Dealer Terms & Conditions
STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions (these “Standard Terms”), together with the Master SaaS Subscription Order Form incorporating these Standard Terms (the “Order Form”), all applicable Schedules, Exhibits, and any executed Statement(s) of Work (collectively, this “Agreement”), govern the access to and use of the Services provided by Adhered2 LLC, a Minnesota limited liability company (“Provider” or “Licensor”), to the customer entity identified on the Order Form (“Customer” or “Dealership”). Provider and Customer may be referred to herein individually as a “Party” and collectively as the “Parties”.
DEFINITIONS & INTERPRETATION
Defined Terms. As used in this Agreement, the following capitalized terms have the meanings set forth below:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a subject entity, where “control” means the direct or indirect ownership of more than fifty percent (50%) of the voting interests, equity securities, or the power to direct the management and policies of such entity.
“APIs” means the proprietary and licensed application programming interfaces, webhooks, protocols, software development kits (SDKs), JavaScript integration snippets, iframe embed codes, and related technical endpoints provided or made available by Provider to facilitate interoperability, inventory data transmission, and widget embedding between the Service, Customer’s DMS, website hosting environments, and third-party platforms.
“Authorized Digital Properties” means the specific public-facing consumer website domain names, URLs, digital retailing portals, or online inventory detail pages owned or controlled by Customer and expressly designated in Section B of the Order Form (or an applicable Schedule) upon which Customer is permitted to embed or display the Service widgets.
“Authorized Rooftop” or “Rooftop” means each distinct, single, physical automotive dealership facility, commercial showroom, or franchised retail location owned, leased, or operated by Customer and specifically designated by physical street address in Section B of the Order Form (or an applicable Schedule).
“Authorized User” means an individual employee, independent contractor, or agent of Customer who is authorized by Customer to access and use the Service on Customer’s behalf under Customer’s account credentials, strictly within the scope of their assigned user tier and seat allocations set forth in Section E of the Order Form.
“Customer Data” means all proprietary, non-public electronic data, text, vehicle inventory listings, dealer stock numbers, dealer retail pricing and labor markup rules, customer lead records, images, and other materials uploaded, ingested, or transmitted into the Service by or on behalf of Customer, excluding Licensor Properties and Aggregated Data.
“Dealership Management System” or “DMS” means the proprietary or third-party enterprise resource planning, inventory management, or customer relationship management software utilized by Customer to manage dealership vehicle inventory, VIN data, and sales transactions.
“Documentation” means Provider’s standard operational user manuals, technical specifications, knowledge-base articles, widget integration guides, and help files relating to the functional use of the Service made generally available by Provider to its commercial subscribers, as updated from time to time.
“Effective Date” means the date on which the Order Form has been fully executed by the authorized representatives of both Parties.
“Fees” means, collectively, all subscription fees, implementation and onboarding fees, multi-rooftop add-on charges, operational overage charges, and any other amounts payable by Customer to Provider as set forth in the Order Form or this Agreement.
“Implementation Services” means the technical configuration, provisioning, API key issuance, and onboarding support provided by Provider to enable Customer to deploy the Service and ingest inventory feeds, as set forth in Section F of the Order Form or an applicable Statement of Work.
“Licensor Content” means all proprietary digital assets, content, and intellectual property developed, curated, or licensed by Provider for automotive visual simulation, including but not limited to 3D Year/Make/Model/Trim (YMMT) vehicle wireframes, polygonal meshes, geometry models, digital paint protection film (PPF) texture layers, vinyl wrap textures, finish parameter shaders (including gloss, matte, satin, metallic, and color-flip), window tint shading layers, color-matching algorithms, and industry-specific business logic.
“Order Form” means the Master SaaS Subscription Order Form executed by authorized representatives of both Parties that references and incorporates these Standard Terms.
“Platform” means the underlying third-party cloud-based 3D graphics rendering engine, web-assembly framework, and cloud server hosting infrastructure provided by Bit Reality (or its successor infrastructure providers) upon which the Service and Licensor Content are hosted and rendered.
“Provider Properties” or “Licensor Properties” means the Service, Software, Platform, Licensor Content, Documentation, Specifications, APIs, Rendered Assets, algorithms, software widgets, and all intellectual property rights, trade secrets, know-how, and source/object code embodied therein or related thereto.
“Ramp-Up Period” means the initial three (3) consecutive calendar months of the Subscription Term commencing on the Effective Date or Target Launch Date as designated in Section D of the Order Form.
“Rendered Assets” or “Digital Visualizations” means any 2D or 3D static images, interactive digital vehicle models, video clips, configuration files, visual simulations, or graphic renderings generated, processed, or exported by or through the Service simulating aftermarket film, wrap, or tint applications on a vehicle.
“SaaS Services” or “Service” means Provider’s proprietary cloud-hosted 3D Vehicle Visualizer software-as-a-service application, including all related modules, widgets, APIs, Licensor Content, and Updates provided by Provider under this Agreement.
“Software” means the computer software programs, applications, source code, object code, rendering engines, scripts, algorithms, polygon meshes, digital shaders, user interface designs, and underlying code libraries developed, owned, or licensed by Provider (including the Platform and Licensor Content) that power, embody, or deliver the Service, together with all Updates thereto.
“Specifications” means the technical, functional, graphical, and performance specifications, rendering parameters, and operational criteria for the Service, Software, and Licensor Content set forth in the Documentation, the Order Form, or any applicable Schedule hereto.
“Subscription Term” means the duration of Customer’s subscription to the Service, operating on a month-to-month basis commencing on the Effective Date and auto-renewing until terminated in accordance with the express provisions of this Agreement.
“Third-Party Components” means third-party software, cloud infrastructure services (including the Platform), DMS data aggregators, or open-source software libraries integrated into, utilized by, or required to operate the Service.
“Updates” means any standard error corrections, bug fixes, patches, maintenance releases, or minor functional improvements to the Service that Provider generally makes available without separate charge to its commercial dealership subscribers.
Rules of Interpretation & Construction. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) words denoting the singular include the plural and vice versa; (d) headings and subheadings are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement; and (e) this Agreement shall be construed fairly according to its terms, without regard to any rule of construction presuming ambiguities against the drafting Party.
ACCESS GRANTS, SCOPE OF USE & ROOFTOP RESTRICTIONS
SaaS Access Grant. Subject to the terms and conditions of this Agreement (including the timely payment of all applicable Fees), Provider hereby grants to Customer a limited, non-exclusive, non-transferable (except as permitted under Section 13.9), non-sublicensable, revocable right and license during the Subscription Term to:
permit Authorized Users to remotely access and use the cloud-hosted Service solely for Customer’s internal automotive sales, marketing, digital retail, and vehicle aftermarket customization operations;
embed and display Provider’s authorized customer-facing visualizer web widgets on the Authorized Digital Properties to allow consumer end users to configure vehicles in connection with Customer’s retail vehicle inventory; and
access and display the Documentation solely in support of Customer’s authorized internal use of the Service.
Rooftop Licensing & Location Scoping.
Single-Rooftop Boundary. Customer expressly acknowledges and agrees that the subscription rights and Fees set forth in the Order Form are licensed strictly on a per-Rooftop basis. Each subscription entitles Customer to deploy and use the Service exclusively for the inventory, personnel, showroom floor, and specific website domain associated with the single Authorized Rooftop identified in Section B of the Order Form.
Prohibition on Group-Wide Arbitrage. Customer shall not, directly or indirectly, deploy, configure, embed, display, or utilize the Service, Licensor Content, or Rendered Assets on behalf of, or for the commercial benefit of, any unlisted dealership facility, unaffiliated rooftop, sister franchise, auto mall, or consolidated dealership group entity that is not expressly designated as an Authorized Rooftop in Section B of the Order Form (or an executed Addendum thereto), regardless of whether such entity is an Affiliate of Customer or shares common corporate ownership.
Multi-Rooftop True-Up. If Provider discovers that Customer has deployed the Service or utilized Licensor Content across any unlisted rooftop, showroom, or website domain, Provider may immediately invoice Customer for such unlisted locations at Provider’s then-prevailing standard subscription rates, retroactive to the date unauthorized use commenced, without waiving any other rights or legal remedies available to Provider under this Agreement or applicable law.
Authorized User Accounts & Credential Security.
Account Allocation. Access to the administrative and sales features of the Service is limited to the specific seat allocations and user roles set forth in Section E of the Order Form.
Unique Identifiers. Each Authorized User must be assigned a unique login credential (username and password). Customer shall not permit login credentials to be shared, pooled, or used concurrently by more than one individual user. Customer may reassign user seats to new personnel upon written or administrative notice to Provider if former personnel are terminated or reassigned.
Credential Protection. Customer is solely responsible for maintaining the confidentiality and security of all Authorized User credentials. Customer shall immediately notify Provider in writing upon becoming aware of any unauthorized access, compromised credentials, or security incident impacting Customer’s account. Customer accepts full responsibility and liability for all acts, omissions, and transactions conducted under its Authorized User accounts.
Embedding & Website Display Rights.
Authorized Web Embedding. Customer is granted a limited, revocable license to embed Provider’s proprietary JavaScript, iframe, or web widget code snippets into the Vehicle Detail Pages (VDP) and online digital retailing tools hosted strictly on the Authorized Digital Properties listed in Section B of the Order Form.
Widget Integrity. Customer shall not alter, obscure, frame, wrap, or modify any widget, watermark, copyright notice, trade name, or proprietary logo displayed within the Service or on any Rendered Asset without Provider’s prior express written authorization.
Restrictions on Use. Customer shall not, and shall not permit, encourage, or facilitate any Authorized User or third party to:
Decompile, disassemble, reverse engineer, decrypt, translate, or otherwise attempt to derive, reconstruct, or obtain the source code, underlying algorithms, polygon meshes, geometry models, texture shaders, or file structures of the Service, Platform, or Licensor Content (except to the minimal extent statutory law expressly prohibits such restriction);
Rent, lease, lend, sell, resell, sublicense, distribute, publish, transfer, or otherwise make available the Service, Licensor Content, or Documentation to any third party (including independent wrap installers, third-party auto body shops, or unaffiliated car dealerships), whether on a service bureau, timesharing, hosted service, software-as-a-service, or other basis;
Modify, adapt, translate, enhance, customize, or create derivative works of the Service, Platform, or Licensor Content;
Access or use the Service, Documentation, or Licensor Content in order to build, train, benchmark, optimize, or support a competitive product, tool, model, or service;
Use any automated scraper, spider, web robot, crawler, bulk extraction tool, data-mining technique, or API harvesting script to download, harvest, scrape, or extract 3D vehicle geometries, paint protection film data, vinyl textures, color palettes, or rendering outputs from the Service;
Input, upload, or transmit into the Service any digital content, assets, or software that contains viruses, Trojan horses, worms, time bombs, cancelbots, or other malicious, disabling, or harmful computer programming code;
Input, upload, or process through the Service any data or material that infringes, misappropriates, or violates any third party’s intellectual property, publicity, privacy, or other proprietary rights;
Bypass, breach, circumvent, defeat, disable, or impair any security device, digital rights management (DRM) control, access limit, user license cap, or protection mechanism used by Provider to restrict access to the Service or protect Licensor Properties;
Utilize the Service or any Rendered Assets to generate, publish, or disseminate false, deceptive, or misleading vehicle advertising, fictitious add-on accessory pricing, or pricing representations that violate applicable federal (including Federal Trade Commission (FTC) automotive advertising regulations), state, or local consumer protection laws; or
Use the Service, Licensor Content, or any output data to train, fine-tune, validate, or benchmark any machine learning, artificial intelligence (AI), neural rendering, generative 3D model, or computer vision algorithm.
Pass-Through Technical Limitations & Upstream Platform Dependencies. Customer acknowledges and understands that:
The visual rendering capabilities of the Service operate in part upon certain Third-Party Components, including the underlying Platform architecture developed, maintained, and hosted by Bit Reality;
The continuous operation, graphic fidelity, and rendering speed of the Service are dependent upon compatible web browser technologies (e.g., WebGL, WebGPU, and modern HTML5 standards), client-side graphic processing unit (GPU) performance, and local internet bandwidth available at Customer’s Rooftop facility; and
Provider shall not be liable or deemed in breach of this Agreement for any temporary performance degradation, rendering latency, or functional limitation resulting directly from underlying third-party Platform infrastructure disruptions to any Third Party Components, browser deprecations, or local hardware incompatibilities outside Provider’s direct and reasonable commercial control.
ONBOARDING, INVENTORY FEEDS AND SYSTEM INTEGRATION
Provisioning & Implementation Services.
Technical Provisioning. Following full execution of the Order Form, Provider shall provision the cloud-hosted environment for each Authorized Rooftop and deliver to Customer’s designated Technical Administrator: (i) administrative login credentials; (ii) unique software application programming interface (API) keys; and (iii) proprietary JavaScript embed codes and widget integration snippets required to deploy the Service across the Authorized Digital Properties.
Implementation Scope. Provider shall use commercially reasonable efforts to provide standard onboarding assistance, consisting of remote technical guidance to assist Customer with administrative setup, staff credential creation, and initial digital widget deployment. Any custom software development, bespoke web design, on-site dealership training, or non-standard DMS engineering requested by Customer shall be subject to a separate, mutually executed Statement of Work (SOW) and billed at Provider’s prevailing professional services rates.
Dealership Inventory & Data Feed Obligations.
Customer Feed Responsibility. Customer is solely responsible for establishing, maintaining, and ensuring the continuous, uninterrupted transmission of accurate vehicle inventory data feeds from Customer’s Dealership Management System (DMS), inventory management tool, or website hosting provider to Provider’s ingestion endpoints.
Data Feed Parameters. Inventory data feeds must include, at a minimum, accurate Vehicle Identification Numbers (VIN), Year/Make/Model/Trim (YMMT) descriptors, manufacturer exterior paint codes, dealership stock numbers, retail pricing attributes, and high-resolution vehicle photography where available.
Asset Mapping & Automated Matching. Customer acknowledges that the Service utilizes automated algorithms to match incoming VIN and YMMT data against Provider’s proprietary Licensor Content asset library. Customer agrees to promptly review and verify the accuracy of automated asset mappings and shall notify Provider immediately of any recurring vehicle geometry or trim discrepancies.
Third-Party DMS, Website & Syndicator Integration Authorization.
Direct Integration Grant. Customer hereby grants to Provider an express, irrevocable, royalty-free, worldwide authorization during the Subscription Term to access, query, retrieve, ingest, cache, normalize, and process data from Customer’s DMS, inventory syndication partners (e.g., vAuto, HomeNet, Dealer Specialties), and authorized website platforms (e.g., Dealer.com, Dealer Inspire) solely to provide the Service under this Agreement.
Third-Party Consents & Credentials. Customer shall execute all necessary third-party data extraction authorizations, vendor access waivers, and integration agreements required by Customer’s DMS or website hosting providers. Customer is solely responsible for procuring and maintaining all third-party licenses, data-sharing permissions, and API access rights necessary for Provider to ingest Customer Data, including paying all third-party integration, certification, or data-feed access fees imposed by such third-party vendors.
Disclaimer of Third-Party DMS & Data Feed Ingestion Errors.
Third-Party Latency and Feed Failures. Provider does not control, operate, or maintain Customer’s DMS, website hosting environment, or third-party inventory syndication pipelines. Accordingly, Provider shall have no liability, obligation, or responsibility for any: (i) dropped, corrupted, delayed, or incomplete inventory data feeds; (ii) API deprecations, credential revocations, or data transmission failures caused by third-party DMS or website vendors; or (iii) inaccurate or outdated vehicle listings displayed within the visualizer resulting from lag or errors in Customer’s source data.
Correction of Discrepancies. In the event of a persistent inventory ingestion error caused by changes to Customer’s underlying DMS format or website architecture, Customer’s sole operational obligation is to coordinate with its third-party software vendors to restore standard data transmission to Provider’s technical specifications. Service downtime or rendering anomalies attributable to third-party data feed failures shall not constitute a breach of this Agreement by Provider nor entitle Customer to any fee abatement, service credit, or refund.
FEES, BILLING MECHANICS & PRICE ADJUSTMENTS
Subscription Billing Mechanics & Payment Mandate.
Advance Recurring Billing. All monthly subscription Fees, multi-rooftop add-on charges, and recurring operational fees shall be billed and collected monthly in advance on or before the first (1st) calendar day of each applicable monthly billing cycle throughout the Subscription Term.
Pre-Authorized Automated Collection. Customer shall maintain an active, valid, and authorized automated payment mechanism on file with Provider at all times during the Subscription Term, consisting of either: (i) an executed Automated Clearing House (ACH) direct corporate debit mandate; or (ii) a valid corporate credit card authorization. Customer hereby expressly authorizes Provider (and its designated merchant processing gateways) to automatically initiate recurring ACH debit entries or credit card charges against Customer’s designated account on each recurring billing date for all Fees accrued under this Agreement.
Billing Information Maintenance. Customer shall provide Provider with accurate, current, and complete corporate billing information, and shall notify Provider in writing at least ten (10) business days prior to any change in banking details, account closures, credit card expirations, or billing contact reassignments.
Multi-Tiered Subscription Architecture & Automatic Step-Up.
Ramp-Up Promotional Rate (Months 1 through 3). For the initial three (3) consecutive calendar months of the Subscription Term commencing on the Effective Date (the “Ramp-Up Period”), Customer shall pay a promotional subscription fee of two hundred fifty United States dollars ($250.00 USD) per month for each Authorized Rooftop designated in Section B of the Order Form.
Automatic Conversion to Standard Subscription Rate (Month 4 Onward). Customer expressly acknowledges, understands, and agrees that the promotional pricing applicable during the Ramp-Up Period shall automatically expire upon the conclusion of the third (3rd) calendar month following the Effective Date. Commencing on the first (1st) calendar day of the fourth (4th) calendar month of the Subscription Term, and continuing on each successive monthly billing cycle thereafter, the monthly subscription fee shall automatically increase to the standard rate of four hundred fifty United States dollars ($450.00 USD) per month for each Authorized Rooftop.
No Notice or Amendment Required. The step-up to the standard monthly rate of $450.00 USD per Authorized Rooftop under Section 4.2(b) is an express, agreed-upon condition of this Agreement and shall take effect automatically by operation of contract without requiring any further notice, invoice notation, formal contract amendment, or execution of a supplemental order form by either Party.
Discretionary Price Adjustments & Escalation Rights.
Provider Escalation Rights. Following the expiration of the initial three (3) month Ramp-Up Period, Provider reserves the unilateral right, exercisable in its sole commercial discretion, to adjust or increase the prevailing standard monthly subscription Fees for the Service.
Advance Notice Protocol. In the event Provider elects to implement a price adjustment pursuant to this Section 4.3, Provider shall deliver written notice of such price adjustment to Customer’s Designated Billing Contact (electronic mail notification sufficient) not less than sixty (60) calendar days prior to the effective date of such revised pricing.
Customer Right of Election. If Customer does not agree to the revised subscription pricing specified in Provider’s notice, Customer’s sole and exclusive remedy shall be to terminate this Agreement for convenience prior to the effective date of the price increase by delivering written notice of cancellation to Provider in strict accordance with Section 12.2. If Customer fails to provide timely written notice of cancellation prior to the expiration of the sixty (60) day notice period, Customer shall be conclusively deemed to have accepted and agreed to the revised pricing schedule, which shall immediately apply to all subsequent billing cycles.
Multi-Rooftop Expansion & Incremental Billing.
Authorized Rooftop Additions. Customer may license additional dealership locations, sister franchises, or affiliated rooftops by executing a supplemental Order Form or written location addendum. Each additional Rooftop onboarded during the Subscription Term shall be billed at Provider’s then-prevailing monthly subscription rate for new locations.
Unauthorized Deployment True-Up. If Provider determines through API telemetry, website widget monitoring, or server audits that Customer has deployed the Service, widget code, or Licensor Content across any dealership showroom, physical lot, website domain, or retail portal not expressly listed as an Authorized Rooftop in Section B of the Order Form:
Provider shall immediately invoice Customer for each unlisted location at Provider’s standard rate of $450.00 USD per month (or then-prevailing standard rate) retroactive to the earliest date on which unauthorized deployment or usage occurred;
Customer’s automated payment method shall be automatically debited for all retroactive and ongoing Fees associated with such additional rooftops; and
Such unlisted locations shall be incorporated into this Agreement as Authorized Rooftops upon payment in full of all outstanding retroactive balances.
Delinquent Payments, Late Charges & Collection Costs.
Late Interest Accrual. Any monthly subscription fee, multi-rooftop true-up, or other amount payable under this Agreement that is not paid when due (including any declined credit card charge or rejected ACH debit) shall accrue interest from the due date until paid in full at the rate of one and one-half percent (1.5%) per month (or eighteen percent (18.0%) per annum), or the maximum statutory rate permitted by applicable law, whichever is lower, calculated daily and compounded monthly.
Collection Costs & Legal Fees. Customer shall reimburse Provider for all actual, reasonable costs and expenses incurred by Provider in collecting any delinquent, past-due, or disputed amounts under this Agreement, including but not limited to collection agency fees, court filing costs, administrative expenses, and reasonable outside attorneys’ fees and disbursements.
Right of Suspension. If any invoice or automated payment remains outstanding, rejected, or past due for more than ten (10) calendar days following electronic written notice to Customer, Provider reserves the unconditional right, without limiting any other rights or legal remedies, to immediately suspend Customer’s access to the Service, disable website visualizer widgets, and revoke API credentials in accordance with Section 12.4.
Taxes.
Tax Exclusivity. All Fees and amounts payable under this Agreement are strictly exclusive of any and all applicable federal, state, provincial, municipal, or local sales, use, excise, value-added (VAT), gross receipts, digital goods, telecommunications, consumption, personal property, or other taxes, duties, levies, or governmental assessments (collectively, “Taxes”).
Customer Tax Liability. Customer shall be solely responsible for the timely calculation, reporting, and payment of all Taxes associated with its subscription to, access to, and commercial use of the Service, excluding only taxes assessed solely on Provider’s net corporate income, corporate franchise, or company personnel.
Direct Payment & Indemnification. If Provider is legally required by any governmental tax authority to collect, pay, or withhold any Taxes for which Customer is responsible under this Section 4.6, Provider shall add such Taxes to Customer’s monthly invoice or automatically debit such amounts via Customer’s payment method on file, and Customer agrees to pay such amounts in full. Customer shall defend, indemnify, and hold harmless Provider from and against any claims, fines, penalties, interest, or liabilities resulting from Customer’s failure to pay applicable Taxes.
Absolute Obligation to Pay; Prohibition of Withholding & Set-Off.
Independent Covenants. Customer’s obligation to pay all Fees and accrued amounts under this Agreement constitutes an independent, absolute, and unconditional covenant.
Prohibition of Set-Off. Customer shall pay all amounts due under this Agreement in full without any deduction, abatement, withholding, discount, recoupment, or set-off of any kind, whether for alleged service downtime, third-party DMS integration latency, pending warranty claims, disputed consumer transactions, or any other actual or alleged claim against Provider or its underlying Platform licensors. Any counterclaim, set-off defense, or affirmative legal action asserted by Customer shall be pursued independently and shall not relieve Customer of its ongoing obligation to pay all accrued subscription Fees in a timely manner.
SERVICE AVAILABILITY, SUPPORT & HOSTING
Cloud Hosting & Service Availability Commitment.
Target Availability Standard. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to maintain a target monthly service availability for the cloud-hosted Service of ninety-nine and one-half percent (99.5%) during each calendar month of the Subscription Term (the “Service Availability Target”).
Calculation of Service Availability. Monthly service availability percentage shall be calculated by subtracting from one hundred percent (100%) the percentage of total minutes during a given calendar month in which the core visualization rendering functionality of the Service is unavailable to Customer (“Downtime”).
Exclusions from Downtime. In calculating Downtime and determining compliance with the Service Availability Target, there shall be expressly excluded any service interruption, performance degradation, latency, or visualizer unavailability resulting directly or indirectly from any of the following (“Excused Downtime”):
Scheduled Maintenance conducted in accordance with Section 5.3(a);
Emergency Maintenance or urgent security patch deployments conducted in accordance with Section 5.3(b);
Disruptions, outages, latency, or API deprecations of the underlying Platform architecture or cloud hosting infrastructure provided by Bit Reality or other upstream infrastructure hosting providers;
Failures, latency, corruptions, or transmission errors in Customer’s Dealership Management System (DMS), inventory management system, website hosting environment, or third-party inventory syndication feeds;
Acts, omissions, or misconfigurations by Customer, its Authorized Users, or any third-party IT vendor acting on Customer’s behalf;
Customer’s or any consumer’s local network congestion, insufficient telecommunications bandwidth, client-side graphic processing unit (GPU) limitations, unsupported web browser configurations, or hardware incompatibilities;
Force Majeure events as defined in Section 13.7; or
Suspension or termination of Customer’s access to the Service by Provider pursuant to Section 4.5(c), Section 12.3, or Section 12.4.
Technical Support Channels & Help Desk Governance.
Support Availability. Provider shall make technical support available to Customer’s designated Technical Administrator and Administrative Users during Provider’s standard business hours, currently defined as 9:00 AM to 5:00 PM Central Standard Time (CST), Monday through Friday, excluding standard United States federal holidays (“Standard Support Hours”).
Support Scope & Channels. Technical support shall be provided remotely via email ticketing, administrative web portal, or telephonic consultation. Support services shall consist strictly of: (i) assistance with administrative account configurations and user seat provisioning; (ii) troubleshooting reported software defects or widget integration errors; and (iii) providing guidance regarding standard Service features and Documentation.
Exclusions from Standard Support. Technical support does not include: (i) direct end-consumer technical support for retail car buyers browsing Customer’s website; (ii) custom website design, custom HTML/CSS coding, or troubleshooting Customer’s broader website hosting architecture; (iii) on-site dealership showroom IT repair; or (iv) resolving internal network or hardware malfunctions at Customer’s physical Rooftop facilities.
Triage and Response Targets. Provider shall use commercially reasonable efforts to acknowledge and initiate technical investigation of submitted support tickets in accordance with the severity levels set forth below:
Severity 1 (Critical Platform Outage): Core rendering engine entirely unavailable across all Authorized Rooftops: Target initial response within four (4) business hours during Standard Support Hours;
Severity 2 (Major Feature Impairment): Core rendering functional, but critical modules (e.g., inventory matching or pricing markup engine) materially impaired: Target initial response within eight (8) business hours during Standard Support Hours; and
Severity 3 (Minor Defect / General Inquiry): Non-critical UI glitch, general administrative questions, or minor cosmetic rendering inquiries: Target initial response within twenty-four (24) business hours during Standard Support Hours.
Scheduled Maintenance & Emergency Updates.
Scheduled Maintenance. Provider reserves the right to perform routine system maintenance, server upgrades, database optimizations, and platform updates (“Scheduled Maintenance”). Provider shall use commercially reasonable efforts to: (i) schedule routine maintenance during non-peak commercial hours (generally between 10:00 PM and 5:00 AM CST); and (ii) provide Customer with at least twenty-four (24) hours’ advance electronic notice (via email notification or in-app administrative banner) of any planned maintenance expected to exceed thirty (30) consecutive minutes of service interruption.
Emergency Maintenance. Notwithstanding Section 5.3(a), Provider may temporarily suspend access to the Service at any time, without prior notice to Customer, to conduct urgent repairs, apply critical security patches, mitigate distributed denial-of-service (DDoS) attacks, address zero-day vulnerabilities, or respond to an imminent threat to the integrity, security, or stability of the Service, Platform, or Licensor Properties (“Emergency Maintenance”). Provider shall use commercially reasonable efforts to restore standard operational access as expeditiously as practicable following the completion of Emergency Maintenance.
Sole and Exclusive Remedy for Service Interruptions & SLA Failures.
Service Credit Mechanism. If Provider fails to meet the Service Availability Target set forth in Section 5.1(a) in any given calendar month of the Subscription Term, and such failure is not attributable to Excused Downtime, Customer shall be entitled to receive a service credit (“Service Credit”) applied against Customer’s next recurring monthly subscription invoice in accordance with the following schedule:
Monthly Availability between 95.0% and 99.49%: Five percent (5%) credit of the recurring monthly subscription fee for the affected Authorized Rooftop(s) for that calendar month;
Monthly Availability between 90.0% and 94.99%: Ten percent (10%) credit of the recurring monthly subscription fee for the affected Authorized Rooftop(s) for that calendar month; and
Monthly Availability below 90.0%: Twenty percent (20%) credit of the recurring monthly subscription fee for the affected Authorized Rooftop(s) for that calendar month.
Credit Request Procedure. To receive a Service Credit, Customer’s designated Technical Administrator must submit a formal written request to Provider’s billing department within fifteen (15) calendar days following the end of the calendar month in which the alleged SLA failure occurred. The request must include diagnostic logs, timestamps, and documentation substantiating the unexcused Downtime. If Customer fails to submit a written request within such fifteen (15) day period, Customer’s right to claim a Service Credit for that month shall be deemed waived and forfeited.
Cap on Service Credits. In no event shall the aggregate cumulative Service Credits issued to Customer in any single calendar month exceed twenty percent (20%) of the total monthly subscription Fees payable by Customer for that month across the affected Authorized Rooftops. Service Credits are non-refundable, non-transferable, cannot be redeemed for cash, and may only be applied against future recurring subscription Fees due under this Agreement.
Sole and Exclusive Remedy. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE ISSUANCE OF SERVICE CREDITS AS SET FORTH IN THIS SECTION 5.4 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE MONETARY AND OPERATIONAL REMEDY, AND PROVIDER’S TOTAL AND ENTIRE AGGREGATE LIABILITY, FOR ANY FAILURE OF SERVICE AVAILABILITY, DOWNTIME, SYSTEM OUTAGE, RENDERING LATENCY, SERVICE LEVEL DEFICIENCY, OR PLATFORM INTERRUPTION. IN NO EVENT SHALL ANY SYSTEM DOWNTIME OR LATENCY ENTITLE CUSTOMER TO TERMINATE THIS AGREEMENT FOR MATERIAL BREACH (EXCEPT AS EXPRESSLY PERMITTED UNDER SECTION 12.3) OR CLAIM DAMAGES FOR LOST VEHICLE SALES, LOST CONSUMER LEADS, DEALERSHIP BUSINESS INTERRUPTION, OR REPUTATIONAL HARM.
INTELLECTUAL PROPERTY RIGHTS & PROPRIETARY GOVERNANCE
Provider Intellectual Property Ownership.
Reservation of Rights. As between Provider and Customer, Provider (and its underlying third-party licensors) owns and retains all right, title, and interest, including all worldwide intellectual property rights, statutory proprietary rights, common law rights, copyrights, trademarks, service marks, trade dress, trade secrets, patents, know-how, and moral rights, in and to:
The SaaS Services, Platform, Licensor Content, Specifications, Documentation, APIs, software widgets, and user interfaces;
All 3D Year/Make/Model/Trim (YMMT) vehicle wireframes, polygon meshes, digital geometry models, ray-tracing parameters, and color-matching algorithms;
All digital paint protection film (PPF) texture layers, vinyl wrap textures, finish parameter shaders (gloss, satin, matte, metallic, color-flip), window tint opacity and shading layers, and visual layer stacking logic;
All software code (in both source code and object code formats), scripts, algorithms, architecture, databases, and digital infrastructure utilized to host, operate, render, or deliver the Service; and
Any and all modifications, enhancements, customizations, bug fixes, patches, Updates, translations, adaptations, or derivative works of any of the foregoing, regardless of whether developed, conceived, suggested, or contributed to by Customer, an Authorized User, or any third party acting on Customer’s behalf.
No Implied Licenses. Except for the limited, revocable subscription access rights expressly granted to Customer under Section 2.1, nothing in this Agreement shall be construed as conferring, conveying, or transferring to Customer, whether by implication, estoppel, waiver, or otherwise, any ownership, title, license, or other proprietary interest in or to the Licensor Properties. All rights not expressly granted to Customer herein are strictly reserved by Provider.
Upstream Platform Architecture & Delineation.
Third-Party Engine Acknowledgement. Customer acknowledges and understands that the underlying 3D graphics rendering engine, cloud infrastructure, and WebAssembly framework utilized by the Service are owned and operated by Bit Reality (or its successor cloud infrastructure providers) (the “Platform”).
Delineation of Assets. The Parties expressly agree that:
Bit Reality (or its upstream licensors) retains all right, title, and interest in and to the core Platform rendering engine and base graphics architecture;
Provider retains all right, title, and interest in and to all Licensor Content, vehicle geometry models, proprietary wrap texture libraries, tint simulation parameters, custom API wrapper layers, DMS ingestion pipelines, and automotive industry business logic deployed on or integrated with the Platform; and
Customer acquires no direct license, contractual privity, ownership, or intellectual property rights in or to the Bit Reality Platform, and shall assert no claim or right against Bit Reality or Provider relating to the underlying Platform engine.
Digital Renderings & Rendered Output Assets.
Ownership of Visual Outputs. All 2D and 3D static visual renderings, interactive digital vehicle configurations, video simulations, vector graphics, render configuration parameter sets, and visual output files generated, processed, or exported by or through the Service (collectively, the “Rendered Assets”) constitute the proprietary intellectual property and work product of Provider.
Limited Marketing License. Subject to full compliance with this Agreement and timely payment of all Fees, Provider grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the active Subscription Term solely to display, reproduce, and transmit Rendered Assets on the Authorized Digital Properties and in-dealership digital showroom kiosks strictly for the purpose of marketing, promoting, configuring, and selling specific vehicle inventory and aftermarket film accessories to retail car buyers.
Post-Termination Asset Cessation. Upon any expiration or termination of this Agreement, the limited display license granted under Section 6.3(b) shall immediately terminate. Customer shall immediately cease all public display, commercial use, digital reproduction, advertising dissemination, and website distribution of all Rendered Assets, and shall promptly delete and purge all cached or stored copies of Rendered Assets from its website hosting environments, digital retailing widgets, marketing collateral, and local storage media.
Customer Data Ownership & Operational License.
Customer Data Ownership. As between Provider and Customer, Customer owns and retains all right, title, and interest in and to all Customer Data. Customer Data specifically includes Customer’s raw vehicle inventory counts, dealership stock numbers, retail vehicle sale prices, dealer-set accessory pricing and markup matrices, and consumer sales lead records submitted through the visualizer widget.
Limited Processing License. Customer hereby grants to Provider an irrevocable, worldwide, non-exclusive, royalty-free, fully paid-up license during the Subscription Term to access, ingest, host, cache, copy, store, transmit, reformat, normalize, and process Customer Data solely to the extent necessary to: (i) provide, maintain, and optimize the Service for Customer; (ii) integrate with Customer’s designated DMS and website platforms; (iii) monitor compliance with user seat allocations and Rooftop restrictions; and (iv) prevent or address technical, security, or billing issues.
Customer Data Warranties. Customer represents and warrants that: (i) Customer owns all Customer Data or has obtained all necessary rights, third-party consents, and authorizations required to transmit Customer Data to Provider for processing under this Agreement; and (ii) the ingestion, hosting, and processing of Customer Data by Provider will not violate, misappropriate, or infringe any third-party intellectual property, privacy, publicity, or contractual rights, nor violate any applicable state or federal privacy or automotive advertising laws.
Feedback & Continuous Platform Improvement.
Assignment of Suggestions. If Customer, any Authorized User, or any dealership employee or contractor provides or submits to Provider any suggestions, enhancement requests, recommendations, feature ideas, bug corrections, workflow optimizations, or other feedback regarding the Service, Platform, or Licensor Content (collectively, “Feedback”), Customer hereby assigns and agrees to assign to Provider all right, title, and interest, including all worldwide intellectual property rights, in and to such Feedback.
Unrestricted Utilization. To the extent any intellectual property rights in Feedback cannot be legally assigned under applicable law, Customer grants to Provider an irrevocable, perpetual, royalty-free, fully paid-up, worldwide, transferable, sublicensable license to use, incorporate, commercialize, exploit, reproduce, and modify such Feedback for any purpose whatsoever without restriction, accounting, or financial compensation to Customer. Provider shall have no obligation to implement, maintain confidentiality regarding, or acknowledge Customer’s submission of any Feedback.
Aggregated, Anonymized & Telemetry Data.
Data Compilation. Notwithstanding anything to the contrary herein, Provider shall have the unrestricted right to collect, extract, compile, synthesize, analyze, and retain de-identified, non-personally identifiable, aggregated, statistical, and operational telemetry data derived from the operation and use of the Service by Customer, Authorized Users, and consumer end users (collectively, “Aggregated Data”).
Scope of Telemetry. Aggregated Data includes, without limitation: (i) vehicle customization metrics (e.g., most popular vehicle colors, Year/Make/Model/Trim selection frequencies, and preferred film textures); (ii) consumer engagement duration, clickstream paths, and interactive feature usage; (iii) rendering performance metrics, latency statistics, and error logs; and (iv) macroeconomic wrap and tint market demand trends.
Provider Ownership and Commercialization. Provider owns all right, title, and interest in and to Aggregated Data. Provider may freely use, reproduce, publish, disclose, license, distribute, and commercialize Aggregated Data for purposes of platform benchmarking, industry research reports, system optimization, feature development, machine learning model enhancement, and commercial analytics, provided that Aggregated Data is presented exclusively in a fully anonymized, de-identified format that does not reveal the identity of Customer, any individual Authorized Rooftop, or any individual consumer end user.
COMMERCIAL & VISUALIZATION REALITY DISCLAIMERS
Digital vs. Physical Real-World Variation Disclaimers.
Visual Approximations and Digital Simulations. Customer expressly acknowledges and agrees that the Service, Licensor Content, and Rendered Assets generate simulated digital approximations of aftermarket vehicle modifications, paint protection film (PPF), vinyl wraps, window tinting, and finish textures. The digital representations produced by the Service are provided exclusively for preliminary visual estimation, consumer conceptualization, and illustrative sales demonstration purposes.
Real-World Physical Variance. Customer expressly acknowledges and understands that the actual real-world physical appearance of an installed wrap, tint, or protective film on a customer’s vehicle may diverge materially from the on-screen digital rendering due to numerous real-world environmental and manufacturing factors outside Provider’s control, including without limitation:
Physical film dye-lot and manufacturer material batch variances;
Inherent limitations, color gamut calibrations, ambient lighting conditions, and display resolution variations across consumer mobile devices, computer monitors, and showroom digital screens;
Underlying vehicle paint oxidation, clear-coat degradation, panel repainting, original equipment manufacturer (OEM) factory paint variances, and vehicle surface curvature;
Ambient outdoor lighting conditions, ultraviolet (UV) exposure, weather, and time-of-day lighting variances; and
The individual skill, craftsmanship, application technique, film stretching, heat application, seam placement, and installation methods utilized by physical wrap installers or dealership service technicians.
No Color-Matching Guarantee. PROVIDER MAKES NO REPRESENTATION, WARRANTY, COVENANT, OR GUARANTEE, EXPRESS OR IMPLIED, THAT ANY COMPLETED PHYSICAL INSTALLATION OF FILM, VINYL, TINT, OR ACCESSORY COATING WILL PRECISELY MATCH, CONFORM TO, OR MIRROR THE EXACT COLOR, OPACITY, SHEEN, METALLIC FLAKE DISTRIBUTION, OR VISUAL TEXTURE DEPICTED IN THE SERVICE OR ANY RENDERED ASSET.
Customer Responsibility for Pricing, Catalog Accuracy & Physical Inventory.
Dealer Configuration and Catalog Control. Customer maintains exclusive operational control over the retail pricing, product availability, film package descriptions, labor rates, add-on accessories, and markup rules entered into and displayed through the administrative portal of the Service.
Verification of Stock and Labor Capabilities. Customer is solely responsible for verifying and ensuring that:
All aftermarket film products, vinyl colors, tint options, and accessories displayed to consumers via the Service or web widgets are actively stocked, purchasable from physical film distributors, and commercially available for installation;
(ii) The retail prices, installation fees, dealer markups, promotional discounts, and financing estimates displayed on customer-facing widgets or quotes are complete, accurate, and compliant with applicable dealership pricing policies; and
(iii) Customer possesses the physical equipment, vendor supply chain access, and certified installer personnel required to perform the advertised vehicle customizations.
Provider Non-Liability for Dealer Pricing or Fulfillment. Provider shall have no obligation, liability, or responsibility whatsoever for: (i) any pricing discrepancies, mathematical quote errors, or outdated accessory rates generated through Customer’s administrative account; (ii) any inability of Customer or its third-party installers to source specific vinyl wraps, PPF rolls, or tinting materials; or (iii) any commercial disputes between Customer and its retail vehicle purchasers regarding quoted add-on costs or delayed accessory delivery.
No Consumer Privity; Dealership Consumer Relations.
Absence of Direct Consumer Relationship. Customer expressly acknowledges and agrees that: (i) Provider is a business-to-business (B2B) software provider; (ii) this Agreement is executed solely between Provider and Customer; and (iii) no contractual relationship, fiduciary duty, third-party beneficiary status, warranty obligation, or consumer privity is created between Provider and any retail car buyer, dealership customer, or consumer end user of Customer’s website or showroom.
Sole Dealer Responsibility for Consumer Transactions. Customer shall be solely and exclusively responsible for all aspects of its retail consumer interactions, commercial transactions, financing agreements, buyers’ orders, warranty disclosures, and consumer fulfillment. Customer shall clearly disclose to its retail buyers that aftermarket customization options, installation warranties, and pricing quotes are provided exclusively by Customer (or Customer’s third-party installer vendors) and not by Provider.
Consumer Protection and Regulatory Compliance. Customer shall ensure that its deployment and use of the Service, the presentation of digital add-on quotes, and all associated consumer sales representations comply in all respects with all applicable federal, state, and local laws, rules, and regulations governing motor vehicle sales, automotive advertising, trade practices, retail installment sales, and consumer disclosures (including Federal Trade Commission (FTC) guidelines, Truth in Lending Act disclosures, and state motor vehicle dealer licensing regulations).
CONFIDENTIALITY & DATA SECURITY
Scope of Confidential Information.
Definition of Confidential Information. As used in this Agreement, “Confidential Information” means any and all non-public, proprietary, or confidential information, technical data, trade secrets, know-how, or materials disclosed by or on behalf of one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether disclosed orally, visually, in writing, electronically, or through inspection of tangible objects, and whether disclosed prior to, on, or after the Effective Date, that: (i) is marked, designated, or identified as “Confidential,” “Proprietary,” or with a similar legend; or (ii) by its nature or the circumstances surrounding its disclosure, should reasonably be understood by a sophisticated commercial enterprise to be confidential or proprietary.
Provider Confidential Information. Notwithstanding any lack of marking or specific designation, Confidential Information of Provider expressly includes, without limitation: (i) the Software, Platform, Licensor Content, Specifications, Documentation, APIs, source code, object code, wireframes, geometry models, texture shaders, and rendering algorithms; (ii) the technical architecture and underlying infrastructure developed by Bit Reality; (iii) the specific commercial, financial, and pricing terms set forth in the Order Form; (iv) system performance benchmarks, product roadmaps, and feature release schedules; and (v) all non-public security protocols, penetration test results, and operational telemetry.
Customer Confidential Information. Confidential Information of Customer includes, without limitation: (i) non-public Customer Data; (ii) proprietary dealership sales lead records and retail consumer contact details; and (iii) confidential dealership financial metrics and internal dealer margin guidelines uploaded to the Service.
Exclusions from Confidential Information. Confidential Information does not include any information that the Receiving Party can establish by competent, contemporaneous written evidence:
is or becomes generally known or available to the public without breach of this Agreement by the Receiving Party or any of its Representatives;
was properly and lawfully known to or in the possession of the Receiving Party prior to disclosure by the Disclosing Party, without confidentiality restriction;
is rightfully received by the Receiving Party from a third party who had the lawful right to make such disclosure without breaching any confidentiality obligation, fiduciary duty, or contractual restriction;
is independently developed by the Receiving Party’s personnel without access to, reference to, reliance upon, or use of any of the Disclosing Party’s Confidential Information; or
is explicitly approved for public release or unrestricted disclosure by the Disclosing Party in a prior signed writing.
Non-Disclosure, Non-Use & Standard of Care Obligations.
Standard of Care. The Receiving Party shall protect and safeguard the confidentiality of all Confidential Information of the Disclosing Party using at least the same degree of care that it utilizes to protect its own highly sensitive confidential materials and trade secrets of like nature, but in no event using less than a high and reasonable standard of commercial care.
Strict Purpose Limitation. The Receiving Party shall not use, exploit, copy, or distribute any Confidential Information of the Disclosing Party for any purpose whatsoever other than to exercise its rights, perform its obligations, or utilize the Service strictly as authorized under the express terms of this Agreement.
Permitted Disclosures to Representatives. The Receiving Party may disclose the Disclosing Party’s Confidential Information only to its own officers, directors, employees, legal counsel, accountants, financial advisors, and bona fide independent technical contractors (collectively, “Representatives”) who: (i) have a direct, legitimate “need to know” such information to perform duties related to this Agreement; (ii) have been informed of the confidential and proprietary nature of such information; and (iii) are bound by written confidentiality and non-use covenants (or professional ethical duties) at least as protective and restrictive as the provisions set forth in this Article VIII. The Receiving Party shall remain directly responsible and liable for any act, omission, or unauthorized disclosure by any of its Representatives that would constitute a breach of this Article VIII if committed by the Receiving Party.
Compelled Legal Disclosures & Subpoena Protocols.
Notice Obligation. If the Receiving Party or any of its Representatives becomes legally compelled (by subpoena, civil investigative demand, court order, regulatory summons, or applicable statutory rule) to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall (to the extent legally permissible) provide the Disclosing Party with immediate written notice thereof within three (3) business days of service, so that the Disclosing Party may seek an appropriate protective order, confidential treatment, or other judicial or administrative remedy.
Cooperation & Protective Measures. The Receiving Party shall reasonably cooperate with the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other confidential treatment.
Limited Disclosure. If, in the absence of a protective order or waiver by the Disclosing Party, the Receiving Party is legally required by an order of a court of competent jurisdiction or administrative agency to disclose Confidential Information, the Receiving Party may disclose only that portion of the Confidential Information that its legal counsel advises is legally mandated to be disclosed. The Receiving Party shall use commercially reasonable efforts to secure confidential treatment for any Confidential Information so disclosed.
Data Security & Dealership Safeguards.
Provider Security Standards. Provider shall implement and maintain commercially reasonable administrative, physical, organizational, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data hosted within the Service against unauthorized access, destruction, loss, alteration, or disclosure.
Customer Security Obligations. Customer is solely responsible for: (i) configuring and maintaining secure local networks, web browsers, and endpoint devices used by Authorized Users to access the Service; (ii) enforcing strict password complexity, multi-factor authentication, and user access hygiene across its dealership facilities; (iii) immediately revoking credentials of separated dealership personnel; and (iv) ensuring that Customer Data transmitted to Provider complies with all applicable automotive dealership privacy laws, the Gramm-Leach-Bliley Act (GLBA) Safeguards Rule (to the extent applicable to Customer’s retail operations), and state consumer privacy statutes. Provider does not act as a credit reporting agency or financial institution and makes no representation that the Service is designed to store non-public personal financial records or consumer credit reports.
Irreparable Harm & Equitable Relief. Each Party acknowledges and agrees that any breach or threatened breach of this Article VIII (or of Section 2.5 or Article VI) by the Receiving Party would cause immediate, substantial, and irreparable harm to the Disclosing Party for which monetary damages alone would be an inadequate and insufficient remedy. Accordingly, in the event of any such breach or threatened breach, the Disclosing Party shall be entitled to seek immediate injunctive relief, specific performance, temporary restraining orders, and any other equitable remedies available from a court of competent jurisdiction, without the necessity of posting any bond, cash surety, or undertaking, and without the requirement of proving actual economic damages. Such equitable remedies are non-exclusive and shall be in addition to all other legal rights and remedies available to the Disclosing Party at law or in equity.
Return or Destruction of Confidential Materials; Survival.
Post-Termination Disposition. Upon the expiration or earlier termination of this Agreement for any reason, or upon the Disclosing Party’s written request at any time, the Receiving Party shall promptly (and in any event within thirty (30) calendar days): (i) cease all use of the Disclosing Party’s Confidential Information; and (ii) at the Disclosing Party’s option, securely return to the Disclosing Party or permanently destroy, shred, or delete all physical and electronic copies, summaries, notes, extracts, and materials containing or reflecting any Confidential Information of the Disclosing Party in its possession or control. Upon request, an executive officer of the Receiving Party shall provide written certification of compliance with this Section 8.7(a).
Archival and System Backups. Notwithstanding Section 8.7(a), the Receiving Party may retain copies of the Disclosing Party’s Confidential Information: (i) strictly to the extent required to comply with applicable statutory record-retention laws or regulatory compliance obligations; and (ii) within routine, secure, automated electronic system backup archives that are not readily accessible in ordinary business operations; provided, however, that any such retained Confidential Information shall remain strictly subject to the confidentiality, non-use, and standard-of-care obligations of this Article VIII indefinitely or for as long as such information is retained.
REPRESENTATIONS, WARRANTIES & DISCLAIMERS
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that, as of the Effective Date:
Organization and Good Standing. It is a corporation, limited liability company, or other legal entity duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or formation;
Power and Authority. It has all requisite corporate or limited liability company power, right, and authority to enter into this Agreement, execute the Order Form, grant the rights and licenses contemplated herein, and perform its legal and financial obligations hereunder;
Due Authorization and Enforceability. The execution, delivery, and performance of this Agreement have been duly and validly authorized by all necessary corporate or company action, and this Agreement constitutes a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and other laws affecting creditors’ rights generally; and
Non-Contravention. The execution, delivery, and performance of this Agreement by such Party does not and will not conflict with, violate, or result in a breach of, or constitute a default under: (i) its articles of incorporation, bylaws, operating agreement, or other organizational governance documents; (ii) any material contract, lease, credit facility, or franchise agreement to which it is a party or by which it is bound; or (iii) any applicable federal, state, or local statute, law, rule, or regulation, or any order, writ, injunction, or decree of any court or governmental agency.
Customer Representations, Warranties, and Covenants. Customer represents, warrants, and affirmatively covenants to Provider that throughout the Subscription Term:
Regulatory and Automotive Advertising Compliance. Customer’s deployment of the Service, the configuration of vehicle accessories, and the presentation of aftermarket customization quotes to consumers shall strictly comply with all applicable federal, state, and local motor vehicle advertising, marketing, truth-in-lending, and consumer protection laws, including without limitation: (i) the Federal Trade Commission (FTC) Act, FTC Guides Against Deceptive Pricing, and FTC regulations governing motor vehicle dealer trade practices (including rules governing add-on accessory disclosures, mandatory fees, and deceptive pricing representations); (ii) Regulation Z (Truth in Lending) and the Consumer Credit Protection Act; (iii) state motor vehicle dealer licensing board regulations; and (iv) state-specific statutory requirements governing the maximum permissible visible light transmission (VLT) percentages and reflectivity limits for automotive window tinting applications;
Authority and Ownership of Customer Data. Customer owns or has secured all necessary licenses, permissions, authorizations, and third-party consents required to: (i) extract, syndicate, and transmit Customer Data (including VIN inventory feeds, dealership stock numbers, retail pricing models, and vehicle images) to Provider; and (ii) authorize Provider to ingest, process, normalize, cache, and display such data within the Service without violating the intellectual property, proprietary, or privacy rights of any vehicle manufacturer (OEM), DMS vendor, website provider, or third-party data aggregator;
Consumer Data Privacy and Security. In collecting, storing, and transmitting customer lead information and consumer contact records through the Service or embedded web widgets, Customer complies in all respects with all applicable data privacy, security breach notification, and telemarketing statutes, including the Gramm-Leach-Bliley Act (GLBA) Safeguards Rule, the Telephone Consumer Protection Act (TCPA), the CAN-SPAM Act, and applicable state comprehensive consumer privacy laws; and
Dealership Capability and Fulfillability. All film packages, wrap textures, tint specifications, accessories, and labor services configured, advertised, or quoted to retail consumers by Customer through the Service are actively available, fulfillable, and commercially capable of being physically installed by Customer or its authorized third-party installation contractors in a workmanlike manner conforming to industry standards.
Provider Limited Performance Warranty.
Limited Warranty Scope. Provider warrants that during the active Subscription Term, the Service will operate in material conformity with the functional descriptions set forth in the applicable Documentation under standard operating conditions.
Warranty Exclusions. The limited warranty set forth in Section 9.3(a) shall not apply to, and Provider shall have no obligation, responsibility, or liability for, any non-conformity, failure, defect, or performance degradation resulting directly or indirectly from:
Customer’s, an Authorized User’s, or any third party’s misuse, abuse, negligence, unauthorized configuration, or use of the Service other than in strict accordance with the Documentation and this Agreement;
Any modification, enhancement, alteration, customization, or tampering with the Service, widget code snippets, or APIs by any person or entity other than Provider;
Disruptions, defects, latency, deprecations, or service outages within the underlying Platform cloud infrastructure provided by Bit Reality or third-party cloud hosting providers;
Incomplete, corrupted, delayed, or inaccurate DMS, inventory, or VIN data feeds transmitted by or on behalf of Customer;
Incompatible client-side operating systems, outdated web browser versions, unsupported WebGL/WebGPU implementations, or inadequate local graphic hardware processing capabilities at Customer’s facilities or on consumer client devices;
Internet connectivity disruptions, telecommunications failures, or force majeure events; or
Any software, modules, features, or functionality provided on an evaluation, beta, experimental, or free trial basis.
Exclusive Warranty Remedies.
Notice Protocol. If Customer identifies a material failure of the Service to conform to the limited warranty set forth in Section 9.3(a), Customer must notify Provider in writing within thirty (30) calendar days of the initial occurrence of such non-conformity, providing detailed diagnostic logs, screenshots, and error reports demonstrating the alleged defect.
Provider Cure Obligation. Upon receipt of timely written notice under Section 9.4(a), Provider shall, as its sole obligation and Customer’s sole and exclusive remedy, use commercially reasonable efforts to correct, repair, or provide a software patch or workaround for the non-conforming functionality within a commercially reasonable period.
Termination and Refund Remedy. If Provider determines, in its sole commercial judgment, that correcting or repairing the non-conforming functionality is not technically or commercially practicable, Provider may terminate this Agreement (or terminate the subscription solely as applied to the affected Authorized Rooftop) upon written notice to Customer, and Provider’s sole financial liability shall be to issue a pro-rated refund to Customer of any unearned, pre-paid recurring monthly subscription Fees paid by Customer for the unused portion of the then-current monthly billing cycle following the effective date of termination.
Comprehensive Warranty Disclaimers (“AS IS”).
Express Disclaimer of Implied Warranties. EXCEPT FOR THE LIMITED PERFORMANCE WARRANTY EXPRESSLY SET FORTH IN SECTION 9.3(a), THE SAAS SERVICES, PLATFORM, LICENSOR CONTENT, SPECIFICATIONS, DOCUMENTATION, APIS, SOFTWARE WIDGETS, RENDERED ASSETS, AND ALL ASSOCIATED IMPLEMENTATION AND SUPPORT SERVICES ARE PROVIDED ENTIRELY “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER, ON BEHALF OF ITSELF, ITS AFFILIATES, AND THE LICENSORS AND SUPPLIERS OF ALL THIRD PARTY COMPONENTS (INCLUDING BIT REALITY), HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, COVENANTS, CONDITIONS, AND REPRESENTATIONS OF ANY KIND WHATSOEVER, WHETHER STATUTORY, EXPRESS, IMPLIED, ORAL, OR WRITTEN, INCLUDING WITHOUT LIMITATION:
ANY IMPLIED WARRANTY OF MERCHANTABILITY;
ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR SUITABILITY FOR CUSTOMER’S SPECIFIC COMMERCIAL OPERATIONS, SHOWROOM WORKFLOWS, OR PROFITABILITY TARGETS;
ANY IMPLIED WARRANTY OF TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT;
ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR COMMERCIAL PRACTICE; AND
ANY WARRANTY REGARDING SYSTEM INTEGRATION, DATA TRANSMISSION ACCURACY, OR THE TIMELINESS OF THIRD-PARTY DMS INVENTORY SYNDICATION.
Disclaimer of Continuous, Uninterrupted, or Error-Free Operation. PROVIDER DOES NOT WARRANT, GUARANTEE, OR COVENANT THAT: (I) THE SERVICE OR RENDERED ASSETS WILL MEET CUSTOMER’S OR ITS RETAIL CONSUMERS’ COMMERCIAL EXPECTATIONS; (II) THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, COMPLETELY SECURE, ERROR-FREE, OR FREE FROM OPERATIONAL LATENCY; (III) ALL VEHICLE MAKES, MODELS, TRIMS, SPECIAL EDITION ACCESSORIES, OR AFTERMARKET BODY MODIFICATIONS WILL BE AVAILABLE WITHIN PROVIDER’S LICENSOR CONTENT ASSET LIBRARY; OR (IV) ALL SOFTWARE DEFECTS, GRAPHIC RENDERING ANOMALIES, OR WIDGET EMBED GLITCHES WILL BE RESOLVED.
Disclaimer of Physical Product, Vinyl, Film, and Installation Longevity. PROVIDER IS A SOFTWARE PROVIDER AND DOES NOT MANUFACTURE, DISTRIBUTE, WARRANT, OR INSTALL PHYSICAL VEHICLE FILMS, VINYL WRAPS, PAINT PROTECTION COATINGS, OR CERAMIC TREATMENTS. PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, OR LIABILITIES REGARDING:
PHYSICAL FILM ADHESION, PEELING, DELAMINATION, CRACKING, BUBBLING, OR YELLOWING;
PHYSICAL FILM SCRATCH RESISTANCE, TEAR STRENGTH, OR CLEAR-COAT PROTECTION;
CHEMICAL STABILITY, RESISTANCE TO ENVIRONMENTAL CONTAMINANTS, OR DURABILITY UNDER EXTREME CLIMATIC CONDITIONS;
ACCURACY OF PHYSICAL FILM COLOR FASTNESS OR FADING RESISTANCE OVER TIME;
THE WORKMANSHIP, APPLICATION METHOD, OR CRAFTSMANSHIP OF ANY PHYSICAL INSTALLER; OR
THE STATUTORY LEGALITY OR REGULATORY COMPLIANCE OF ANY INSTALLED WINDOW TINT, REFLECTIVE FILM, OR HEADLIGHT/TAILLIGHT SMOKED FILM UNDER THE MOTOR VEHICLE SAFETY CODES OF ANY SPECIFIC JURISDICTION.
INDEMNIFICATION
Provider Intellectual Property Defense and Indemnification.
Defense and Indemnity Obligation. Subject to the provisions of Section 10.2 and Section 10.4, Provider shall defend Customer and its officers, directors, and employees (collectively, the “Customer Indemnitees”) against any third-party civil lawsuit, claim, action, or formal legal proceeding (each, an “Infringement Claim”) to the extent alleging that Customer’s authorized commercial use of the core Service within the scope of this Agreement directly infringes any validly registered United States copyright or misappropriates any United States trade secret of such third party. Provider shall indemnify and hold harmless the Customer Indemnitees from and against any damages, liabilities, reasonable outside attorneys’ fees, and court costs finally awarded by a court of competent jurisdiction against Customer in a final, non-appealable judgment, or agreed to in a monetary settlement negotiated and executed by Provider pursuant to Section 10.4.
Exclusions from Provider Indemnity. Provider shall have no obligation, responsibility, or liability under Section 10.1(a) or otherwise for any Infringement Claim or liability to the extent resulting directly or indirectly from:
Any deployment, configuration, or use of the Service, Licensor Content, or Rendered Assets in combination, operation, or integration with any hardware, software, network, database, inventory feed, website theme, or third-party digital retailing tool not supplied, authorized, or expressly specified in writing by Provider;
Any modification, alteration, enhancement, or adaptation of the Service, APIs, or embeddable widget code made by any person or entity other than Provider or its authorized subcontractors;
Customer’s continued use of a superseded or prior release of the Service or widget code following Provider’s commercial delivery or deployment of an Update, patch, or non-infringing replacement;
Any Customer Data, dealer-provided imagery, manufacturer logos, or custom digital assets uploaded, ingested, or integrated into the Service by or on behalf of Customer;
Any deployment or use of the Service, widget embeds, or Licensor Content at any unlisted dealership facility, unauthorized physical rooftop, or unapproved website domain in violation of Section 2.2;
Any Third-Party Components, open-source software libraries, third-party DMS integration utilities, or the underlying Platform rendering architecture supplied by Bit Reality or upstream cloud infrastructure providers; or
Customer’s continued use of the Service after receiving written notice from Provider to cease use due to an actual or potential Infringement Claim.
Provider Mitigation Options & Exclusive Remedies.
Mitigation Alternatives. If the Service, Platform, or any Licensor Content becomes, or in Provider’s reasonable commercial judgment is likely to become, the subject of an Infringement Claim, Provider may, in its sole discretion and at its sole expense:
Procure for Customer the legal right to continue accessing and utilizing the Service in accordance with this Agreement;
Replace, re-architect, or modify the Service or affected Licensor Content so that it becomes non-infringing while maintaining substantially equivalent core visualization functionality; or
In the event that neither option (i) nor option (ii) is commercially, operationally, or technically practicable on reasonable terms, terminate this Agreement (or terminate Customer’s subscription rights as applied to the affected module or Rooftop) upon ten (10) business days’ written notice to Customer.
Pro-Rata Refund on Termination. Upon any termination by Provider pursuant to Section 10.2(a)(iii), Provider’s sole and maximum financial obligation shall be to issue a pro-rated refund to Customer of any unearned, pre-paid recurring monthly subscription Fees paid by Customer for the unused portion of the then-current monthly billing cycle following the effective date of termination.
Sole and Exclusive Remedy. THIS SECTION 10.1 AND SECTION 10.2 STATE PROVIDER’S ENTIRE AGGREGATE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AT LAW AND IN EQUITY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT, MISAPPROPRIATION, TITLE DEFECT, OR PROPRIETARY RIGHTS VIOLATION ARISING OUT OF OR RELATING TO THE SERVICE, PLATFORM, LICENSOR CONTENT, OR DOCUMENTATION.
Customer Indemnification of Provider. Customer shall defend, indemnify, and hold harmless Provider, its Affiliates, its upstream Platform licensors (specifically including Bit Reality), and each of their respective officers, directors, managers, members, shareholders, employees, agents, successors, and assigns (collectively, the “Provider Indemnitees”) from and against any and all third-party claims, civil actions, consumer lawsuits, class actions, arbitrations, regulatory enforcement proceedings, governmental investigations, demands, damages, losses, liabilities, fines, civil penalties, settlement amounts, and expenses (including reasonable outside attorneys’ fees, expert witness costs, litigation expenses, and court costs) (collectively, “Claims”) arising out of, relating to, or resulting from:
Customer Data & DMS Ingestion: Any Customer Data, inventory data feed, vehicle option descriptions, or stock photography uploaded, transmitted, or syndicated to the Service, including any claim that Customer Data violates, infringes, or misappropriates any third-party intellectual property, privacy, or publicity rights, or contains inaccurate, stale, or misleading vehicle specifications;
Dealership Pricing, Labor Rates & Markup Configurations: Any administrative configuration, pricing model, accessory markup matrix, labor rate, or payment estimate entered into the Service by Customer, including any claim by a retail vehicle purchaser or regulatory authority alleging pricing discrepancies, deceptive add-on fees, bait-and-switch sales practices, or non-compliance with quoted purchase prices;
Consumer Transactions, Retail Disputes & Physical Product Fulfillment: Any commercial transaction, purchase order, vehicle lease, retail installment sales contract, or consumer dispute between Customer and any car buyer, website user, or showroom visitor, including without limitation: (i) any claim relating to the physical installation, craftsmanship, seam placement, bubbling, peeling, or clear-coat damage resulting from aftermarket vinyl wraps, paint protection films, or tint applications; (ii) any physical vehicle damage, manufacturer factory warranty voidance, or delay in vehicle delivery; or (iii) any breach of an express or implied warranty provided by Customer or a physical film manufacturer to a retail consumer;
Regulatory, Advertising & Statutory Violations: Any actual or alleged violation by Customer, its sales personnel, or its digital marketing agencies of any federal, state, or local motor vehicle sales, advertising, or consumer protection law, rule, or administrative regulation, including without limitation: (i) Federal Trade Commission (FTC) enforcement actions, FTC Guides Against Deceptive Pricing, or the FTC Combatting Auto Retail Scams (CARS) Rule; (ii) the Truth in Lending Act (TILA) and Regulation Z; (iii) the Gramm-Leach-Bliley Act (GLBA) Safeguards Rule; (iv) the Telephone Consumer Protection Act (TCPA) and CAN-SPAM Act; (v) state motor vehicle dealer licensing board administrative proceedings; and (vi) state statutory vehicle equipment safety codes governing automotive window tinting light transmittance percentages (VLT) and reflectivity limits;
Breach of Scope, Sublicensing & Restrictions: Any breach or violation by Customer, an Authorized User, or any representative of Customer of Section 2.2 (Rooftop Licensing & Location Scoping), Section 2.5 (Restrictions on Use), Article VI (Intellectual Property Rights), or Article VIII (Confidentiality); or
Customer Negligence or Willful Misconduct: The gross negligence, reckless disregard, fraud, or willful misconduct of Customer, its Authorized Users, employees, or contracted installation technicians.
Indemnification Procedures and Defense Governance.
Notice of Claim. The Party seeking indemnification under this Article X (the “Indemnified Party”) shall provide the Party obligated to indemnify (the “Indemnifying Party”) with prompt written notice of any Claim for which indemnification is sought; provided, however, that any failure or delay in providing prompt written notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder, except strictly to the extent the Indemnifying Party demonstrates that its legal defense of such Claim was materially and irrevocably prejudiced by such failure or delay.
Assumption of Defense. The Indemnifying Party shall have the right, upon written notice to the Indemnified Party delivered within fifteen (15) calendar days of receiving notice of a Claim, to assume the sole control and defense of such Claim with legal counsel reasonably acceptable to the Indemnified Party.
Participation and Independent Counsel. The Indemnified Party shall have the right, at its own sole cost and expense, to participate in the defense of such Claim and employ its own separate legal counsel. If the Indemnifying Party fails or elects not to assume defense of the Claim within fifteen (15) calendar days after notice, the Indemnified Party may defend the Claim through counsel of its choosing at the reasonable expense of the Indemnifying Party.
Settlement Authority and Consent Restrictions. The Indemnifying Party shall not settle, compromise, consent to the entry of any judgment, or resolve any Claim without the prior express written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned, or delayed); provided, however, that the Indemnified Party’s consent shall not be required if the proposed settlement: (i) involves solely the payment of monetary amounts fully paid and satisfied by the Indemnifying Party; (ii) includes an unconditional, full, and irrevocable release of all claims against each Indemnified Party; and (iii) does not impose any financial liability, injunctive relief, admission of wrongdoing, fault, or criminal liability upon any Indemnified Party.
Cooperation. The Indemnified Party shall provide reasonable information, assistance, and operational cooperation to the Indemnifying Party, at the Indemnifying Party’s reasonable expense, in connection with the investigation, defense, and settlement of any Claim.
LIMITATIONS OF LIABILITY
Consequential and Indirect Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER, ITS AFFILIATES, ITS UPSTREAM PLATFORM LICENSORS (INCLUDING BIT REALITY), OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE TO CUSTOMER, ITS AFFILIATES, OR ANY THIRD PARTY UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY, WARRANTY, STATUTE, OR OTHERWISE, FOR ANY:
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, ENHANCED, OR CONSEQUENTIAL DAMAGES;
LOSS OF ACTUAL OR ANTICIPATED REVENUES, PROFITS, OR COMMERCIAL OPPORTUNITIES;
LOSS OF DEALERSHIP SALES, VEHICLE FINANCING OR LEASING COMMISSION, ACCESSORY MARKUP REVENUE, OR TRADE-IN VALUE;
BUSINESS INTERRUPTION, OPERATIONAL DOWNTIME, OR LOSS OF DEALERSHIP SHOWROOM PRODUCTIVITY;
LOSS, COMPROMISE, CORRUPTION, UNAVAILABILITY, OR ALTERATION OF CUSTOMER DATA OR INVENTORY FEEDS; OR
LOSS OF GOODWILL, REPUTATIONAL INJURY, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
IN EACH CASE, REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, WHETHER SUCH DAMAGES WERE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Aggregate Monetary Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE CUMULATIVE LIABILITY OF PROVIDER, ITS AFFILIATES, AND ITS UPSTREAM PLATFORM LICENSORS (INCLUDING BIT REALITY) ARISING OUT OF, CONNECTED WITH, OR RELATED TO THIS AGREEMENT, THE SERVICE, THE PLATFORM, THE LICENSOR CONTENT, THE RENDERED ASSETS, OR ANY SUPPORT SERVICES, UNDER ANY AND ALL LEGAL OR EQUITABLE THEORIES (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, INDEMNITY, WARRANTY, OR OTHERWISE), EXCEED THE TOTAL AGGREGATE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER TO PROVIDER UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT, ACT, OR OMISSION GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM, SUIT, OR ARBITRATION SHALL NOT ENLARGE OR EXTEND THIS MONETARY LIMITATION.
Express Exclusions & Carve-Outs from Liability Limitations. The limitations, exclusions, and monetary liability caps set forth in Section 11.1 and Section 11.2 shall apply strictly and exclusively to the maximum benefit of Provider and its licensors; provided, however, that nothing in this Article XI shall limit, cap, or exclude the liability of Customer with respect to:
Customer’s absolute obligation to pay all accrued Fees, retroactive Rooftop true-up charges, interest, and late charges due under Article IV;
Customer’s express defense and indemnification obligations under Section 10.3;
(c) Customer’s breach of Section 2.2 (Rooftop Licensing & Location Scoping), Section 2.5 (Restrictions on Use) , or Article VI (Intellectual Property Rights & Proprietary Governance);
Customer’s breach of Article VIII (Confidentiality & Data Security); or
Customer’s gross negligence, willful misconduct, fraud, or intentional violation of applicable automotive advertising, financing, or consumer protection laws.
Essential Basis of the Commercial Bargain. Customer expressly acknowledges and agrees that: (a) Provider has set its subscription pricing and entered into this Agreement in direct reliance upon the disclaimers of warranty, limitations of liability, and allocations of risk set forth herein; (b) the Fees charged under this Agreement reflect this negotiated allocation of commercial and legal risk; and (c) the limitations of liability specified in this Article XI form an essential basis of the bargain between the Parties, without which Provider would not have agreed to provide the Service, Platform access, or Licensor Content to Customer at the stated subscription rates.
TERM, TERMINATION AND SURVIVAL
Term and Automatic Monthly Renewal. This Agreement commences on the Effective Date and continues on a month-to-month subscription basis (the “Subscription Term”). Unless terminated in strict accordance with this Article XII, the Subscription Term shall automatically renew on the first (1st) calendar day of each successive calendar month for an additional one (1) month period, and Customer’s designated payment method on file shall be charged in advance for all recurring monthly subscription Fees applicable to all Authorized Rooftops.
Customer Cancellation for Convenience. Customer may cancel its subscription to the Service and terminate this Agreement for convenience, for any reason or no reason, upon delivering formal written notice of cancellation to Provider’s billing department (electronic mail to Provider’s designated billing address sufficient) not less than thirty (30) calendar days prior to the first day of the next monthly billing cycle. Any cancellation notice received less than thirty (30) calendar days prior to the start of the next monthly billing cycle shall become effective at the end of the subsequent monthly billing cycle, and Customer shall remain fully obligated to pay all recurring monthly subscription Fees for such subsequent cycle.
Termination for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party:
Material Breach: If the other Party materially breaches any provision of this Agreement and fails to cure such material breach within fifteen (15) calendar days following receipt of written notice specifying the nature of the breach; provided, however, that no cure period shall apply to any breach by Customer of Section 2.2, Section 2.5, Article VI, or Article VIII, each of which shall entitle Provider to terminate this Agreement immediately upon written notice; or
Insolvency Events: If the other Party: (i) files a petition for bankruptcy, reorganization, or insolvency under any federal or state law; (ii) has an involuntary bankruptcy petition filed against it that is not dismissed within forty-five (45) calendar days; (iii) makes a general assignment for the benefit of creditors; (iv) has a receiver, trustee, or liquidator appointed for its business or substantial assets; or (v) ceases to conduct business in the ordinary course.
Provider Immediate Suspension Rights. In addition to all other rights and legal remedies available hereunder, Provider reserves the unconditional right to immediately suspend, throttle, or disable Customer’s and its Authorized Users’ access to the Service, deactivate all public-facing visualizer web widgets, and revoke all API keys without liability to Customer, upon the occurrence of any of the following:
Payment Delinquency. Any invoice, recurring credit card charge, or automated ACH debit remains unpaid, declined, or past due for more than ten (10) calendar days following electronic written notice of payment failure;
Security Threat. Provider reasonably determines that Customer’s account credentials, network environment, or API keys are being used in a manner that poses an imminent security vulnerability, data breach risk, denial-of-service threat, or technical hazard to the Service, Platform, or any third-party subscriber;
Unauthorized Deployment. Provider detects that Customer has embedded or deployed the Service across unlisted dealership facilities, unauthorized digital domains, or sister franchises in violation of Section 2.2; or
Regulatory or Legal Mandate. Provider is required to suspend access by an administrative order, subpoena, court injunction, or request of a governmental or law enforcement authority.
Any suspension under this Section 12.4 shall not excuse Customer from its ongoing obligation to pay all recurring subscription Fees throughout the suspension period.
Effect of Expiration or Termination. Upon any expiration or termination of this Agreement for any reason:
Immediate Cessation of Access. All licenses, access rights, and permissions granted to Customer under this Agreement shall immediately terminate, and Provider shall promptly deactivate all user accounts, API connections, and administrative portals;
Widget De-Embedding. Customer shall immediately remove, delete, and un-embed all Provider JavaScript snippets, iframes, visualizer widgets, and API calls from all Authorized Digital Properties, inventory detail pages, and showroom kiosks;
Cessation of Marketing & Asset Purging. Customer shall immediately cease all public display, commercial advertising, reproduction, and distribution of all Rendered Assets, 3D visual outputs, and Licensor Content, and shall securely purge and delete all stored or cached copies of Rendered Assets from Customer’s servers, content delivery networks, and local media;
Payment of Accrued Balances. All accrued, outstanding, and unpaid Fees, interest, and reimbursable expenses shall become immediately due and payable by Customer to Provider, and Customer’s payment method on file shall be debited for all such amounts; and
No Refunds. All Fees paid prior to the effective date of termination are strictly non-refundable, and Customer shall have no right to any pro-rata refund, abatement, or credit for unused portions of any monthly billing cycle, except strictly as provided under Section 9.4(c) or Section 10.2(b).
Survival of Specified Provisions. The rights and obligations of the Parties under the following provisions shall survive any expiration, cancellation, or termination of this Agreement indefinitely or for the duration expressly stated therein: Article I (Definitions), Section 2.5 (Restrictions on Use), Article IV (Fees, Billing Mechanics & Price Adjustments), solely with respect to accrued payment liabilities, Section 5.4 (Sole and Exclusive Remedy), Article VI (Intellectual Property Rights & Proprietary Governance), Article VII (Commercial & Visualization Reality Disclaimers), Article VIII (Confidentiality & Data Security), Section 9.5 (Comprehensive Warranty Disclaimers), Article X (Indemnification Allocation), Article XI (LIMITATIONS OF LIABILITY), Section 12.5 (Effect of Expiration or Termination), this Section 12.6 (Survival), and Article XIII (Miscellaneous Provisions).
GENERAL BOILERPLATE & JURISDICTIONAL TERMS
Governing Law and Choice of Law. This Agreement, the Order Form, all related Exhibits, Schedules, and Addenda, and all claims, controversies, or causes of action (whether arising in contract, tort, equity, statute, or otherwise) arising out of or relating to this Agreement or the commercial relationship between the Parties shall be governed by, construed in accordance with, and enforced under the internal laws of the State of Minnesota, without giving effect to any choice-of-law or conflict-of-law principles, rules, or provisions (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Minnesota. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement.
Exclusive Jurisdiction, Mandatory Forum & Venue. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY SUIT, ACTION, LITIGATION, SPECIAL PROCEEDING, OR LEGAL CLAIM ARISING OUT OF, CONNECTED WITH, OR RELATING IN ANY MANNER TO THIS AGREEMENT, THE SERVICE, OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT, COMMENCED, AND PROSECUTED EXCLUSIVELY IN THE STATE DISTRICT COURTS OF THE SIXTH JUDICIAL DISTRICT OF MINNESOTA LOCATED IN ST. LOUIS COUNTY, MINNESOTA, OR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA (DULUTH OR MINNEAPOLIS DIVISION). EACH PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS AND CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION OF SUCH COURTS, AND WAIVES ANY OBJECTION BASED UPON FORUM NON CONVENIENS, IMPROPER VENUE, OR LACK OF PERSONAL JURISDICTION.
Waiver of Jury Trial; Individual Litigation & Class Action Waiver.
Waiver of Trial by Jury. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY, AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CIVIL LAWSUIT, COUNTERCLAIM, OR CROSS-CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICE, THE LICENSOR CONTENT, OR ANY TRANSACTION CONTEMPLATED HEREUNDER.
Class Action Waiver. THE PARTIES AGREE THAT ALL DISPUTES, LITIGATION, AND PROCEEDINGS SHALL BE CONDUCTED STRICTLY ON AN INDIVIDUAL BASIS. CUSTOMER EXPRESSLY WAIVES ANY RIGHT OR ABILITY TO CONSOLIDATE, JOIN, OR ASSERT ANY CLAIM AS A PLAINTIFF, CLASS REPRESENTATIVE, OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE PROCEEDING, PRIVATE ATTORNEY GENERAL ACTION, OR REPRESENTATIVE LAWSUIT AGAINST PROVIDER OR ITS LICENSORS.
Entire Agreement & Order of Precedence.
Integration. This Agreement (consisting of the executed Order Form, these Standard Terms, all attached Schedules, and any executed SOW referencing this instrument) constitutes the final, complete, exclusive, and entire agreement between Provider and Customer with respect to the subject matter hereof, and supersedes all prior and contemporaneous discussions, negotiations, proposals, understandings, representations, warranties, and agreements, whether oral or written (specifically including any dealership credit applications, vendor registration packets, or Customer purchase order terms).
Order of Precedence. In the event of any direct and irreconcilable conflict or inconsistency between the legal instruments comprising this Agreement, the following order of precedence shall strictly govern:
First, the master commercial terms set forth in the signed Order Form (excluding pre-printed boilerplate);
Second, these Standard Terms and Conditions;
Third, the Schedules and Exhibits attached hereto; and
Fourth, the technical Documentation and user manuals.
Pre-Printed Terms Inoperative. Any pre-printed, standard, or conflicting terms contained on any dealership purchase order, vendor portal acknowledgment, invoice payment stub, or accounts payable voucher issued by Customer shall be deemed null, void, and of no legal force or effect, and shall not modify or amend this Agreement.
Amendments, Online Updates & Modifications. Provider reserves the right to modify, amend, update, or supplement these Standard Terms from time to time by publishing an updated version at its designated legal portal URL and updating the “Last Revised” date. Provider shall deliver electronic notice of any material modifications to Customer’s Designated Billing Contact or Technical Administrator at least thirty (30) calendar days prior to the effective date of such revised Standard Terms. Customer’s continued access to or commercial use of the Service following the effective date of such revised Standard Terms shall constitute Customer’s conclusive and binding acceptance of the updated terms. If Customer objects to a material adverse amendment, Customer may deliver written notice of cancellation before the effective date of the amendment. Notwithstanding the standard advance-notice period in Section 12.2, a cancellation notice delivered within the notice period for that material adverse amendment shall become effective immediately before the amendment takes effect, and the amendment shall not apply to Customer. Fees accrued through the effective date of cancellation remain payable.
Severability and Non-Waiver.
Severability & Blue-Pencil Doctrine. If any provision, section, sentence, or clause of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such determination shall not affect any other provision of this Agreement. The Parties intend that any invalid provision shall be reformed, modified, and construed by the court to the minimum extent necessary to render it valid, legal, and enforceable while preserving the original commercial intent and economic allocations of the Parties.
Non-Waiver. No failure, delay, or omission by either Party to exercise any right, power, or legal remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right preclude any other or further exercise thereof or the exercise of any other right or remedy. To be legally effective, any waiver must be in writing and signed by an authorized executive of the waiving Party.
Force Majeure. Neither Party shall be liable, responsible, or deemed in default or breach of this Agreement for any failure or delay in performing any obligation hereunder (excluding Customer’s absolute obligation to pay accrued Fees under Article IV) to the extent such failure or delay is caused by acts, events, or occurrences beyond such Party’s reasonable commercial control, including without limitation: acts of God, flood, fire, earthquake, explosion, natural disaster; war, invasion, hostilities, terrorist acts, civil unrest, riots; state or national emergencies, epidemics, pandemics; labor strikes, lockouts, or industrial disputes; telecommunications line failures, internet backbone disruptions, major public cloud hosting outages (e.g., AWS, Microsoft Azure, Google Cloud); utility failures; or malicious cyber attacks, distributed denial-of-service (DDoS) strikes, or zero-day exploits (each, a “Force Majeure Event”).
Independent Contractor Relationship; No Franchise Created.
Independent Contractor. The relationship between Provider and Customer is strictly that of independent commercial contractors. Nothing contained in this Agreement, the Order Form, or any course of dealing shall be construed as creating, establishing, or implying any partnership, joint venture, agency, fiduciary duty, employment, or formal business entity relationship between the Parties. Neither Party has any authority to bind, contract for, assume obligations on behalf of, or make representations on behalf of the other Party.
No Automobile Franchise or Dealership Law Applicability. Customer expressly acknowledges and agrees that: (i) this Agreement is a software-as-a-service technology subscription; (ii) Provider is not an automotive manufacturer, distributor, franchisor, or motor vehicle broker; and (iii) this Agreement does not constitute, establish, or create an automotive franchise, dealership agreement, or community-of-interest relationship under any state motor vehicle dealer franchise protection statute or franchise disclosure law.
Assignment & Successors in Interest.
Customer Assignment Prohibited. Customer shall not assign, transfer, delegate, sublicense, pledge, or encumber this Agreement, or any of its rights or obligations hereunder, whether voluntarily, involuntarily, by operation of law, merger, acquisition, consolidation, stock sale, asset sale, change of control, or otherwise, without the prior express written consent of Provider (which consent Provider may grant, condition, or withhold in its sole commercial discretion). Any attempted or purported assignment, transfer, or delegation by Customer in violation of this Section 13.9(a) shall be null, void, and of no legal force or effect.
Provider Permitted Assignment. Provider may freely assign, transfer, or delegate this Agreement, or any of its rights, titles, interests, or obligations hereunder, in whole or in part, without the requirement of Customer’s consent or notice, in connection with: (i) a merger, acquisition, consolidation, corporate reorganization, or recapitalization; (ii) a sale of all or substantially all of Provider’s equity, business, or assets; (iii) an assignment to an Affiliate of Provider; or (iv) a corporate restructuring involving the commercial deployment or intellectual property management of the 3D visualizer platform.
Binding on Successors. Subject to the restrictions on assignment set forth above, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted legal successors and assigns.
Notice Protocols. All formal legal notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and shall be deemed properly delivered and received: (i) when delivered by hand with written confirmation of receipt;(ii) on the next business day after being deposited with a nationally recognized overnight courier service (e.g., FedEx, UPS) with tracking capabilities; (iii) on the third (3rd) business day after being sent by certified or registered United States mail, return receipt requested, postage prepaid; or (iv) on the date of transmission if sent by electronic mail during normal business hours of the recipient (or on the next business day if sent after business hours), provided that no automated delivery failure, bounce-back, or out-of-office message is received by the sender. Notices shall be addressed to:
If to Provider: Adhered2 LLC,
Attn: Legal Department,
Spencer Topham
Email: legal@adhered2.com
If to Customer: To the Authorized Executive Contact Name, Physical Address, and Billing Email Address designated in Section A of the executed Order Form.
Counterparts, Electronic Signatures & Execution Validity. The Order Form and any associated Addenda may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same legal instrument. The Parties expressly agree that electronic signatures (including DocuSign, Adobe Sign, or other ESIGN-compliant digital signature software) and electronic transmissions of signed documents in portable document format (.PDF) shall have the same full legal force, validity, and enforceability as original manual ink signatures in accordance with the Federal Electronic Signatures in Global and National Commerce Act (ESIGN) and the Uniform Electronic Transactions Act (UETA).
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