Effective: June 21, 2021.

Vehicle.Photos, LLC, a Delaware limited liability company (“Vehicle.Photos”) provides a photo editing service to remove photo backgrounds to enhance photo quality. The Vehicle.Photos service gets a nightly inventory data feed.  The photos are edited and then return to the inventory data provider in order to publish on the Dealer website (collectively, the “Dealer Marketing Services”).

By accessing the Vehicle.Photos website or otherwise using the Dealer Marketing Services, each auto dealer, including all dealership owners, employees, contractors, agents, and others who access or use the Services (“Dealer User” or “Dealer”), agrees to be bound by the following Terms of Use and the Vehicle.Photos Privacy Policy. These Terms of Use and any written Services Agreement define the legal rights and obligations of all Dealer Users. If any Dealer User does not agree to be bound by all of these Terms of Use, such Dealer must not access or use any Dealer Marketing Services. Dealer Users represent and warrant to Vehicle.Photos that they are licensed new vehicle or franchise dealers and/or licensed used vehicle or wholesale vehicle dealers, and are authorized to operate an automobile dealership in each jurisdiction in which they conduct business.

DEALER MARKETING SERVICES

1.1 Dealer Marketing Services. Subject to the terms and conditions of this Agreement, the Dealer engages Vehicle.Photos to provide the above-described Dealer Marketing Services, and Vehicle.Photos agrees to provide such Dealer Marketing Services to the Dealer during the Term of this Agreement (defined below), including without limitation the specific services described in Order forms completed by the Dealer.

1.2 Compensation.In consideration of the above-described Dealer Marketing Services, the Dealer agrees to pay Vehicle.Photos the compensation described in Order forms completed by the Dealer.

1.3 Cross-Licenses.Subject to the terms and conditions of this Agreement, Vehicle.Photos grants to the Dealer a limited, non-exclusive, and revocable license to use the above-described Dealer Marketing Services for the limited purposes of this Agreement; and the Dealer grants to Vehicle.Photos a limited, non-exclusive, and revocable license to use the Dealer’s logos, names, trademarks, and service marks for the limited purposes of this Agreement.

1.4 Independent Relationship of the Parties.Vehicle.Photos and the Dealer agree that they are independent contractors and will perform their obligations under this Agreement as independent contractors. Nothing in this Agreement or the parties’ performance hereunder shall be construed to create any other relationship, including without limitation any relationship of employer and employee, principal and agent, partners, joint venturers, or co-owners. Neither party, nor any of their employees, officers, agents, or contractors shall be considered employees or agents of the other party. Each party shall be responsible for the payment of all of its own business licenses, insurance, federal, state, and local taxes or contributions imposed or required in connection with the services to be provided hereunder, including any such payment due under unemployment insurance, social security, income tax laws, and sales or service tax laws. Neither party shall have the right or authority to enter into any contract or incur any liability or obligation on behalf of any other party. Vehicle.Photos is not and will not be a party to any agreement between the Dealer and any of its consumers, whether or not such agreement results from the Dealer’s use of the Dealer Marketing Services.

1.5 Legal Compliance.Vehicle.Photos and the Dealer acknowledge and agree that Vehicle.Photos is an automotive technology company providing auto dealers with a digital platform, online inventory management, marketing, and delivery system services. The parties agree that Vehicle.Photos is not a licensed new vehicle or franchise dealer, nor a licensed used vehicle or wholesale vehicle dealer under any federal, state, or local licensing or regulatory system; and Vehicle.Photos is not required to be such a licensed or regulated dealer. The Dealer agrees that it is a fully licensed new vehicle or franchise dealer, or a fully licensed used vehicle or wholesale vehicle dealer, and shall be solely responsible for complying with all federal, state, and local laws, statutes, ordinances, and licensing and regulatory requirements.

TERM AND TERMINATION

2.1 Effective Date and Term.This Agreement shall be effective on the date stated in Order forms completed by the Dealer and will remain effective for three (3) consecutive months (the “Initial Term”). Thereafter, this Agreement shall be automatically renewed for successive one-month terms, unless terminated in writing by either party no less than thirty (30) days prior to the applicable renewal date or unless earlier terminated under Section 2.2 below.

2.2 Termination of Agreement.This Agreement may be terminated by either party at any time and for any reason on thirty (30) days written notice of termination. The Agreement may also be terminated for cause by either party at any time in the event of a material breach by the other party which remains uncured for thirty (30) days after the breaching party’s receipt of written notice of such breach. Vehicle.Photos and the Dealer agree that either party shall have the right to terminate this Agreement without notice in the event of: (a) the other party becoming insolvent, a debtor in any bankruptcy or receivership proceeding, or the subject of any claim or action that would impair its ability to perform its obligations hereunder; (b) the sale or disposition of all or substantially all of the other party’s assets; (c) the other party or any of its employees or agents being civilly sued or charged with any crime involving deceit, dishonesty, embezzlement, financial misconduct, fraud, misrepresentation, or violation of trust; (d) the other party’s failure to procure or maintain all required corporate authority or business licenses, report or pay any taxes, or maintain accurate records of accounts, contracts, or payments; (e) the other party’s breach of any representation or warranty hereunder; or (f) the mutual agreement of the parties.

2.3 Effect of Termination.On the expiration or termination of this Agreement, all rights granted hereunder shall terminate; provided that the provisions of this Agreement which, by their nature, are intended to survive the termination or expiration of this Agreement (including without limitation Section 1.3 above and Sections 3.1-3.6, 4.1-4.5, and 5.10-5.11 below) shall survive such expiration or termination. Promptly on the expiration or termination of this Agreement, the Dealer shall return to Vehicle.Photos all documents and tangible items provided to the Dealer in connection with the Dealer Marketing Services to be rendered hereunder, including without limitation all Confidential Information (defined below), together with all copies and abstracts thereof. The Dealer agrees that the Vehicle.Photos automobile dealer digital platform and website, and other Dealer Marketing Services provided under this Agreement shall not be used or repurposed for resale to any other person or entity.

INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION

3.1 Ownership of Intellectual Property.Except as expressly provided in Section 1.3 above, Vehicle.Photos and the Dealer each acknowledges and agrees that no right, title, or interest in the other party’s Intellectual Property (including without limitation registered and non-registered intellectual property, copyrights, trademarks, trade names, service marks, and other proprietary rights) related to its products, services, software, or technology will be transferred to the either party under or in connection with this Agreement or any related service contracts. Vehicle.Photos and the Dealer agree that each party shall retain its own Intellectual Property and other proprietary rights, title, and interest in such party’s existing products, services, software, and technology, and will acquire and retain any right, title, and interest in such property and technology (including without limitation the Vehicle.Photos auto dealer digital platform, website, and other Dealer Marketing Services) developed in the performance of this Agreement.

3.2 Mutual Protection of Confidential Information.At all times, both during the term of this Agreement and thereafter, Vehicle.Photos and the Dealer shall each hold in strictest confidence and shall not disclose, publish, or use any of the other party’s Confidential Information (defined below). Each party may use the other party’s Confidential Information only as may be required in connection with the Dealer Marketing Services hereunder. The term “Confidential Information” shall mean trade secrets, confidential knowledge, and any other proprietary non-public information that Vehicle.Photos or the Dealer, as applicable, owns, licenses, or has obtained from third parties to whom such party owes a duty of confidentiality with respect to such information, including without limitation: (a) data, designs, discoveries, ideas, improvements, inventions, know-how, programs, works of authorship, techniques, technology processes and solutions, trade secrets, and other sensitive information, including information received from customers or other third parties; (b) technical information relating to the parties’ existing and future products, including without limitation engineering or test data, software, source code, firmware, patent applications and disclosures, product development work, product specifications, and processes relating to the same; (c) confidential marketing information, including without limitation marketing strategies, costs, customer names and requirements, personally identifiable information, and pricing information; (d) confidential financial information; and (e) other confidential business and proprietary information. Notwithstanding the foregoing, information received by Vehicle.Photos or the Dealer shall not be considered Confidential Information if it: (x) has been published or is otherwise readily available to the public by means other than a breach of this Agreement; (y) has been rightfully received by Vehicle.Photos or the Dealer from a third party without any confidentiality limitations; or (z) was known by Vehicle.Photos or the Dealer, as evidenced by its records, prior to its disclosure to the other party.

3.3 Third-Party Confidential Information.Vehicle.Photos and the Dealer each understands that the other party may receive from third parties confidential or proprietary data or information (“Third-Party Information”) subject to a duty to maintain the confidentiality of such information and to use it only for certain limited purposes. The parties agree that they shall at all times hold such Third-Party Information in the strictest confidence and shall not disclose to anyone (other than their own personnel who need to know such information in connection with their work) or use such information, except in connection with the Dealer Marketing Services provided hereunder.

3.4 Legally Required Disclosure.Should Vehicle.Photos or the Dealer at any time become compelled by law to disclose any Confidential Information or Third-Party Information to a court, administrative body, or other government authority, such party shall immediately provide prior notice of such disclosure to the other party so as to enable such other party to seek a protective order in respect of such Confidential Information or Third-Party Information.

3.5 Remedies for Infringement or Breach.Vehicle.Photos and the Dealer each acknowledges and agrees that in the event of any infringement or threatened infringement of the Intellectual Property and Confidential Information provisions of Sections 3.1-3.4 above, money damages will be insufficient to remedy the non-infringing party’s loss, and therefore, such non-infringing party shall be entitled to any and all equitable relief, specific performance, injunctions, and restraining orders, in addition to any other applicable legal or equitable rights and remedies, in any court of competent jurisdiction or arbitration proceeding under Section 5.10 below.

3.6 Survival of Intellectual Property and Confidential Information Provisions.Vehicle.Photos and the Dealer agree that the Intellectual Property, Confidential Information, and remedy provisions of Sections 3.1-3.5 above shall survive the expiration or termination of this Agreement.

REPRESENTATIONS AND WARRANTIES

4.1 Representations and Warranties.Vehicle.Photos and the Dealer each represents and warrants to the other party that: (a) it has all right, power, and authority to enter into this Agreement and perform its obligations hereunder; (b) the Agreement has been duly authorized and, when executed and delivered, will be legal, valid, and binding on the party; (c) entering into the Agreement and performing the obligations hereunder do not require the approval or consent of any third party or governmental agency; and (d) there is no pending or threatened claim, action, or proceeding against the party that would impair or affect the performance of its obligations hereunder.

4.2 Additional Representations and Warranties.The Dealer further represents and warrants to Vehicle.Photos that: (a) the Dealer and its employees, contractors, and agents are licensed new vehicle or franchise dealers and/or licensed used vehicle or wholesale vehicle dealers, and are authorized to operate an automobile dealership in each jurisdiction in which they conduct business; (b) it shall comply with all applicable local, state, federal, and international laws and regulations, including without limitation the General Data Protection Regulation and other applicable privacy laws and regulations related to data security and protection of personally identifiable information; (c) it is solely responsible for the accuracy or currency of information provided to Vehicle.Photos regarding advertised vehicles, including without limitation representations concerning vehicle identification numbers (“VIN”), year, make, model, trim, color, equipment, options, mileage, condition, vehicle asking price, vehicle photos and videos, the availability of specific vehicles, and the status of title of specific vehicles; (d) it is not currently subject to, and shall not during the term of this Agreement become subject to, any agreement or obligation inconsistent with the terms of this Agreement or the Dealer Marketing Services hereunder; (e) it is not currently engaged in, and shall not during the term of this Agreement become engaged in, any business activity that involves the design, development, marketing, or selling of products, services, software, or technologies that are substantially similar to or competitive with the Dealer Marketing Services; and (f) it shall not use the Dealer Marketing Services or otherwise conduct its business in a manner that will infringe on the intellectual property or other rights of any other person or entity.

4.3 Indemnification.Vehicle.Photos and the Dealer shall each indemnify, defend, and hold the other party harmless from and against any and all third-party claims, actions, losses, liabilities, damages, and expenses (including reasonable attorney fees) arising out of or relating to the indemnifying party’s breach of any express representation or warranty in this Agreement, breach of any condition or obligation hereunder, breach of any third-party agreement, breach of any data security laws or regulations, infringement of the privacy, patent, copyright, trademark, or other proprietary right of a third-party, negligence, or any other violations of law.

4.4 DISCLAIMER OF WARRANTIES.EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE VEHICLE.PHOTOS WEBSITE AND DEALER MAKETING Services ARE PROVIDED “AS IS”, “AS AVAILABLE,” AND “WITH ALL FAULTS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER VEHICLE.PHOTOS NOR ANY OF ITS MANAGERS, MEMBERS, OFFICERS, EMPLOYEES, OR AGENTS (COLLECTIVELY, THE “VEHICLE.PHOTOS PARTIES”) MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND AS TO THE VEHICLE.PHOTOS WEBSITE, Dealer MARKETING Services, USER CONTENT, THIRD-PARTY CONTENT, OR SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO VEHICLE.PHOTOS. THE VEHICLE.PHOTOS PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

4.5 LIMITATION OF LIABILITY.EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.3 ABOVE, THE VEHICLE.PHOTOS PARTIES SHALL NOT BE LIABLE TO THE DEALER FOR DAMAGES OR LOSSES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE VEHICLE.PHOTOS WEBSITE OR DEALER MARKETING Services UNDER THIS AGREEMENT. THE VEHICLE.PHOTOS PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF IT HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR TORT.

MISCELLANEOUS PROVISIONS

5.1 Amendment and Waiver.Except as expressly provided herein, neither this Agreement nor any term hereof may be amended, waived, discharged, or terminated other than by written consent signed by Vehicle.Photos and the Dealer.

5.2 Successors and Assigns.This Agreement and the rights, duties, and obligations hereunder shall not be assigned, transferred, or delegated by the parties without the prior written consent the other party. The terms and conditions of this Agreement shall inure to the benefit of and be binding on the respective successors, assigns, administrators, executors, heirs, and personal representatives of the parties.

5.3 Notices.All notices and other communications required or permitted under this Agreement shall be in writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or electronic mail, or otherwise personally delivered by hand or messenger addressed (a) if to Vehicle.Photos, at its business address at: 19586 N. 84th Street, Scottsdale, AZ 85255, Attention: Tony Hoang; and (b) if to the Dealer, at its business address provided to Vehicle.Photos. Each notice or other communication shall, for purposes of this Agreement, be deemed effective when delivered if delivered personally, or, if sent by mail, at the earlier of its receipt or seventy-two (72) hours after having been deposited in the United States mail, or, if sent by facsimile or electronic mail, on the confirmation of facsimile transfer or electronic mail delivery.

5.4 Entire Agreement.This Agreement constitutes the full and entire understanding and agreement between the parties with respect to the subject matter of the Agreement, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly superseded. The parties agree that the captions and titles contained in this Agreement, including the title of the Agreement, are used solely for purposes of convenience and reference, and they shall not affect, define, or expand the meaning or interpretation of any provision of this Agreement.

5.5 Delays or Omissions.Any delay or omission to exercise any right, power, or remedy accruing to the parties under this Agreement on any breach or default of the other party shall not impair such right, power, or remedy of the non-defaulting party, nor shall it be construed to be a waiver of any such breach or default; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default. Any approval, consent, or waiver of any kind or character on the part of either party of any provision or condition of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing.

5.6 Force Majeure.Neither party shall be liable for any delay or failure to meet its obligations under this Agreement which is due to any circumstances or disaster beyond its control, including without limitation acts of God or nature, governmental actions, pandemic restraints, power or network failure, war, riots, civil disturbance, terrorism, fire, flood, storm, or inability to obtain necessary labor, materials, or facilities, as a direct result of such circumstances or disaster.

5.7 Severability.In the event any provision of this Agreement becomes or is determined by a court of competent jurisdiction or arbitrator to be illegal, invalid, unenforceable, or void, the provision or portion of such provision, to the extent necessary, shall be severed from the Agreement, and such court or arbitrator shall replace the illegal, invalid, unenforceable, or void provision (or portion thereof) with a legal, valid, and enforceable provision that will achieve, to the fullest extent possible, the same business, economic, and other purposes as the replaced provision. The balance of this Agreement shall be enforceable according to its terms.

5.8 Counterparts and Digital Execution.This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. An e-sign copy, facsimile, or other reproduction of this Agreement may be executed physically or electronically by either party, and may be delivered by facsimile, electronic mail, or any similar electronic transmission device pursuant to which the signature of the parties can be seen.

5.9 Costs and Expenses.Except as otherwise provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the performance of each party’s obligations hereunder shall be paid by the party incurring such costs and expenses.

5.10 Jurisdiction and Dispute Resolution.In the event of any dispute or claim arising out of or related to this Agreement, Vehicle.Photos and the Dealer agree that such dispute or claim shall be settled or resolved exclusively by binding arbitration in Wilmington, Delaware, United States, before a single arbitrator according to the Commercial Arbitration Rules of the American Arbitration Association; provided, however, that an action to enforce the remedies provided in Section 3.5 above may be filed in the Delaware Court of Chancery in New Castle County, Delaware, or in the case of exclusive federal jurisdiction, the United States District Court for the District of Delaware. The parties waive any requirement of personal service of process in connection with arbitration or other legal proceedings hereunder, and any process or pleadings may be served according to the notice provisions of Section 5.3 above. The decision of the arbitrator shall be final and binding, and judgment on the arbitrator’s award may be entered in the above-referenced Delaware state or federal court, or other court of competent jurisdiction. The prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorney fees and costs. THE PARTIES AGREE THAT ANY CLAIM THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.

5.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, United States, without regard to principles of conflicts of law.