These Terms and Conditions are incorporated by reference into all Order Forms and/or Proposals (“Order Form”) entered into between Comvoy.com (“Company”) and the party referenced in the Order Form (“Customer”). These Terms and Conditions and the Order Form executed by the parties constitute a binding agreement between Company and Customer and are referred to collectively as the “Agreement”.

Company acknowledges and agrees that as between Company and Customer, all data, information and materials (“Data”) owned or provided by Customer pursuant to this Agreement including, without limitation, data management software (“DMS”) data, inventory and photo feeds, body invoices from Customer’s suppliers, other materials and information provided by Customer as part of the onboarding and integration process, and all electronically stored Data and hard copy originals (collectively, “Customer Data”), are and shall remain the property of Customer. Customer Data shall not be utilized by Company for any purpose other than as expressly permitted by this Agreement. Customer agrees to provide Company with the Customer Data requested by Company in order to provide the services to Customer, including but not limited to body invoices from Customer’s suppliers.

Customer also grants to Company permission and the right to obtain an export of data and information from Customer’s inventory provider, DMS provider and webhost or web hosting service provider and agrees to cooperate with Company in obtaining such information from the respective providers. In addition, Customer agrees to provide links from its website to the new Customer branded commercial inventory powered by Company and authorizes Company to promote the commercial inventory site to truck buyers on behalf of Customer.

Customer authorizes and grants to Company a perpetual, worldwide, sublicensable, freely assignable, transferrable, irrevocable license and right to use, analyze, process, aggregate, reproduce, distribute, modify, create derivative works or databases from, and include in the Company services provided to others or other products and services offered by Company to others, the Customer Data and other information made available to or provided to Company hereunder, provided that Company shall not disclose any (i) non-public personal information (“NPI”) and (ii) of Customer’s Confidential Information, other than in aggregated form.

Customer agrees that it shall use the Company services and any Data made available by Company that has been processed, aggregated, created, developed, analyzed or modified by Company (“Enhanced Data”), only for purposes expressly permitted hereunder and solely for Customer’s internal business use, and shall not copy, make derivative works from, reverse engineer or decompile, sell, offer to sell or otherwise commercially exploit, assign, redistribute, disclose, disseminate or otherwise make available in any manner expressly not provided in this Agreement, any of the Company services or Enhanced Data, or any part thereof, or any of the concepts and/or technology or proprietary rights embodied therein, to any third party, without the prior written consent of Company in each instance, or use the Company Service or any Enhanced Data made available by Company to engage in any activity that is identical or similar to, or competitive with, Company services.

Customer acknowledges and agrees that all rights, title and interest in the Company services, including Enhanced Data and any information or services incorporating Data or Enhanced Data, and any custom products or services created or provided in connection with or related to this Agreement, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to Company or its licensors.

Both parties agree that the terms, pricing and specific information concerning the Company services are Confidential Information of Company. “Confidential Information” includes any confidential, proprietary or trade secret information of a party, whether oral, or written, of a private, secret, proprietary or confidential nature, concerning either party or its business operations. Each party agrees to use the same degree of care to protect the confidentiality of the Confidential Information of the other party and to prevent its unauthorized use or dissemination as it uses to protect its own Confidential Information of a similar nature, but in no event shall exercise less than reasonable due diligence and care. Each party agrees to use the Confidential Information of the other party only for purposes permitted by this Agreement. All Confidential Information remains the property of the party disclosing the information and no license or other rights to Confidential Information is granted or implied, except as provided for herein.

Confidential Information does not include information that (i) is or becomes generally known to the public without breach of any obligation owed to a party, (ii) was known to a party prior to its disclosure by the party without breach of any obligation owed to such party, (iii) is received from a third party without breach of any obligation owed to a party, (iv) was independently developed by a party, (v) any information about a vehicle, including but not limited to, configuration, model, pricing and other information contained in the Customer Data. Both parties’ obligations under this Section shall survive any termination or expiration of this Agreement.

Each party represents, warrants, and covenants that it has implemented adequate administrative, procedural, technical, and physical safeguards designed to (i) provide for the security and confidentiality of NPI provided, collected, and/or received in connection with the Agreement, (ii) protect against any anticipated threats or hazards to the security or integrity of NPI, and (iii) protect against unauthorized access to or use of NPI which could result in substantial harm to a party’s customers. In addition, each party will notify customers of security breaches as required by applicable law. Each party represents and warrants that it is knowledgeable of, and familiar with, all applicable federal, state, and local laws, rules, regulations, codes, directives, and industry standards relating to privacy (“Privacy Laws”) and will implement a privacy policy which will comply with all Privacy Laws, fully and accurately disclose the data collection, use and disclosure practices in connection with the use of the Company service, and be clearly and conspicuously available to all users. Customer will, at all times, comply with its obligations described in its privacy policy. Company will have no responsibility for Customer’s compliance with Privacy Laws.

During the term of this Agreement, Customer grants Company a non-exclusive, assignable, transferrable, worldwide license to use Customer trademarks and trade names on Company’s website and in promotional materials distributed by Company and to identify Customer as a user of the Company’s products and services (collectively, “services”).

Company hereby grants Customer, during the term of this Agreement, a non-transferable license under Company’s copyrights to use any Company software products and associated documentation provided to Customer in connection with the Company services and all such software products and documentation necessary for Customer’s utilization of the Company services as provided for in this Agreement.

Company shall not be responsible for any inability to provide the Company services which results from (i) the inability of Company to access Customer Data; or (ii) Customer requested information not being present in the Customer’s DMS or body manufacturer's data.

Company reserves the right to change, amend or modify the terms and conditions contained in this Agreement, any policy or guidelines on Company’s website, and/or its services, or to discontinue the offering, support, and maintenance of any service to Customer, at any time by providing Customer with advance notice concerning changes, amendments or modifications. Unless otherwise specified, any changes, amendments or modifications will be effective upon the first to occur of either (i) Customer’s indication of acceptance of such change, amendment or modification, or (ii) thirty (30) days after Customer’s receipt of such change, amendment or modification, unless Customer sends written notice to Company of its objection to such change amendment or modification during such period, and Customer agrees that Customer’s continued use of the Company services after such time shall constitute Customer’s acceptance of such changes, amendments or modifications.

Fees; Renewals

Customer agrees to pay all fees specified on the applicable Order Form. Fees are based on the services, Packages and Add-ons selected and not on actual usage. Any unused service cannot be carried over to subsequent months. Billing will start the day the Customer enters into this Agreement and will be prorated for the 1st month. Fees, charges and other payments by Customer are non-refundable (including if the Agreement is terminated before the end of the then-applicable term), and package levels cannot be decreased during the then applicable term.

Fees and charges for the services shall be paid in advance, either annually or monthly in accordance with the option indicated by Customer in the Order Form. Payment by Customer is due on receipt of an invoice from the Company. Customer is responsible for providing Company with complete and accurate billing and contact information and notifying Company of any changes to such information.

If Customer does not pay the Company the applicable amount due within thirty (30) days of the date of the applicable invoice, interest will accrue on the unpaid balance of any late payment at a rate equal to the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by Law, until all amounts owed have been paid. Customer shall be solely responsible for any Taxes payable to, or assessments made by, any governmental or taxing authority in connection with Customer’s use of or access to the Company’s services or any Package or Add-on. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible, Company will invoice Customer and Customer will pay that amount unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.

The term of this Agreement will commence when the Agreement has been entered into by Customer and accepted by Company, and will continue until all subscriptions hereunder have expired or been terminated. The term of each subscription for a service, Package, or Add On shall be as specified in the applicable Order Form. Except as otherwise specified in the Order Form, the service, Package or Add On will automatically renew for additional periods equal to the expiring term, unless either party gives the other party notice of non-renewal or termination at least 30 days before the end of the then current term. Company may increase the fees for a future renewal term by providing notice at least 60 days prior to the beginning of the applicable renewal term.

Limited Warranty, Liability, and Indemnification; Disclaimer of Warranties

Customer represents and warrants that Customer’s services, products or Customer Data, and providing any Customer Data or rights to Customer Data to Company pursuant to this Agreement, do not and will not violate or infringe any third-party rights or agreements applicable to Customer or to which Customer is a party or personal rights or require consent of any third party under any agreement or instrument to which Customer is a party or by which Customer is bound.

Warranty Disclaimer. Company does not make, and hereby specifically excludes and disclaims, all warranties regarding Company services and products, whether express or implied, including without limitation all implied warranties of merchantability, fitness for a particular purposes, non-infringement, loss or corruption of data, and implied indemnities, and all such services and products are provided “as is.” Company does not warrant that the services will satisfy Customers or truck buyer’s needs or that the services are or will be uninterrupted, complete or error-free.

Limitation of Liability. Other than a failure to comply with the Confidentiality obligations, or the representation on Listings contained herein, neither party shall have any liability for any indirect, incidental, consequential, exemplary, punitive or special damages of any kind, including without limitation loss of profits, data or goodwill, for any matter in any way related to this Agreement, even if the other party knows or should have known of the possibility of such damages. Neither party may bring any action or claim hereunder more than one year after the cause of action has accrued. To the maximum extent permitted by applicable law, Company’s total liability (and Customer’s exclusive remedy) shall be limited to direct money damages not exceeding the amount paid by Customer to Company during the twelve (12) months preceding the date of accrual of the claim, and the existence of multiple claims shall not enlarge the limit. In the event such action arises at any time before the completion of the initial 12 months, the fees and charges due to Company at such time will be annualized for purposes of calculating the maximum liability owed for any damages hereunder.

Customer shall indemnify, defend and hold harmless Company and its officers, directors, associates, members, partners, employees and affiliates from and against any loss, liability or expenses (“Losses”) arising out of or relating to any claim, action, or proceeding brought by a third party (“Claim”) against Company regarding this Agreement arising out of breach by Customer of any provisions of this Agreement, including, but not limited to, any claim based on Listings.

Company shall indemnify, defend and hold harmless Customer and its officers, directors, associates, members, partners, employees and affiliates from and against any Losses arising out of or relating to any Claim against Customer regarding this Agreement arising out of breach by Company of any provisions of this Agreement.

The Company enters into this Agreement as an independent contractor. Nothing in this Agreement will be construed as creating the relationship of joint-ventures, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent between Company and Customer.

Termination

This Agreement may be terminated as follows by: (i) either party upon written notice, if the other party is subject to a bankruptcy or makes an assignment of all or substantially all of its assets for the benefit of its creditors; (ii) the non-breaching party upon a party’s material breach if such breach is not cured within thirty (30) days after written notice is received by the other party identifying the material breach; or (iii) the non-breaching party immediately if a party’s material breach is such that it cannot be cured. Upon termination, access to the Company services and website will be terminated.

General

Nothing contained in this Agreement is intended to confer upon any third party any rights, benefits, or remedies of any kind or character whatsoever under or by reason of this Agreement. This Agreement, as may be amended from time to time as described herein, together with any applicable terms, conditions or provisions appearing on the Company website as part of this Agreement, sets forth the entire agreement, and supersedes any and all prior agreements, of Customer and Company with respect to the subject matter hereof. If any of the provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any law, the remaining provisions shall remain in full force and effect and shall not in any way be affected or impaired. Customer may assign or transfer this Agreement or any rights or obligations under this Agreement with the prior written consent of the Company, which shall not be unreasonably withheld or delayed, provided that the assignee or transferee agrees in a writing satisfactory to the Company to assume and be bound by the provisions of this Agreement. The Company may assign this Agreement and its rights hereunder without the consent of Customer, including in connection with any merger, sale of assets, or similar transaction to which Company (or a parent or subsidiary of Company) is a party.

Any notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given (i) one business day after transmission by telecopier or other electronic transmission (including to an email address provided by the other party), with confirmation of successful transmission; (i) at the time of personal delivery, if delivery is in person; (iii) one business day after deposit with an express overnight courier for United States deliveries, with proof of delivery from the courier requested; or (iv) three business days after deposit in the United States mail by certified mail (return receipt requested) for United States deliveries when addressed to the party to be notified. A copy of any notice delivered by telecopier or electronic delivery shall also be sent by one of the other means, but failure to provide such copy shall not invalidate a notice otherwise properly delivered. All notices shall be sent (i) if to Customer to the address as shown for Customer on the signature page of this Agreement or on an Order Form (or as otherwise shown in the Company’s records), and (ii) if to the Company, to the address provided by the Company to Customer, or to such other address or number as shall be furnished in writing by any such party.