CarSnoop Software as a Service Agreement


This Software as a Service Agreement (this “Agreement”), effective as of July 27, 2024 (the “Effective Date”), is by and between CarSnoop Inc., a Delaware Corporation with offices located at 480 W. Poplar Street, Zionsville, IN 46077 (“CarSnoop”) and , with offices located at , ,  (“Dealer”). CarSnoop and Dealer may be referred to herein collectively as the “Parties” or individually as a “Party”.

WHEREAS, CarSnoop provides access to the Services (as defined below) to automotive dealers; and

WHEREAS, Dealer desires to access the Services, and CarSnoop desires to provide Dealer access to the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  • 1. DEFINITIONS.

    "Aggregated Statistics" means data and information related to Dealer’s use of the Services that is used by CarSnoop in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

    "Authorized User" means Dealer’s employees, consultants, contractors, and agents who are authorized by Dealer to access and use the Services under the rights granted to Dealer pursuant to this Agreement.

    "CarSnoop Materials" means the Services, the Documentation, and any and all intellectual property provided to Dealer or any Authorized User in connection with the foregoing. For the avoidance of doubt, CarSnoop Materials includes Aggregated Statistics and any information, data, or other content derived from CarSnoop’s monitoring of Dealer’s or any Authorized User’s access to or use of the Services, but does not include Dealer Data.

    "CarSnoop Systems" means the information technology infrastructure used by or on behalf of CarSnoop in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by CarSnoop or through the use of third-party services.

    "Dealer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Dealer or an Authorized User through the Services.

    "Dealer Systems" means the Dealer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Dealer or through the use of third-party services.

    "Documentation" means CarSnoop’s user manuals, handbooks, and guides relating to the Services provided by CarSnoop to Dealer either electronically or in hard copy form.

    "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

    "Order Form" means the order form filled out and submitted by or on behalf of Dealer, and accepted by CarSnoop, for Dealer’s purchase of the license(s) for the Services granted under this Agreement.

    "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

    "Services" means the software-as-a-service that allows Dealer to advertise automotive vehicles for sale, enter into transactions with buyers, and arrange for delivery of a purchased automotive to such buyer.

    "Third-Party Products" means any third-party products provided with or incorporated into the Services.

  • 2. ACCESS AND USE.
    • 2.1 Provision of Access. Subject to and conditioned on Dealer’s payment of Fees and compliance with all other terms and conditions of this Agreement, CarSnoop hereby grants Dealer a non-exclusive, non-transferable (except in compliance with Section 7) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. CarSnoop shall provide to Dealer the necessary login credentials to allow Dealer to access the Services promptly after the Effective Date.
    • 2.2 Documentation License. Subject to the terms and conditions contained in this Agreement, CarSnoop hereby grants to Dealer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 7) license to use the Documentation during the Term solely for Dealer’s internal business purposes in connection with its use of the Services.
    • 2.3 CarSnoop Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties:

      • (a) CarSnoop has and will retain sole control over the operation, provision, maintenance, and management of the CarSnoop Systems and CarSnoop Materials; and

      • (b) Dealer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Dealer Systems, and sole responsibility for all access to and use of the Services and any other CarSnoop Materials by any Person by or through the Dealer Systems or any other means controlled by Dealer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or CarSnoop; (ii) results obtained from any use of the Services or any other CarSnoop Materials; and (iii) conclusions, decisions, or actions based on such use.

    • 2.4 Use Restrictions. Dealer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Dealer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) copy, modify, or create derivative works of the Services or other CarSnoop Materials, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or other CarSnoop Materials; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (d) remove any proprietary notices from the Services or other CarSnoop Materials; or (e) use the Services or other CarSnoop Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable Law. If Dealer becomes aware of any actual or threatened activity prohibited by this Section 4, Dealer shall promptly notify CarSnoop of any such actual or threatened activity.
    • 2.5 Reservation of Rights. CarSnoop reserves all rights not expressly granted to Dealer in this Agreement, including all intellectual property rights in and to the Services, CarSnoop Systems, and other CarSnoop Materials. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Dealer or any third-party any intellectual property rights or other right, title, or interest in or to the Services, CarSnoop Systems, or other CarSnoop Materials.
    • 2.6 Changes. CarSnoop reserves the right, in its sole discretion, to make any changes to the Services and CarSnoop Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of CarSnoop’s services to its customers; (ii) the competitive strength of or market for CarSnoop’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
    • 2.7 Suspension. Notwithstanding anything to the contrary in this Agreement, CarSnoop may temporarily suspend Dealer’s and any Authorized User’s access to any portion or all of the Services or other CarSnoop Materials if: (a) CarSnoop reasonably determines that: (i) there is a threat or attack on any of the CarSnoop Systems or the Services or other CarSnoop Materials; (ii) Dealer’s or any Authorized User’s use of the CarSnoop Materials disrupts or poses a security risk to the CarSnoop Systems, the Services or other CarSnoop Materials, or to any other customer or vendor of CarSnoop; (iii) Dealer, or any Authorized User, is using the CarSnoop Materials for fraudulent or illegal activities; (iv) subject to applicable Law, Dealer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) CarSnoop’s provision of the Services or other CarSnoop Materials to Dealer or any Authorized User is prohibited by applicable Law; (b) any vendor of CarSnoop has suspended or terminated CarSnoop’s access to or use of any third-party services or products required to enable Dealer to access the Services or other CarSnoop Materials; or (c) in accordance with Section 5.1(c) (any such suspension described in subclauses (a), (b), or (c) of this Section 2.7, a "2.7 Service Suspension"). CarSnoop shall use commercially reasonable efforts to provide Notice (as defined in Section 13.2) of any Service Suspension to Dealer and to provide updates regarding resumption of access to the Services and other CarSnoop Materials following any Service Suspension. CarSnoop shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. CarSnoop will have no liability for any Losses, or any other consequences that Dealer or any Authorized User may incur as a result of a Service Suspension.
    • 2.8 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, CarSnoop may monitor Dealer’s use of the Services and collect and compile Aggregated Statistics. As between CarSnoop and Dealer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by CarSnoop. Dealer acknowledges that CarSnoop may compile Aggregated Statistics based on Dealer Data input into the Services. Dealer agrees that CarSnoop may (a) make Aggregated Statistics publicly available in compliance with applicable Law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable Law; provided, however, that such Aggregated Statistics do not identify Dealer or Dealer’s Confidential Information.
  • 3. DEALER RESPONSIBILITIES.
    • 3.1 General. Dealer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Dealer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Dealer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Dealer will be deemed a breach of this Agreement by Dealer. Dealer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and other CarSnoop Materials, and shall cause Authorized Users to comply with such provisions.
    • 3.2 Third-Party Products. CarSnoop may from time to time make Third-Party Products available to Dealer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Dealer does not agree to abide by the applicable terms for any such Third-Party Products, then Dealer should not install or use such Third-Party Products.
  • 4. THIRD PARTY TRANSACTIONS USING THE SERVICES.
    • 4.1 Dealer Transactions with Automotive Purchasers. The Services include various capabilities that permit Dealer to enter into online transactions (each, a "Transaction") with third-party automotive purchasers (each, an "Automotive Purchaser") upon terms and conditions mutually agreed upon by Dealer and the applicable Automotive Purchaser. While this Agreement establishes general rules and procedures for Dealer’s interactions with the Services, the specific terms and conditions of each Transaction must be established and mutually agreed upon separately between Dealer and the applicable Automotive Purchaser.
    • 4.2 CarSnoop Responsibilities with Respect to Transactions. Dealer acknowledges and agrees that CarSnoop is not a party or an agent of any Transactions. CarSnoop does not set, control, or endorse the price, contract terms, quality, safety, conformance, or legality of the products and services advertised or offered for sale via the Services, the ability of Dealer to sell products and services, or the ability of Automotive Purchasers to buy such products and services. Notwithstanding anything to the contrary, in order to enhance the Services and protect against fraud or other unfair and deceptive business practices, CarSnoop reserves the right to modify listings and descriptions of the products and services in the event CarSnoop believes, in its sole discretion, that such listing or description, including without limitation any categorization, location, or type of such products and services, does not accurately reflect the nature of the Dealer’s products and services offered. Dealer acknowledges and agrees that CarSnoop is not and shall not be held responsible or liable in any manner for Dealer’s failure to comply with Laws with respect to Dealer’s use of the Services, and Dealer further agrees and acknowledges that the Services act as a technology service that allows Dealers to market automotive products and services to third-party potential purchasers. CarSnoop cannot, and does not, control whether Dealer and Automotive Purchasers will complete the purchase or sale of products or services offered for sale by Dealer. CarSnoop is not responsible for payment or collection with respect to orders made or bids placed on the Services or with respect to products or services made available via the Services. Dealer shall determine, in their sole discretion and without any input from or reliance upon CarSnoop, whether or not to accept any bid to purchase Dealer’s products and services from any third-party, including a would-be Automotive Purchaser. CarSnoop does not represent or warrant the effectiveness or validity of any transaction in the Dealer’s and Automotive Purchasers’ respective jurisdictions and does not endorse any contracts or agreements arising or resulting from any transaction via the Services.
    • 4.3 Disputes Between Dealer and Automotive Purchasers and Third-Party Providers of Products and Services. If Dealer has a dispute with another user of the Services, an Automotive Purchaser, or a third-party provider of products and services made available through the Services (including, without limitation, automotive delivery services), or suffer any harm arising out of or connected with any other user of the Services, Automotive Purchaser, or the acts or omissions of such third-party providers of products and services made available through the Services, Dealer hereby waives all claims against and releases CarSnoop and its subsidiaries, employees, officers, directors, shareholders, suppliers, joint ventures and agents from any and all liability for claims, demands, actual and consequential damages, costs and expenses, including litigation costs and attorneys’ fees, and other Losses of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the Services, any acts or omissions of other user of the Services, actual or potential Automotive Purchaser, or any third-party provider of products and services made available through the Services with regards to such dispute. In addition to any other indemnification obligations of Dealer, Dealer shall indemnify, defend and hold CarSnoop harmless for any Losses arising from or related any dispute as set forth in this Section 3. CarSnoop’s sole obligation in the event of such dispute between Dealer and another user of the Services or a Automotive Purchaser is to provide information as necessary to assist such Persons in resolving the dispute, provided the information is not subject to confidentially provisions restricting its disclosure.
  • 5. FEES AND PAYMENT.
    • 5.1 Fees. Dealer shall pay CarSnoop the fees ("Fees") as set forth in the Order Form without offset or deduction. Dealer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Dealer fails to make any payment when due, without limiting CarSnoop’s other rights and remedies: (a) CarSnoop may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Dealer shall reimburse CarSnoop for all costs incurred by CarSnoop in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for ten (10) days or more, CarSnoop may suspend Dealer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
    • 5.2 Fees During Renewal Terms. CarSnoop’s Fees are fixed during the Initial Term. CarSnoop may increase Fees for any Renewal Term by providing Notice to Dealer at least sixty (60) calendar days prior to the commencement of such Renewal Term. No increase in Fees in effect for any Renewal Term shall exceed the greater of: (a) five percent (5%) of the Fees effective during the immediately preceding Initial Term or Renewal Term; (b) the percentage by which the then most-recently published Consumer Price Index (All Urban Consumers, "CPI-U") exceeds the CPI-U published in the same month of the preceding calendar year, or other indication of inflation in the United States should the CPI-U no longer be published.No increase in Fees is effective unless made in compliance with the provisions of this Section 2.
    • 5.3 Taxes. All Fees and other amounts payable by Dealer under this Agreement are exclusive of taxes and similar assessments. Dealer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Dealer hereunder, other than any taxes imposed on CarSnoop’s income.
  • 6. EARLY ADOPTER PROGRAM. If the Order Form specifies that Dealer is part of CarSnoop’s early adopter program, the terms and conditions set forth in Exhibit A is incorporated as if set forth in its entirety herein, and such terms and conditions will take precedence over any conflicting terms and conditions set forth in the main body of this Agreement. The Parties agree and acknowledge that the foregoing shall not apply, and Exhibit A shall be void and of no force or effect, if the Order Form does not identify Dealer as part of the early adopter program.
  • 7. CONFIDENTIAL INFORMATION. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third-party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any Person, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable Law, provided, however, that the Party making the disclosure pursuant to the order shall first have given Notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, at the disclosing Party’s request, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, to the extent it is not reasonably feasible to remove or destroy Confidential Information from disaster recovery or other archival systems, the receiving Party shall be relieved from the foregoing return or destroy obligation, provided, however, that all such Confidential Information shall remain subject to the confidentiality obligations under this Agreement, including after expiration or termination of this Agreement for any reasons, until such time that the Confidential Information of the disclosing Party is no longer maintained on such disaster recovery or archival systems. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from after the expiration or termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable Law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable Law.
  • 8. INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK.
    • 8.1 CarSnoop Materials. Dealer acknowledges that, as between Dealer and CarSnoop, CarSnoop owns all right, title, and interest, including all intellectual property rights, in and to the CarSnoop Materials and, with respect to Third-Party Products, the applicable third-party provider owns all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
    • 8.2 Dealer Data. CarSnoop acknowledges that, as between CarSnoop and Dealer, Dealer owns all right, title, and interest, including all intellectual property rights, in and to the Dealer Data. Dealer hereby grants to CarSnoop a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Dealer Data and perform all acts with respect to the Dealer Data as may be necessary for CarSnoop to provide the Services to Dealer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Dealer Data incorporated within the Aggregated Statistics.
    • 8.3 No CarSnoop Liability for Dealer Data. CarSnoop expressly disclaims any and all liability in connection with Dealer Data. CarSnoop does not permit copyright infringing activities or infringement of intellectual property rights within the Services and CarSnoop reserves the right to remove Dealer Data without notice if properly notified that such Dealer Data infringes on another’s intellectual property rights or in accordance with the Digital Millennium Copyright Act and CarSnoop’s related policies.
    • 8.4 Feedback. If Dealer, its Authorized Users, or any of its other employees, contractors and/or agents sends or transmits any communications or materials to CarSnoop by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or other CarSnoop Materials, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“ Feedback ”), CarSnoop is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Dealer hereby assigns to CarSnoop on Dealer’s behalf, and on behalf of its Authorized Users and other employees, contractors and/or agents, all right, title, and interest in, and CarSnoop is free to use, without any attribution or compensation to any Person, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, including any intellectual property rights therein (other than patent rights), for any purpose whatsoever, although CarSnoop is not required to use any Feedback.
  • 9 WARRANTIES; DISCLAIMERS.
    • 9.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is a duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has, and throughout the Term and any additional periods during which it does or is required to perform under this Agreement will retain, the full right, power, and authority to enter into this Agreement and perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (e) the execution, delivery and performance of this Agreement by the Party will not violate, conflict with, require consent under or result in any breach or default under any of the provisions of any contract or agreement to which it is a party.
    • 9.2 Dealer Representations and Warranties. Dealer represents, warrants, and covenants that: (a) Dealer has obtained all licenses, authorizations, approvals, consents, or permits required by applicable Laws to conduct business generally, use the Services, and to perform its obligations under this Agreement; (b) it owns or has the necessary licenses, rights, consents, and permissions to use, including any privacy, publicity, or any other intellectual property rights, necessary to allow CarSnoop to use Dealer Data in the manner contemplated by the Services and this Agreement; (c) the Dealer Data does not and will not violate any copyright, trademark, trade secret, or other intellectual property or other right of any third-party; (d) the Dealer Data does not and will not contain material that is unlawful, obscene, defamatory, pornographic, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory, or otherwise objectionable; and (e) the Dealer Data does not and will not offer or disseminate fraudulent products, services, schemes or promotions that does or may violate (in CarSnoop’s sole discretion) any unfair and deceptive practices, consumer protection, or other similar Laws.
    • 9.3 Limited Warranty. CarSnoop warrants that, for a period of ninety (90) days after the Effective Date (the “ Warranty Period ”), the Services will conform in all material respects as set forth in the Documentation when accessed and used in accordance with the Documentation. CarSnoop does not make any representations or guarantees regarding uptime or availability of the Services. The remedies set forth in Section 4 are Dealer’s sole remedies and CarSnoop’s sole liability under the limited warranty set forth in this Section 9.3. THE FOREGOING WARRANTY DOES NOT APPLY, AND CARSNOOP STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS AND SERVICES THAT ARE MADE AVAILABLE ON OR THROUGH THE SERVICES (INCLUDING, WITHOUT LIMITATION, AUTOMOTIVE DELIVERY SERVICES). all products and services provided by third-parties are provided “AS IS” and any representation or warranty arising from or related to any such products and services provided by third-parties are strictly between Dealer and the Third-Party who provides such products and services.
    • 9.4 Sole Remedy. In the event the Services do not perform as warrantied in Section 3, CarSnoop shall, in CarSnoop’s sole discretion, use commercially reasonable efforts to remedy such defect or terminate this Agreement, provided that Dealer notifies CarSnoop in writing of such defect before the expiration of the Warranty Period. The foregoing shall be Dealer’s sole obligation and CarSnoop’s sole remedy for any breach of the warranty set forth in Section 9.3.
    • 9.5. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 3, THE SERVICES AND OTHER CARSNOOP MATERIALS ARE PROVIDED “AS IS” AND CARSNOOP HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CARSNOOP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9.3, CARSNOOP MAKES NO WARRANTY OF ANY KIND THAT THE CARSNOOP MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET DEALER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
  • 10. INDEMNIFICATION.
    • 10.1 CarSnoop Indemnification.
      • 10.1.1. CarSnoop shall indemnify, defend, and hold harmless Dealer from and against any and all losses, damages, liabilities, costs, including reasonable attorneys’ fees (collectively, “ Losses ”), incurred by Dealer resulting from any third-party claim, suit, action, or proceeding (“ Third-Party Claim ”) that the Services or other CarSnoop Materials, or any use of the Services or other CarSnoop Materials in accordance with this Agreement, infringes or misappropriates such third-party’s US intellectual property rights, provided, however, that Dealer promptly notifies CarSnoop in writing of the claim, cooperates with CarSnoop, and allows CarSnoop sole authority to control the defense and settlement of such claim.
      • 10.1.2 If such a claim is made or appears possible, Dealer agrees to permit CarSnoop, at CarSnoop’s sole discretion, to (a) modify or replace the Services or other CarSnoop Materials, or component or part thereof, to make it non-infringing, or (b) obtain the right for Dealer to continue use the Services or other CarSnoop Materials, as applicable. If CarSnoop determines that neither alternative is reasonably available, CarSnoop may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on Notice to Dealer.
      • 10.1.3 This Section 1 will not apply to the extent that the alleged infringement arises from: (a) use of the Services or other CarSnoop Materials in combination with data, software, hardware, equipment, or technology not provided by CarSnoop or specified for Dealer’s use in the Documentation; (b) modifications to the Services or other CarSnoop Materials not made by CarSnoop; (c) Dealer Data; (d) Third-Party Products; or (e) other act, omission, or other matter described in Section 10.2, whether or not the same results in any Third-Party Claim against or Losses by Dealer.
    • 10.2 Dealer Indemnification. Dealer shall indemnify, hold harmless, and, at CarSnoop’s option, defend CarSnoop from and against any Losses arising from or related to any Third-Party Claim that the Dealer Data, or any use of the Dealer Data in accordance with this Agreement, infringes or misappropriates such third-party’s intellectual property rights and any Third-Party Claims based on Dealer’s or any Authorized User’s: (a) fraud or negligence or culpable act or omission (including recklessness or willful misconduct); (b) use of the Services in a manner not authorized by this Agreement; (c) use of the Services in combination with data, software, hardware, equipment or technology not provided by CarSnoop or authorized by CarSnoop in writing; (d) modifications to the Services not made by CarSnoop; (e) allegations of facts that, if true, would constitute Dealer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; (f) Dealer Data, including any processing of Dealer Data by or on behalf of CarSnoop in accordance with this Agreement or any instructions provided by Dealer; or (g) violation of Law, provided, however, that Dealer may not settle any Third-Party Claim against CarSnoop unless CarSnoop consents to such settlement, and further provided, however, that CarSnoop will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
    • 10.3 SOLE REMEDY. THIS SECTION 10 SETS FORTH DEALER’S SOLE REMEDIES AND CARSNOOP’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY CARSNOOP MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY.
  • 11. LIMITATIONS OF LIABILITY. IN NO EVENT WILL CARSNOOP BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CARSNOOP WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CARSNOOP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO CARSNOOP UNDER THIS AGREEMENT IN THE TWELVE (12) PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

    NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL CARSNOOP HAVE ANY LIABITY FOR DEALER’S OR ANY OTHER ENTITIES USE OF ANY PRODUCTS AND SERVICES (INCLUDING, WITHOUT LIMITATION, ANY AUTOMOTIVE DELIVERY SERVICES) PROVIDED BY THIRD-PARTIES THAT ARE MADE AVAIALBLE ON OR THROUGH THE SERVICES, AND ANY AND ALL LIABILITY ARISING FROM OR RELATED TO DEALER’S ANY OTHER ENTITIES USE OF ANY SUCH PRODUCTS AND SERVICES PROVIDED BY THIRD-PARTIES ARE STRICTLY BETWEEN DEALER AND THE THIRD-PARTY WHO PROVIDES SUCH PRODUCTS AND SERVICES.

  • 12. TERM AND TERMINATION.
    • 12.1 Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the end date set forth in the Order Form (the “ Initial Term ”).
    • 12.2 Renewal Terms. Unless otherwise stated on the Order Form, upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive terms equal in length to initial period specified on the Order Form unless either Party provides Notice of nonrenewal at least sixty (60) days prior to the end of the then-current term (each a “ Renewal Term ” and together with the Initial Term, the “ Term ”), or unless sooner terminated as provided herein. If the Term is renewed for any Renewal Term pursuant to this Section 2, the terms and conditions of this Agreement during each such Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal, subject to any change in the fees payable hereunder by Dealer during the applicable Renewal Term as set forth in Section 5.2. If either Party provides timely Notice of its intent not to renew this Agreement, then, unless otherwise sooner terminated in accordance with its terms, this Agreement shall terminate on the expiration of the then-current Term.
    • 12.3 Termination. In addition to any other express termination right set forth in this Agreement:
      • (a)        CarSnoop may terminate this Agreement, effective on Notice to Dealer, if Dealer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after CarSnoop’s delivery of Notice thereof; or (ii) breaches any of its obligations under Section 2.4 or Section 7;
      • (b)       either Party may terminate this Agreement, effective on Notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with Notice of such breach; or
      • (c)        either Party may terminate this Agreement, effective immediately upon Notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    • 12.4 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Dealer shall immediately discontinue use of the CarSnoop Materials and, without limiting Dealer’s obligations under Section 7, Dealer shall delete, destroy, or return all copies of the CarSnoop Materials and certify in writing to the CarSnoop that the CarSnoop Materials has been deleted or destroyed. No expiration or termination will affect Dealer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Dealer to any refund.
    • 12.5 Survival. The provisions set forth in the following Sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this this Section 12.5 and Sections 1, 4, 5, 7, 8, 9.4, 9.5, 10, 11, and 13.
  • 13. MISCELLANEOUS.
    • 13.1 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, Exhibit A to this Agreement, solely to the extent that Dealer is identified as part of the early adopter program in an Order Form; (b) second, this Agreement, excluding its exhibits; (c) third, the exhibits other than Exhibit A to this Agreement as of the Effective Date; and (d) fourth, any other documents incorporated herein by reference.
    • 13.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “ Notice ”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section 13.2). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 13.2.
    • 13.3 Force Majeure. In no event shall CarSnoop be liable to Dealer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond CarSnoop’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of Law or any action taken by a governmental or public authority, including imposing an embargo.
    • 13.4 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • 13.5 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • 13.6 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Indiana in each case located in the city of Indianapolis and County of Marion, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    • 13.7 Assignment Dealer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of CarSnoop, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section 13.7 will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    • 13.8 Export Regulation. The Services utilize software and technology that may be subject to US export control Laws, including the US Export Administration Act and its associated regulations. Dealer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by Law. Dealer shall comply with all applicable federal, state, and local Laws, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
    • 13.9 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Dealer, Section 4, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
    • 13.10 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
    •  

EXHIBIT A

Early Adopter Order Form

Quantity

Dealer agrees to subscribe to the CarSnoop Software as a Service platform (the “Platform”) for locations. A location is defined as a physical address as defined by the United States Postal Service.

Fee

$500 per transaction, up to a maximum of $1,500 USD per month per location, plus any applicable credit card or bank fees.

Term

One month.

Renewal

Automatically each month on the anniversary (the “Renewal Date”) of the Effective Date.

Payment Terms

Payment is due immediately to begin service, and on the Renewal Date thereafter.

Access

CarSnoop will provide Dealer with login access to the Platform within 24 hours of payment receipt.

Other Terms and Conditions

All other terms and conditions shall be governed by the Software as a Service agreement executed by the Dealer.

 

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

CarSnoop Inc.                                                   

By:                                                   

Name: Jon Gilman                                                 

Title: Chief Financial Officer                               

Date: July 27, 2024

                                                                                                       

(“Dealer”)       

Title:

Date: July 27, 2024

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Document name: CarSnoop Software as a Service Agreement
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January 19, 2024 12:26 pm EDTCarSnoop Sales Team - sales@carsnoop.com added by Jon Gilman - sales@carsnoop.com as a CC'd Recipient Ip: 195.252.198.33
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