The AutoMiner, LLC, a Texas limited liability company (an Affiliate of PureCars Technologies, LLC) with an address of 931 Monroe Drive NE, Suite A102 #359, Atlanta, GA 30308 (“TAM”), and the Customer entity identified in an Order Form (“Customer”) enter into and agree to be bound by these Terms and Conditions (these “Terms”). The capitalized terms not defined below will have the meanings set forth in Exhibit A hereto.

1. SERVICE.

1.1 Service. Subject to the terms and conditions set forth in these Terms, TAM will make the Service(s) and TAM Content available to Customer pursuant to these Terms and ordering document or enrollment form executed by Customer and TAM or PureCars on behalf of TAM (“Order Form”), all on a non-exclusive, non-transferable, non-sublicensable basis, during the Term. Subject to the terms and conditions set forth in these Terms, Customer may use the Service(s) solely in connection with Customer’s internal business purposes at the physical location (if applicable) specified in an Order Form (including specified roof top per dealership, if applicable) solely to support use of the Service under these Terms.

2.2 Limitation on Use. Except as expressly set forth in these Terms, TAM Products and TAM Content may not be used in any other manner or for any other purpose. In particular, Customer shall not: (i) repackage any of the TAM Products or TAM Content under any other name, mark or brand, nor may Customer sell, license or otherwise provide any TAM Products or TAM Content to any third party on a periodic or continuing basis, except as expressly permitted herein; (ii) deconstruct, disassemble, or reserve engineer any of the TAM Products or TAM Content, or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the TAM Products or TAM Content; (iii) create derivative works of the TAM Products or TAM Content; or (iv) allow or assist a third party to do any of the foregoing. In addition, except to the extent expressly permitted under these Terms, Customer shall not be permitted to rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Service, the TAM Products, any TAM Content, or any Customer Work Product to any person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service.

2. CUSTOMER RESPONSIBILITIES.

2.1 Use. Customer will be responsible for designating from time to time which of its personnel (or the personnel of its clients) are to be authorized to use the Service. Except as expressly set forth in these Terms or an Order Form, Customer may not allow any person or entity to use or access the Service(s), TAM Products, or TAM Content except its authorized users. Use of the Service(s), TAM Products, or TAM Content under these Terms may be subject to use or geographic limitations set forth in an Order Form. Customer is solely responsible for any configuration of the Service(s) and any electronic forms, materials, communications, content, and processes selected by Customer for use in or in connection with the Service(s). Customer is solely responsible for any use of the Service(s), TAM Products, and/or TAM Content by Customer, and Customer will ensure that any process, action or decision does not violate any law, rule or regulation. Customer will notify TAM promptly upon becoming aware of any unauthorized or improper use of the Service(s), TAM Products, and/or TAM Content. Subject to TAM's compliance with Section 3 of these Terms, Customer is solely responsible for and will ensure that use or disclosure of any Customer Content or Customer Work Product in accordance with these Terms complies with applicable laws, rules and regulations, including any required notices or consents.

2.2 Customer Systems. Customer has and will retain sole responsibility for: (a) all Customer Content, including its content, use and collection; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the Service(s); (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (”Customer Systems”); (d) the security and use of Customer’s access credentials; and (e) all access to and use of the Service(s), TAM Products, and TAM Content, directly or indirectly by or through the Customer Systems or its access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

3. CUSTOMER CONTENT AND CUSTOMER WORK PRODUCT; USER DATA.

3.1 Data Use and Disclosure. TAM may use Customer Content, Customer Work Product and Customer Systems only for the purpose of providing the Service(s) and related services under these Terms, or as otherwise set forth in these Terms. Notwithstanding anything to the contrary in these Terms, TAM may use and disclose Customer Content and Customer Work Data as reasonably necessary to comply with applicable laws, rules and regulations, cooperate with law enforcement agencies, or attempt to prevent or respond to illegal conduct, fraud, abuse, or a threat to the security or integrity of systems or data, including the Service, the TAM Products, Customer Content, or Customer Work Product. In addition, TAM may derive or create benchmarking, transactional, or performance information, and other forms of statistics or analytics on an aggregated basis (collectively, “Analytics”).

3.2 Right to Customer Data. Customer represents and warrants that it has a right to use and provide TAM with the Customer Content entered, imported, uploaded, transferred into, and/or used with the Service(s) and/or the TAM Products.

4. PAYMENT.

4.1 Fees and Expenses. In consideration of the rights granted herein, and subject to the further terms of these Terms, Customer shall pay any charges or fees within ten (10) days from invoice date or as otherwise set forth in an Order Form (each such fee, a “Fee”), on terms set forth in an Order Form. All fees paid under these Terms, including each of the Fee(s), are non-refundable. TAM reserves the right to increase the Fee(s) under these Terms by giving Customer at least sixty (60) days prior written notice of such increase, and these Terms will be deemed amended accordingly.

4.2 Taxes. Customer will be solely responsible for paying any sales, value-added, business use or other similar taxes relating to the Service or any other product or service provided by TAM, exclusive of TAM’s income taxes. Fees are exclusive of all taxes.

5. TERM AND TERMINATION.

5.1 Subscription Term; Term. The Subscription Term shall be ninety (90) days, or as otherwise set forth in an Order Form, and shall renew on a month-to month basis. After the initial Subscription Term, Customer may terminate these Terms by providing TAM with thirty (30) days’ written notice to via email to support@theautominer.com. The term of these Terms (the “Term”) begins on the last date of signature of an Order Form and will remain in effect until the Subscription Term has expired, or the date of on which the last Order Form is otherwise terminated, as provided herein, whichever is earlier.

5.2 Termination for Cause. Either party (the “Non-Breaching Party”) may terminate these Terms upon written notice to the other party (the “Breaching Party”) if the Breaching Party fails to cure any material breach of these Terms within thirty (30) days of its receipt of written notice from the Non-Breaching Party stating its intent to terminate and describing the breach with reasonable particularity. Nonpayment by Customer of any amount within thirty (30) days of the due date constitutes material breach. Reference to the unpaid amount and applicable invoice constitutes sufficiently reasonable particularity for the notice of breach.

5.3 Effect of Termination. Upon the expiration or termination of these Terms, all rights and licenses granted by a party under these Terms will immediately terminate, and Customer will immediately cease use of the Service, TAM Products, and TAM Content. Termination by either party will not relieve Customer of any obligation to pay fees due for periods prior to termination. The terms and conditions set forth in Sections 3, 6, 7, 8.2, 9 and 10 shall survive any termination of these Terms.

6. CONFIDENTIAL INFORMATION.

6.1 Confidential Information Defined. “Confidential Information”, as used in these Terms, means any information that, during the Term, is disclosed by or on behalf of a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and at the time of disclosure: (a) is designated in writing as confidential or proprietary; (b) is designated orally as confidential or proprietary, and embodied by the Disclosing Party in written or other tangible form, including the TAM Products; or (c) should reasonably be understood by the Receiving Party to be Confidential Information of the Disclosing Party under the circumstances. Notwithstanding the absence of any designation of confidentiality, the parties agree that these Terms, non-public product functionality descriptions, TAM Content, specifications regarding the Service and/or TAM Products and/or their respective functionality, an Analytics are the Confidential Information of TAM.

6.2 Obligations. Except as expressly approved by the Disclosing Party in writing, the Receiving Party will not: (a) use the Confidential Information of the Disclosing Party except to perform or exercise its rights and obligations under these Terms; or (b) disclose the Confidential Information of the Disclosing Party to any third party except to the Receiving Party’s Representatives who are under a duty in substance and effect to use and disclose the Confidential Information only as permitted under these Terms. The Receiving Party will be responsible for any use by its Representatives of the Confidential Information that it discloses to or shares with its Representatives. Upon the expiration or termination of these Terms, each party will cease use of, and, within thirty (30) days of the date of expiration or termination, will destroy or return, all Confidential Information of the other party, except that: (i) TAM may retain Confidential Information of Customer as needed to comply with any post-expiration or termination obligation under these Terms; (ii) each party may retain Confidential Information as required to comply with its obligations under applicable laws, rules or regulations; and (iii) Confidential Information may be stored on secured backup media that are destroyed no more than twelve (12) months after the month in which these Terms expires or terminates.

6.3 Exceptions. Neither party’s obligations under this Section 6 will apply to: (a) information that is or becomes publicly available except through any act or omission of the Receiving Party in violation of a duty to the Disclosing Party; (b) information rightfully obtained by the Receiving Party from a third party without restriction and without breach of these Terms or any similar agreement; (c) information known to the Receiving Party at the time of disclosure; or (d) information independently developed by the Receiving Party without any use of or access to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information in accordance with a subpoena, judicial or other governmental order, or requirement of any law, regulation or the rules of any applicable stock exchange, provided that where legally permissible the Receiving Party must give the Disclosing Party reasonable written notice prior to such disclosure and seek confidential treatment for the disclosed Confidential Information, at the sole cost and expense of the Disclosing Party.

7. INTELLECTUAL PROPERTY.

7.1 TAM IP Ownership. As used in these Terms, “Intellectual Property Right” means any patent application, patent, copyright, moral right, database right, trademark right, trade secret or other intellectual property or proprietary right recognized or enforceable under any U.S., foreign or international law, rule or regulation. TAM retains ownership of and reserves all Intellectual Property Rights in or related to the Service, TAM Products, TAM Content, or Analytics (collectively, “TAM IP”). TAM does not convey to Customer any Intellectual Property Right in or to any TAM IP except for the non-exclusive right to use the Service, TAM Products, and TAM Content as set forth in these Terms. Customer agrees that TAM is free to use and incorporate into TAM IP any comment, feedback, review or other input provided by Customer, and that such use or incorporation does not create or give rise to any Intellectual Property Right of Customer in any TAM IP.

7.2 Customer IP Ownership. Customer retains ownership of and reserves all Intellectual Property Rights in or related to the Customer Content, Customer Work Product or any other materials, communications or content that Customer supply for use in connection with the Service (collectively, “Customer IP”). Customer does not convey to TAM any Intellectual Property Right in or to any Customer IP, except as expressly set forth in these Terms, including without limitation pursuant to Section 3.2.

7.3 Customer Marks. Customer grants to TAM a non-exclusive, non-sublicensable right, during the Term, to use any Customer trademark, service mark or trade name included in the Customer IP or designated by Customer for use in the Service (the “Customer Marks”), in connection with the performance of TAM’s obligations under or as otherwise set forth in these Terms, and to identify Customer in TAM’s customer lists and other marketing and promotional materials and communications referencing Customer as a customer of TAM. TAM will comply with Customer’s written guidelines for trademark usage provided reasonably in advance.

8. WARRANTIES AND LIMITATIONS.

8.1 Warranty. TAM represents and warrants to Customer that, as of the date of execution of these Terms, (a) TAM is the sole and exclusive owner of all right, title and interest in and to TAM Products, (ib) TAM has the full right and authority to enter into and grant to the Customer, all rights granted under these Terms. Warranty. TAM warrants that, during the Subscription Period, the Service will perform in all material respects in accordance with the applicable Order Form. TAM’s warranty does not apply to: (a) any products, services and websites provided by other persons or entities; (b) any use of the Service not in accordance with applicable documentation, TAM's published policies, these Terms (including any exhibit or addendum); (c) any Customer Content; or (d) failure of Customer or its authorized users to follow reasonable instructions provided by TAM (each of (a), (b) (c), and (d) above, an “Excluded Condition”). TAM's sole liability and obligation for breach of the foregoing warranty will be to use commercially reasonable efforts to promptly repair or replace the Service to correct the breach, and the sole remedy of Customer is that it may terminate these Terms upon written notice and receive a refund of any pre-paid but unused amounts if the breach extends for at least thirty (30) consecutive days.

8.2 Limitations. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, TAM DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING AT COMMON LAW, OR OTHERWISE RELATED TO THE SUBJECT MATTER OF THESE TERMS, INCLUDING THE SERVICE, SOFTWARE, TAM CONTENT, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED UNDER THESE TERMS OR ANY EXHIBIT OR ADDENDUM THERETO. WITHOUT WAIVING OR LIMITING THE GENERALITY OF THE FOREGOING, TAM DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, DATA OR SYSTEM INTEGRITY, AVAILABILITY, TIMELINESS, COMPLETENESS, NON-INFRINGEMENT, OR THAT THE SERVICE OR SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR WILL BE ERROR FREE, AND ANY WARRANTY REGARDING CUSTOMER’S USE OF THE SERVICE, SOFTWARE, TAM CONTENT, OR ANY INFORMATION OBTAINABLE THEREFROM, ANY DECISION MADE USING THE SERVICE, SOFTWARE, UNAUTHORIZED ACCESS TO THE SERVICE OR SOFTWARE, OR CUSTOMER’S USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SERVICE OR SOFTWARE IS EXPRESSLY DISCLAIMED. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, TAM MAY MAKE CHANGES TO THE SERVICE OR SOFTWARE FROM TIME TO TIME, OR THE CORRESPONDING DOCUMENTATION, AND THOSE CHANGES WILL NOT BE DEEMED TO GIVE RISE TO BREACH OF WARRANTY OR IMPOSE ANY LIABILITY ON TAM.

9. INDEMNIFICATION.

9.1 TAM Indemnification. TAM will defend Customer and its Representatives (each, a “Customer Indemnitee”) from and against any and all third-party claims, demands, lawsuits, or legal actions: (a) alleging that the TAM IP infringes or violates an Intellectual Property Right of a third party; (b) arising from TAM’s failure to perform under Section 3.1 (Data Use and Disclosure) above; or (c) arising from TAM’s violation of its obligations under these Terms with respect to Section 6 (Confidential Information) above (each of (a), (b), and (c), a “TAM Indemnified Claim”), and indemnify each Customer Indemnitee from and against any and all out of pocket damages, expenses and/or other costs awarded against it (including reasonable attorney's fees associated therewith) in a final, non-appealable judgment in connection with a TAM Indemnified Claim. TAM’s obligations under this Section 9.1 do not apply to any Excluded Condition.

9.2 Customer Indemnification. Customer will defend TAM and its Affiliates and Representatives (each, an “TAM Indemnitee”) from and against any and all third-party claims, demands, lawsuits, or legal actions: (a) arising from any matter for which Customer is responsible under Section 2 (Customer Responsibilities) above; (b) arising from violation by Customer of its obligations under these Terms with respect to Section 6 (Confidential Information) above (each of (a), and (b), a “Customer Indemnified Claim”), and indemnify each TAM Indemnitee from and against any and all out of pocket damages, expenses and/or other costs awarded against it (including reasonable attorney's fees associated therewith) in a final, non-appealable judgment in connection with a Customer Indemnified Claim.

9.3 Indemnification Conditions. As an express condition to either party’s duty to defend or indemnify under this Section 9, the person or entity seeking defense or indemnification must: (i) give the defending and indemnifying party prompt written notice of the applicable claim, demand or legal action; (ii) allow the defending and indemnifying party sole control of the defense and settlement; and (iii) reasonably cooperate in the defense and settlement at the defending and indemnifying party’s reasonable cost, except that the indemnified person or entity will not be required to make any settlement payment unless the defending and indemnifying party agrees to include that payment as an indemnified expense. In the event of any claim, demand, legal action or notice alleging infringement of TAM IP, TAM may either: (i) replace or modify the TAM IP in whole or in part in a manner that does not materially degrade the Service; (ii) obtain a license or other grant of rights necessary to continue to provide the TAM IP in accordance with these Terms; or (iii) terminate these Terms upon written notice to Customer. In such event, TAM’s sole liability will be its obligations under Section 9.1 above and to refund to Customer any pre-paid but unused fees.

10. LIMITATIONS OF LIABILITY.

IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR ITS SUBJECT MATTER, WHETHER UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, INTENTIONAL OR UNINTENTIONAL TORT, OR ANY OTHER LEGAL THEORY, FOR LOST REVENUE, LOST PROFITS, LOST DAMAGES, LOSS OF DATA, LOSS OF USE, ANY CLAIM OR ACTION OF ANY THIRD PARTY (EXCEPT UNDER SECTIONS 6 (CONFIDENTIAL INFORMATION) AND 10 (INDEMNIFICATION) OF THESE TERMS), OR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER OR NOT SUCH PARTY OR ITS AFFILIATE MAY HAVE ANTICIPATED OR BEEN ADVISED OF SUCH DAMAGES.THE TOTAL CUMULATIVE LIABILITY OF TAM AND ITS AFFILIATES OR REPRESENTATIVES ARISING OUT OF OR RELATED TO THESE TERMS, ANY EXHIBIT OR ADDENDUM THERETO, OR THE SUBJECT MATTER HEREOF, WHETHER UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES PAID BY CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH THE FIRST OF ANY SUCH LIABILITIES AROSE.

11. GENERAL TERMS.

11.1 Relationship of the Parties. Each party agrees that it is an independent entity and that nothing in these Terms creates a partnership, joint venture, fiduciary, agency, or affiliate relationship between the parties.

11.2 Force Majeure. Neither party will be deemed to be in default of its obligations under these Terms (other than an obligation to pay money) to the extent that performance of its obligations or attempts to cure any breach are materially delayed or prevented by reason of any event that is beyond the reasonable control of that party and could not reasonably have been foreseen and protected against by that party.

11.3 Notices. All notices and other communications required or permitted under these Terms will be in writing and will be deemed duly given if sent by nationally recognized overnight delivery service, or sent by electronic mail (read receipt requested), in each case addressed to the party entitled to receive the same at the address set forth in an Order Form.

11.4 Assignment. Customer shall not and may not assign or delegate any of its rights or obligations under these Terms without prior written consent from TAM. Subject to the foregoing, these Terms inures to the benefit of and is binding on each of the parties, their successors, permitted assigns and legal representatives.

11.5 Governing Law and Jurisdiction. The laws of the State of Delaware, excluding its conflicts of law rules, govern these Terms and the provision of the Service.

11.6 Miscellaneous. These Terms (including any exhibit and addendum) constitutes the entire agreement between the parties hereto concerning the subject matter hereof and supersedes all prior negotiations, understandings, undertakings or agreements (whether oral or written) between the parties. The waiver or failure of a party hereto to require performance of any provision of these Terms shall not be construed as a waiver of that party’s right to insist on performance of that same provision, or any other provision, at some other time. TAM may amend or update these Terms from time to time.

Exhibit A

DEFINITIONS.

“Affiliate” of a party means an entity that directly or indirectly controls, is controlled by, or is under common control with that party, in each case through majority voting power.

“Customer Content” means the electronic data, information, and/or files entered, imported, uploaded, transferred into, and/or used with the Service and/or TAM Products by or on behalf of Customer, including by an end user or client of Customer. Customer Content expressly excludes any TAM Content.

“Customer Work Product” means any content generated with or exported from the Service and/or TAM Products by Customer. Customer Work Product excludes any TAM Content.

“TAM Content” means any data, informational materials and databases of automotive businesses provided by TAM for use in connection with the Service, as the same may be modified from time to time by TAM.

“Representative” means, with respect to each party, its officers, managers, members serving in a managerial role, general partners, directors, employees, contractors, and agents.

“Service(s)” means the provision of access to the TAM Products and/or other services provided by TAM including “Direct Mail”, “Conquest Data” and “Custom Creative” services as specified in an Order Form. For clarity, Customer is only provided to such Services expressly provided in an Order Form.

“Subscription Term” means the period of time that the Service(s) will remain in effect, as set forth in these Terms.

“TAM Products” means TAM’s software product, identified on an Order Form, that that may utilize website tags and permits Customer to access TAM Content for marketing purposes including customer database mining.

SMS-TEXT MESSAGE ADDENDUM

1. TAM Products enable Customer to create text messages (“Texts”) and distribute such Texts to Customer’s customer database (the “Text Message Functionality”). If specified in an Order Form, Customer’s (and its personnel’s) use of the Text Message Functionality is subject to the additional terms and conditions below:some text
   1. Customer accepts all responsibility for ensuring, and represents and warrants to TAM, that each recipient of a Text sent by Customer’s personnel will have provided prior written consent to have opted- in to receiving text messages;
   2. Customer assumes all responsibility for such use in accordance with all applicable state and federal laws, including laws that require opt-in/opt-out by the recipients of the Text Messages;
   3. For the avoidance of doubt, while TAM bears no responsibility for the use of the Text Messaging Functionality by Customer and its personnel, TAM will use and implement best industry practices to adhere to time-of-day restrictions on sending Texts (based on recipient’s time zone(s)), and to monitor “STOP” messages and prevent further Texts to the mobile number from which the “STOP” messages came. The Text Messaging Functionality will only permit Texts to resume if a “START” message is received from such mobile number; and
   4. Customer will assume sole responsibility for addressing questions or complaints from individuals or entities regarding any Text Messages by its personnel.
2. All capitalized terms contained in this Addendum that are not otherwise defined herein shall have the meaning ascribed to them in these Terms. In the event of a conflict between these Terms and this Addendum, the terms of this Addendum shall govern. The parties remain bound by all the terms and conditions of these Terms. Except as modified herein, all the terms and conditions of these Terms are incorporated by reference herein as if set forth at length.

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