, without limitation, as a value-added reseller; (v) create or provide any valuation guides or services based in whole or in part on the Tool, alone or in combination with any other Tool; (vi) use the Tool to value its own vehicle inventory; (vii) provide the Tool or any Tool based services to any third party, except as specifically provided herein; or (viii) use any content, Tool, output, or other information received or derived from the Tool to directly or indirectly create, train, test, improve, or use in any other manner in connection with any machine learning algorithms or artificial intelligence systems, including any architectures or models. 

• It is agreed that Hearst Autos reserves all rights to the Tools not expressly licensed under these Terms. 

2. Compliance with Laws:  Dealer represents and warrants that it does and will comply with all applicable laws, rules and regulations relating to (i) performance of its duties and obligations under these Terms, and (ii) the operation of its business. 

3. Confidentiality: 

1. Neither party shall disclose any Proprietary Information to anyone other than (i) its employees who reasonably require such knowledge; or (ii) its agents or representatives whose assigned duties reasonably require such disclosure, to the extent necessary to use the Tool.   Dealer shall be responsible for any breach or alleged breach of this Section by any employees, agents or representatives. “Proprietary Information” shall mean any and all information of either party which, under the circumstances, reasonably ought to be considered confidential and proprietary.  These Terms shall be deemed Proprietary Information of Service Provider. Proprietary Information shall not include information which (i) is lawfully in the other party’s possession prior to the disclosure; (ii) is lawfully disclosed to such party by a third party without restrictions on its disclosure; (iii) is independently developed by such party without reference to the Proprietary Information; or (iv) became known to such party from a source other than the other party other than by the breach of an obligation of confidentiality owed to the other party. 

2. Nothing in this Section 3 shall restrict disclosure by either party required by any applicable law, or regulation, pursuant to subpoena, or the order of any court or administrative agency having jurisdiction regarding such matters. However, either party shall promptly upon receiving notice of any requested disclosure, and prior to any disclosure, notify the other in writing, providing all information and assistance for such party to defend its rights hereunder. 

3. In the event of a breach of this Section 3 by Dealer the aggrieved party shall be entitled to seek to obtain injunctive or other equitable relief from a court of competent jurisdiction to restrain the use or disclosure of its Proprietary Information. Such remedy shall be in addition to, and not in lieu of, any other remedies provided for in these Terms. 

4. The provisions of this Section 3 shall continue to apply for a period of two (2) years after termination hereof. 

4. Fees: Dealer shall make payment for the Tools in accordance with Dealer’s contractual obligations to General Motors.   

5. Indemnity: 

1. Indemnification by Hearst Autos. Hearst Autos agrees to defend, indemnify and hold Dealer, and its officers, directors, agents and employees harmless from and against, or settle at its option, any and all third party claims, demands, liabilities, costs or expenses, including reasonable outside attorneys’ fees arising out of or resulting from allegations that either Tool infringes upon or misappropriates any third party’s copyright, trade secret or presently existing United States patent right.  This obligation is contingent on Dealer’s prompt written notification to Hearst Autos of the claim, Hearst Auto’s retention of sole control of the defense and settlement negotiations related to the claim and Dealer providing reasonable assistance in the defense or settlement of any such claim, suit, action or other proceeding at Service Provider’s expense.  Dealer may participate in all proceedings at its own cost and expense.  Hearst Autos may at its option modify the Tool so that they do not violate any such third party’s rights or these Terms.  Hearst Autos shall use commercially reasonable efforts to ensure that Dealer’s rights hereunder are not materially adversely affected by any such settlement or modification of the Tool.  Hearst Autos will not be liable to Dealer if an infringement claim is based on: (i) use of the Tool in combination with any product, software or system not delivered by Hearst Autos; (ii) use of the Tool in any manner not authorized hereunder; (iii) Dealer’s violation of these Terms; or (iv) use of any version or release of the Tool where use of the most current version or release would have avoided the claim of infringement.   

2. Indemnification by Dealer. Dealer agrees to defend, indemnify and hold Hearst Autos and its officers, directors, agents and employees harmless from and against, or settle at its option, any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees arising out of or resulting from (i) Dealer’s failure or alleged failure to comply with applicable laws and regulations (including all applicable laws and regulations applicable to the use, collection and storage of the Prospect Information, the Telephone Consumer Protection Act, the display or provision of disclaimers to consumers) in its operation of its business; (ii) Dealer’s breach or alleged breach of this Agreement; or (iii) any infringement or alleged infringement or misappropriation of the intellectual property rights of a third party other than infringement arising solely out of the Tool.  Hearst Autos shall provide Dealer with prompt and timely written notice of any such claim, suit, action or other proceeding and Dealer shall have sole control and authority over the defense or settlement of such claim, suit, action or other proceeding (provided that Dealer shall not enter into any settlement without Hearst Auto’s prior written consent, which shall not be unreasonably withheld).  Hearst Autos agrees to provide reasonable assistance in the defense or settlement of any such claim, suit, action or other proceeding at Dealer’s expense and Hearst Autos may participate in all proceedings at its own cost and expense. 

6. Warranty and Limitation: EXCEPT FOR EACH PARTY’S OBLIGATIONS UNDER SECTION 6 (INDEMNITY), OR FOR EITHER PARTY’S UNAUTHORIZED DISCLOSURE OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 3 (CONFIDENTIALITY), ANY PAYMENT DUE TO HEARST AUTOS UNDER THESE TERMS, OR DEALER’S BREACH OF SECTION 1 (PROGRAM USE), (i) HEARST AUTOS’ LIABILITY FOR ANY BREACH UNDER THESE TERMS SHALL BE LIMITED TO THE VALUE OF ONE MONTH’S CHARGES FOR USE OF THE TOOL (ii) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, LOST INCOME, LOST REVENUE, LOST PROFITS, AND DAMAGES FOR LOSS OF GOOD WILL, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, REGARDLESS OF THE FORM IN WHICH ANY LEGAL ACTION OR EQUITABLE ACTION MAY BE BROUGHT, INCLUDING, WITHOUT LIMITATION, ANY ACTION IN TORT OR CONTRACT.  

 THE TOOLS ARE PROVIDED “AS IS” AND HEARST AUTOS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF THE TOOLS, THAT THE TOOLS ARE FREE FROM ERRORS AND OMISSIONS AND THE DELIVERY OF THE TOOLS WILL BE UNINTERRUPTED, THE MERCHANTABILITY AND FITNESS OF THE TOOLS FOR A PARTICULAR PURPOSE OR USE, NOR THE COMPATIBILITY OF THE TOOLS WITH DEALER'S SYSTEM, HARDWARE, WEBSITE, OR SOFTWARE.  HEARST AUTOS SHALL NOT BE LIABLE FOR ANY LACK OF SERVICE OR RESPONSE TIME DELAYS ATTRIBUTABLE TO THE INTERNET, TELECOMMUNICATIONS EQUIPMENT OR SERVICES, DEALER’S COMPUTERS AND/OR MOBILE OR OTHER DEVICES OR NETWORKS, DEALER’S ISPs OR ANY OTHER REASONS OUTSIDE THE CONTROL OF HEARST AUTOS. 

7. Term and Termination: 

1. Term.  The term shall begin upon the date Dealer receives access to the Tool and shall continue thereafter, unless terminated by either party by giving written notice to the other party of its intention to terminate at least thirty (30) days prior to termination, or in the case of Service Provider, as provided for in Section 9(b) (the “Term”).   

2. Breach of Terms.  Hearst Autos may immediately terminate these Terms upon written notice to Dealer if Dealer is in default hereunder and fails to either cure such default within ten (10) days of written notice from Hearst Autos specifying the nature of such default and requiring its remedy. 

3. Continued Use of Tools.  Upon termination of these Terms, Dealer shall no longer have any rights to use the Tools and shall immediately remove the Tools from its website.  Any continued use of the Tools or any information contained therein, or supplied hereunder, after termination or expiration of these Terms is expressly prohibited.   

8. Miscellaneous: No partnership, joint venture, distributorship or other business organization or relationship of any kind is established or intended to be established other than provided herein, by these Terms.  Dealer may not assign these Terms by operation of law or otherwise without the prior written consent of Hearst Autos and any purported assignment in violation hereof shall be null and void. Notices hereunder may be delivered electronically to either party’s representative associated with the day-to-day operations of these Terms. No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.  Any consent or waiver by any party of a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. A determination that any provision of these Terms is invalid, illegal or unenforceable shall not affect the enforceability of any other provision.  The performance by either party under these Terms shall be subject to delays by reason of force majeure, and except for the payment of fees, either party’s time for performance shall be extended for a period of time equal to any delay caused by force majeure.  As used herein “force majeure” shall mean and include, without limitation: fire; flood; earthquake; elements of nature or acts of God; acts of war; terrorism riots; civil unrest; rebellions or revolutions in the United States or any nation where the services under these Terms are to be performed; third party failure; Internet, telecommunications or power failure; strikes, lockouts or other labor difficulties, or any other cause beyond the reasonable control of the parties.  Any provision which by its terms is intended to survive termination of these Terms, including but not limited to the Sections regarding Tool Use, Confidentiality, Indemnity, Warranty and Limitation, and Term and Termination, shall so survive. These Terms shall be governed by and construed in accordance with the laws of the State of New York and the parties hereby consent and submit to the jurisdiction and venue of the State and Federal Courts located in New York. These Terms contain the entire agreement and understanding of the parties with respect to the entire subject matter hereof, and there are no representations, inducements, promises or agreements, oral or otherwise, not embodied herein. Any and all prior discussions, agreements, proposals, negotiations and representations relating thereto are merged herein.