Article 1. – Scope and Use of Services; Client Responsibilities.
1.1. Services and Software. On the terms and subject to the conditions stated herein, DealerBuilt shall provide to Client, and Client shall obtain from DealerBuilt, the following:
(i) licenses to use the DealerBuilt software as set forth in Part I (previously referred to as the “Confidential Proposal” prior to execution by DealerBuilt and Client of the Signature Page) attached hereto and made a part of this Agreement for all purposes (the “Software”);
(ii) the various hardware, printers, scanners, battery backups, and other equipment (collectively, the “Equipment”) set forth in Part I;
(iii) The software support services set forth in Part I and as described in Article 3, for the fees indicated in Part I (collectively, the “Services”); and
(iv) installation of the Software and Equipment and training of Client’s employees and other users for use of the Software and Equipment as set forth in Part I for the fees indicated therein. Client may purchase additional installation and/or training services from DealerBuilt for additional consideration.
The rights and obligations of the parties with respect to the Software, Equipment and the Services described in Part I are subject to and governed by these Terms and Conditions. Part I, the Signature Page and these Terms and Conditions collectively constitute the Agreement between DealerBuilt and the Client. DealerBuilt and Client will each perform their respective obligations set forth in this Agreement.
1.2 Additional Software, Equipment and Services. DealerBuilt may, from time to time during the term of this Agreement, provide Client, at Client’s request and for additional consideration, with software, equipment and/or services that are not specifically covered by this Agreement. Any software, equipment or services outside the scope of this Agreement that Client requests and DealerBuilt agrees to perform will be provided and performed for fees and charges mutually agreed upon in writing by DealerBuilt and Client in a separate written agreement at DealerBuilt’s then‑prevailing standard rates.
1.3 Use of Software, Equipment and Services. Client agrees that it will use any Software, Equipment and Services provided by DealerBuilt hereunder in accordance with such reasonable practices and policies as may be established by DealerBuilt from time to time and as set forth in any materials furnished by DealerBuilt to Client. Client assumes exclusive responsibility for its use of the Software, Equipment and Services. Client agrees that, except as otherwise permitted by DealerBuilt in writing, Client will use the Software, Equipment and Services only for its own internal business purposes and will not sell or otherwise provide, directly or indirectly, any of the Software, Equipment or Services, or any portion thereof, to any unaffiliated third party.
1.4 Store Level System Administration and Hardware Installation. Client shall be solely responsible for all store level system administration and installation of all required hardware, unless otherwise agreed in writing in this Agreement, which shall include without limitation the following: (i) network operating system maintenance and support; (ii) installation of work stations as part of the base site network; (iii) all installation, maintenance, repair and replacement of servers, workstations, personal computers, peripherals, local area network equipment, personal computer equipment, central processing units (“CPUs”), printers, monitors, all CPU internal options, external storage devices, wiring required to install network, including printer cabling and associated network connections; (iv) installation of all upgrades and enhancements to existing personal computer systems; (v) all installation and setup of networks, including loading the operating system, Client’s standard applications software packages, and Client’s internally developed menus and file structure; and (vi) de-installation, relocation, and re-installation of personal computer systems.
1.5 Required Third Party Software. Client shall be solely responsible for the cost of licenses and upgrades and/or new versions of required third party software to operate DealerBuilt’s Software, including, but not limited to, those listed in Part I. Required third party software is subject to future revision. Client shall be solely responsible for upgrading such third party software upon notification by DealerBuilt. Client further agrees that such upgrades will not be performed without the prior consent of DealerBuilt. Should Client upgrade without the prior approval of DealerBuilt, DealerBuilt shall not be held liable for issues arising from such unapproved third party software upgrade. See Article 6.7 for matters of integration of non-required third party software products.
1.6 Communication Lines. Client agrees, at its sole expense, to install and maintain dedicated communications lines as reasonably requested and defined by DealerBuilt or from time to time in connection with providing Client with the Software, Equipment and Services set forth herein. (See Part I for communication bandwidth requirements.) Client shall be responsible for the reliability or continued availability of such communications lines. Client will not remove, disable, disconnect, or otherwise prevent DealerBuilt from accessing and using such communications lines. Client acknowledges that such communications lines are needed for DealerBuilt to provide Software and Services and to electronically audit the number of authorized users or terminals in accordance with maintenance provisions of this Agreement. Client acknowledges that the Software, Equipment and Services may have self-monitoring functions that result in accessing of and use of the communications lines and that Client is responsible for any associated costs or expenses in connection therewith. DealerBuilt’s access and use of the communications lines shall be at times and in a manner reasonably acceptable to Client.
1.7 Computer Environment. Client agrees that it is Client’s responsibility hereunder to provide at its sole expense an environment compatible with the Software and Equipment and as required for the Services, as described in this Agreement, as well as the full and complete cooperation of Client’s personnel and availability of equipment as may be required hereunder. Client hereby represents and warrants that an environment compatible with the Software and Equipment and as required for the Services exists or will exist, in good working order and operating condition, as of the date installation of the Software and Equipment is begun and that Client will maintain such environment in good working order throughout the term hereof at its sole expense.
Article 2. – Term.
The term of this Agreement begins on the Install Date and will expire on the third (3rd) annual anniversary of the Install Date; provided, however, that at least 90 days prior to the third (3rd) anniversary of the Install Date, Client shall provide written notice informing DealerBuilt of Client’s intent to renew or not renew this Agreement. Any renewal, including the term of any renewal periods, is at the discretion of Client; however, such renewal periods shall be in increments of no less than one (1) year.
Article 3. – Software and Services.
3.1 License Grant. DealerBuilt hereby grants to Client a non-exclusive license to use the Software set forth in Part I exclusively for Client’s internal use at the Retail Locations set forth in Part I commencing on the Install Date and continuing during the term of this Agreement until the expiration or termination hereof, subject to and in accordance with the other terms, conditions, and provisions of this Agreement, including the term of any renewal periods. Client acknowledges that it is a licensee of DealerBuilt of the Software. Client accepts such licenses and sublicenses, as the case may be, from DealerBuilt for the Software upon the terms and conditions set forth in this Agreement. The licenses and/or sublicenses for the Software granted by DealerBuilt to Client hereunder convey personal, non- exclusive, nontransferable (other than to Client’s majority-owned subsidiaries or franchises) rights and licenses and/or sublicenses, as the case may be, to Client to use the Software. (See Article 8.4 for language regarding transfers and sales of Dealerships.) DealerBuilt is and shall remain the exclusive owner of all rights in and to, and Client will have no ownership interest in, the Software, any modifications to the Software, or any new Software developed or created by or for DealerBuilt (including the source code thereto), even if such modification or Software is developed for the exclusive use of Client or by Client, unless otherwise agreed to by both parties in writing. Except as otherwise specified in this Agreement, all Software (including the magnetic or other physical media on which it is originally or subsequently recorded or fixed) will be returned by Client to DealerBuilt or will be completely deleted, erased or otherwise destroyed by Client, in accordance with DealerBuilt’s instructions, promptly after the termination or expiration of this Agreement.
3.2 Maintenance/Client Support and Implementation Services. During the term of this Agreement and subject to Client having currently paid all outstanding invoices, DealerBuilt will make available to Client new versions (“Versions”), and enhancements, fixes, patches and performance improvements made by DealerBuilt (hereinafter called “Updates”) to the Software as set forth in this Article 3.2 with no additional license fee charges. For purposes of this Agreement, Versions shall be defined as releases of the Software denoted by the number preceding the decimal (i.e., a release from 1.3 to 2.0). “Point” releases, such as 1.2 to 1.3 would not constitute a new Version. The provisions of this Article 3.2 do not apply to Versions and Updates (i) that DealerBuilt has developed on a custom basis for specific licensees, (ii) that DealerBuilt has developed for internal use without general distribution to licensees, or (iii) any new products, modules or other substantially enhanced functionality (which may or may not include Versions or Updates) that DealerBuilt may from time-to-time develop and for which DealerBuilt, in its sole discretion, charges a separate fee. DealerBuilt shall provide the Services to Client only with respect to DealerBuilt’s then current Version and the immediately preceding Version of the Software, as updated with all Updates issued by DealerBuilt subsequent to the date of the applicable Version. DealerBuilt agrees that Client is not required to upgrade to any subsequent Version for a period of at least twelve (12) months from the release date of the applicable subsequent Version and that DealerBuilt will continue to provide Services related to Client’s existing Version of Software for at least twelve (12) months from the release date of the subsequent Version. Client agrees that if Services are required on a Version that is earlier than the then-current or immediately preceding Version, Client, at its additional expense, will upgrade to the then-current Version before DealerBuilt shall be obligated to provide Services under this Agreement.
3.3 Documentation and Additional Computing Capacity or Hardware. DealerBuilt will provide documentation for appropriate Versions and Updates to Client for no additional charge. DealerBuilt will download all Versions and Updates to Client’s server upon the approval by Client or as required by DealerBuilt for a particular location. Versions and/or Updates will be deemed to be part of the Software upon installation. Client acknowledges that Versions and/or Updates may require the use of additional computing capacity or upgrades to Client’s hardware or other equipment or other third party software at Client’s sole cost and expense. DealerBuilt will provide at least 180 days notification to Client of required additional computing capacity or upgrades to Client’s hardware or other equipment. Should installation of new Versions or Updates require on-site manual intervention due to modifications made by Client at Client’s site, Client may request DealerBuilt for assistance in installing Versions and Updates at rates in effect at the time of the Services provided.
3.4 Services. During the term of this Agreement, DealerBuilt will provide the Services as set forth in Part I.
3.5 Changes to Software. Notwithstanding anything in this Agreement to the contrary, DealerBuilt reserves the right to make changes to the Software, including, without limitation, in operating procedures, programming languages, related programming methodology and documentation and other improvements required to maintain a current competitive system.
Article 4. – Prices and Payment.
4.1 License, Equipment and Service Fees. Client shall pay fees to DealerBuilt for licensing of Software, Equipment and Services pursuant to the Pricing set forth in Part I. Subject to Client’s termination rights under this Agreement, DealerBuilt can, by notice delivered to Client not less than ninety (90) days prior to any anniversary of the Install Date, increase or decrease the amount of any fees and charges chargeable or payable pursuant to Part I with respect to the period from and after such anniversary date; provided, however, that such adjustments shall not apply to any fees or charges accrued prior to such anniversary date and that annual increases will be by the increase in the Consumer Price Index or 5%, whichever is lower. Client acknowledges that if per forms charges listed in the DealerBuilt Laser and Electronic Forms Addendum can be increased at any time due to price increases passed on to DealerBuilt from the supplying third party.
4.2 Travel Expenses. The fees and charges stated in Part I for Services and initial training rendered on‑site, if any, at one or more Retail Locations of Client include the travel expenses of DealerBuilt’s service representatives. However, in the event any additional Services and/or training are required by the Client, Client shall reimburse DealerBuilt for the following travel expenses of DealerBuilt personnel to Client’s Retail Location or other places of business (subject to Client’s pre-approval and DealerBuilt’s providing Client with valid receipts or other appropriate documentation): (1) reasonable hotel, lodging, meals (including gratuities) and per diem expenses and applicable taxes, not to exceed the relevant per diem allowance as provided in the Internal Revenue Code, (2) air fare at available coach or economy rates, and (3) reasonable expenses for auto rental (including charges for fuel), tolls, parking, taxis or other ground transportation. At Client’s option, Client may make travel arrangements (air and ground travel and lodging) for DealerBuilt’s representatives, with DealerBuilt’s approval, the approval of which shall not be unreasonably withheld. Expenses associated with Client arranged air/land travel and lodging may be billed to and paid directly by Client at Client’s option.
4.3 Other Reimbursable Expenses. Client will also pay, or reimburse DealerBuilt for, all reasonable out‑of‑pocket expenses incurred by DealerBuilt in connection with (1) special Client‑requested courier deliveries, express mail or other shipping charges, and (2) other reimbursable expenses specified in Part I.
4.4 Taxes. In addition to the fees, charges and reimbursable expenses hereunder, Client will pay all federal, state, local, excise, sales, use and other taxes or levies (“Taxes”) now or hereafter levied or imposed under or on this Agreement, except for taxes based on DealerBuilt’s net income. Client will reimburse DealerBuilt for all such Taxes paid by DealerBuilt for which Client is responsible hereunder.
4.5 Payment of Invoices. Except for fees and charges due and payable by Client on the Install Date and as otherwise provided in this Article 4.5, or elsewhere in this Agreement, DealerBuilt will invoice Client on or about the twentieth (20th) day of each month for the fees and, charges attributable to the immediately following month. Client will pay all invoices in full within fifteen (15) days of each invoice date. DealerBuilt has the right to charge and collect a service fee on any unpaid, past-due amount equal to the lesser of (1) one percent (1%) per month or the prime rate (as published by J.P. Morgan Chase Bank) plus 4% (adjusted to a monthly basis), whichever is greater, or if less, (2) the highest interest rate legally permitted. Client will reimburse DealerBuilt for all reasonable collection expenses, including reasonable attorneys’ fees and court costs, for delinquent amounts.
Article 5. – Ownership, Use and Confidentiality.
5.1 Confidential Information. Except as otherwise provided or contemplated herein, each party agrees that all confidential information and trade secrets, including without limitation, the Software, Pricing, business plans and any document marked confidential or proprietary, communicated to it by the other before, on or after the Install Date, or included in the other party’s network system (collectively, “Confidential Information”), were and will be received in strict confidence, will be used only for purposes of this Agreement or as otherwise contemplated by this Agreement, and will not be disclosed by the recipient party. Upon the end of the term of this Agreement, each party will return promptly, on a best efforts basis, to the other party all Confidential Information in such party’s possession.
5.2 Use and Ownership of Confidential Information. Each party may use the Confidential Information of the other party only in conjunction with the Software, Equipment and Services as provided in this Agreement. Client shall not copy, in whole or in part, DealerBuilt’s Confidential Information or any related documentation, whether in the form of computer media, printed or in any other form; provided, however , that Client may make an appropriate number of copies of DealerBuilt’s Confidential Information for back-up purposes only. Neither party shall make any alteration, change or modification to any Confidential Information of the other party without the other party’s prior written consent in each instance. Any alterations, changes or modifications to the Software, however and by whomever made, shall be the property of DealerBuilt, and no license or right thereto is granted in this Agreement unless otherwise agreed to by both parties in writing. Client may not recompile, decompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work from, DealerBuilt’s Confidential Information.
5.3 Exceptions. Notwithstanding either party’s obligations pursuant to the foregoing, this Article 5 will not apply to any Confidential Information of a party that (a) was, at the time of disclosure, in the public domain (but the existence of a copyright notice on any Software will not cause or be construed as causing any such Software to be published copyrighted work or to be in the public domain), (b) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving party, (c) was in the possession of the receiving party at the time of disclosure without being subject to another confidentiality agreement, (d) was received after disclosure from a third party who had a lawful right to disclose such information, or (e) was independently developed by the receiving party without reference to Confidential Information of the furnishing party, or (f) is required by law to be disclosed.
5.4 Breach of Obligations. Each party acknowledges that if it breaches (or attempts to breach) its obligations under this Article 5, the other party will be irreparably harmed, and this Agreement may be enforced by the non-breaching party in an action for damages or injunctive relief, or both, it being recognized and agreed by the breaching party that the non-breaching party’s remedies at law may be inadequate under the circumstances. If an action for a temporary or permanent injunction is filed, the breaching party hereby irrevocably waives any requirement for the non-breaching party to post any bond or other security. The non-breaching party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, in addition to all other remedies available at law or in equity.
Article 6. – Excluded Services, Limitations of Liability, Indemnification.
6.1 Excluded Services. Notwithstanding any other provision hereof to the contrary, DealerBuilt is not required to provide any services under this Agreement to Client’s network operating system software, hardware or application software to the extent such services are excluded under this Agreement or if such services are required because of (1) improper use by Client of such software or hardware, including without limitation failure to follow DealerBuilt’s maintenance, installation or operation instructions, or because of moves, additions, changes, repairs, modifications or other maintenance made by Client or a third party (and not by DealerBuilt personnel or a DealerBuilt subcontractor) or made without DealerBuilt’s supervision or approval, (2) a manufacturer’s defect in such software or hardware or a defect or problem in software or hardware not supported by DealerBuilt hereunder, (3) damage occurring during shipment or arising out of failure of Client to maintain suitable environmental conditions (including failure of air conditioning or humidity control), accident or disaster, failure or fluctuations of electrical power or unusual physical or electrical stress, static electricity, use of materials or supplies that do not adhere to manufacturer specifications, or other cause other than ordinary use, or (4) a Force Majeure Event as described in Article 8.9.
6.2 Backup. Unless otherwise a part of purchased Services set forth in Part I, Client is responsible for back‑up and other protection of its data against loss, damage or destruction; DealerBuilt shall have no obligation or liability with respect thereto.
6.3 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED HEREIN, DEALERBUILT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, TO CLIENT OR ANY OTHER PERSON WITH RESPECT TO ANY SOFTWARE, EQUIPMENT OR SERVICES TO BE PROVIDED BY DEALERBUILT PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES REGARDING OWNERSHIP, MERCHANTABILITY, SUITABILITY, CAPACITY, ORIGINALITY, FITNESS FOR A PARTICULAR PURPOSE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE) OR RESULTS TO BE DERIVED FROM THE USE OF SERVICES.
6.4 Other Limitations of Liability. Notwithstanding any other provision hereof to the contrary, and in addition to any other limitation or release of liability set forth herein, the parties agree as follows:
(i) DealerBuilt, its employees, agents, contractors and subcontractors (a) can rely upon any instructions or information provided by Client or any persons designated in writing by Client and (b) will incur no liability for such reliance. In addition, DealerBuilt shall not be liable for any default or delay in performance of its obligations hereunder to the extent the same is caused, directly or indirectly, by (1) the failure of Client to comply with any of its obligations hereunder or (2) any unavailability or absence of the appropriate Client personnel or any busy signal or other inaccessibility received by DealerBuilt when trying to contact the appropriate Client personnel at their designated phone numbers. DealerBuilt and Client agree to establish appropriate lists of Client contacts at both the individual dealership level and the corporate level (as applicable) in order to minimize the likelihood of Client personnel unavailability.
(ii) IF DEALERBUILT OR ANY OF ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS, ARE EVER LIABLE TO CLIENT FOR ONE OR MORE BREACHES, DISPUTES, CONTROVERSIES OR CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIP CREATED HEREBY (WHETHER ANY SUCH BREACH, DISPUTE, CONTROVERSY OR CLAIM IS BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, EQUITY OR ANY OTHER LEGAL THEORY), (a) THE CUMULATIVE AMOUNT OF ALL DAMAGES AND PENALTIES, IF ANY, RECOVERABLE BY CLIENT FOR ALL SUCH BREACHES, DISPUTES, CONTROVERSIES AND CLAIMS WILL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF THE LICENSE FEE PAID BY CLIENT UNDER PART I, DURING THE THREE MONTH PERIOD PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE CLAIM OF A BREACH OF THIS AGREEMENT AS SO ASSERTED BY CLIENT, (b) RECOVERY OF SUCH AMOUNT AS LIMITED HEREBY WILL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND (c) CLIENT RELEASES DEALERBUILT AND ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS AND CONTRACTORS FROM ANY LIABILITY IN EXCESS OF SUCH LIMITED AMOUNT. DAMAGES AND PENALTIES, IF ANY, RECOVERABLE BY CLIENT UNDER THIS PARAGRAPH WILL BE PAYABLE IN EQUAL MONTLHY INSTALLMENTS BY DEALERBUILT OVER THE REMAINING MONTHS OF THE ORIGINAL TERM OF THIS AGREEMENT.
(iii) IN NO EVENT SHALL DEALERBUILT OR ANY OF ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR (a) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF DEALERBUILT, CLIENT OR SUCH OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (b) PUNITIVE DAMAGES, LOSS OF ANTICIPATED PROFITS, SAVINGS OR BUSINESS, OR LOSS OF COMMERCIAL REPUTATION, OR (c) DAMAGES THAT COULD HAVE BEEN AVOIDED, USING REASONABLE DILIGENCE, BY CLIENT OR SUCH OTHER PERSON. EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS PROVISION IS EXPRESSLY INTENDED TO RELEASE DEALERBUILT FROM AND CLIENT HEREBY DOES RELEASE DEALERBUILT FROM ANY AND ALL CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO DEALERBUILT’S NEGLIGENCE OR STRICT LIABILITY IN CONNECTION WITH THIS AGREEMENT.
(iv) Each party waives all rights of recovery, claims, actions or causes of action against the other party and its affiliates, and their respective directors, officers, employees, agents and contractors for any loss or damage that may occur to such party’s facilities, any improvements thereto, or any building or project of which such party’s facilities are a part, or any improvements thereon, or any personal property of such party or any other person therein, by reason of fire, the elements or any other cause that could be insured against under the terms of standard fire and extended coverage insurance policies, REGARDLESS OF CAUSE OR ORIGIN, INCLUDING NEGLIGENCE OF THE OTHER PARTY OR ITS DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS. Each party covenants that no insurer will hold any right of subrogation against such other party.
(v) The limitations in this Article 6.4 represent the express agreement of the parties as to the allocation of risks between the parties. Each party fully understands and irrevocably accepts such limitations.
6.5 Indemnification; Procedures for Indemnification.
(i) Notwithstanding anything in Article 6.4(ii) to the contrary, but subject to the other limitations and exclusions set forth in this Article 6 and elsewhere in this Agreement, each party will indemnify and hold harmless the other party and its directors, managers, officers, employees, agents and affiliates against any and all damages, losses, claims, liabilities, obligations, commitments, costs or expenses (including reasonable attorneys’ fees and cost(s)), incurred by such other party that relate to this Agreement and arise out of (a) the death or bodily injury of any person, to the extent that such death or bodily injury was caused by the negligence or willful misconduct of such party or its employees or agents in the performance of such party’s obligations hereunder, and (b) subject to Articles 6.2 and 6.3, the damage, loss or destruction of any real or tangible personal property, to the extent that such damage, loss or destruction was caused by the negligence or willful misconduct of such party or its employees or agents in the performance of such party’s obligations hereunder.
(ii) Notwithstanding anything herein to the contrary, no indemnity obligation in Article 6.5(i) will apply unless the party claiming indemnification notifies the other party as soon as reasonably practicable of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other party the opportunity to control the response thereto and the defense thereof; provided, however, that the party claiming indemnification will have the right to participate in any legal proceedings, to contest and defend a claim for indemnification involving a third party and to be represented by its own attorneys, all at such party’s cost and expense; provided further, however, that no settlement or compromise of any asserted third‑party claim may be made without the prior written consent of the party claiming indemnification, which consent will not be unreasonably withheld.
6.6 Proprietary Rights Infringement. With respect to the Software developed by DealerBuilt, DealerBuilt represents, warrants and covenants that such Software is free from any claim of infringement of any United States patent, copyright, trademark or trade secret of any third party. DealerBuilt shall indemnify and hold Client harmless from any and all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of any infringement by such Software of any United States patent, copyright, trademark or trade secrets of any third party provided that (i) as soon as reasonably practical after becoming aware of the existence of any claim or litigation for which indemnity may be sought under this Article 6.6, Client shall give DealerBuilt written notice thereof, together with any and all documentation related to such claim or litigation; (ii) DealerBuilt shall have full control over the defense and settlement of any claim or litigation for which indemnification is sought under this Article 6.6; and (iii) Client shall cooperate with DealerBuilt in every reasonable way, at DealerBuilt’s expense, to facilitate the defense or settlement of any such claim or litigation. DealerBuilt disclaims, and Client releases DealerBuilt from, any liability for any claims of patent, copyright, trademark or trade secret infringement based on Client’s use of the Software, Equipment or Services in combination with software, equipment, data or services not supplied by DealerBuilt as part of this Agreement or resulting from any modification or attempted modification of the Software, Equipment or Services made by anyone other than DealerBuilt or its designee.
6.7 Non-Required Third Party Products. Client may use any software or other products owned by Client or licensed by Client from a third party (the “Non-Required Third Party Products”) at Client’s dealership and other locations, provided that such Non-Required Third Party Products are not used in conjunction with the Software, Equipment or Services prior to DealerBuilt’s approval of such Non-Required Third Party Products pursuant to this Article 6. If Client desires to use a particular Non-Required Third Party Product in conjunction with the Software, Equipment or Services, Client may request that DealerBuilt, from time to time under this Agreement and at DealerBuilt’s then prevailing charges therefor, approve Non-Required Third Party Products for use in conjunction with the Software, Equipment or Services. DealerBuilt shall, within a reasonable time, perform such procedures, if any, as are, in DealerBuilt’s opinion, necessary for it to determine whether it can give Client the approval for the Non-Required Third Party Products sought by Client pursuant to this Article 6.7, such approval not to be unreasonably withheld. DealerBuilt shall not provide Services for the Non-Required Third Party Products and any and all support for such Non-Required Third Party Products shall be solely Client’s responsibility. Client will not use the Non-Required Third Party Products in conjunction with the Services or Software prior to complying with the steps set forth herein. In the event that DealerBuilt denies approval of any Non-Required Third Party Products for the reason that, in DealerBuilt’s opinion, use of the Non-Required Third Party Products in connection with the Software or Services would impair the Services or Software or would increase the level of Services that DealerBuilt, or its designee, would have to perform, Client shall have the option of (i) satisfying DealerBuilt, in accordance with criteria to be mutually agreed upon by DealerBuilt and Client, that the performance of the Services or Software would not be impaired and the Services to be performed by DealerBuilt, or its designee, would not be increased by such additional Non-Required Third Party Products, or (ii) as a condition of receiving DealerBuilt’s approval for the use of the Non-Required Third Party Products in question, agreeing with DealerBuilt as to appropriate changes in DealerBuilt’s warranties set forth in this Agreement, and in the level of Services (and the charges therefor), in order to enable DealerBuilt not to be in breach of its obligations under this Agreement. Client agrees that DealerBuilt shall not be responsible, now or in the future, for the installation of or maintenance for any Non-Required Third Party Products or for any modifications to the Services or Software necessary to correct or place any Non-Required Third Party Products in good working order. Client further acknowledges that use of any Non-Required Third Party Products with the Services or Software involves potential risks that may result in system degradation and may adversely affect the performance of the Services and Software. DealerBuilt shall be under no obligation now or in the future to correct any such problems, and DealerBuilt shall not have any obligation or responsibility to reconstruct any Confidential Information of Client or data or programs that may be lost or damaged as a result of Client’s use of Non-Required Third Party Products. If the installation or use of Non-Required Third Party Products has adverse effects on any Services or Software, or results in any damages or destruction of DealerBuilt or Client data, Client agrees to immediately disconnect or remove the Non-Required Third Party Products upon reasonable prior notice from DealerBuilt.
Article 7. – Termination.
7.1 Termination for Cause. If either party breaches any of its material obligations under this Agreement, which breach, if capable of being cured, is not substantially cured within thirty (30) days after notice specifying the breach is given to the breaching party, the non-breaching party may terminate this Agreement for cause as of a future date specified in such notice of breach.
7.2 Termination for Nonpayment. If Client fails to pay when due any amount due by Client to DealerBuilt pursuant to this Agreement, DealerBuilt may, by notice to Client specifying such default and DealerBuilt’s intention to terminate this Agreement as a result thereof, terminate this Agreement effective as of a date specified in such notice, which termination date shall be more than ten (10) days after the date such notice is delivered by DealerBuilt; provided, however, that (i) this Agreement shall not be terminated pursuant to this sentence as a result of such default if such default is fully cured by Client within ten (10) days after such notice is delivered by DealerBuilt, and (ii) after delivery of any such notice DealerBuilt shall not be required to render any further Services under this Agreement unless and until such default is fully cured prior to termination of this Agreement.
7.3 DealerBuilt Rights Upon Termination. Upon the end of the Term, Client will pay all Taxes, fees, reimbursable expenses and other charges incurred through the effective date of such expiration or termination and payable by Client under this Agreement. In addition, Client specifically acknowledges and agrees that if this Agreement is terminated by reason of default of Client, DealerBuilt shall be entitled to recover agreed upon liquidated damages in an amount equal to the product of the number of full monthly periods remaining after the date of termination through the end of the term of this Agreement times the average (for the three months preceding a termination under this Article 7.3 of this Agreement) applicable monthly charges, related to all dealerships in which the Software has been installed, paid by Client to DealerBuilt hereunder, discounted at the one (1) year LIBOR rate as published in the Wall Street Journal (or any successor or similar newspaper hereafter published and in general circulation throughout the United States reporting similar information), which amount DealerBuilt and Client have mutually determined to be fair and reasonable in the light of the anticipated harm to be caused by the breach, the difficulties of proof of loss, and the unavailability of adequate remedy. Upon termination of this Agreement for any reason, DealerBuilt shall not be required to render any further Software, Equipment or Services under this Agreement. However, Client will be permitted to continue to use the Software for its internal use only; provided that Client has paid the liquidated damages described in this Article 7.3 and in other Articles of this Agreement. Should such liquidated damages not be paid, Client shall promptly discontinue use of the Software and Equipment and return to DealerBuilt any proprietary Software, Equipment or materials and DealerBuilt shall have the right to disable the Software and Equipment and terminate all Services.
7.4 Right of Client to Terminate. Notwithstanding any provisions to the contrary contained in this Agreement, at any time during the three- year initial term or any renewal term of this Agreement, in the event both (i) a sale of all of the equity interests of DealerBuilt occurs, or DealerBuilt sells substantially all of its assets, or DealerBuilt merges or reorganizes with another entity and DealerBuilt is not the survivor thereof, AND (ii) thereafter, DealerBuilt or its successor entity or the purchasing entity no longer offers the Software, Equipment and Services to Client which are the subject of this Agreement, then Client shall have the option to terminate this Agreement by giving written notice to DealerBuilt of such intent to terminate. Except as expressly provided herein to the contrary, upon such termination of this Agreement by Client, all rights and duties of Client and DealerBuilt hereunder shall cease, and no amounts whatsoever shall be payable to either party under this Agreement except as may have accrued with respect to periods before the date of termination.
Article 8. – General.
8.1 Relationship of Parties. The relationship of DealerBuilt to Client is that of an independent contractor and neither DealerBuilt nor its agents or employees shall be considered employees or agents of Client. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture or grant of a franchise between DealerBuilt and Client. Client shall not have the right to bind DealerBuilt to any obligations to third parties.
8.2 Non-Hire. During the term of this Agreement and for six (6) months after the expiration or termination thereof, each party agrees that it shall not, without the other party’s prior written consent, solicit directly or indirectly the employment of any employee of the other party.
8.3 Notices; Reports. Except as otherwise expressly provided in this Agreement and except for routine operational communications, all notices will be in writing and delivered personally (or by courier) or sent by telecopy, other facsimile transmission, overnight delivery service or certified or registered mail, postage prepaid to the address of the other party set forth on the cover page of this Agreement or to such other address designated in writing.
8.4 Assignments; No Third Party Rights. This Agreement may not be assigned by Client without DealerBuilt’s prior written consent; any attempted assignment without DealerBuilts’ prior written consent is void and of no effect. This Agreement shall be binding upon and shall inure to the benefit of DealerBuilt and Client, their respective successors and permitted assigns, if any.
8.5 Use of Contractors. DealerBuilt reserves its rights to utilize contracted employees or subcontractors to meet its requirements under the terms, conditions, and obligations stated in this Agreement without the prior consent of Client.
8.6 Severability. If any provision of this Agreement or the application thereof to any person or circumstance, is declared judicially to be invalid, unenforceable or void, such decision will not invalidate or void the remainder of this Agreement. Instead, this Agreement will be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent.
8.7 Entire Agreement; Amendment; Waiver; Headings. This Agreement constitutes the entire agreement, and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, between the parties with respect to the subject matter hereof. There are no representations, understandings or agreements relating to the subject matter hereof that are not fully expressed herein. This Agreement may be amended only by a written instrument duly executed by both parties. No waiver of a party’s rights hereunder will be enforceable against such party unless in writing and signed by such party. Headings in this Agreement are for convenience of reference and shall not affect interpretation.
8.8 Governing Law. This Agreement will be construed in accordance with, and the rights of the parties will be governed by, the substantive laws of the State of Iowa without giving effect to any choice-of‑law rules that may require the application of the laws of another jurisdiction.
8.9 Force Majeure. Nonperformance or delay by DealerBuilt under this Agreement shall not be deemed a breach hereof, where such nonperformance or delay results or arises from war, fire, flood, embargo, explosion, governmental action, strike, lockout, act of God, labor or material shortage, failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment or lines or other equipment, or the nonperformance or delay of Client or any third party (including but not limited to modification and/or termination of any service or equipment provided to DealerBuilt by contractor(s) or third parties and necessary and appropriate in order for DealerBuilt to perform its obligations hereunder at a reasonable cost), or for any other cause beyond DealerBuilt’s reasonable control (“Force Majeure Event”); provided that, DealerBuilt shall never be required against its will to settle any labor dispute. In the event that DealerBuilt is prohibited or delayed from performance, any time period for performance by DealerBuilt shall be extended by the duration of the Force Majeure Event. DealerBuilt shall give Client notice as soon as reasonably practicable of any Force Majeure Event and shall attempt to resume performance as soon as reasonably possible in DealerBuilt’s determination; provided, however , that if in the reasonable business judgment of DealerBuilt, DealerBuilt cannot resume performance under conditions comparable to the conditions in effect prior to the occurrence of such Force Majeure Event, DealerBuilt shall have the right and option to modify or terminate, in whole or in part, this Agreement or any part hereof without penalty or future payment or obligation. The occurrence of a Force Majeure Event shall not excuse Client of its payment obligations under this Agreement; however, appropriate mutually agreeable pro-rata adjustments to fees payable by Client would be made to reflect non-performance by DealerBuilt due to a Force Majeure Event. Termination by DealerBuilt of all or a portion of this Agreement under this Article 8.9 shall not relieve the Client of its obligation to pay DealerBuilt for all fees, charges, and expenses due or owed at the time of termination.
8.10 Survival. The provisions contained in this Article 8.10 and the Articles entitled “Ownership, Use and Confidentiality,” “Excluded Services, Limitations of Liability, Indemnification, Etc.” and “Termination” shall survive termination of this Agreement for any reason.
8.11 Laws And Governmental Regulations. Client agrees that it shall, and that its use of the Software, Equipment and Services shall, comply with all applicable laws and/or governmental regulations, and that DealerBuilt shall not have any responsibility relating thereto (including, without limitation, advising Client of Client’s responsibilities in complying with any laws or governmental regulations affecting Client’s business). If, in DealerBuilt’s reasonable opinion, any of the Software, Equipment or Services violates or is likely to violate any law or governmental regulation, DealerBuilt may, upon written notice to Client, immediately cease providing such Software, Equipment and/or Services to Client.
8.12 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall constitute an original but all of which together shall constitute one and the same instrument. A facsimile copy of the signature of a person executing this Agreement shall be effective as an original signature. Each party agrees that the delivery of this Agreement by facsimile or by electronic mail in “portable document format” shall have the same force and effect as delivery of original signatures, and that each party may use such facsimile or electronic mail signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used.
8.13 Disputes. If a dispute arises under this Agreement between Client and DealerBuilt, and the parties are unable to resolve the dispute by good faith negotiations, either party may, by written notice to the other party, have such dispute referred to and decided and settled by a panel of three arbitrators, one selected by each of Client and DealerBuilt and the third to be selected by agreement of the parties. Selection of the first two arbitrators by each of Client and DealerBuilt shall be made within ten (10) business days after the effective date of the written notice, and the parties shall mutually agree on the third arbitrator within ten (10) business days following their selection of the first two arbitrators. If the parties cannot reach agreement on the third arbitrator within the second ten-day period, then the two arbitrators so appointed will appoint the third within ten (10) business days following the expiration of such second ten- day period. The cost of arbitration proceedings, including without limitation the arbitrators’ compensation and expenses, hearing room charges and court reporter transcript charges, shall be borne by Client and DealerBuilt equally, or otherwise as the arbitrators may determine. The arbitration proceedings shall be held in Cerro Gordo County, IA unless Client and DealerBuilt agree otherwise in writing. These arbitration provisions shall not prevent either party from seeking injunctive or other equitable relief in the appropriate forum.
8.14 Attorneys’ Fees and Costs. In the event of any litigation between the parties arising out of this Agreement or the collection of any funds due to DealerBuilt or Client pursuant to this Agreement, the prevailing party shall be entitled to recover all reasonable costs incurred, including, without limitation, reasonable attorneys’ fees and costs.