FUSIONZONE END USER LICENSE AGREEMENT

  1. Agreement.   This End User License AGREEMENT (the “Agreement”) is made as of the effective date provided at the end of the Agreement (“Effective Date”), by and between fusionZONE Automotive, LLC, and FZA Digital, LLC, each a Delaware limited liability company (together referred to in this contract as “fusionZONE”), and the entity (or entities) utilizing the Services (the “Dealer”) as part of the Honda Digital Customer Experience Program (the “Program”). For avoidance of doubt, should there be any conflicts between agreements within the Program, the documents governing the Program shall control.   fusionZONE and Dealer may hereafter be referred to herein as a “Party” when referred to singly and/or also as the “Parties” when referred to in the plural.   Deliverables will be publicly displayed and licensed by fusionZONE.
  1. Engagement. fusionZONE will render the services as described in the “fusionZONE Automotive, LLC Deliverable(s)” as enrolled by Dealer in the Program in its sole discretion (the “Services”).  fusionZONE may at any time replace the Services with deliverables possessing features of substantially similar value, in fusionZONE’s sole discretion, including, without limitation, such updated website tools and widgets as fusionZONE may adopt or develop. fusionZONE is not in any way responsible for the installation, operation, or maintenance of any equipment or software not provided by fusionZONE or the transmission or reception of any data or other information between Dealer and any third party. 
  1. fusionZONE Ownership and License. Notwithstanding anything to the contrary in this Agreement, fusionZONE owns all right, title and interest in and to all its property and assets and its confidential information, including Dealership websites created, revised, and/or maintained by fusionZONE, live chat, or other software or tools provided therein, licensed programs and documentation therefor, and all derivatives, modifications and improvements thereof, including anything created or developed by fusionZONE for Dealer (“fusionZONE Work Product”) and all patents, copyrights, trade secrets and other intellectual property rights (“Intellectual Property Rights”) therein, anywhere in the world (collectively “fusionZONE Property”). fusionZONE grants Dealer a revocable, nonexclusive, worldwide license to use and sublicense the use of the fusionZONE Property, only for the purpose of developing and marketing Dealer’s automotive sales, lease, finance, service, and related products and services (“Dealer’s Automotive Business”) but such license has not been granted for, nor shall Dealer use the fusionZONE Property for, the purpose of marketing, or using in any fashion, the fusionZONE Property separate from Dealer’s Automotive Business, including, without limitation, any attempt to sell lead generation, website, or related services to any third-party (including, without limitation, to any other automotive dealers). The definition of “Dealer” for purposes of this Section 7 shall include, without limitation, Dealer, its affiliates (past, current and future) and any of their respective principals, shareholders, members, managers, directors, officers, employees, other personnel, contractors, subcontractors, consultants, advisors, agents, representatives and the like. The Parties agree that money damages would not be a sufficient remedy for any breach of this Section 3 by Dealer and that in addition to all other remedies it may be entitled to, fusionZone shall be entitled to specific performance of the terms of this Section 3, in addition to any other remedy to which it is entitled at law or in equity. There will be no expiration to Dealer’s obligations under this Section 3 of this Agreement, unless required by law. fusionZONE Property shall not exclude information or data simply because Dealer has received that same information from a third party without restriction.
  1. FUSIONZONE WARRANTIES. DEALER ACKNOWLEDGES AND AGREES THAT THE FUSIONZONE SERVICES ARE PROVIDED TO DEALER ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, ALL OF WHICH FUSIONZONE EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL WARRANTIES, GUARANTEES, AND REPRESENTATIONS REGARDING THE PERFORMANCE, QUALITY, RESULTS, PROMOTIONAL VALUE, OR ACCURACY OF THE SERVICES. FUSIONZONE SHALL HAVE NO LIABILITY FOR ANY NON-PERFORMANCE DUE TO ANY CAUSE BEYOND ITS REASONABLE CONTROL.
  1. Dealer Responsibility for Legal Compliance and Manufacturer Compliance.  fusionZONE operates in multiple states and regions and, excepting as explicitly required by the Program, does not warrant or represent in any way that the Services or Dealer’s use of the Services or any deliverable therein, is, or shall be, compliant with applicable federal, state, or local law and/or regulations or with any manufacturer programs. Dealer is solely responsible for creating, managing, updating, keeping current, editing, reviewing, deleting, and otherwise controlling all content on Dealer’s websites and any and all Dealer communications with any member of the public, regardless of whether it utilizes fusionZONE or the Services for any such communications, including, without limitation, any Dealer websites, emails, call services, or sales chats (and regardless of whether fusionZONE is involved in the drafting, use, operation or maintenance of such services). Dealer acknowledges that fusionZONE is only providing Dealer with the ability to publish and distribute Dealer’s own content and that fusionZONE is merely a publisher of such content, provided by Dealer, who continues to exercise complete discretion over the content of its websites. fusionZONE has no obligation, or responsibility, to review any content for any reason, whatsoever. Notwithstanding that fusionZONE has no obligation or responsibility to do so, if fusionZONE is made aware of any content on Dealer’s website that in fusionZONE’s opinion may create any liability for fusionZONE or any other party, fusionZONE shall be permitted to take any action(s) with respect to such content that fusionZONE believes is reasonable, including without limitation, deletion of any such content or withholding such content from being published on Dealer’s website until Dealer has confirmed its accuracy or compliance with applicable law or manufacturer requirements. Dealer is also solely responsible for all of its use and maintenance of customer information and data security, including without limitation, its policies and procedures for obtaining and maintaining customer contact information (and regardless of whether fusionZONE is involved in obtaining or maintaining such information), compliance with all applicable privacy and data security laws, including any laws regulating Dealer’s use or sharing of customer information, including laws requiring Dealer to disclose its privacy policies and practices and the content and substance of any such policies (regardless of whether fusionZONE provides Dealer with any template or sample privacy policy). Dealer hereby represents and warrants to fusionZONE and its respective affiliates that it shall comply with all local, state and federal laws and regulations that apply to it and to fusionZONE and its affiliates, arising out of, in connection with, or related to, the Services. Such federal, state, and local laws include, but are not limited to all laws regarding the advertising of vehicles and claims and disclosures provided therein; regarding the financing of vehicles or related goods or services and the use of any finance applications, credit applications, or information contained therein by Dealer; regarding the advertisement or offering of vehicles not in the Dealer’s inventory or on its premises; regarding the Dealer’s telephone, email, text, mailing and other customer communication practices, including without limitation, the Telephone Consumer Protection Act, the CAN-SPAM ACT, and the FCC’s related rules under these acts. Specifically, Dealer warrants and represents that it agrees to follow all state and federal laws and regulations, including but not limited to the following: regarding time restraints for telemarketing calls, required disclosures to be made by callers including when pre-recorded calls are made, enforcement of Client’s customers revocation of consent to be contacted, regarding the safekeeping of customer private information and disclosure to customers of how such information may be used or shared, and removal of advertisements for vehicles within the time frame provided by applicable law. Dealer further represents and warrants to fusionZONE and its respective affiliates that it shall comply with all manufacturer and/or distributor requirements and guidelines that apply to it and to fusionZONE and its affiliates, arising out of, in connection with, or related to, the Services, including, without limitation, regarding the advertising of vehicles and claims and disclosures provided therein, such as vehicle “MSRP” and option pricing. The obligations set forth in this Section shall survive the termination of this Agreement. 
  1. Use of FastRing or Call Tracking Numbers. If Dealer enables call recording with FastRing Services or any call tracking phone numbers through fusionZONE, Dealer agrees to review and comply with all applicable state and federal laws with regard to such services and to verbally disclose call recording to customers when using FastRing Services (in addition to Dealer’s agreements to comply with all applicable laws and to indemnify fusionZONE for Dealer’s violation of such laws).  Dealer agrees to hold harmless fusionZONE, FastRing.com, their affiliates, employees, officers and directors in any cases where the Dealer has not followed protocol with applicable state or Federal laws.  
  1. Dealer’s Indemnity Requirements. Notwithstanding any provision to the contrary, Dealer agrees to fully defend, indemnify, and hold fusionZONE, its affiliates and its principals, members, managers, officers, directors, employees, shareholders, customers, agents, successors, assigns and the like harmless from and against any and all losses, damages, fines, penalties, remedies, costs, claims, causes of action, expenses, settlements, and liabilities (including attorneys’ and other professionals’ fees, costs and expenses, and the expenses associated with any remedial or notice efforts required by law or consent decree) arising directly or indirectly from or relating to (1) any negligent or wrongful acts or omissions of Dealer; (2) the unauthorized access, use or disclosure of fusionZONE Property; (3) from or relating to any breach or alleged breach by Dealer of the Agreement (including, without limitation, the representations and warranties set forth herein); (4) any third-party claim or suit arising out of or in connection with Dealer’s use of the Services, including, without limitation, any third-party suit alleging that the content or operation of Dealer’s website violated any applicable law and/or gave rise to any civil claim of any third party (including without limitation, violation of privacy, defamation, infringement of copyright or trademark, and/or any other tort, contract, or other legal or equitable claim ; (5) Dealer’s failure to comply with any applicable law, as provided in Section 9 of this Agreement and regardless of whether or not Dealer utilized the Services or fusionZONE in violating such law(s); (6) any claim arising from, or related to, the advertising, offering, sale, or license of goods or services on Dealer’s website. Dealer’s indemnity obligations under this Agreement are not limited in amount.

  2. Limitation of Liability. For all claims arising from, related to, or in any way connected with this Agreement, fusionZONE’s maximum aggregate liability, and Dealer’s exclusive aggregate remedy, is the total fees payable to fusionZONE during the Initial Term, except to the extent prohibited by applicable law. Further, fusionZONE shall not be liable for any indirect, incidental, consequential, special, or exemplary damages (including loss of profits or revenue, or interruption of business) arising from, related to, or in connection with the Services or this Agreement. 
  1. Independent Contractor Relationship. fusionZONE’s relationship with Dealer is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Neither Dealer nor any of its employees or other personnel will be entitled to any of the benefits which fusionZONE or its affiliates may make available to its employees, including, but not limited to, group health or life insurance, stock options, profit sharing or retirement benefits. Dealer is not authorized to make any representation, contract or commitment on behalf of fusionZONE. Dealer is solely responsible for all taxes, withholdings, and other statutory obligations with respect to the performance of Services and receipt of fees under this Agreement, and Dealer will defend, indemnify, and hold fusionZONE, its affiliates and their respective principals, members, managers, officers, directors, employees, shareholders, customers, agents, successors,  assigns and the like harmless from any and all claims made by any person, party or entity on account of any failure or alleged failure by Dealer to satisfy any such tax or other withholding obligations. No part of fusionZONE’s compensation will be subject to withholding by Dealer for the payment of any social security, federal, state or any other employee payroll taxes. This indemnity shall survive the termination of this Agreement. 
  1. Mediation and Arbitration.  In the event of a dispute between the Parties arising out of, relating to, or connected with, this Agreement, the Parties agree to hold a non-binding Mediation with a mediator to be selected upon mutual agreement of the Parties, and with the costs of the Mediation to be borne equally by each Party, except that each Party shall bear its own respective legal expenses.  In the event Mediation fails, the Parties agree to binding Arbitration as follows: The Parties agree that all disputes, controversies or claims that may arise among them (including their agents and employees), including without limitation any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, whether sounding in tort, contract, equity or otherwise, shall be submitted to, and determined by, binding Arbitration. Such Arbitration shall be conducted before a single Arbitrator pursuant to applicable arbitration rules then in effect of the American Arbitration Association, except to the extent such rules are inconsistent with this section or the provision of Services by fusionZONE. The venue for such Arbitration shall be Polk County, Florida (“Venue”). Unless the Parties mutually agree in writing to the contrary, pre-Arbitration discovery shall be limited to the following:  (a)  each Party shall be entitled to serve one set of interrogatories (requiring no more than 30 answers, including sub-parts) on the other Party, the response to which shall be given, under oath, within 30 days of service; (b)  each Party shall be entitled to serve one set of Requests for Production of Documents on the other Party, the response to which shall be given within 30 days of service; and (c)  each Party shall be entitled to take two depositions which shall last no more than four hours. All depositions shall be taken, and all properly requested documents shall be produced, in the Venue. Additional discovery may be permitted by the Arbitrator upon good cause shown and upon such terms as the Arbitrator may decide.  The Arbitrator shall apply the laws of the State of Florida to the controversy or claim and shall decide the same in accordance with applicable usages and terms of trade. Evidentiary questions shall be governed by the Florida Evidence Code. The Arbitrator’s award shall be in writing and shall set forth the findings and conclusions upon which the Arbitrator based the award. The prevailing Party in any such Arbitration, if the Arbitrator determines there is a prevailing Party, shall be entitled to recover its reasonable attorneys’ and other professionals’ fees, costs and expenses incurred in connection with the Arbitration.  Any award pursuant to such Arbitration shall be final and binding upon the Parties, and judgment on the award may be entered in any federal or state court sitting or located in Polk County, Florida. The Parties hereby consent to the exclusive jurisdiction of the federal or state courts sitting or located in Polk County, Florida. The obligations set forth in this Section shall survive the termination of this Agreement. 
  1. Governing Law. This Agreement shall be governed by the Laws of the State of Florida.  “Laws” shall mean any and all applicable federal, state and local laws, rules and/or regulations, whether applicable to Dealer, fusionZONE, or their affiliates with respect to the Services.
  1. Severability. Should any provision(s) of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
  1. Waiver. The waiver by fusionZONE of a breach of any provision of this Agreement shall not operate or be construed as a waiver by fusionZONE of any other or subsequent breach.
  1. Social Media and DMS. Dealer shall either provide fusionZONE with access to Dealer’s social media website accounts or provide a prominent hyperlink to Dealer’s website on all social media website accounts, including, without limitation, Dealer’s Google +, Facebook, Twitter, Instagram, and YouTube accounts. Dealer shall be responsible for creating and maintaining any Dealer Management System (“DMS”) or related hardware, software, or accounts reasonably necessary for managing Dealer’s inventory. Such responsibilities include, by way of example only, creating and maintaining a HomeNet Automotive account, and paying HomeNet Automotive directly, if Dealer utilizes Reynolds & Reynolds for its DMS.
  1. Entire Agreement / Effect of Service Agreement. Except as otherwise provided herein, this Agreement shall constitute the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all Services undertaken by fusionZONE for Dealer. The Agreement may only be changed by mutual agreement of authorized representatives of the Parties and evidenced in writing signed by both Parties.