NOTICE TO USER: THIS MASTER LICENSE AND TERMS OF USE AGREEMENT (THE "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU AND FRESH INTERACTIVE, LLC. (DBA FUEL) IN CONNECTION WITH ITS STOCK IMAGE SERVICE ("FUEL"), IN WHICH YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE OBTAINING IMAGE LICENSE RIGHTS ON BEHALF OF A COMPANY AND/OR YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY AND RIGHT TO BIND THE SAID COMPANY AND/OR EMPLOYER TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.

YOU MUST CAREFULLY READ THIS AGREEMENT, AND FOLLOWING THAT, CLICK "ACCEPT" TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT TO COMPLETE THE REGISTRATION PROCESS AND TO GAIN ACCESS TO ANY OF THE LICENSED MATERIALS.

IF YOU DO AGREE TO THIS AGREEMENT, CLICK THE "I ACCEPT" BUTTON AT THE END OF THIS AGREEMENT, WHICH SHALL INDICATE YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT IN ITS ENTIRETY.

MASTER LICENSE AND TERMS OF USE AGREEMENT ("THE AGREEMENT")

 

SECTION A

This FUEL Master License and Terms of Use Agreement, including Appendix 1: Standard Terms & Conditions and, as applicable, any future License Invoice (as such term is defined below), collectively the "Agreement", is entered into between Fresh Interactive, LLC, a California limited liability company with offices at 2428 Second Street, Santa Monica, CA 90405, USA, as Licensor ("FUEL"), and you, as Licensee. FUEL and Licensee (collectively, the "Parties" and each, singularly a "Party"), enter into this Agreement as of the Effective Date, which is the date in which you clicked "I ACCEPT" in acknowledgement of your complete concurrence and acceptance to the terms and conditions of the Agreement. Capitalized terms, unless defined elsewhere in this Agreement, shall have the meaning ascribed to them in Appendix 1. This Agreement will remain in effect for a period of thirty-six (36) months (the "Term") unless as otherwise specified in the License Invoice or as terminated in accordance with the provisions of this Agreement. Notwithstanding any of the foregoing, FUEL shall have the sole and exclusive right to terminate this Agreement without cause.

1. Recitals

1.1. Whereas, FUEL creates and owns libraries of images and videos of Model Year 2000 through current Model Year automobiles, including libraries known as the "EVOX Automotive Image Library™, U.S. Edition" (AIL™), "EVOX Automotive Video Library™, U.S. Edition" (AVL™) and "EVOX Computer Generated Image Library™, U.S. Edition" (CGL™).

1.2. Whereas, Licensee wishes to license certain content from FUEL for use with Licensee's products and/or services.

Now therefore, for good and valuable consideration, FUEL and Licensee hereby enter into this Agreement.


APPENDIX 1: STANDARD TERMS AND CONDITIONS

1. DEFINITIONS - The following capitalized terms, if used in this Agreement, will have the following meanings:

1.1. "Appendices" means one (1) or more appendices attached to and incorporated into this Agreement.

1.2. "CGI" means computer generated images, including, but not limited to, computer generated static moving or interactive images of objects or scenes, and/or the creation of computer models representing the outside or inside shape or form of an object or a scene. Such computer models may be created by any method or combination of methods at FUEL's sole discretion.

1.3. "Comp Use", "Comp Use License" and "Comp Use Licensed Materials" have those meanings ascribed to them in paragraph 2 of Section A.

1.4. "Confidential Information" has the meaning defined in Section 15 of this Appendix 1.

1.5. "Carry-Over" means the Licensed Materials for a certain Model Year vehicle that are used as Licensed Materials for a vehicle from a different Model Year.

1.6. "Third Party" means any individual or entity other than FUEL and Licensee.

1.7. "Effective Date" is the effective date of this Agreement as identified as the date in which you click "I ACCEPT" in acknowledgement of your complete concurrence and acceptance to the terms and conditions of the Agreement.

1.8. "End User" means a Third Party that uses or views the Licensed Materials. An End User may be located outside or inside of the USA.

1.9. "FUEL Competitor" means any party engaged in developing, producing or licensing to others any Enhanced Images. For purposes of this Agreement, OEMs, dealerships and their advertising agencies (excepting website developers) shall not be considered FUEL competitors.

1.10. "Fees" means the fees and charges payable by Licensee to FUEL described in the License Invoice which is incorporated into and is part of this Agreement, plus any applicable charges, as authorized in this Agreement.

1.11. "Franchise Brand" means an OEM brand name. For example, Toyota, Lexus, Scion, Chevrolet, GMC Trucks and Hummer are examples of individual Franchise Brands.

1.12. Enhanced Images:

1.12.1. "In-Studio Images" means a standardized set of images for a quantity of vehicles created in an enclosed and artificially lit environment other than images sourced through an OEM.

1.12.2. "Colorized Photos" means a set of images with different colors created in post-production to represent different color options for the vehicle.

1.12.3. "360-Degree-Images" means a combined set of images capable of showing a sequence of either interior or exterior view angles of the same vehicle.

1.12.4. "In-Studio-Video" means video (or a set of videos) created for a quantity of vehicles in an enclosed and artificially lit environment; showing either interior or exterior (or combined) views of the vehicles, except for video's that also contain a 90% or more running footage of the vehicle being driven over the road.

1.13. "Image Updates" means any revisions to the Licensed Materials such as fixes, corrections, enhancements (including, without limitation, any and all computer-generated imagery ("CGI") and newly created Enhanced images), revisions and also additional images of current Model Year automobiles that FUEL decides, at its sole discretion, to include in the Licensed Materials.

1.14. "Licensee Data Center" means Licensee's own data center or a data center contracted by the Licensee.

1.15. "Licensed Materials", means images and/or video described in this Agreement for the vehicles specified in the License Invoice, whether or not such images and/or videos have been created as of the Effective Date, together with all Image Updates with respect thereto. Licensed Materials may be created by any method or combination of methods at FUEL's sole discretion, including, but not limited to, photography, CGI and/or various post-production technologies.

1.16. "Licensee Products" means content or products designed or developed or managed or served by or for Licensee

1.17. "Model Year" or "MY" means the automotive manufacturing industry new model introduction year (e.g., Model Year 2013 automobiles are available in the calendar year of 2012).

1.18. "OEM" means an original equipment manufacturer of automobiles.

1.19. "Portal" means a website other than a Dealership website.

1.20. "Scope of Use" means the permitted uses, media, applications, distribution or licensing channels, web portals, placements, customer classes, and markets of the Licensed Materials as set forth in the License Invoice and Exhibits to this Agreement, subject to the prohibition regarding the creation of derivative works and all other restrictions and limitations with respect to the Licensed Materials set forth in this Agreement.

1.21. "Sublicense" means any license or contract for use issued by Licensee or any level of Sublicensee for Licensed Materials pursuant to this Agreement.

1.22. "Term" means the term of 36 months from the Effective Date as described in this Agreement or as otherwise specified in the License Invoice, including the Initial Term and any Renewal Terms.

1.22.1."Initial Term" means the Initial Term as may be defined in the License Invoice.

1.22.2. "Renewal Term(s)" means any extension(s) or renewal(s) to the Term, other than the Initial Term.

1.23. "License Term" means the term associated with the License Grant in Section 2 of this Agreement and/or the License Invoice. The phrase "License Term" may also, at FUEL's sole discretion, be used interchangeably, and shall have the same meaning as, the term "Duration" both in this Agreement and in the License Invoice.

1.24. "License Invoice" means the electronic document issued by the FUEL website that specifies the License rights granted by FUEL. A License Invoice is valid only when, at a minimum, it includes the following: i) the Licensee, ii) Effective Date, iii) Term, iv) Licensed Materials, v) Scope of Use, and vi) the Fees are all accurately reflected on the face of the License Invoice.

2. SUB-LICENSING RIGHTS:

2.1. Licensee shall not have the rights to sublicense or distribute the Licensed Materials.

3. ADDITIONAL LIMITATIONS

3.1. No license is granted to use the Licensed Materials in any manner in any present or future format except for uses and formats expressly permitted by the definition of Scope of Use in this Agreement, including, but not limited to, editorial or advertising use, electronic media (CD-ROM, DVD, etc), print media, film, video, television program or equivalent broadcast medium; provided, however, that Licensee may print individual images solely as reasonably required for managing the Licensed Materials and may make copies of the Licensed Materials for verifiable backup purposes in compliance with Security Requirements in Appendix 1 and other provisions provided in this Agreement.

3.2. Unless and only to the extent specifically authorized in the License Invoice of this Agreement, Licensee shall not reproduce, display or otherwise use Licensed Materials in paid or unpaid "banner", "pop-up" or similar types of advertising.

3.3. Licensed Materials must be hosted and served only from secure Licensee Data Centers located in the United States. Licensee shall not deliver Licensed Materials to any Third Party other than a secure data center contracted by the Licensee.

3.4. Licensee has the right to resize, crop, color correct, color shift, flop angles, adjust product aspects for angle changes, retouch, and enhance images and videos that are Licensed Materials. No other modifications are permitted unless indicated in the License Invoice of this Agreement.

3.5. Licensee will not use the Licensed Materials in any way that could be considered defamatory, pornographic, libelous, immoral, obscene, fraudulent, or illegal.

3.6. FUEL acknowledges and agrees that any Licensee granted herein may include the right to make and use derivative works during the Term of this Agreement.

4. TRADEMARKS, COPYRIGHTS, AND NOTICES GENERALLY

4.1. TRADEMARK RIGHTS OF THIRD PARTIES -LICENSEE ACKNOWLEDGES THAT FUEL DOES NOT CONVEY TO LICENSEE ANY PERMISSIONS, CLEARANCES, RELEASES OR OTHER RIGHTS RELATED TO THE ENTITIES, PRIVATE PROPERTIES, PRODUCTS, TRADEMARKS, TRADE NAMES, LOGOS OR BRANDS DEPICTED IN THE LICENSED MATERIALS, IF ANY, ALL OF WHICH LICENSEE IS OBLIGATED TO OBTAIN, IF NECESSARY.

4.1.1. NO PORTION OF ANY OF THE LICENSED MATERIALS CONTAINING A THIRD PARTY TRADEMARK SHALL BE INCORPORATED INTO A LOGO, TRADEMARK OR SERVICE MARK OF LICENSEE OR ANY THIRD PARTY.

4.2. FUEL Trademarks -

4.2.1. Licensee shall display one of the approved FUEL trademarks ("FUEL Trademarks"), available upon request from FUEL, on each webpage that displays any of the Licensed Materials. Licensee is licensed to use, publish, display the FUEL Trademarks in connection with the Licensed Materials and FUEL Trademarks only as specifically authorized under this Agreement, and only as necessary to carry out Licensee's duties under this Agreement. All rights not expressly granted herein are reserved by FUEL. Immediately upon the termination of this Agreement for any reason, all rights and license granted hereunder shall terminate and immediately revert to FUEL and Licensee, at its own expense, will immediately discontinue all use of Licensed Materials and FUEL Trademarks. Subject to all of the conditions of this Agreement, FUEL hereby grants to Licensee a non-exclusive, non-transferable, revocable license to use the FUEL Trademarks within the Scope of Use, on any webpage that displays any of the Licensed Materials only as specifically authorized under this Agreement. All use of the FUEL Trademarks shall be subject to FUEL's approval and, upon FUEL's request from time to time, Licensee shall provide FUEL with samples for approval of Licensee's contemplated use of any of the FUEL Trademarks only as specifically authorized under this Agreement. FUEL shall retain the right to use the FUEL Trademarks and to license its use to any other designee. FUEL may modify or update its FUEL Trademarks from time to time. Licensee shall implement and use any update to the FUEL Trademarks within a reasonable time after receipt of a copy of the updated FUEL Trademark from FUEL. Licensee acknowledges FUEL's exclusive right, title and interest in and to the FUEL Trademarks and any registration that may issue or may have issued thereon. Licensee shall not in any manner represent that it has any ownership in any of the FUEL Trademarks or registrations thereof. Licensee and FUEL agree that Licensee's use of the FUEL Trademarks shall inure to the benefit of FUEL. Licensee shall not use any of FUEL's trade names, trademarks or service marks in any manner not expressly permitted hereunder without FUEL's prior written approval, which approval may be withheld at FUEL's sole discretion.

4.2.2. Licensee shall not apply for the registration anywhere in the world of any trademark which is the same or confusingly similar to any of the FUEL Trademarks. Licensee shall not take any action which may be reasonably expected to damage the reputation of FUEL or which diminishes and/or tarnishes the image and/or reputation of the FUEL Trademarks.

4.3. FUEL COPYRIGHTS

4.3.1. Copyright Notice - Unless otherwise directed in writing by FUEL, Licensee will include on each image of the Licensed Materials that Licensee uses, FUEL's copyright notice, as follows:

4.3.2. Display of Copyright - The Licensed Materials will be delivered and/or made available to Licensee with EVOX’s copyright notice logo included on such Licensed Materials. Unless instructed otherwise in writing by FUEL, Licensee shall clearly display, retain and maintain such copyright notice logo, as specified and in the form provided by FUEL, on any and all permitted uses of the Licensed Materials and related materials, or any portion thereof, and will not alter, remove, hide or otherwise modify such notice. In the case of Licensed Materials in the .PNG format, Licensee shall clearly display, retain and maintain such copyright notice logo, as specified and in the form provided by FUEL, on any and all permitted uses of the Licensed Materials in .png format and related materials, or any portion thereof, and not on the image, such copyright notice shall be displayed immediately adjacent to such .png image(s).

4.3.3. The following copyright notice will also be included in the legal notices section of any website or system and shall also be included in all the metadata/meta tags where Licensed Materials are displayed by Licensee: "NOTICE: The automotive images or video contained herein are owned by Fresh Interactive, LLC ("FUEL") and are protected under United States and international copyright law. FUEL reserves the right to pursue unauthorized users of its individual copyrighted images contained herein, each of which have independent economic value. These and other violations of FUEL intellectual property rights may result in your liability for actual damages and loss of income to FUEL and profits you derive from this misappropriation, or alternatively, for statutory damages per infringed work, plus all costs and attorneys fees. Access to and use of these images or video is restricted by the terms and conditions of a license agreement. Unauthorized use, reproduction, creation of derivative works, transmission, display or distribution of these images or video is strictly prohibited. FUEL reserves the right to pursue all legal and equitable remedies against unauthorized uses."

4.3.4. Changes to Copyright Notice Requirements - Such notice shall not be modified or altered by Licensee without the prior written consent of FUEL; provided, however, FUEL may update the foregoing copyright notice requirements from time to time by providing at least ninety (90) days prior written notice to Licensee.

5. UNAUTHORIZED USE

5.1. Unauthorized Use - As a condition for entering into this Agreement, Licensee agrees that it will not use the Licensed Materials in any manner not expressly authorized by this Agreement. The parties agree that upon any unauthorized use by Licensee or other violations of this Agreement, FUEL shall be entitled to exercise all rights and remedies available to it, including, as applicable, any claims for copyright infringement. In the event that Licensee is determined to have engaged in any such unauthorized use, Licensee agrees to indemnify and hold harmless FUEL for all damages resulting from any such breach, including, as applicable, any damages arising out of claims for copyright infringement, and any other including without limitation damages resulting from any Third Party claims against FUEL. Licensee further acknowledges that any infringement, misappropriation or other violation by Licensee of FUEL's proprietary rights is likely to cause immediate and irreparable injury to FUEL and that, in the event of any such breach, FUEL shall be entitled to seek injunctive relief in addition to any and all other remedies available at law or in equity.

5.2. Notice of Unauthorized Use - Licensee will notify FUEL immediately of any unauthorized possession or use of the Licensed Materials, or any part thereof, or FUEL's trademarks or FUEL's confidential information of which Licensee becomes aware. Licensee will promptly furnish FUEL with full details of any such situation, reasonably assist in preventing any recurrence thereof, and provide its reasonable cooperation in any litigation or other proceedings reasonably necessary to protect FUEL's rights at FUEL's sole cost and expense; provided, however, that if such acts result in whole or in part from the unauthorized use of the Licensed Materials or other breach of this Agreement by Licensee, Licensee shall be responsible for all such costs.

5.3. Notwithstanding any of the foregoing, the Parties agree that nothing in this Section 5 shall preclude FUEL from pursuing any available remedies to it, including without limitation, claims for copyright infringement.

6. OWNERSHIP OF LICENSED MATERIALS

6.1. Title – EVOX Images represents, warrants and asserts that it owns and has all U.S. copyrights to the Licensed Materials, or has the right to license the U.S. copyrights to the Licensed Materials. Licensee acknowledges that as between the parties, EVOX Images retains sole ownership of the Licensed Materials, including all updates thereof, and all intellectual property and proprietary rights recognized anywhere in the world therein, including without limitation all trade secrets and copyrights. No ownership or copyright in any Licensed Materials shall pass to Licensee by the issuance of the license contained in this Agreement. All derivative works, enhancements and modifications to the Licensed Materials made by EVOX or Licensee shall be deemed owned by EVOX and Licensee agrees to assign, and does hereby irrevocably assign, to EVOX any and all right, title and interest that Licensee may acquire in the Licensed Materials and in and to any and all derivative works, enhancements and modifications of the License Material created, in whole or in part, by Licensee. Licensee agrees to perform, during and after the Term, all acts deemed reasonably necessary by EVOX to permit and assist it in evidencing, perfecting, obtaining, maintaining, defending and enforcing the foregoing rights at EVOX's sole cost and expense; provided, however, that if such acts result in whole or in part from the unauthorized use of the Licensed Materials or other breach of this Agreement by Licensee, Licensee shall be responsible for all such costs.

6.2. No Claim by Licensee - Licensee agrees not to claim any title to the Licensed Materials or any derivative works thereof, any FUEL Trademarks or any OEM's trademarks, trade names or services marks, nor shall Licensee claim any right to use or otherwise exploit such rights except as expressly permitted by this Agreement and further Licensee agrees to not reverse engineer or disassemble the License Materials or any derivative or CGI renderings thereof.

6.3. Source of Licensed Materials - Licensee shall license and obtain the Licensed Materials only from FUEL pursuant to this Agreement.

6.4. FUEL rights to Provide Products and Services - Nothing in this Agreement shall limit or restrict FUEL from entering into any agreement or other arrangement with respect to any of its products or services with any Third Party.

7. GENERAL DUTIES OF LICENSEE

7.1. Recordkeeping - During the Term and for a period of at least thirty-six (36) months following termination of this Agreement, Licensee will keep reasonably detailed records of its hosting and use of the Licensed Materials.

7.2. Support - Licensee is solely responsible, at its expense, for supporting, training and servicing its agents, and End Users.

7.3. Compliance with Law - Licensee shall comply with all laws, regulations and other legal requirements applicable to Licensee and Licensee's performance of this Agreement.

7.4. Security Requirements - Licensee agrees to implement and maintain at all times during the Term the following Security Requirements:

7.4.1. Licensee will protect the Licensed Materials using an industry standard firewall to safeguard against unauthorized third-party access to the Licensed Materials.

7.4.2. In no event will Licensee use measures less protective than those deemed as reasonable practices in its industry, and in no event will Licensee use any less care for or provide any less protection for the Licensed Materials than it uses to care for and protect Licensee's own digital and printed properties.

7.4.3. Licensee will not make the Licensed Materials available in any medium in any manner intended to encourage or otherwise promote that End Users download (other than as delivery of web pages and their content), reproduce, publish, redistribute, modify or extract the Licensed Materials.

8. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF LICENSEE

8.1. No Breach or Conflict - Licensee represents and warrants that it is not under any obligation or restriction, nor will it assume any obligation or restriction, that would in any way materially interfere with, be inconsistent with, or present a conflict of interest concerning this Agreement and its subject matter, or preclude Licensee from performing any of Licensee's duties hereunder.

8.2. No Unauthorized Representations - Licensee will not make any representations with respect to the Licensed Materials inconsistent with this Agreement unless expressly authorized in writing by FUEL.

8.3. Authority. Licensee represents and warrants that it has the full right, power and authority to enter into and perform this Agreement.

8.4. When the Party entering into this Agreement is not the Licensee. Where the purchaser under this Agreement is purchasing a license to the Licensed Material on behalf of a third party, said purchaser hereby represents and warrants that: (i) it is authorized to act as an agent on behalf of such third party and has full power and authority to bind such third party as a Licensee to this Agreement; and (ii) if such third party subsequently disputes such power or authority, said purchaser shall be liable for any failure of such third party to comply with the terms of this Agreement. Nothing in this Section 8.4 shall excuse purchaser's obligation to make payment to FUEL of any of the Fees.

9. GENERAL DUTIES OF FUEL

9.1. Support - During the Term, FUEL will provide to Licensee employees limited access to telephone and e-mail support during FUEL's business hours to assist Licensee only, but not End Users, with questions about the Licensed Materials.

9.2. Compliance with Law - FUEL will comply with all laws, regulations and other legal requirements applicable to FUEL and FUEL's performance under this Agreement.

9.3. Limited Responsibility - The sole responsibility of FUEL under this Agreement is to provide the Licensed Materials to Licensee, and FUEL shall not be responsible for Licensee's implementation or use of the Licensed Materials.

9.4. Authority. FUEL represents and warrants that it has the full right, power and authority to enter into and perform this Agreement.

10. FEES

10.1. Fees and Charges - Licensee will pay to FUEL the Fees and other charges set forth herein in accordance with the License Invoice, but in no event shall be later than thirty (30) days following Licensee's receipt of the applicable invoice. Any amount paid by Licensee is deemed earned by FUEL upon receipt.

10.2. Late Payment - Without limiting other remedies available to FUEL under this Agreement, a late payment fee of two percent (2%) of the unpaid amount and interest calculated at the rate of 1.5% per month fee, or, if lower, the maximum allowed by law, will be applied to all late payments, and if not cured within fifteen (15) days of notice from FUEL, FUEL reserves the right to stop deliveries until all late payments are received by FUEL.

10.3. Costs of Collections - Licensee shall be liable, and reimburse FUEL, for all reasonable collection fees and reasonable attorneys' fees payable by FUEL in connection with enforcing Licensee's performance of its payment obligations set forth in this Agreement.

10.4. Taxes - Licensee is responsible for the payment of all applicable taxes (including sales, use, property, excise, value-added and gross receipts, but not including taxes based on FUEL's net income or gross revenues) and import duties and fees levied on Licensed Materials and any other services and software provided under this Agreement.

10.5. Fees for Overlapping or Duplicate Grant of Rights - Even if Licensee is also granted rights from a third party to some or all of the Licensed Materials, Licensee will remain liable for payment to FUEL of the full amount of fees due under this Agreement.

10.6. Notwithstanding any of the foregoing, neither party shall be liable to the other for any claims arising out of false advertising or truth in advertising claims regarding the sale or lease of an automotive vehicle.

11. WARRANTY DISCLAIMERS

11.1. No Warranty - LICENSEE ACKNOWLEDGES AND AGREES THAT EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED HEREIN, THE LICENSED MATERIALS ARE PROVIDED "AS IS"; THAT FUEL MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, COMPLETENESS OR CURRENCY OF THE LICENSED MATERIALS; AND THAT EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED IN THIS AGREEMENT ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS OF FUEL OR ITS AGENTS, EMPLOYEES OR OTHER REPRESENTATIVES, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT) ARE HEREBY EXCLUDED AND DISCLAIMED. WITHOUT LIMITING THE FOREGOING, FUEL EXPRESSLY DISCLAIMS ANY WARRANTY OR LIABILITY WITH RESPECT TO DEFECTS IN THE DESIGN OR OPERATION OF ANY OF THE LICENSED MATERIALS. LICENSEE ACKNOWLEDGES THAT IT IS A SOPHISTICATED PARTY AND THAT IT RECOGNIZES AND AGREES THAT THE TERMS OF THIS SECTION ARE AN INTEGRAL PART OF FUEL'S PRICING AND AN IMPORTANT FACTOR IN FUEL'S WILLINGNESS TO ENTER INTO THIS AGREEMENT.

11.2. Additional Licensed Materials, Unauthorized Alterations, etc. - Without limiting other disclaimers by FUEL set forth in this Agreement, FUEL has no responsibility for discrepancies, inaccuracies, incompleteness or other problems in the Licensed Materials that are caused by alterations or modifications made by Licensee, End Users or any Third Party (including "hackers" and malicious third party code) or that are caused by hardware or software not provided by FUEL as part of the Licensed Materials in accordance with this Agreement.

11.3. Additional Disclaimers - Without limiting other disclaimers by FUEL set forth in this Agreement, with respect to the Licensed Materials, FUEL does not guarantee or warrant (a) that the specifications of the automobiles obtained for photography/Imagery meet manufacturers' specifications or any other vehicle specifications. (b) that the image or video files are representative of exact OEM products, (c) the accuracy of Carry-Over information, (d) the accuracy of the vehicle colors or (e) the vehicles covered or included within Licensed Materials. The vehicles included in the Automotive Image Library shall be determined by FUEL at its sole discretion.

11.4. Carry-Over Information - Selection of Carry-Overs is made at FUEL's sole discretion based in part on analysis of information from third parties. Carry-Overs may not be accurate for later Model Year trim or option level they are representing.

12. LIMITATION OF LIABILITY.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR OTHERWISE, OTHER THAN LIABILITY WITH RESPECT TO DEFENSE AND INDEMNITY OBLIGATIONS SET FORTH IN THIS AGREEMENT IN SECTION 13.2, IN NO EVENT SHALL FUEL, OR ANY OF ITS SUBCONTRACTORS, EMPLOYEES, REPRESENTATIVES OR AFFILIATES BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER ARISING UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, FOR (I) ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (AND WHETHER OR NOT FUEL OR LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OF USE OF MONEY, LOSS OF DATA OR INTERRUPTION IN ITS USE OR AVAILABILITY, STOPPAGE OF WORK, IMPAIRMENT OF ASSETS OR OTHERWISE, (II) ANY COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, SERVICES OR RIGHTS OR (III) ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT OF FEES PAID TO FUEL HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THAT THE CLAIM GIVING RISE TO LIABILITY AROSE; PROVIDED, HOWEVER, THE LIMITATION OF THIS SUBSECTION (III) SHALL NOT SERVE TO LIMIT FUEL'S RIGHT TO RECOVER FOR FEES OWED BUT NOT PAID NOR SHALL THE RECOVERY OF SUCH OWED AND UNPAID FEES COUNT AGAINST SUCH CAP ON FUEL'S RECOVERABLE DAMAGES. NOTWITHSTANDING ANY OF THE FOREGOING, FUEL SHALL NOT BE LIABLE FOR ANY CLAIMS ARISING OUT OF FALSE ADVERTISING OR TRUTH IN ADVERTISING CLAIMS REGARDING THE SALE OR LEASE OF AN AUTOMOTIVE VEHICLE.

13. INDEMNITIES

13.1. By Licensee - Licensee agrees to defend, indemnify and hold FUEL, its employees, officers, directors, subcontractors and agents harmless from and against any and all losses, costs, damages, claims, demands, liabilities, actions, judgments and expenses (including, without limitation, reasonable attorneys' fees) suffered or incurred by FUEL arising out of (i) any Third Party claim related to Licensee's use of the Licensed Materials in violation of this Agreement or infringement by any of the Licensee Products, which contain Licensed Materials, of a Third Party's intellectual property rights or (ii) any act or omission by Licensee relating to any infringement of FUEL's intellectual property rights.

13.2. By FUEL - FUEL agrees to defend, indemnify and hold Licensee, its employees, officers, directors, subcontractors and agents, harmless from and against any and all Third Party claims, demands, liabilities, actions, judgments and expenses (including, without limitation, reasonable attorneys' fees) suffered or incurred by Licensee arising out of the infringement or alleged infringement by FUEL of the U.S. copyright of any Third Party. FUEL shall not have any indemnity obligations hereunder for any claims of infringement that are based on: (i) a modification of the Licensed Materials not authorized under this Agreement, (ii) the use of a prior or modified version of the Licensed Materials (if the infringement claim could have been avoided by an updated version of such Licensed Materials provided by FUEL), (iii) use of the Licensed Materials in a manner not expressly authorized by this Agreement, (iv) activities of Licensee or parties granted rights in the Licensed Materials by Licensee in breach of this Agreement; (v) use of the Licensed Materials in combination with any other products, content or materials (if the infringement claim does not relate directly to the Licensed Materials); or (vi) any claim by an automotive manufacturer with respect to its rights in the Licensed Materials (or anything relating to such images), including clearance rights or other intellectual property claims.

13.3. Remedies - FUEL further agrees that if Licensee is enjoined, prohibited or limited from using any of the Licensed Materials due to an actual or claimed direct infringement by the Licensed Materials of a U.S. copyright, FUEL may, at its option, either (i) procure for Licensee, at FUEL's expense, the right to continue to use such Licensed Materials, or (ii) replace or modify such Licensed Materials, at FUEL's expense, so that the Licensed Materials become non-infringing, or (iii) terminate the license granted herein as it relates to the infringing portion of the Licensed Materials and return to Licensee a pro-rata portion of paid Fee(s) based upon the percentage of the Licensed Materials subject to such infringement claim and the percentage of the Term in which Licensee would be prevented from using such Licensed Materials.

13.4. Procedure. The party entitled to indemnification ("Indemnified Party") agrees that the party providing indemnification ("Indemnifying Party") may assume sole and exclusive control over the defense and settlement of any claim with respect to which the foregoing indemnity obligations apply, so long as there is not a conflict of interest in such defense; provided, however, that the Indemnifying Party will not enter into any settlement that adversely affects Indemnified Party's rights or interests, imposes any liability or obligation on the Indemnified Party or contains any admission or acknowledgement of wrongdoing by the Indemnified Party without the prior written consent of the Indemnified Party. The Indemnified Party shall promptly notify the Indemnifying Party of any claim against it of which it becomes aware, provided, however, that the Indemnifying Party's obligations shall not be affected by any delay or failure in providing such notice unless and then only to the extent that the Indemnifying Party reasonably demonstrates that the defense or settlement of the claim was materially prejudiced by the delay in notice. The Indemnified Party will provide reasonable cooperation to the Indemnifying Party in connection with the defense or settlement of any such claim. The Indemnified Party will be entitled to participate in the defense, using counsel of its own choice, of any such claim at its sole cost and expense.

14. TERMINATION

14.1. Termination for Cause - Either party will be entitled to terminate this Agreement by notice in writing to the other Party if the other Party breaches any material term of this Agreement, unless the breach is capable of remedy, and the breaching party remedies the breach within forty-five (45) days after receipt of notice thereof from the non-breaching Party. In addition, either party may terminate this Agreement upon notice to the other party in the event such party: (i) ceases to do business, or otherwise terminates its business operations; or (ii) becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party.

14.2. Termination or Suspension without Cause - FUEL will be entitled to terminate this Agreement or suspend rights to use of, or access to, the Licensed Materials with seven (7) days advance notice to the Licensee (or purchaser of the Licensed Materials if purchased on behalf of a third party) pursuant to the notice provisions under 16.1 of this Agreement. In the event of such termination or suspension, FUEL will provide a pro-rata credit or refund to Licensee or purchaser for any remaining balance of the License Term. Other than any such pro-rata fees or credits, FUEL shall owe no further additional monies and shall have no additional liability to Licensee or purchaser of the Licensed Materials in any way relating to this Agreement. Notwithstanding any of the foregoing, any such credit or refund shall not constitute an accord or satisfaction, waiver or admission by FUEL with respect to any intellectual property violations by Licensee or a purchaser of the Licensed Materials and none of FUEL's rights hereunder, including without limitation in Sections 4, 5 and 6, shall be prejudiced or limited thereby.

14.3. Upon Termination or Expiration - If this Agreement is terminated in accordance with Section 14.1 hereof, or expires, (i) Licensee will, within thirty (30) days of termination, if applicable, pay all sums then currently due under this Agreement; and (ii) Licensee will return (or provide written notice of destruction as FUEL may direct) the Licensed Materials and any modifications or derivatives thereof, any and all of FUEL's confidential information and promotional and other materials relating to FUEL or the Licensed Materials in Licensee's possession or control and permanently delete the Licensed Materials from its computer systems and all other electronic or digital media in Licensee's possession or control in which such Licensed Materials are stored in each case except to the extent necessary to retain and continue to use any Licensed Materials to perform Licensee's obligations then in effect at the time of such expiration or termination. Notwithstanding the foregoing, each party may retain an archival copy of the Licensed Material and/or Confidential Information in its possession for use solely in the event a dispute arises hereunder and only in connection with such dispute.

14.4. No Liability for Termination. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other arising from or incident to any termination of this Agreement by such party that complies with the terms of this Agreement whether or not such party is aware of any such damage, loss or expenses.

14.5. Termination Not the Sole Remedy. Termination is not the sole remedy under this Agreement and, whether or not termination is effected, all other remedies will remain available.

14.6. Survival - The provisions of Appendix 1, Sections 1, 2, 3, 4.1, 4.2, 4.3, 5.1, 5.2, 5.3, 6.1, 6.2, 6.3, 6.4, 7.1, 7.3, 8.1, 8.2, 10.1 through 10.6, 11, 12, 13, 14, 15 and 16 shall survive termination or expiration of this Agreement.

15. CONFIDENTIAL INFORMATION.

"Confidential Information" means any and all confidential, proprietary and/or trade secret information clearly identified by the disclosing party or otherwise reasonably deemed as confidential at the time of disclosure. The terms of this Agreement shall be deemed Confidential Information. Each party may use Confidential Information of the other party only for the purpose of exercising any of its rights or performing its obligations under this Agreement. The receiving party will not disclose the Confidential Information of the disclosing party to any Third Party except the receiving party's employees, contractors and agents who have a need to know.

This obligation of confidentiality shall not apply to information which is: (i) publicly available other than by breach of a duty of confidentiality to the disclosing party; (ii) rightfully received by the receiving party without restriction on use or disclosure from a Third Party without breach of a duty to the disclosing party; (iii) independently developed by the receiving party without access to the Confidential Information of the disclosing party; (iv) rightfully known to the receiving party without restriction on use or disclosure prior to first receipt from the disclosing party; or (v) any portion of Confidential Information which is required to be disclosed in response to a rule, regulation or valid order of a court or government agency, provided that the receiving party provides prompt written notice to the disclosing party, to the extent permitted by law, so that it may seek a protective order and the receiving party provides reasonable assistance to the disclosing party in seeking such a protective order.

16. GENERAL

16.1. Notice - All notices, demands, requests, consents, approvals or other communications (collectively, "Notices") required or permitted to be given hereunder or which are given with respect to this Agreement will be confirmed by electronic delivery and if by Licensee to FUEL with the additional facsimile transmission requirement, , addressed as follows:

(a) If to FUEL: At the following email address: info@fuelapi.com ("Notification Email Address") addressed to the CEO of FUEL;

(b) If to Licensee To the email address provided by Licensee to FUEL on the Effective Date at the time of registration ("Licensee Notification Email Address"). Notice will be deemed given (i) on the date and time stamp of the email.

16.2. Independent Contractors - FUEL and Licensee are independent contractors under this Agreement, and nothing herein may be construed to create a partnership, joint venture, employment or agency relationship between the Parties. Except as expressly provided in this Agreement, neither Party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party.

16.3. Assignment - Neither Party may assign this Agreement or any right herein or delegate any duty hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld; however, either Party will be entitled to assign, delegate or transfer this Agreement (in whole and not part) to any parent or subsidiary of or entity under its common control with such Party or to any purchaser of all or a majority of such Party's assets or a controlling interest in such Party without approval of the other Party; provided, further, that in the event of such an assignment by Licensee to another customer or licensee of FUEL, Licensee (or its assignee) shall guarantee that all payments of Fees under this Agreement shall continue to be paid in full for the duration of the Term. Any purported assignment or delegation in violation of this Section 16.3 shall be null and void. Not withstanding the above, in the event of any acquisition of Licensee by an FUEL Competitor or an FUEL Competitor's affiliates, the Licensee shall be required to obtain the prior written consent of FUEL.

16.4. Force Majeure. FUEL shall not be liable to Licensee for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of FUEL, including but not limited to, any strike, blockade, war, act of terrorism, riot, natural disaster (including without limitation earthquakes, hurricanes, tornados, tsunami), failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government or other agency.

16.5. Unless otherwise specified in the License Invoice, during the Term of this Agreement, Licensee will not distribute, market or promote any Enhanced Images or the Licensed Materials, other than as authorized by the conditions under this Agreement, and will not work as an agent or partner with any other company or individual for the purpose of distributing, marketing or promoting Enhanced Images or the Licensed Materials, other than as authorized under this Agreement.

16.6. Governing Law/Venue - This Agreement is made under and will be construed under the laws of the State of California without regard to the conflicts of laws provisions of those laws. The parties hereby submit to the jurisdiction of the state and federal courts located in Los Angeles County, California and agree that said courts have the sole and exclusive jurisdiction over any and all disputes and causes of action involving such party that arise out of or relate to the Agreement.

16.7. Amendment - No amendments, modifications, or supplements to this Agreement (including the content of any email correspondence) will be binding on either Party unless a new electronic agreement is required by FUEL, and as Licensee, you affirmatively click to accept such new modified agreement and evidence your agreement to such new terms by clicking "I ACCEPT" to such new agreement. Notwithstanding any of the foregoing, the License Invoice is incorporated into, and is a part of, this Agreement.

16.8. Waiver - The waiver of any breach hereunder will not constitute the waiver of any other or subsequent breach.

16.9. Severability - If any term contained in the Agreement is found to be invalid, illegal or unenforceable for any reason, the remainder of the provisions shall continue in full force and effect, and it is in the intent of the parties that a valid, legal and enforceable provision with the same intent and economic effect be substituted.

16.10. Headings - The descriptive headings of the several Sections of this Agreement are inserted for convenience only and do not constitute a part of this Agreement and will not affect the interpretation hereof.

16.11. Click to Accept Contract Execution. This Agreement shall be deemed as executed by both Parties if you click the "I ACCEPT" button at the end of this Agreement.

16.12. Construction - The Parties further acknowledge that they have thoroughly reviewed this Agreement and bargained for the terms herein. Accordingly, this Agreement will be construed without regard to the party or parties responsible for its preparation and will be deemed to have been prepared jointly by the parties.

16.13. Entire Agreement/Modification. No oral statements or conversations between the parties hereto or their representatives, whether the same shall have been express or implied, occurring either before or after the execution of this Agreement, shall be construed as having any bearing or affect upon this Agreement or any portion hereof, it being understood that this Agreement (including any applicable Exhibits and the License Invoice executed by both Parties) constitutes the entire agreement between Licensee and FUEL relating to the transactions contemplated hereby. The Parties agree that this Agreement shall supersede all prior offers, contracts, agreements and arrangements between the Parties. No subsequent agreement or written instrument propounded by Licensee (including any purchase orders) will have any legal effect, unless expressly agreed to in writing by the Chief Executive Officer of FUEL.

16.14. Form Documents Do Not Supersede Agreement. The Parties may use standard business forms or other communications, but use of such forms is for convenience only and does not alter the provisions of this Agreement. Neither Party will be bound by, and each specifically objects to, any provision that is different from or in addition to this Agreement or any applicable Exhibits and/or the License Invoice (whether proffered verbally or in any quotation, invoice, shipping document, acceptance, confirmation, correspondence, purchase order or otherwise), unless such provision is specifically agreed to in a writing and signed by both Parties and indicates an intent to supersede the terms hereof.

END. Updated 2014/11/26.


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