Think Terms of Service

TERMS OF SERVICE

TERMS AND CONDITIONS FOR THE ONLINE SALE OF PRODUCTS OR SERVICES

These Terms of Service are effective as of February 26, 2020

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.

BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.

YOU (“RECIPIENT”, “YOU”, “CLIENT”) MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH THINK AUTOMOTIVE MARKETING, INC. (“SERVICE PROVIDER”) of 6775 GOLDEN GATE DR 400, DUBLIN, CALIFORNIA 94568, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.

These Terms are an integral part of the Website Terms of Use that apply generally to the use of our Site. You should also carefully review our Privacy Policy before placing an order for products or services through this Site.

Notwithstanding anything to the contrary in the Website Terms of Use or our Privacy Policy, these terms and conditions (these “Terms”) apply to the purchase and sale of products and services through www.thinkadgroup.com (the “Site”). These Terms are subject to change by SERVICE PROVIDER (also referred to as “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on this Site, and you should review these Terms before purchasing any product or services that are available through this Site. Your continued use of this Site after a posted change in these Terms will constitute your acceptance of and agreement to such changes.

RECITALS.

WHEREAS, Service Provider is in the business of providing promotion and marketing services, including the design and implementation of promotional campaigns;

WHEREAS, Client is in the business of selling products and/or services;

WHEREAS, Client desires to retain Service Provider to provide certain services in connection with the design and

management of a promotional and marketing campaign for the Client's products and/or services. NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement have the meanings set forth in this Section.

    "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at law, in equity, or otherwise.

    "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term

    "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

    "Business Day" means any day except Saturday, Sunday, or any other day on which commercial banks located in California are authorized or required by Law to be closed for business. "Campaign" means the promotional and marketing campaign for Client's products and/or services more fully described in Exhibit A to this Agreement.


    "Claim" means an Action brought against a Person entitled to indemnification in accordance with Section 7 of this Agreement.

    "Client Intellectual Property" means any Intellectual Property owned by or licensed to Client. "Client Materials" means proprietary information, documents, samples, products, and other materials of Client.

    "Deliverables" means all documents, work product, and other materials that are developed for or delivered to Client hereunder by or on behalf of Service Provider in connection with the Campaign or in the course of performing the Services.

    "Deliverables F&A" means only those Deliverables in final format and approved by Client. "Intellectual Property" means any and all trade secrets, Trademarks, copyrights, patents, and any other intangible property in which any Person holds proprietary rights, title, interests, or protections, however arising, pursuant to the Laws of the US, including all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.

    "Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order, or other requirement or rule of law of any governmental authority. "Losses" means losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers.

    "Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, governmental authority, or any other entity. "Personnel" of a party means any agents, employees, or subcontractors engaged or appointed "Representatives" means a party's Affiliates, employees, officers, directors, partners,

    by the party.

    shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns. Agreement.

    "Services" means the promotion and marketing services described in Exhibit A to this "Trademarks" means all rights in and to US trademarks, service marks, trade dress, trade names, brand names, logos, taglines, corporate names, and domain names, and other similar designations of source, sponsorship, association, or origin, together with the goodwill associated with any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

  2. SERVICE PROVIDER SERVICES AND RESPONSIBILITIES.

    1. Service Provider Services. Service Provider shall use commercially reasonable efforts to provide the Services to Client in accordance with the terms of this Agreement.

    2. Time of the Essence. Service Provider acknowledges that time is of the essence with respect to Service Provider's obligations hereunder and that prompt and timely performance of all such obligations is strictly required.

    3. Service Provider Contract Manager and Personnel. (a) Service Provider shall:

      1. appoint an employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of the Service Provider in connection with matters pertaining to this Agreement (the "Service Provider Contract Manager");

      2. hire, supervise, direct, and discharge all employees and Third Party Providers necessary (as defined in Section 2.3(d)) to perform the Services, each of whom shall be suitably skilled, experienced, and qualified (collectively with the Service Provider Contract Manager, the "Service Provider Personnel"); and

      3. upon reasonable request of Client, when commercially feasible to Service Provider, replace the Service Provider Contract Manager and any other Service Provider Personnel.

      1. Service Provider shall use reasonable efforts to maintain the same Service Provider Contract Manager and other Service Provider Personnel throughout the Term of this Agreement except for changes in such personnel in response to:

        1. the Client's written request in accordance with Section 2.3(a)(iii);

        2. the resignation or termination of such personnel; or

        3. other circumstances outside of Service Provider's reasonable control.

      2. Service Provider shall use reasonable efforts to ensure that each Third Party Provider is bound in writing by the confidentiality and intellectual property assignment or license provisions of this Agreement.

      3. Service Provider may engage any Person who is not a Service Provider employee, including any independent consultants, contractors, subcontractors, or Affiliates of Service Provider (each such third party, a “Third Party Provider”), to provide any Services to Client in connection with the Campaign. Service Provider shall remain fully responsible for the performance of each such Third Party Provider and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Service Provider’s own employees. Upon the reasonable request of Client, Service Provider shall provide Client with a list of Third Party Providers having provided or providing services in connection with the Campaign. Nothing contained in this Agreement shall create any contractual relationship between client and any Service Provider subcontractor or supplier.

    4. Client Approvals of Final Deliverables for Release.

      Prior to their public release, Service Provider shall submit to Client for approval any materials that the Service Provider proposes be displayed, published, reproduced, distributed, or otherwise made publicly available as part of the Campaign. Within ten (10) Business Days after receiving a submission and request for approval from Client, Client shall provide Service Provider with written notice approving or disapproving the materials submitted. If the Client approves, the materials submitted shall be deemed as Deliverables F&A. If the Client does not deliver written approval within ten (10) Business Days, (i) the submission will be deemed disapproved and (ii) until the Service Provider revises the materials to the reasonable satisfaction of the Client, the materials shall not be publicly released. If after three (3) resubmissions, Client does not approve the revised materials, Client shall have the right to terminate this Agreement in accordance with

      Section 10.2(c). Regardless of any release or approval, Client remains responsible on a pro rata basis, for any fees and expenses for any Services or Deliverables that have not been approved.

    5. No Exclusivity. Service Provider retains the right to perform the same or similar type of services

      for third parties at all times, including during the Term (as defined in Section 10.1).

    6. Status Reports. On certain Campaigns, Service Provider may provide regular written status reports, including written confirmation of completion of each Service and each milestone in the Campaign.

      2.7. 2.8.


      2.9. California Consumer Privacy Act of 2018 (CCPA) Compliance. In conjunction with the services provided under Exhibit A, Client may provide Service Provider with access to personal information which is protected under the CCPA. Pursuant to Cal. Civ. Code § 1798.140(v), Service Provider will not retain, use, or disclose the personal information for:

      1. Any purpose except performing the services specified in Exhibit A or that the CCPA otherwise permits a service provider to take.

      2. A commercial purpose other than providing the services specified in Exhibit A.

      Service Provider represents, warrants, and covenants to Client that it has, and shall adhere to and remain compliant throughout the Term with the CCPA’s terms and any related regulations.

      Service Provider agrees to provide reasonable assistance to the Recipient to meet Recipient’s CCPA obligations by fulfilling any valid deletion requests.

      Client represents, warrants, and covenants to Service Provider that it has, and shall adhere to and remain compliant throughout the Term with the CCPA’s terms and any related regulations, including without limitation Cal. Civ. Code § 1798.140(y) and Cal. Civ. Code § 1798.105(a)).

  3. CLIENT OBLIGATIONS AND RESPONSIBILITIES. 3.1. Client shall:

    1. Appoint a Client employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement (the "Client Contract Manager").

    2. Provide copies of or access to such Client Materials and product samples as Service Provider may reasonably request in order to carry out the Services in a timely manner, and ensure that they are complete and accurate in all material respects; provided that Client and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including all Intellectual Property therein; Service Provider shall have no right or license to use any such information or materials other than during the Term to the extent necessary to provide the Services to Client; and all other rights in and to the Client's Materials are expressly Not Applicable by Client.

    3. Respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform the Services in accordance with the requirements of this Agreement.


  4. INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP.

    1. License to Certain Client Intellectual Property.

      1. Subject to and in accordance with the terms and conditions of this Agreement, Client grants Service Provider and its Affiliates and Third Party Providers a limited, non-exclusive, royalty- free, non-transferable license during the Term to use, solely in connection with the Services: (i) Client's Trademarks/Client Intellectual Property (ii) Client's website addresses, websites, and

        URL's; and (iii) any Trademarks and other Intellectual Property created by the Service Provider on Client's behalf as part of the Services.

      2. Client grants no other right or license to any Client Intellectual Property to Service Provider by implication, estoppel, or otherwise. Service Provider acknowledges that Client owns all right, title, and interest in, to and under all Client Intellectual Property and that Service Provider shall not acquire any proprietary rights therein. Any use by Service Provider or any Representative of Service Provider of any of Client's Trademarks and all goodwill associated therewith shall inure to the benefit of Client.

    2. Ownership of and License to Deliverables.

      1. Except as set forth in Section 4.2(c), Client is, and shall be, the sole and exclusive

        owner of all right, title, and interest in and to the Deliverables F&A, including all Intellectual Property

        therein. Service Provider agrees, and will cause Service Provider Personnel to agree, that with respect to any Deliverables F&A that may qualify as "work made for hire" as defined in 17

        U.S.C. § 101, such Deliverables F&A are hereby deemed a "work made for hire" for Client. To the extent that any of the Deliverables F&A do not constitute a "work made for hire," Service Provider hereby irrevocably assigns, and shall cause the Service Provider Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables F&A, including all Intellectual Property therein. The Service Provider shall cause the Service Provider Personnel to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Service Provider Personnel may now or hereafter have in any jurisdiction to so-called "moral rights" with respect to the Deliverables F&A.

      2. Upon the reasonable request and at the expense of Client, Service Provider shall, and shall cause the Service Provider Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables F&A and all Intellectual Property therein.

      3. Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property therein. Service Provider hereby grants Client and its Affiliates a perpetual, limited, royalty-free, non- transferable (except in accordance with Section 11.10), non-sublicensable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables F&A for any and all purposes/solely to the extent reasonably required in connection with Client's receipt or use of the Services and Deliverables F&A. All other rights in and to the Pre-Existing Materials are expressly Not Applicable by Service Provider.

  5. FEES AND EXPENSES; PAYMENT OBLIGATIONS. 5.1. Fees and Expenses.

    1. In consideration of the provision of the Services and the rights granted to Client under this Agreement, Client shall pay Service Provider:

      1. the fees set forth on Exhibit A, attached hereto for the Services described on Exhibit A, which amount shall be inclusive of any costs of materials or other expenses of Service Provider in providing such Services;

      2. All prices posted on this Site are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in

        Exhibit A. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation email. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.

      3. (iii)

    2. Payment to Service Provider of the fees set forth in 5.1(a)(i) shall constitute payment in full for the performance of the Services provided in .

      1. Payment.

        1. All invoice payments are due upon receipt or as set forth in the invoice section of Exhibit A. Client shall pay all properly invoiced amounts due to Service Provider, except for any amounts disputed by Client in good faith and in accordance with Section 5.4.

        2. Client shall make all payments in US dollars.

        3. Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept [LIST OF APPROVED CREDIT CARDS/OTHER PAYMENT METHOD] for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete,

        (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.

      2. Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any orders in our sole discretion. After having received your order, we will send you a confirmation email with your order number and details of the items you have ordered. Acceptance of your order and the formation of the contract of sale between Think Automotive Marketing and you will not take place unless and until we have sent your order confirmation email. You have the option to cancel your order at any time before we have sent your order confirmation email by calling our Customer Service Department at 925-900-5340. The Effective Date of this Agreement is the date we send your order

      3. Invoice Disputes. Client shall notify Service Provider in writing of any dispute with an invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within five (5) days the time prescribed by such invoice. Client will be deemed to have accepted all invoices for which Service Provider does not receive timely notification of dispute, and shall pay all undisputed amounts due under such invoices within the period set forth in Section 5.2. The parties shall seek to resolve all such disputes expeditiously and in good faith.

      4. Late Payments. Except for invoiced payments that Client has disputed, Client shall pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 0.8333% per month or the highest rate permissible under applicable Law. Client shall also reimburse Service Provider for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.

  6. REPRESENTATIONS, WARRANTIES, AND CERTAIN COVENANTS.

    1. Mutual Representations, Warranties, and Covenants. Each party represents, warrants, and covenants to the other that:

      1. it is a legal entity duly organized, validly existing, and in good standing in the jurisdiction of its applicable incorporation/organization/formation;

      2. it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement;

      3. it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;

      4. the execution of this Agreement by its Representative whose signature is set forth at the end hereof and the delivery of this Agreement by the party has been duly authorized by all necessary corporate action of the party;

      5. this Agreement has been executed and delivered by such party and (assuming due authorization, execution, and delivery by the other party) constitutes the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and

      6. it is now and through the Term shall remain in compliance with all Laws applicable to the performance of its obligations under this Agreement.

    2. Service Provider Representations, Warranties, and Covenants. Service Provider represents, warrants, and covenants to Client that:

      1. it shall materially comply with, and use reasonable efforts to ensure that all Service Provider Personnel and Third Party Providers comply with, all specifications, rules, regulations, and policies of Client that are communicated to Service Provider in writing; confirmation email.


      2. Client will receive good and valid title to all Deliverables F&A, free and clear of all encumbrances and liens of any kind;

      3. to the knowledge of Service Provider, no Deliverables provided in electronic form by Provider to Client contain or will contain any (i) trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a Person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program; and

    3. Client Representations, Warranties, and Covenants. Client represents, warrants, and covenants to Service Provider that:

      1. it has provided or it shall promptly upon request of Service Provider provide Service Provider with a copy of any applicable internal policies or procedures and a written description of any specifications or other requirements or restrictions applying to any of the Services or the Campaign; and

      2. it has, or shall obtain no later than ten (10) days of the Effective Date and prior to any Client’s final approvals for public release of any Deliverables, shall maintain throughout the Term, all rights, licenses, and consents required in connection with the Campaign, including any such right or licenses required to lawfully use, and to authorize Service Provider to use, any Client Intellectual Property or Client Materials provided to Service Provider for use in connection with the Campaign, including, without limitation any licenses, permits, consents, and authorizations related to all consumer protection and privacy and data security laws relating to the collection, use, processing, and disclosure of personal information in all applicable jurisdictions .

      3. it has, and shall adhere to and remain compliant throughout the Term, with all governing laws, including without limitation, compliance with all rules and regulations in connection with Service Provider’s services in the Campaign, including, consumer protection and privacy and

      data security laws relating to the collection, use, processing, and disclosure of personal information in all applicable jurisdictions.

    4. NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS 6.4, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 6 OF THIS AGREEMENT.

  7. INDEMNIFICATION.

    1. Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Service Provider, and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, "Service Provider Indemnified Party"), from and against any and all Losses arising out of or resulting from any third-party Claim alleging:

      1. breach by Client or its Personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement;

      2. negligence or more culpable act or omission of Client or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and

      3. that any Client Materials or Client Intellectual Property or Service Provider's receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property of a third party arising under the Laws of the United States.

      . SECTION


    2. Exceptions and Limitations on Indemnification.

      1. Notwithstanding anything to the contrary in this Agreement, Client shall have no obligations to indemnify or defend Service Provider or any of its Representatives against any Losses arising out of or resulting from the other party's:

        1. negligent acts or omissions; or

        2. bad faith failure to comply with any of its obligations set forth in this Agreement.

      2. Notwithstanding anything to the contrary in this Agreement, Client shall have no obligations to indemnify or defend Service Provider or any of its Representatives against any Losses arising out of or resulting from infringement claims relating to:

      1. any Deliverables F&A or any instruction, information, designs, specifications, or other materials provided by Service Provider in writing to Client;

      2. Service Provider's use of any Client Materials or Client Intellectual Property in combination with any materials or equipment not supplied to Service Provider or specified by Client in writing, if the infringement would have been avoided by the use of the Client Materials or Client Intellectual Property not so combined; or

      3. any modifications or changes made to the Client Materials or Client Intellectual Property by or on behalf of any Person other than Client or Client Personnel.

        1. Indemnification Procedures. A party seeking indemnification under this Section 7 (the "Indemnified Party") shall give the party from whom indemnification is sought (the "Indemnifying Party"): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and

          (b) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.

        2. EXCLUSIVE REMEDY. THIS SECTION 7 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 7.

  8. LIMITATION OF LIABILITY.

    1. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR INDEMNIFICATION ,OR LIABILITY FOR BREACH OF CONFIDENTIALITY OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    2. MAXIMUM LIABILITY. EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR INDEMNIFICATION ,OR LIABILITY FOR BREACH OF CONFIDENTIALITY OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THREE (3) TIMES THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.


  9. CONFIDENTIALITY. From time to time during the Term, either party (as the "Disclosing Party") may disclose or make available to the other party (as the "Receiving Party") information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in

    written, electronic or other form or media, and ,whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed pursuant to applicable Law. The Receiving Party shall, for three (3) years years/months from receipt/ disclosure of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any Person, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 9 caused by any of its Representatives.

  10. TERM; TERMINATION.

    1. Term. The term of this Agreement commences on the Effective Date and continues for a period

      of one (1) year, unless it is earlier terminated in accordance with the terms of this Agreement (the "Term"). 10.2. Termination for Cause.

      1. Either party may terminate this Agreement, effective upon written Notice, to the other party (the "Defaulting Party") if the Defaulting Party:

        if:

        1. materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (other than a failure by Client to make timely payments, which is separately addressed in Section 10.2(b), the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;

        2. becomes insolvent or is generally unable to pay its debts as they become due;

        3. files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;

        4. makes or seeks to make a general assignment for the benefit of its creditors;

        5. applies for or has appointed a receiver, trustee, custodian, or similar agent

          appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;

        6. is dissolved or liquidated; or

        7. is unable to perform its obligations under this Agreement due to the

        occurrence of a Force Majeure Event (as defined in Section 11.14) that lasts for more than sixty

        (60) days.

      2. Service Provider may terminate this Agreement, effective upon written Notice to Client

        1. a failure by Client to make a timely payment continues for seven (7) days after Client's receipt of written notice of nonpayment; or

        2. within any six (6) month period, Client fails to make four (4) or more timely payment(s).

      3. Client may terminate this Agreement, effective upon written Notice to Service Provider if Service Provider fails to deliver satisfactory revised materials in accordance with Section 2.4.

        1. Termination without Cause. Client may terminate this Agreement on thirty (30) days' prior written Notice to Service Provider subject to Client's payment to Service Provider of a termination fee in the total amount for services provided pursuant to Exhibit A.

        2. Effect of Expiration or Termination.

      1. Expiration or termination of this Agreement will not affect any rights or obligations that:

        1. are to survive the expiration or earlier termination of this Agreement; and

        2. were incurred by the parties prior to such expiration or earlier termination.

      2. Upon the expiration or termination of this Agreement for any reason, each party shall promptly:

        1. destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party's Confidential Information;

        2. permanently erase all of the other party's Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files; and

        3. certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that Client may retain copies of any Confidential Information of Service Provider incorporated in the Deliverables F&A or to the extent necessary to allow it to make full use of the Services and any Deliverables F&A.

      3. Upon expiration or termination of this Agreement for any reason, Service Provider shall:

        1. promptly deliver to Client all Deliverables F&A for which Client has paid and all Client Materials;

        2. provide reasonable cooperation and assistance to Client upon Client's written request and at Client's expense in transitioning the Services to an alternate Service Provider; and

      4. In no event shall Client be liable for any Service Provider Personnel termination costs arising from the expiration or termination of this Agreement.

      5. Subject to Section 10.4(a), the party terminating this Agreement, or in the case of the expiration of this Agreement, each party, shall not be liable to the other party for any damage of any kind (whether direct or indirect) incurred by the other party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of the terminating party's rights or remedies/either party's rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.

  11. MISCELLANEOUS.

    1. Further Assurances. Upon a party's reasonable request, the other party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.

    2. Entire Agreement. This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings,

      agreements, representations, and warranties, both written and oral, with respect to such subject matter.

    3. Survival. Subject to the limitations and other provisions of this Agreement, (a) Section 6 (Representations, Warranties, and Certain Covenants) shall survive the expiration or earlier termination of this Agreement for a period of 12 months after such expiration or termination; and

      (b) Section 5 (Fees and Expenses; Payment Obligations), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidentiality), Section 10 (Term; Termination), and 11 (Miscellaneous), of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination. No lawsuit or other action based upon or arising in any way out of this Agreement may be brought by either party after the expiration of the applicable survival period; provided, however, that any claims asserted in good faith with reasonable specificity and in writing by Notice prior to the expiration of the applicable survival period are not thereafter barred by the expiration of the relevant period, and such claims survive until finally resolved.

    4. NOTICES. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in Exhibit A of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each

      case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 11.4.

    5. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

    6. Amendment and Modification. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized Representative of each party.

    7. Waiver.

      1. No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement and signed by an authorized Representative of the party waiving its right.

      2. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.

      3. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement:

      1. any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or

      2. any act, omission, or course of dealing between the parties.

    8. Cumulative Remedies. Except as set forth in Section 7, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.

    9. Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party of any of its obligations under Section 9 would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such party of any such obligations, the other party shall, in addition to any and all other rights and remedies that may be available to such party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each party agrees that such party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 11.9.

    10. Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that either party may assign this Agreement to an Affiliate, a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of all or substantially all of the party's assets. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

    11. No Third-Party Beneficiaries.

      1. Subject to Section 11.11(b), this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

      2. The parties hereby designate the Client Indemnified Parties and Service Provider Indemnified Parties as third-party beneficiaries of Section 7 of this Agreement having the right to enforce Section 7.

    12. Choice of Law. This Agreement, including all documents and exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the Laws of the State of California, United States of America without giving effect to any conflict of laws provisions thereof.

    13. Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than United States District Court, Northern District of California o the courts of the State of California sitting in Alameda County, and any appellate court thereof. Each party irrevocably and

      unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in United States District Court, Northern District of California or the courts of the State of California sitting in Alameda County. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

    14. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities; and (j) other similar events beyond the reasonable control of the party impacted by the Force Majeure Event (the "Impacted Party"). The Impacted Party shall give notice within seven (7) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of forty-five (45) days following written notice given by it under this Section 11.15, either party may thereafter terminate this Agreement upon seven (7) days' written notice.

    15. Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Service Provider is an independent contractor pursuant to this Agreement. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.

    16. Public Announcements. Neither party shall make any statement (whether oral or in writing) in any press release, external advertising, marketing, or promotion materials regarding the other party or its business unless: (a) it has received the express written consent of the other party; or (b) it is required to do so by Law or under the rules of any stock exchange to which it is subject.

    17. Construction and Interpretation. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort. The headings identifying the various sections and subsections of this Agreement are for reference only and do not define, modify, expand, or limit any of the terms or provisions herein.


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