COMMERCE LOGIC TERMS OF SERVICE

The following terms and conditions (the “Terms of Service”) create a legal agreement between you (“Customer”) and Commerce Logic, LLC (“Commerce”). The Terms of Service govern Customer’s use of Commerce services and features, and any data, materials, content, or other information (collectively “Data”) made available to you therein. Software/SaaS and Data are collectively referred to as the “Service” below. Please read these Terms of Service carefully.

BY USING THE SERVICE, YOU AGREE TO THESE TERMS OF SERVICE.

Commerce reserves the right to make changes to these Terms of Service at any time and at our discretion. If changes occur, Customer will be notified of changes. If Customer does not agree with such changes, Customer should cease using the Service. Customer’s continued use of the Service after any such changes to the Terms of Service shall be deemed acceptance of any such new or modified terms.

I. Permitted Use of the Service and Restrictions

a) SaaS Services: Subject to the Terms of Service, Commerce authorizes Customer to access and use the Commerce SaaS Service for purposes of fulfilling Services as specified in applicable orders or other written authorizations or agreements. Commerce acknowledges that within these Terms of Service, Commerce is to provide and continuously maintain in good working order, all applicable software SaaS services used by Customer

b) Software. Commerce grants Customer a limited, non-sublicensable, non-transferable, non-exclusive license under these Terms of Service to access and execute any software and configuration files that the SaaS Services may provide to Customers hardware solely to facilitate Customer’s authorized access to and use of the SaaS Service. The software may include code that is licensed under third party license agreements, including open source made available or provided with the software.

c) Commerce Methodologies and Documents. Commerce grants Customer a limited, non-sublicensable, non-transferrable, non-exclusive license under these Terms of Service to utilize Commerce provided documents, training materials, and instructions. Applicable documents and methodologies (“Documentation”) include, but are not limited to training materials and standard operating procedures (SOPs).

d) Restrictions. Customer shall not, and shall not permit others to, do the following with respect to the Commerce Services provided by Commerce to Customer: (i) use the Service with external programs in a manner that intentionally circumvents contractual usage restrictions; (ii) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any of it available for access by third parties except as otherwise expressly provided in writing; (iii) access it for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Service; (iv) disassemble, reverse engineer or decompile it; (v) copy, create derivative works based on or otherwise modify it; (vi) remove or modify a copyright or other proprietary rights notice in it; (vii) use it to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (viii) use it to create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or otherwise engage in a malicious act or disrupt its security, integrity or operation; (ix) access or disable any Commerce or third Party data, software or network (other than Customer’s instance of the Service in accordance with these Terms of Service). Before Customer exercises any of the foregoing actions that Customer believes it is entitled to, Customer shall provide Commerce with thirty (30) days’ prior written notice (or, if applicable law or the relevant court order does not allow for such notice, then the maximum amount of notice allowable), and provide reasonably requested information to allow Commerce to assess Customer’s claim and, at Commerce’s sole discretion, provide alternatives that reduce adverse impacts on Commerce’s intellectual property and other rights.

II. Use of Service; Privacy

When Customer activates or uses the Service, additional details may be available regarding what information is sent to Commerce Logic and how the information may be used.

Commerce’s Privacy Policy applies to the use of the Service, and its terms are made a part of these Terms of Service by this reference. At all times Customer information will be treated in accordance with Commerce’s Privacy Policy, which can be found commerce-logic.com/privacy.

III. Payment and Billing

a) Payment and billing terms are agreed to by Commerce and Customer is separate order forms, written authorization or written agreement. Unless otherwise specified in such orders forms, written authorizations or written agreement, any period of no-cost Service (“Free Trial”) is assumed to be thirty (30) calendar days and payment terms for invoices are assumed to be Due-Upon-Invoice.

b) If payment and billing terms reference a per-vehicle (“Unit Subscription”) structure, unless otherwise specified in writing, all Unit Subscriptions active within the Service will be automatically enrolled in the Service and billed at a specified monthly rate. Unit Subscription billing will occur monthly unless otherwise specified. Additional Unit Subscriptions that occur within a monthly billing cycle will be prorated for the days enrolled in Service and included in a monthly bill/invoice.

IV. Intellectual Property

Any intellectual property owned or licensed by Commerce or Customer before starting the Service or independent of these Terms of Service is considered “Background IP.” Any intellectual property created or discovered by Commerce of Customer in connection with Service under these Terms of Service is considered “Developed IP.” Except for permissions and rights granted within Section I, neither Commerce or Customer will own or acquire and right, title, or interest to the other’s Background IP or Developed IP.

V. Confidentiality

“Confidential Information” means information that one party (or an affiliate) discloses to the other party under these Terms of Service, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Each party’s Background IP is its Confidential Information.

Commerce and Customer will not disclose the discloser’s Confidential Information, except to employees, affiliates, agents, professional advisors, or other third-party contractors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will be responsible and liable for breach of this Section V (Confidentiality) by its Delegates. The recipient will use the Confidential Information only to exercise rights and fulfill obligations within these Terms of Service. The recipient may disclose Confidential Information when legally compelled by a court or other government authority. To the extent permitted by law, recipient will promptly provide the discloser with sufficient notice of all available details of the legal requirement and reasonably cooperate with the discloser’s efforts to challenge the disclosure, seek an appropriate protective order, or pursue such other legal action, as the discloser may deem appropriate. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.

Except for the limited rights under this Agreement, neither party acquires any right, title, or interest in the other party's Confidential Information.

VI. Defense and Indemnity

Customer agrees to indemnify and hold Commerce officers, directors, shareholders, predecessors, successors in interest, employees, agents, contractors, subsidiaries and affiliates, harmless for any demands, loss, liability, claims or expenses (including attorneys’ fees) arising out of Customer violation of these Terms of Service and/or use of the Service.

VII. Limitations of Liability

Neither Commerce nor its licensors or suppliers shall be liable for any damages or losses arising from any use, misuse, reliance on, inability to use, interruption, suspension, or termination of the service, including any interruptions due to systems failures, network attacks or scheduled or unscheduled maintenance.

To the extent not prohibited by applicable law, in no event shall Commerce, its affiliates, agents or principals be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including, without limitation, damages for loss of profits, corruption or loss of data, failure to transmit or receives any data (including without limitation course instructions, assignments and materials), business interruption or any other commercial damages or losses, arising out of or related to Customer’s use of inability to use the Service or any third party software, applications or services in conjunction with the Service, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if Commerce has been advised of the possibility of such damages. In no event shall Commerce’s total liability to Customer for all damages (other than what may be required by applicable law involving personal injury) exceed the amount of any active agreement or order total or one thousand dollars ($1,000.00), whichever is lower. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

VIII. Disclaimer of Warranties

Some jurisdictions do not allow the exclusion of certain warranties. To the extent such exclusions are specifically prohibited by applicable law, some of the exclusions set forth may not apply to Customer. The following disclaimers shall apply to the maximum extent permitted by law.

Customer expressly acknowledges and agrees that, to the extent permitted by applicable law, use of the Service is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with Customer. Commerce does not promise that the Service or any feature of the Service will be accurate, error-free or uninterrupted, or that any defects will be corrected, or that Customer’s use of the Service will provide specific results.

Customer further acknowledges and agrees that the Service is not intended or suitable for use in situations or environments where the failure or time delays of, or errors or inaccuracies in, the data provided by the Service cloud lead to death, personal injury, or severe physical or environmental damage.

No oral or written information or advice provided by Commerce or a Commerce authorized representative shall create a warranty.

IX. Termination of Terms of Service

If Customer fails to comply with any of the provisions within these Terms of Service, Commerce may, without notice of Customer, terminate permissions, rights, and/or preclude Customer access to the Service, or any portion thereof. Commerce further reserves the right to modify, suspend, or discontinue the Service (or any part thereof) at any time with notice to Customer, and Commerce will not be liable to Customer or any third party should it exercise such right. If Commerce fails to comply with any of the provisions within these Terms of Service, Customer may immediately terminate the Service upon notice to Commerce.

Customer may terminate the Service for convenience with ninety (90) calendar days notice to Commerce.

X. Controlling Law, Venue, Dispute Severability

These Terms of Service will be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflict of law principles. Customer agrees to the personal jurisdiction by and venue in the state and federal courts in Utah County, Utah, USA, and waive any objection to such jurisdiction or venue.

XI. Entire Agreement

These Terms of Service constitute the entire agreement between Customer and Commerce and governs your use of the Services, superseding any prior agreements with respect to the same subject matter between Customer and Commerce. Customer also may be subject to additional terms and conditions that may apply when you use the Service or additional services. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Commerce’s failure to enforce any right or provisions in these Terms of Service will not constitute a waiver of such or any other provision. Commerce will not be responsible for failures to fulfill any obligations due to causes beyond its control.