1.  Applicability.  

(a) These terms and conditions for services (these "Terms") apply to and are incorporated by reference into the Managed Services Agreement (the "Agreement") between you ("Dealer") and Edifice Group, Inc. ("Edifice"). Dealer and Edifice are hereafter referred to together as "Parties," and each a "Party."
(b) The Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and any provision contained in the Agreement (which includes any Data Agreement and Privacy Policy ("DAPP") between the Parties), these Terms shall govern, unless the Agreement or a provision in it expressly states that the terms and conditions therein shall control.
(c) These Terms prevail over any of Dealer's general terms and conditions regardless of whether or when Dealer has submitted its request for proposal, order, or such terms. Provision of the services to Dealer as set forth and described in the Agreement (the "Services") does not constitute acceptance of any of Dealer's terms and conditions and does not serve to modify or amend these Terms.

2.  Definitions. For purposes of the Agreement and these Terms, the following terms shall have the following meanings, unless otherwise defined therein:
(a) "Prospects" or “Audience” means all persons that Edifice targets through digital advertising, email, and such other modes of communication as part of executing the Program and each particular Campaign during the Campaign Term.
(b) A "Match" means each car or service (as applicable) a person purchases from Dealer during a Campaign where such person is identified as both of the following: (x) a person in Dealer's purchase records and/or DMS (depending on the program Dealer chooses) and (y) a Prospect (such matched Prospects hereinafter, "Matched Customers"). During each campaign, Edifice periodically will forward the list of Matched Customers to Dealer. Unless Dealer establishes that the identity of a Matched Customer list is inaccurate, then each Matched Customer shall be a compensable match to Edifice under the Agreement.

3.  Performance Dates. Edifice shall use reasonable efforts to meet any performance dates specified in the Agreement, and any such dates shall be estimates only.

4.  Dealer's Obligations. Dealer shall:
(a) cooperate with Edifice in all matters relating to the Services (including data access) as may reasonably be requested by Edifice, for the purposes of performing the Services;
(b) respond promptly to any Edifice request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Edifice to perform Services in accordance with the requirements of the Agreement;
(c) provide such Dealer materials or information as Edifice may reasonably request to carry out the Services in a timely manner and ensure that such Dealer materials or information are complete and accurate in all material respects; and
(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

5.  Dealer's Acts or Omissions. If Edifice's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Dealer or its agents, subcontractors, consultants or employees, Edifice shall not be deemed in breach of its obligations under this Agreement (including, but not limited to, a breach of the ROI guarantee) or otherwise liable for any costs, charges or losses sustained or incurred by Dealer, in each case, to the extent arising directly or indirectly from such prevention or delay.

6.  Fees and Expenses; Payment Terms; Interest on Late Payments; Pricing Adjustments.  
(a) In consideration of the provision of the Services by Edifice and the rights granted to Dealer under this Agreement, Dealer shall pay the fees set forth in the
(b) Dealer shall pay all invoiced amounts due to Edifice within fifteen (15) calendar days from the date of Edifice's invoice. Dealer shall make all payments hereunder in US dollars by wire transfer or check.
(c) In the event payments are not received by Edifice within seven (7) calendar days after becoming due, Edifice may:

(i) charge interest on any such unpaid amounts at a rate of 1.5% per month (18% per annum) or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
(ii) suspend performance for all Services until payment has been made in full.

(d) Dealer shall reimburse Edifice for all actual costs incurred in collecting any overdue payments and related interest, including, without limitation, attorneys' fees, legal costs, court costs, and collection agency fees.
(e) Given increasing vendor and supplier costs that Edifice may incur during the Campaign Term, Dealer acknowledges and agrees that Edifice may adjust pricing for Services under the Agreement up to a maximum of five percent (5%) over any running 12-month period. Edifice may impose such pricing adjustment upon thirty (30) calendar days' notice.

7.  Taxes. Dealer shall be 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 entity on any amounts payable by Dealer hereunder.

8.  Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Dealer under this Agreement or prepared by or on behalf of Edifice in the course of performing the Services, including any items identified as such in the Agreement (collectively, the "Deliverables"), except for any Confidential Information of Dealer or Dealer materials, shall be owned by Edifice. Edifice hereby grants Dealer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Dealer to make reasonable use of the Deliverables and the Services. In the event the parties have entered into a DAPP, any such DAPP shall control.

9.  Confidential Information.  
(a) All non-public, confidential or proprietary information of Edifice, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by Edifice to Dealer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Dealer without the prior written consent of Edifice. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Dealer at the time of disclosure; or (iii) rightfully obtained by Dealer on a non-confidential basis from a third party.
(b) Dealer agrees to use the Confidential Information only to make use of the Services and Deliverables.
(c) Edifice shall be entitled to seek injunctive relief for any violation of this Section.

10.  Representation and Warranty.  
(a) Edifice represents and warrants to Dealer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(b) Edifice shall not be liable for a breach of the warranty set forth in Section 10(a) unless Dealer gives written notice of the defective Services, in strict compliance with Section 22, reasonably described, to Edifice within fifteen (15) calendar days of the time when Dealer discovers or ought to have discovered that the Services were defective.
(c) Subject to Section 10(b), Edifice shall, in its sole discretion, either:

(i) repair or re-perform such Services (or the defective element of the Services); or

(ii)credit or refund the price of such Services at the pro rata contract rate, subject to Section 12.

(d) THE REMEDIES SET FORTH IN SECTION 10(c) SHALL BE THE DEALER'S SOLE AND EXCLUSIVE REMEDY AND EDIFICE'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10(a).

11.  Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(A) ABOVE, EDIFICE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

12.  Limitation of Liability.  

(a) IN NO EVENT SHALL EDIFICE BE LIABLE TO DEALER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT EDIFICE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL EDIFICE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO EDIFICE PURSUANT TO THE AGREEMENT IN THE TWO-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13.  Term; Termination.

(a) The term of the Agreement is the initial, non-cancelable minimum term set forth in the Agreement (the "Minimum Term").   This Agreement shall renew automatically for one (1) month terms (each a "Renewal Term," together with the Minimum Term, the "Campaign Term" and each Renewal Term is a Campaign Term) unless either party provides the other with written notice in strict compliance with Section 22 of these Terms of non-renewal at least thirty (30) days prior to the expiration of the then existing term.
(b) In addition to any remedies that may be provided under this Agreement, Edifice may terminate this Agreement with immediate effect upon written notice to Dealer, if Dealer:

(i) fails to pay any amount when due under this Agreement;

(ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or

(iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

(c)  Subject to the limitations set forth in Section 12, the Agreement may be terminated in writing by either Party (as a non-breaching Party) in the event that the other Party is in material default under this Agreement and fails to cure such default within fifteen (15) calendar days of written notice from the other Party in strict compliance with Section 22 of these Terms, specifying the nature of such material default. Such notice of material default shall describe the nature of the breach in sufficient detail so as to afford the breaching party the reasonable opportunity to correct such breach.

14.  Litigation Costs and Expenses.  If either Party institutes any legal suit, action, or proceeding against the other Party to enforce this Agreement (or obtain any other remedy regarding any breach of this Agreement), including, but not limited to, contract, equity, tort, fraud, and statutory claims, the prevailing party in a final, non-appealable judgment regarding the suit, action, or proceeding is entitled to receive, and the non-prevailing party shall pay, in addition to all other remedies to which the prevailing party may be entitled, the costs and expenses incurred by the prevailing party in conducting the suit, action, or proceeding, including actual attorneys' fees and expenses and court costs, even if not recoverable by law. The Parties acknowledge and agree that the limitations of C.G.A. § 13-1-11 do not apply to this provision.

15.  Waiver. No waiver by Edifice of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Edifice. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

16.  Force Majeure. Edifice shall not be liable or responsible to Dealer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Edifice including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

17.  Assignment. Dealer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Edifice. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Dealer of any of its obligations under this Agreement.

18.  Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

19.  No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

20.  Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia.

21.  Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or courts of competent jurisdiction of the State of Georgia in each case located in and for Gwinnett County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

22.  Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Agreement or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.

23.  Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

24.  Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Litigation Costs and Expenses, Governing Law, Submission to Jurisdiction and Survival.

25.  Entire Agreement.  This Agreement, and the DAPP embody the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior agreements, whether written or oral, and represents the entire Agreement between the Parties with respect to the subject matter hereof. The Parties agree that all documents referenced in this Agreement (including, but not limited to the DAPP) are hereby incorporated into this Agreement.

26.  Amendment and Modification.  No amendment, modification, or supplement to this Agreement will be valid or enforceable unless it is made in writing, specifically references this Agreement, and is signed by all Parties.

27.  Execution and Counterpart.  Physical copies of this Agreement maybe created and executed by the Parties if mutually desired, in which case this Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which will constitute one instrument. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement, and such signed copy will be considered an original signed copy for all purposes.

28.  Construction; Time of the Essence. The headings of Sections in this Agreement are provided for convenience only and will not affect the construction or interpretation of any provision hereof. Any references herein to a “Section” means the corresponding Section of these Terms. Any rule of construction or interpretation otherwise requiring the Agreement (inclusive of these Terms) to be construed or interpreted against any Party to this Agreement will not apply to any construction or interpretation hereof. Time is of the essence for all purposes of this Agreement.