Terms and Conditions - abnetwork.com

STANDARD TERMS AND CONDITIONS

These Standard Terms and Conditions (the “Standard Terms”) if applicable, are incorporated by reference into the following agreements between ABN and Dealer, more specifically:

The Content Agreement, individually referred to herein as the “Content Agreement;”
The Equipment Agreement, individually referred to herein as the “Equipment Agreement”; and
The ABN Inspire Master SaaS Agreement, individually referred to herein as the “SaaS Agreement”.

The Content Agreement, Equipment Agreement and SaaS Agreement shall collectively be referred to herein as the “Agreements.” Any capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Agreements. As used herein, “Services” shall include the Advertising and Content Services and SaaS Services.

The SaaS Agreement is also subject to additional SaaS Standard Terms and Conditions (“SaaS Standard Terms”) and the Mobile Application End User License Agreement (“EULA”) hereinafter set forth. Both the SaaS Standard Terms and Conditions and the Mobile Application End User License Agreement are set forth below, preceded by the Standard Terms.

Standard Terms

These Standard Terms are incorporated by reference into the Agreements.

In the event of any conflict between the terms of the Agreements and these Standard Terms, the Agreements shall control except that Section 9 below shall control over the Agreements. As more fully described in the Content Agreement, ABN shall not provide equipment or hardware as part of the Content Agreement, but ABN shall deliver and show (both visual and/or auditory) advertising, educational and entertainment content (“Content”) over an exclusive audio and video distribution network operated by ABN within Dealer’s dealership and/or Dealer’s adjoining service building(s), collision center, pre-owned building(s), or other buildings that may receive Content from ABN as part of the Content Agreement (the “ABN Network”). Any necessary hardware, equipment and installation required to facilitate ABN providing the ABN Network to Dealer shall be defined in the Equipment Agreement between Dealer and ABN. The ABN Network shall refer to the combined Content and Dealer Equipment provided by ABN.

Dealer Obligations as to Dealer Equipment and ABN Network. Dealer shall own the Dealer Equipment purchased under the Equipment Agreement, on which ABN will provide and broadcast Content on the ABN Network for Dealer under the Content Agreement. Dealer shall either finance through an installment or lease agreement arranged by ABN, or purchase by cash from ABN, the Dealer Equipment. Dealer is not required to use any financing made available by ABN and may use any financing of Dealer’s own choice. To facilitate ABN’s provision, maintenance and operation of the ABN Network on the Dealer Equipment, and perform ABN duties as per the terms of the Agreements, Dealer shall:
1. Provide ABN and its representatives including any installers for the Dealer Equipment reasonable access to Dealer’s facilities (the “Dealer Facilities”);
2. Ensure that the Dealer Facilities are in a safe condition for ABN and its representatives to perform the services required under the Agreements;
3. Provide ABN and its representatives access to electrical power, Internet connections and direct or indirect access to Dealer’s host facilities as necessary for ABN to efficiently perform its services;
4. Ensure that the personnel at the Dealer Facility assist and cooperate with ABN as necessary while ABN installs the Equipment, and troubleshoots and isolates any faults in the Equipment and its connectivity; and
5. Ensure that the Equipment will, at a minimum, (i) be located indoors, (ii) have a constant temperature between 50 ̊ Fahrenheit and 104 ̊ Fahrenheit, and (iii) have a constant relative humidity between 10% and 90%.
6. Assume all risk of loss to the Equipment while located in Dealer Facilities. In the event of a casualty, theft or other loss of the Dealer Equipment, Dealer shall pay to ABN the costs incurred by ABN for the replacement and/or reinstallation of any repaired or replaced Dealer Equipment within thirty days of receipt of ABN’s invoice for such replacement and reinstallation. Dealer agrees not to interfere with, or seek to modify or repair, any of the Dealer Equipment and shall be responsible for any damage caused to the Dealer Equipment by Dealer or its agents, employees or its customers.
7. Accept as the sole warranty on Dealer Equipment the original manufacturer warranty effective when purchased on behalf of Dealer by ABN under the terms of the Equipment Agreement.
8. Adhere to the Dealers’ original equipment manufacturer digital signage guidelines (“OEM Guidelines”). As ABN installs all Dealer Equipment and provides Content to the ABN Network utilizing the Dealer Equipment in compliance with the OEM Guidelines, Dealer shall not reconfigure, obstruct, or interfere with the ABN Network or any of the system’s intended functionality as defined by OEM Guidelines.
Termination. ABN may terminate its providing of Services and other performance under the Agreements if Dealer violates or breaches any provision of the Agreements by, including, but not limited to, failing to pay any amounts due under the Agreements. If ABN so terminates Services under the applicable Agreement, ABN shall be entitled to accelerate and collect from Dealer all amounts due under the applicable Agreement for the remainder of the Term of the applicable Agreement. Notwithstanding any termination of Services under the applicable Agreement, Dealer shall remain obligated to pay to ABN all amounts due to ABN prior to such termination. Dealer may terminate the applicable Agreement in the event of a material breach by ABN of its obligations, which if not cured within thirty (30) days after ABN receives written notice of such breach from Dealer, which notice shall set forth the breach in sufficient detail to facilitate a cure by ABN.
Advertising, Content and Software Owned by ABN. All advertising, Content and software and any ABN digital assets including, without limitation, all advertisements and promotional material created or provided by ABN that are not copyrighted by other entities which have provided content or software to ABN, and which shall also retain their individual copyrights (which advertising, Content and software are collectively called the “ABN Content”) shall be the exclusive property of ABN and upon termination of the Content Agreement for any reason, all ABN Content and ABN digital assets shall be returned to ABN and Dealer shall cease using such ABN Content and digital assets. Any Content created by ABN, or included in an ABN Content package, can only be used on the ABN Network.
Dealer Provided Content; Security; Indemnification. Dealer warrants that all Dealer provided content uploaded to the ABN Network, including, but not limited to completed work and assets to be used in custom creative work, is owned, or properly licensed, by Dealer, and does not (a) infringe upon, misappropriate, or violate any patents, trademarks, copyrights, trade secrets, or other property rights of any person or entity; (b) violate any common law or statutory right, including without limitation, right of privacy or the right of publicity of any person or entity or (c) contain any material that is libelous or defamatory of any person or entity. Dealer is also responsible for security to prevent any unauthorized access to, hacking of, addition of any Content on, or other inappropriate use or access to the Dealer Equipment and/or ABN Network through or from the Dealer Facilities. DEALER WARRANTS THAT ALL CONTENT PROVIDED BY DEALER, INCLUDING, BUT NOT LIMITED TO COMPLETED WORK AND ASSETS TO BE USED IN CUSTOM CREATIVE WORK, IS OWNED, OR PROPERLY LICENSED, BY DEALER AND DOES NOT INFRINGE UPON THE PATENTS, TRADEMARKS, COPYRIGHTS, TRADE SECRETS, OR OTHER PROPERTY RIGHTS OF ANY THIRD-PARTY. SHOULD DEALER BREACH THIS WARRANTY DEALER SHALL INDEMNIFY AND HOLD HARMLESS ABN AND ITS AFFILIATES FROM ANY THIRD PARTY CLAIMS BASED UPON SUCH BREACH AND ALL COSTS OF DEFENSE OF SUCH CLAIMS; PROVIDED, HOWEVER, THAT ANY CONTENT OR INFORMATION INTEGRATED BY DEALER INTO ITS MATERIALS AND PUBLISHED THROUGH ANY CHANNEL OR OUTLET OTHER THAN THE ABN NETWORK(INCLUDING, WITHOUT LIMITATION, DEALER PROVIDED CONTENT, DEALER FACEBOOK PAGES, TWITTTER ACCOUNTS AND DEALER WEBSITES), WHICH SHALL REMAIN THE SOLE RESPONSIBILITY OF DEALER.IN THE EVENT DEALER OR ANY EMPLOYEE, AGENT OR OTHER PERSON TO WHOM DEALER HAS MADE AVAILABLE DEALER’S PASSWORD GIVING ACCESS TO UPLOAD PHOTOS OR OTHER DATA, IMAGES, TEXT OR OTHER INFORMATION (“SELF-APPROVED CONTENT”) TO THE ABN NETWORK, OR OTHER EQUIPMENT PROVIDED BYABN, UPLOADS SUCH SELF-APPROVED CONTENT, ABN SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO SUCH SELF-APPROVED CONTENT AND DEALER SHALL INDEMIFY AND HOLD HARMLESS ABN AND ITS AFFILIATES FROM ANY THIRD-PARTY CLAIMS BASED UPON SUCH SELF-APPROVED CONTENT AND ALL COSTS OF DEFENSE OF SUCH CLAIMS.
ABN Provided Advertising, Software and Content. In providing ABN Content to Dealer, ABN grants to Dealer a non-exclusive and limited license to use and show ABN Content on Dealer’s televisions and/or monitors, that are part of the ABN Network. Except for Dealer provided content and authorized third party provided content, ABN shall be the sole and exclusive owner of all right, title, and interest in and to all other content, all copies thereof, and all modifications and enhancements thereto (including ownership of all copyrights and other intellectual property rights pertaining thereto), subject only to the limited license rights that are expressly and specifically granted to Dealer under the Content Agreement including these Standard Terms and ABN retains sole right and exclusive privilege to sell advertising on the ABN Network, so long as such advertising does not compete with any automotive products or services offered by Dealer. Dealer may not show, use, copy, modify, or distribute the ABN Content (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by ABN. Upon the termination of the Content Agreement, ABN shall have the right to cease the provision of Content Services. ABN WARRANTS THAT ALL CONTENT AND SOFTWARE PROVIDED BY ABN IS OWNED, OR PROPERLY LICENSED, BY ABN AND DOES NOT INFRINGE UPON THE PATENTS, TRADEMARKS, COPYRIGHTS, TRADE SECRETS, OR OTHER PROPERTY RIGHTS OF ANY THIRD PARTY; PROVIDED, HOWEVER, THAT ANY INFORMATION INTEGRATED BY ABN INTO ITS MATERIALS (INCLUDING, WITHOUT LIMITATION, DEALER PROVIDED CONTENT, DEALER FACEBOOK PAGES, TWITTTER ACCOUNTS AND DEALER WEBSITES), SHALL REMAIN THE SOLE RESPONSIBILITY OF DEALER AND ABN’S WARRANTY AS TO CONTENT SHALL HAVE NO APPLICATION TO SUCH MATERIALS.
Notices. Any notice that is required to be given or served upon any party in connection with the Agreements must be in writing and given by a nationally recognized overnight delivery service and shall be deemed to have been given and received when a letter containing such notice, properly addressed, with postage prepaid, is delivered to such overnight delivery service, or sent by facsimile transmission, receipt confirmed, and followed by overnight delivery service. Notices shall be given to the parties as follows: if to Dealer, to the address specified on the Agreements and, if to ABN, to Brothers Media Group, LLC., 5220 Belfort Road, Suite 400, Jacksonville, FL 32256, Attention: Accounting: Fax: (904) 280-2677.
Indemnification. Dealer and ABN agree to indemnify each other and any controlling person, partner, member, director, officer, manager, employee, agent, affiliate, or representative of the other party (collectively, the “Indemnified Parties”) and hold each of the Indemnified Parties harmless against any losses, claims, damages, expenses (including the reasonable fees and expenses of their respective attorneys), liabilities, actions, proceedings, investigations (formal or informal), inquiries, or threats thereof to which the Indemnified Parties may become subject, arising in any manner out of or in connection with any breach of the Agreements or negligent act or omission of the other party. This Section 7 shall survive the termination of the Agreements.The party seeking to be indemnified (the “Indemnified Party”) by the other party (the “Indemnifying Party”) under the Agreements agrees to give the Indemnifying Party prompt written notice of any third-party claim (a “Claim”); provided, however, that such notice shall not be a condition to the Indemnifying Party’s indemnity obligations hereunder unless the Indemnifying Party is materially and adversely affected by the Indemnified Party’s failure or delay in giving such notice. If the Indemnifying Party has reconfirmed, in writing and in a timely manner, its obligations to indemnify the Indemnified Party for a particular Claim, and the Indemnifying Party has provided the Indemnified Party with assurances satisfactory to the Indemnified Party, acting reasonably, that the Indemnifying Party has sufficient resources to satisfy its indemnity obligations hereunder, then the Indemnified Party will allow the Indemnifying Party to control the defense of such Claim as long as the Indemnifying Party acts promptly and reasonably. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of such claim. Any settlement by the Indemnifying Party must be approved by the Indemnified Party, with such approval not to be unreasonably withheld if the Indemnified Party receives a complete release of any such Claim. Notwithstanding anything herein stated, if in the Indemnified Party’s reasonable judgment, the interests of the parties’ conflict, the Indemnified Party may select, at the Indemnified Party’s expense, its counsel as long as the Indemnified Party provides the Indemnifying Party notice of such selection within ten (10) business days after receiving service of a summons and complaint. Further, notwithstanding anything herein stated, the Indemnified Party shall at all times have the right to fully participate in such defense at its own expense directly or through counsel; provided, however, if representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct and either party obtains a written legal opinion to such effect, then the reasonable expense of separate counsel for the Indemnified Party shall be paid by the Indemnifying Party.
Policies and Requirements.
1. ABN will not run cabling to a destination unless a display device is in place to receive and confirm the quality of the audio and video signal from the media player.
2. The A/V portions of the ABN Network installation must be performed by an authorized ABN representative.
3. Dealer understands that monitors may not be able to be installed in every location Dealer chooses based on dealership architectural limitations (such as on firewalls). Should this occur, Dealer will be notified by ABN and Dealer must either choose an alternate location to install the monitor or agree to pay the additional amount necessary for ABN to facilitate the monitor installation on the Dealer’s first choice location if possible.
4. Once the installation is completed, ABN does not assume any costs associated with the relocation of the Dealer Equipment, dealer owned display devices, or any other equipment inherent to the viewing experience of ABN Network. MOREOVER, ABN DOES NOT WARRANT AND HAS NO RESPONSIBILITY FOR THE PROPER OPERATION OF ANY DEALER PROVIDED CABLING, MONITORS, TELEVISIONS OR OTHER SOFTWARE OR HARDWARE WHETHER CONNECTED TO OR PART OF THE ABN NETWORK AND DELIVERY SYSTEM FOR CONTENT.
5. If Dealer desires to have the ability for its customers to view traditional television programming through the ABN system, Dealer, at its cost, must arrange for the traditional television signal and its interface with the ABN system and must provide televisions for viewing such programming.
6. All Dealer provided televisions or monitors must have a RG-6 (coaxial) input with a QAM tuner, and be capable of 1080p resolution.
7. Dealer and not ABN shall have sole responsibility for any failures of the Dealer Equipment or the failure of delivery of Services, which result from, changes in, or errors caused by, Dealer’s network configuration or failure of such network. Dealer shall notify ABN in advance of any change in Dealer’s network configuration.
8. Dealer shall designate one IT person within Dealer’s organization (and provide such person’s business and after-hours telephone contact information) as the primary contact to support both installation and maintenance of the Equipment and delivery of the Services.
9. Dealer shall provide a suitable Internet Service Provider connection and or access and shall use commercially reasonable efforts to maintain its network connectivity and performance at appropriate levels to support the ABN delivery of Services and to cooperate with all reasonable requests to resolve network access problems including, without limitation, ISP access problems, LAN configuration problems, LAN equipment failures and performance problems. Dealer’s network shall have a minimum of 5 Mbps download, and 1 Mbps upload effective rate and shall be online 24/7/365 except for normally scheduled maintenance, repair or upgrade cycles. 10 Mbps download is preferred and required for very large networks with six media players or more. LAN access port shall be no less than 100 Mbps into the LAN. The Dealer’s network must allow for HTTP and HTTPS traffic on ports 80, 443, 44354, 22,7734, 7351, 5938 and 8087 with untrammeled access to various ABN managed domains. ABN shall have no responsibility for any service or equipment failures resulting from interruption or malfunction of Dealer’s Internet services.
10. In the event of connection constraints during peak periods of network use, Dealer shall provide at least a daily 8-hour window where full data bandwidth will be available to ABN and its agents.
11. ABN media players and associated networking devices require continuous power. Dealer shall provide access or allow ABN to install at the Dealer’s expense a suitable power drop on a suitable power circuit for the media player and other required networking devices supplying the minimum ampacity of 10 amps 24/7/365. ABN shall have no responsibility for any service or equipment failures resulting from interruption or malfunction of Dealer’s power. The power circuit must meet the following National Electrical Code requirements:
  1. The circuit must not have any switches or motors such as compressors or fans.
  2. The ampacity of the circuit breaker must not exceed the ampacity of the wire used for the media player and equipment.
  3. Where a circuit supplies continuous loads or any combination of continuous and non-continuous loads, the rating of the overcurrent device shall not be less than the non-continuous load plus 125 percent of the continuous load.
  4. The circuit conductors and equipment shall be protected by overcurrent protective devices that have a rating or setting that complies with 210.20(A) through (D).
  5. Dealer shall provide access to the Dealer’s network to permit ABN to download content and otherwise perform its Services hereunder. If the Dealer’s network is not accessible to ABN for that purpose or Dealer’s firewalls prevent ABN from performing its Services, Dealer will bear the cost of ABN’s establishing a separate Internet access to the Equipment to perform its Services.
Liability Limitations. Notwithstanding anything herein or in the Agreements to the contrary:
1. EXCEPT TO THE EXTENT LIABILITY ARISES OUT OF (A) A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS AS SET FORTH HEREIN;
  1. NEITHER PARTY NOR ANY OF ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR DAMAGES IN THE FORM OF CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL OR OTHERWISE, OR FOR EXEMPLARY DAMAGES, EVEN IF THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. THE LIMIT OF ABN’S LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) TO COMPANY RELATED TO THIS AGREEMENT, FOR ANY AND ALL CLAIMS WILL NOT IN THE AGGREGATE EXCEED AN AMOUNT EQUAL TO THE PAYMENTS RECEIVED BY ABN FROM DEALER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY FIRST AROSE.
  3. OTHER THAN THE EXCEPTION IN a. ABOVE, THE LIMITS OF DEALER LIABILITY WILL BE NO GREATER THAN THAT OF ABN AS SET FORTH IN ii. ABOVE.
2. IF THE SERVICES OR ANY OF THE CONTENT PROVIDED BY ABN ARE, OR IN THE OPINION OF ABN MAY BECOME, THE SUBJECT OF A CLIENT INDEMNIFIABLE CLAIM, THEN ABN MAY, AT ITS OPTION AND EXPENSE: (A) PROCURE FOR DEALER THE RIGHT TO USE THE SERVICES AND SUCH CONTENT IN THEIR THEN CURRENT FORM, (B) REPLACE THE SERVICES OR CONTENT WITH OTHER SERVICES OR CONTENT WHICH ARE EQUAL OR BETTER IN PERFORMANCE THAN THE SERVICES ON CONTENT REPLACED, (C) PROVIDE DEALER WITH A MODIFIED VERSION OF THE SERVICES OR CONTENT, OR (D) REMOVE THE SERVICES AND/OR TERMINATE THIS AGREEMENT (THE “ABN OPTION”). IN THE CASE OF (B)-(D), DEALER AGREES TO COOPERATE WITH THE ABN OPTION AND TAKE SUCH FURTHER STEPS AS ARE NECESSARY TO EFFECTUATE SAME OR TERMINATE THE CONTENT AGREEMENT. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATION OF ABN AND THE EXCLUSIVE REMEDY OF DEALER WITH RESPECT TO ANY ALLEGED INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION OF INTELLECTUAL PROPERTY BY ABN.
3. NEITHER PARTY HERETO SHALL HAVE ANY LIABILITY FOR FAILURES TO PERFORM DUE TO FORCE MAJEURE CAUSES BEYOND SUCH PARTY’S CONTROL, INCLUDING, WITHOUT LIMITATION, POWER FAILURES, STORMS, AND NETWORK PROVIDER FAILURES.
4. ABN ASSUMES NO RESPONSIBILITY FOR REPAIRS TO DEALER’S FACILITY FOR ANY REASON UPON THE INSTALLING, UNINSTALLING OR REMOVAL OF ANY EQUIPMENT ON THE ABN NETWORK.
Dealer Requirements Under Service Level Agreement. ABN’s Service Level Agreement (SLA) related to performance, uptime, and availability of the ABN Network or the Services is rendered null and void following any breach of the Agreements by Dealer and under the following scenarios:
1. Dealer utilizes displays, media players, and / or A/V equipment not provided and installed by ABN.
  1. Examples include, but are not limited to:
    1. Dealer preexisting televisions
    2. Dealer provided A/V distribution equipment
    3. Dealer provided cable or satellite set-top box
2. Dealer fails to provide and maintain adequate networking and internet connectivity.
  1. Examples include, but are not limited to:
    1. ISP Network Outages
    2. Insufficient bandwidth
    3. Misconfigured Dealer managed modem, switch or router
    4. Faulty or failed Dealer owned modem, switch, hub or router
    5. Faulty Dealer provided Ethernet cabling
    6. Dealer managed security restrictions on firewalls preventing required ABN resources
    7. Interface traffic congestion from Dealer systems
    8. IP Conflicts caused by rogue dealer equipment
3. Dealer fails to provide and maintain adequate electrical resources.
  1. Examples include, but are not limited to:
    1. Voltage sags (or dips)
    2. Voltage fluctuation (dirty power)
    3. Voltage spikes or swells
    4. Voltage Unbalance
    5. Long interruptions
    6. Harmonic distortion
    7. Excessive Noise
4. Dealer relocates, configures, tampers, or modifies ABN Equipment.
5. Dealer fails to provide and maintain a secure environment for the storage of ABN equipment.
6. Dealer fails to provide and maintain proper HVAC thermal levels for the environment ABN Equipment resides within.
7. Dealer alters, relocates, or seeks to repair any ABN provided equipment using its own employees or any service provider not authorized by ABN to provide such services.
Other Provisions.
1. 1. ABN’s liability for failure to provide Advertising and Content Services for any period during the Term shall be limited to the Advertising Services Fees prorated for the period during which Advertising and Content Services were not provided. In no event shall ABN’s liability hereunder exceed the total amount of fees that ABN receives from Dealer during the Term of the applicable Agreement.
  2. If a dispute arises regarding the Agreements, the prevailing party shall be entitled to recover from the non-prevailing party, in addition to all other legal or equitable remedies, the costs of litigation, including reasonable attorneys’ fees and costs.
  3. Amendment and Modification. These Terms may be amended or modified by ABN, by updating these Terms and indicating the last revised date of the amendment.
  4. The laws of the State of Florida shall govern the interpretation, construction, and legal effect of the Agreements and these Standard Terms. In the event of any litigation arising from the Agreements, the parties agree to the exclusive jurisdiction and venue for such litigation in Duval County, Florida and the Florida State Courts in and for the Fourth Judicial District or the Federal Court for the Middle District of Florida, Jacksonville Division. Dealer hereby consents to personal jurisdiction in the State of Florida.
  5. ABN reserves the right to assign its rights or obligations under the Agreements and these Standard Terms at any time. Dealer shall not assign any rights or obligations under this Agreements, or delegate the performance of any duties hereunder, without the prior written consent of ABN. Any purported assignment or delegation in violation of this section will be null and void. The Agreements together with these Terms and Conditions are binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
  6. In no event shall ABN be liable to Dealer, or be deemed to be in breach for any failure or delay in performing its obligations under the Agreements or these Standard Terms if and to the extent such failure or delay is caused by any circumstances beyond ABN’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, hurricane, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
  7. If any provision of these Standard Terms or the Agreements is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Standard Terms or the Agreements or invalidate or render unenforceable such term or provision in any other jurisdiction.
  8. ABN shall have the right, but is not obligated, to increase by three percent (3%) annually, the Content Services Fee on the annual contract anniversary, as defined in the Content Agreement between ABN and Dealer.
  9. Dealer agrees to maintain the confidentiality of the Agreements and shall not disclose any terms set forth therein to any other party.
  10. The Agreements together with these Standard Terms, the SaaS Standard Terms (if appliable) and any other schedule or documents incorporated in the Agreements or herein by reference, constitute the sole and entire agreement of the parties with respect to the subject matter of these Standard Terms and the Agreements and supersede all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, EACH PARTY TO THIS AGREEMENT WAIVES THE RIGHT TO A JURY TRIAL WITH RESPECT TO ANY DISPUTE.

SaaS Standard Terms and Conditions

These SaaS Standard Terms are incorporated by reference into the SaaS Agreement. In the event of a conflict between the terms of the SaaS Agreement and these SaaS Standard Terms, the SaaS Agreement shall control.

Definitions.
1. “Aggregated Statistics” means data and information related to Dealer’s use of the SaaS Services that is used by ABN in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services and is sufficiently different from such Dealer Data that it cannot be reverse engineered or otherwise identified as originating from Client.
2. “Authorized User” means Dealer’s employees, consultants, contractors, and agents (i) who are authorized by Dealer to access and use the SaaS Services under the rights granted to Dealer pursuant to the SaaS Agreement and (ii) for whom access to the SaaS Services has been purchased hereunder
3. “Dealer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Dealer or an Authorized User through the SaaS Services.
4. “Documentation” means any user manuals, instructions or materials relating to the SaaS Services provided by ABN to Dealer either electronically or in hard copy form/end user documentation relating to the SaaS Services available at www.ABNInspire.com/training.
5. “ABN IP” means the SaaS Services, the Documentation, and any and all intellectual property provided to Dealer or any Authorized User in connection with the foregoing. For the avoidance of doubt, ABN IP includes Aggregated Statistics and any information, data, or other content derived from ABN’s monitoring of Dealer’s access to or use of the SaaS Services but does not include Dealer Data.
6. “SaaS Services” means the software-as-a-service offering (ABN-Inspire!) described in the SaaS Agreement.
7. “Third-Party Products” means any third-party products described in the SaaS Agreement provided with or incorporated into the SaaS Services.
Access and Use.
1. Provision of Access. Subject to and conditioned on Dealer’s payment of Fees and compliance with all terms and conditions of the SaaS Agreement and these SaaS Standard Terms, ABN hereby grants Dealer a non-exclusive, non-transferable (except in compliance with Section 12(g) right to access and use the SaaS Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Dealer’s internal use. ABN shall provide to Dealer the necessary passwords and network links or connections to allow Dealer to access the SaaS Services. The total number of Authorized Users will not exceed the number set forth in the SaaS Agreement, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
2. Documentation License. Subject to the terms and conditions contained in the SaaS Agreement and herein, ABN hereby grants to Dealer a non-exclusive, nonsublicenseable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Dealer’s internal business purposes in connection with its use of the SaaS Services.
3. Use Restrictions. Dealer shall not use the SaaS Services for any purposes beyond the scope of the access granted in the SaaS Agreement and herein. Dealer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the SaaS Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the SaaS Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the SaaS Services, in whole or in part; (iv) remove any proprietary notices from the SaaS Services or Documentation; or (v) use the SaaS Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
4. Reservation of Rights. ABN reserves all rights not expressly granted to Dealer in these SaaS Standard Terms and the SaaS Agreement. Except for the limited rights and licenses expressly granted under these SaaS Standard Terms and the SaaS Agreement, nothing in these SaaS Standard Terms or the SaaS Agreement grants, by implication, waiver, estoppel or otherwise, to Dealer or any third party any intellectual property rights or other right, title, or interest in or to the ABN IP.
5. Suspension. Notwithstanding anything to the contrary in these SaaS Standard Terms and the SaaS Agreement, ABN may temporarily suspend Dealer’s and any Authorized End User’s access to any portion or all of the SaaS Services if: (i) ABN reasonably determines that (A) there is a threat or attack on any of the ABN IP; (B) Dealer’s or any Authorized End User’s use of the ABN IP disrupts or poses a security risk to the ABN IP or to any other customer or vendor of ABN; (C) Dealer, or any Authorized End User, is using the ABN IP for fraudulent or illegal activities; (D) subject to applicable law, Dealer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) ABN’s provision of the SaaS Services to Dealer or any Authorized End User is prohibited by applicable law; (ii) any vendor of ABN has suspended or terminated ABN’s access to or use of any third-party SaaS Services or products required to enable Dealer to access the SaaS Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). ABN shall use commercially reasonable efforts to provide written notice of any Service Suspension to Dealer and to provide updates regarding resumption of access to the SaaS Services following any Service Suspension. ABN shall use commercially reasonable efforts to resume providing access to the SaaS Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. ABN will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Dealer or any Authorized User may incur as a result of a Service Suspension.
6. Aggregated Statistics. Notwithstanding anything to the contrary in these SaaS Standard Terms and the SaaS Agreement, ABN may monitor Dealer’s use of the SaaS Services and collect and compile Aggregated Statistics. As between ABN and Dealer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by ABN. Dealer acknowledges that ABN may compile Aggregated Statistics for operational and product purposes. Dealer agrees that ABN may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Dealer or Dealer’s Confidential Information.
Dealer Responsibilities.
1. General. Dealer is responsible and liable for all uses of the SaaS Services and Documentation resulting from access provided by Dealer, directly or indirectly, whether such access or use is permitted by or in violation of these SaaS Standard Terms and the SaaS Agreement. Without limiting the generality of the foregoing, Dealer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these SaaS Standard Terms or the SaaS Agreement if taken by Dealer will be deemed a breach of these SaaS Standard Terms and the SaaS Agreement by Dealer. Dealer shall use reasonable efforts to make all Authorized Users aware of these SaaS Standard Terms and the SaaS Agreement’s provisions as applicable to such Authorized User’s use of the SaaS Services and shall cause Authorized Users to comply with such provisions.
2. DMS Integration. Dealer understands and agrees that ABN may require the SaaS Services of third parties, including DMS, to enable or further ABN’s provision of the SaaS Services (“Third Party Providers”). Dealer consents to allowing Third Party Providers access to Dealer Data solely as needed for ABN to provide the SaaS Services set forth herein.
3. DMS Compatibility and Access. Dealer understand and holds ABN harmless for any lack of SaaS Services during the term of the Agreement between Dealer and ABN, if, in the event: (i) Dealers’ DMS provider is switched by Dealer to an unsupported DMS provider during the term of the SaaS Agreement; or (ii) if there any sustained DMS compatibility issues that cannot be resolved, or (iii) the DMS data from API endpoint is unavailable due to any non-technical reasons such as non-payment to Dealer’s DMS provider whereby Dealer’s DMS SaaS Services are suspended; or (iv) if Dealer terminates Dealer’s DMS service; or (v) if Dealer utilizes the DMS in such a way as to radically affect access of DMS data needed to support the ABN application; or (vi) by Dealer using the DMS in a nonstandard way rendering the data incompatible with the ABN application; or (vii) if Dealer’s DMS vendor terminates the API Integration SaaS Services.
4. Equipment. Dealer shall maintain all Equipment (as defined in the SaaS Agreement) in accordance with the Standard Terms.
5. Third-Party Products. ABN may from time to time make Third-Party Products available to Dealer. For purposes of these SaaS Standard Terms and the SaaS Agreement, such Third-Party Products are subject to their own terms and conditions and applicable flow through provisions. If Dealer does not agree to abide by the applicable terms for any such Third-Party Products, then Dealer should not install or use such Third-Party Products.
Service Levels and Support. Subject to the terms and conditions of these SaaS Standard Terms and the SaaS Agreement, ABN shall use commercially reasonable efforts to make the SaaS Services available in accordance with the service levels set out in Schedule A. Dealer is entitled to the support SaaS Services described on Schedule A.
Fees and Payment.
1. Fees. Dealer shall pay ABN the fees (“Fees”) as set forth in the SaaS Agreement without offset or deduction. Dealer shall make all payments hereunder in US dollars on or before the due date set forth in the SaaS Agreement. If Dealer fails to make any payment when due, without limiting ABN’s other rights and remedies: (i) ABN may charge simple interest on the past due amount at the rate of 1.0% per month or, if lower, the highest rate permitted under applicable law plus a charge of $100 per late payment to defray ABN’s costs of delinquency notices; and (ii) Dealer shall reimburse ABN for all costs incurred by ABN in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. In addition, if such failure to pay continues for thirty (30) days or more, ABN may, at its option, either (y) suspend Dealer’s and its Authorized Users’ access to any portion or all of the SaaS Services until such amounts are paid in full; or (z) terminate the SaaS Agreement, in which event, Dealer shall become immediately liable for payment of the full amount of all Fees due for the remainder of the then-current Term.
2. Taxes. All Fees and other amounts payable by Dealer under the SaaS Agreement are exclusive of taxes and similar assessments. Dealer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Dealer hereunder, other than any taxes imposed on ABN’s income.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is designated (whether or not marked) or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non- confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party to enable it time to obtain a protective order; or (ii) to establish a Party’s rights under the SaaS Agreement, including
to make required court filings. On the expiration or termination of the SaaS Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non- disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the SaaS Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership; Feedback.
1. ABN IP. Dealer acknowledges that, as between Dealer and ABN, ABN owns all right, title, and interest, including all intellectual property rights, in and to the ABN IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
2. Dealer Data. ABN acknowledges that, as between ABN and Dealer, Dealer owns all right, title, and interest, including all intellectual property rights, in and to the Dealer Data. Dealer hereby grants to ABN a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Dealer Data and perform all acts with respect to the Dealer Data as may be necessary for ABN to provide the SaaS Services to Dealer.
3. Feedback. If Dealer or any of its employees or contractors sends or transmits any communications or materials to ABN by mail, email, telephone, or otherwise, suggesting or recommending changes to the ABN IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), ABN is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Dealer hereby assigns to ABN on Dealer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and ABN is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although ABN is not required to use any Feedback.
Limited Warranty and Disclaimer.
1. ABN will use commercially reasonable efforts to ensure that the SaaS Services will conform in all material respects to the service levels set forth in Schedule A when accessed and used in accordance with the Documentation. ABN does not make any representations or guarantees regarding uptime or availability of the SaaS Services unless specifically identified in Schedule A. The remedies set forth in Schedule A are Dealer’s sole remedies and ABN’s sole liability under the limited warranty set forth in this Section 8(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND ABN STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a) THE ABN IP IS PROVIDED “AS IS” AND ABN HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ABN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), ABN MAKES NO WARRANTY OF ANY KIND THAT THE ABN IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET DEALER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SAAS SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Indemnification.
1. ABN Indemnification.
  1. ABN shall indemnify, defend, and hold harmless Dealer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Dealer resulting from any third- party claim, suit, action, or proceeding (“Third-Party Claim”) that the SaaS Services, or any use of the SaaS Services in accordance with these SaaS Standard Terms or the SaaS Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Dealer promptly notifies ABN in writing of the claim, cooperates with ABN, and allows ABN sole authority to control the defense and settlement of such claim.
  2. If such a claim is made or appears possible, Dealer agrees to permit ABN, at ABN’s sole discretion, to (A) modify or replace the SaaS Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Dealer to continue use. If ABN determines that neither alternative is reasonably available, ABN may terminate the SaaS Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Dealer.
  3. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the SaaS Services in combination with data, software, hardware, equipment, or technology not provided by ABN or authorized by ABN in writing; (B) modifications to the SaaS Services not made by ABN; (C) Dealer Data; or (D) Third-Party Products.
2. Dealer Indemnification. Dealer shall indemnify, hold harmless, and, at ABN’s option, defend ABN from and against any Losses resulting from any Third-Party Claim that the Dealer Data, or any use of the Dealer Data in accordance with these SaaS Standard Terms or the SaaS Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Dealer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the SaaS Services in a manner not authorized by these SaaS Standard Terms and the SaaS Agreement; (iii) use of the SaaS Services in combination with data, software, hardware, equipment or technology not provided by ABN or authorized by ABN in writing; or (iv) modifications to the SaaS Services not made by ABN, provided that Dealer may not settle any Third-Party Claim against ABN unless ABN consents to such settlement, and further provided that ABN will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
3. Sole Remedy. THIS SECTION 9 SETS FORTH DEALER’S SOLE REMEDIES AND ABN’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SAAS SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL ABN’S LIABILITY UNDER THIS SECTION 9 EXCEED AN AMOUNT EQUAL TO THE SUBSCRIPTION FEES RECEIVED BY ABN FROM DEALER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY FIRST AROSE.
Limitations of Liability. IN NO EVENT WILL ABN BE LIABLE UNDER OR IN CONNECTION WITH THE SAAS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SAAS SERVICES, IN EACH CASE REGARDLESS OF WHETHER ABN WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL ABN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SAAS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNT PAID TO ABN UNDER THE SAAS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Termination.
1. Termination. In addition to any other express termination right set forth in these SaaS Standard Terms and the SaaS Agreement:
  1. ABN may terminate the SaaS Agreement, effective on written notice to Dealer, if Dealer breaches any obligation under these SaaS Standard Terms and the SaaS Agreement and such breach remains uncured ten (10) business days after written notice thereof. Notwithstanding the foregoing, ABN may terminate the SaaS Agreement immediately upon written notice to Dealer if Dealer breaches any of its obligations under Section 2(c) or Section 6;
  2. Dealer may terminate the SaaS Agreement, effective on written notice to ABN, only if ABN materially breaches these SaaS Standard Terms or the SaaS Agreement and such breach remains uncured for thirty (30) days after written notice thereof; or
  3. either Party may terminate the SaaS Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.
2. Effect of Expiration or Termination. Upon expiration or earlier termination of the SaaS Agreement, Dealer shall immediately discontinue use of the ABN IP and, without limiting Dealer’s obligations under Section 6, Dealer shall delete, destroy, or return all copies of the ABN IP and certify in writing to the ABN that the ABN IP has been deleted or destroyed. No expiration or termination will affect Dealer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Dealer to any refund.
3. Survival. Sections 5, 6, 7, 8(b), 9, 10, 11 and 12 herein shall survive any termination or expiration of the SaaS Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination.
Other Provisions.
1. Export Regulation. The SaaS Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Dealer shall not, directly or indirectly, export, re- export, or release the SaaS Services or the underlying software or technology to, or make the SaaS Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Dealer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the SaaS Services or the underlying software or technology available outside the US.
2. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Dealer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

Schedule A – SaaS Services Levels and Support

Updates and Support.
1. Available Updates. Subject to payment of the applicable Fees set forth in the SaaS Agreement, Dealer will receive, at no additional cost, Support (as defined below) as well as access to all bug fixes, maintenance updates and Major Releases for the Software (collectively, “Updates”) as they may be made generally commercially available by ABN; each Update will, upon general commercial availability, be deemed “Software” as defined herein. At its expense and in its sole discretion, ABN may publish revised Documentation with each Update, including release notes identifying changes.
2. Basic Network Uptime. ABN will make available network connectivity during a calendar month excluding (i) downtime caused by Dealer; (ii) any scheduled downtime by ABN; (iii) any time during an unresolved support issue; (iv) Internet Service Provider (ISP) downtime or interruptions and (v) any unavailability caused by Force Majeure.
3. Customer Support. Subject to payment of applicable Fees, Dealer will be eligible to receive the following support and assistance:
  1. Support Hours: ABN will provide support service Monday through Friday, 8:00 AM EST – 7:00 PM EST, excluding ABN holidays (“Support Hours”). ABN will provide after-hours support between 7:00 PM EST and 12 Midnight EST, seven days a week, including holidays. Support calls, whether during normal operating hours, or after-hours, made to ABN via email or telephone, if not answered directly, will be acknowledged and returned in the order they were received.
  2. Severity Levels. ABN will use commercially reasonable efforts to acknowledge and address the severity levels of service issues as follows:
    1. Severity 1 (Critical) – Production System is Down: ABN will work to restore system SaaS Services to Dealer as soon as possible, unless and until the issue is recategorized as a Severity 2 level, or Severity 3 level, which determination will be made by ABN. Such reasons to recategorize the Severity level, may include, but is not limited to, IP service outage, DMS connectivity, Server Issues, damaged cables, power outages, software bugs, infrastructure issues, or any force majeure event.
    2. Severity 2 (Important)- Infrastructure is causing the system to be down: Such issues may include DMS connectivity, Server Issues, etc. ABN will work to restore system SaaS Services to Dealer as soon as possible, unless and until the issue is recategorized as a Severity 3, which determination will be made by ABN. Such reasons to recategorize the Severity 3 level, may include, but is not limited to, software bugs, or any force majeure event.
    3. Severity 3 (Standard)- Software issues not causing the system to be down but have issues that need addressed: ABN will work to make the necessary programming or code changes to system software as issues are reported to ABN by Dealer or discovered by ABN, but will be schedule programming changes and new coding, based upon customer impact and importance.
Scheduled Downtime. ABN reserves the right to schedule downtime for routine maintenance nightly from 2AM EST to 6AM EST. If a scheduled maintenance effort is anticipated to take longer than the allotted maintenance window ABN will use commercially reasonable efforts to provide Dealer with 24-hour advance notice.
Limitations. Support does not include, nor will ABN be obligated to provide, SaaS Services required as a result of: (a) any modification, reconfiguration or maintenance of the SaaS Services not performed or recommended by ABN; (b) any use of the SaaS Services on a system that does not meet the minimum standards as set forth in the applicable Documentation; (c) any third-party hardware or software not supported or embedded by ABN; (d) any configuration of the SaaS Services (or hardware configurations) other than as recommended by ABN; or (e) any error caused by Dealer’s, any user’s, or any third party’s negligence, abuse, misapplication, or use of SaaS Services other than as expressly permitted under the SaaS Agreement.

Mobile Application End User License Agreement (EULA)

This Mobile Application End User License Agreement (”Agreement”) is a binding agreement between you (”End User” or “you”) and Brothers Media Group, LLC, d/b/a Automotive Broadcasting Network, a Nevada limited liability company with corporate offices at 5220 Belfort Road, Suite 400, Jacksonville, Florida 32256 (”Company”). This Agreement governs your use of the ABN Inspire! application on the iOS and Android mobile platforms, (including all related documentation, the “Application”). The Application is licensed, not sold, to you.

BY CLICKING THE “AGREE” BUTTON/ DOWNLOADING/ INSTALLING/ USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD/ INSTALL/ USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

License Grant. Subject to the terms of this Agreement and ABN Inspire! Master SaaS Agreement (“Dealer Agreement”), Company grants you a limited, non-exclusive, and nontransferable license to:
1. download, install, and use the Application for your use in connection with the Dealer Agreement, on a single mobile device owned or otherwise controlled by you (”Mobile Device”) strictly in accordance with the Application’s documentation and Dealer Agreement.
2. access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 5) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 5.
License Restrictions. You shall not:
1. copy the Application, except as expressly permitted by this license;
2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
6. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or
7. use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.
Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Statement, available at https://abnetwork.com/privacy-policy/ (the “Privacy Statement”). By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Statement.
Content and Services. The Application may provide you with access to Company’s website located at https://abnetwork.com and https://brothersmediagroup.com (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by Website’s Terms of Use located at https://abnetwork.com/terms/ and the Privacy Statement, which are incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Statement and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application’s features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.
Geographic Restrictions. The Content and Services are based in the state of Florida in the United States and provided for access and use only by persons located in the US Territories and Commonwealths. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
1. the Application will automatically download and install all available Updates; or
2. you may receive notice of or be prompted to download and install available Updates. Should you receive notice of or be prompted to download and install an available update, you shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (”Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
Term and Termination.
1. The term of Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this Section 9.
2. You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
3. Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement or upon expiration or termination of the Dealer Agreement.
4. Upon termination:
  1. all rights granted to you under this Agreement will also terminate; and
  2. you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
5. Termination will not limit any of Company’s rights or remedies at law or in equity.
Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES AS LISTED IN SUBSECTIONS (a.) AND (b.) CONTAINED WITHIN THIS SECTION DEFINING LIMITATION OF LIABILITY. THE FOLLOWING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
2. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect; provided, however, that if any fundamental term or provision of this Agreement (including without limitation https://abnetwork.com/terms/, is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable.
Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the US District Court for the Middle District of Florida or, if such court does not have subject matter jurisdiction, the courts of the State of Florida sitting in Duval County, Florida and any appellate court from any thereof. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Entire Agreement. This Agreement, our Standard Terms and Conditions and SaaS Standard Terms and Conditions (both available at www.abnetwork.com/terms), and our Privacy Statement (www.abnetwork.com/privacy-policy/) the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.