(last revised on September 18, 2020)

These Terms of Service (these “Terms”) govern the relationship between Dealers Digital (referred to herein as “Company”, “Dealers Digital”, “we” or “us”) and the Client, as identified in the Enrollment Form (referred to herein as “Client” or “you”). Company and Client are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” By accessing or using the Dealers Digital Platform (defined below), any related services that reference these Terms, or entering into any agreement that references these Terms, you agree to be bound by these Terms, as revised from time-to-time in Company’s sole discretion. (The Enrollment Form and these Terms collectively constitute the “Agreement.”) These Terms incorporate any policies or exhibits linked to or referenced herein.

1. OVERVIEW OF THE DEALERS DIGITAL PLATFORM.

Dealers Digital provides a suite of products that are intended to help Client improve its online presence, reputation, and marketing, as well as assist in facilitating client communication and satisfaction. To accomplish this, using login credentials, Client accesses and uses the Dealers Digital Service which can be accessed through any computer or device with a web browser or through our mobile application.

2. DEFINITIONS. Any capitalized term used but not defined in these Terms shall have the meaning given in the Enrollment Form. The following capitalized terms shall have the following meanings:

2.1. “Add-On” means integrations, applications and other add-ons that are used with the Dealers Digital Service.

2.2. “Affiliate(s)” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of such entity or ownership of 50% or more of the voting securities of such entity.

2.3. “Aggregate/Anonymous Data” means: (i) data generated by aggregating Client Data with other data so that results are non-personally identifiable with respect to Client or its Customers and (ii) anonymous learnings, logs and data regarding use or effectiveness of the Dealers Digital Service.

2.4. “Authorized User(s)” means Client’s employees and contractors who are acting for Client’s benefit and on its behalf, and whom Client has authorized to access the Dealers Digital Service and the information contained therein.

2.5. “Business Associate Agreement” means the Business Associate Agreement addendum found herein that applies to Dealers Digital and Client, if Client is a Covered Entity (as that term is defined under HIPAA).

2.6. “Dealers Digital Service” or “Service” means the specific proprietary product of Dealers Digital as evidenced in the Enrollment Form provided to Client for Client’s use during the Subscription Term, as part of Client’s Subscription. The “Dealers Digital Service” does not include any Third Party Product.

2.7. “Dealers Digital Technology” means the Dealers Digital Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Dealers Digital Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including all discoveries, innovations, improvements, ideas or inventions conceived of or developed in connection with Company providing the Dealers Digital Service, or as a result of the Dealers Digital Service.

2.8. “Client Data” means: (i) Content and any (ii) Submitted Data.

2.9. “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under the Agreement or learned during the performance of the Agreement, or, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.

2.10. “Content” means information, data, text, software, images, music, sounds, photographs, graphics, videos, messages, tags and/or other materials/content that Client selects for use or makes accessible through the Dealers Digital Service.

2.11. “Customer(s)” means any person that is a client, customer, or patient of Client, or that is a potential client, customer or patient of Client, who sends data through or utilizes the Dealers Digital Service.

2.12. “Customer Data” means data related to the identity, characteristics and activities of Customers collected for Client or captured by the Dealers Digital Service. To the extent Client is a Covered Entity, as those terms are defined in HIPAA, “Customer Data” also includes Protected Health Information.

2.13. “Enrollment Form” means the agreement entered into between Client and Dealers Digital by which Dealers Digital agreed to allow Client to use the Dealers Digital Services under certain terms and conditions, and which together, with these Terms, constitutes the “Agreement” between the Parties.

2.14. “HIPAA” means the Health Information Technology for Economic and Clinical Health Act of 2009 (the “HITECH Act”), the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. §1320d through d-8, as amended from time to time, and the requirements of any regulations promulgated under either the HITECH Act or HIPAA, including, without limitation, the federal privacy regulations as contained in 45 C.F.R. Parts 160 and 164 (“Federal Privacy Regulations”), the federal security standards as contained in 45 C.F.R. Parts 160, 162 and, and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and, all as may be amended from time to time.

2.15 “Messages” include Short Message Service (SMS) and Multimedia Messaging Service (MMS) messages. Message length is technically limited, with specific capacities subject to change.

2.16. “Protected Health Information” or “PHI” has the same meaning as that term is defined in HIPAA.

2.17. “Scope of Use” means the usage limits or other scope of use descriptions for the specific Dealers Digital Service package purchased by Client as set forth in the applicable Enrollment Form or related Subscription Documentation.

2.18. “Submitted Data” means data uploaded, inputted or otherwise submitted by Client to the Dealers Digital Service, including any Protected Health Information or any Third Party Content.

2.19. “Subscription” means either: (i) Client’s entering into the Enrollment Form with Dealers Digital, whereby Client agreed to the receive the Dealers Digital Service on an ongoing basis, according to the terms and conditions referenced in the Enrollment Form; or (ii) Client’s agreement to receive the Dealers Digital Service on an ongoing basis, according to the terms and conditions referenced in any and all Subscription Documentation.

2.20. “Subscription Documentation” means any and all documentation evidencing Client’s agreeing to enter into a Subscription for the Dealers Digital Service, including, without limitation, the Privacy Policy, Terms of Use, End-User License Agreement, and Terms of Service. If there is a conflict between this Agreement and the Subscription Documentation, this Agreement will control.

2.21. “Subscription Term” means the initial term for the subscription to the applicable Dealers Digital Service, as specified in the Enrollment Form, and each subsequent renewal term (if any).

2.22. “Territory” means (i) all counties in the state of Utah, (ii) all other states of the United States of America and (iii) all other countries of the world where Company derives at least three percent (3%) of its gross revenues during the Restricted Period.

2.23. “Third Party Content” means content, data or other materials that Client provides to Dealers Digital from Client’s third-party data providers, including through Add-Ons used by Client.

2.24. “Third Party Product” means any Add-On, applications, integrations, software, code, online services, systems and other products not developed by Dealers Digital.

Other terms are defined in other Sections of this Agreement.

3. ACCOUNT REGISTRATION AND USE.

Client will register for a Dealers Digital account in order to access or receive the Dealers Digital Service. Account information must be accurate, current and complete, and will be governed by Dealers Digital’s Privacy Policy (available at: https://Dealers Digital.com/privacy-policy/). Client agrees to keep their contact information up-to-date so that Dealers Digital may send notices, statements and other information by email or through Client’s account.

4. USE RIGHTS.

4.1. Training and Setup. Before Company will activate the Services, Client must complete Company’s standard training and setup call (“Training Call”). The Parties shall mutually determine the preferred date and time for the Training Call and identify the participating individuals. During the Training Call, in order for online reviews and listing services to be activated, Client must link review sites and provide location information as directed by the Company.

4.2. Use of Dealers Digital Services. Subject to all terms and conditions of the Agreement, Dealers Digital grants Client a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Dealers Digital Service designated on the Enrollment Form or Subscription Documentation solely for Client’s internal business purposes, but only in accordance with the Enrollment Form, these Terms, Subscription Documentation, and all applicable Scope of Use descriptions. Client acknowledges that Client may be responsible for additional fees as set forth Section 10 if it exceeds the Scope of Use.

4.3. Use by Others. Client may permit its Authorized Users to use the Dealers Digital Service provided their use is for Client’s benefit only and remains in compliance with the Agreement. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein. Client will be solely responsible for authorizing and creating user IDs, passwords and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and restricting or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Client is solely responsible for ensuring that any user IDs, passwords and other access credentials (such as API tokens) for the Dealers Digital Service are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying with all laws applicable to Client (e.g. HIPAA) in determining which of its agents or employees should be an Authorized User, the level of access for each Authorized User, and when such access should be terminated or restricted. Client will be solely responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials. Client must notify Dealers Digital immediately of any breach of security or unauthorized use of its account.

4.4. General Restrictions. Client must not (and must not allow any third party to): (i) rent, lease, copy, transfer, sublicense or provide access to the Dealers Digital Service to a third party (except Authorized Users as specifically authorized above); (ii) incorporate the Dealers Digital Service (or any portion thereof) into, or use it with or to provide, any site, product or service; (iii) use the Dealers Digital Service (or any portion thereof) for time sharing purposes or for a third party’s benefit; (iv) publicly disseminate information regarding the performance of the Dealers Digital Service (which is deemed Dealers Digital’s Confidential Information); (v) modify or create a derivative work of the Dealers Digital Service or any portion thereof; (vi) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Dealers Digital, except to the extent expressly permitted by applicable law and then only upon advance notice to Dealers Digital; (vii) break or circumvent any security measures or rate limits for Dealers Digital Services; (viii) distribute any portion of the Dealers Digital Service other than as specifically permitted above; or (ix) remove or obscure any proprietary or other notices contained in the Dealers Digital Service including in any reports or output obtained from the Dealers Digital Service.

4.5. Beta Releases. Dealers Digital may provide Client with a certain Dealers Digital Service on a trial basis or with “alpha”, “beta” or other early-stage Dealers Digital Services, integrations or features (“Beta Releases”). This Section will apply to any Beta Release (even if a Beta Release is provided for a fee or counts towards Client’s Scope of Use allocations) and supersedes any contrary provision in the Agreement. Dealers Digital may use good faith efforts in its discretion to assist Client with Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in the Agreement, CLIENT AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH Dealers Digital WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S SOLE RISK. Dealers Digital makes no promises that future versions of a Beta Release will be released or will be available under the same commercial or other terms. Dealers Digital may terminate Client’s right to use any Beta Release at any time for any reason or no reason in Dealers Digital’s sole discretion, without liability.

4.6. Bundles. You may elect to sign up for additional Messages/month per Location (“Bundled Service”) in a new or revised Enrollment Form. Any fees for the Bundled Services will be paid by you in accordance with the Enrollment Form and Section 10. If you sign up for a Bundled Service, you agree to maintain the Bundled Services for the applicable Subscription Term. If you receive Bundled Services, and subsequently decide to unbundle, terminate, or disconnect any of these Bundled Services, or we disconnect any of the Services, then we may adjust the rates for the remaining Services to the then-current price.

4.7. Messages. Each outbound text Message is counted against the monthly total purchased by Client. If you did not purchase a specific amount of Messages, you are entitled to send up to five thousand (5,000) Messages each month per Location enrolled. If you exceed the 5,000 Messages/month limit, Dealers Digital will promptly notify you of the same and you may be charged for such usage and you agree to pay the additional fees in the manner provided herein. Messages may contain up to 160 characters. Any Message with more than 160 characters will be counted as two messages or more.

5. USE BY CHILDREN.

If you are a school, district, or teacher, you represent and warrant that you are solely responsible for complying with the Children’s Online Privacy Protection Act of 1998 and its rules (“COPPA”), meaning you must obtain consent from all parents whose children under 13. If you are a teacher, you represent and warrant that you are authorized by your school or district to use the Dealers Digital Services. You also represent and warrant that you are entering into these Terms on behalf of your school or district. For more information on COPPA, please click here. Additionally, if you are a school, district, or teacher providing consent on behalf of parents or guardians, you may be required to provide adequate school credentials and a valid school email address to verify your identity.

6. CLIENT DATA.

6.1. Rights in Client Data. As between the Parties, Client retains all right, title and interest (including any intellectual property rights) in and to the Client Data. Client hereby grants Dealers Digital a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the Client Data solely to the extent necessary to provide the Dealers Digital Service and related services to Client and as otherwise provided below.

6.2. Aggregate/Anonymous Data. Client agrees that Dealers Digital will have the right to generate Aggregate/Anonymous Data. Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is Dealers Digital Technology, which Dealers Digital may use for any business purpose during or after the term of the Agreement (including without limitation to develop and improve Dealers Digital’s products and services and to create and distribute reports and other materials). Dealers Digital will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Clients, or that would otherwise violate applicable laws, such as HIPAA. If the Business Association Agreement addendum applies to Client, Dealers Digital will use the Aggregate/Anonymous Data only in conformity with the terms thereof.

6.3. Security. Dealers Digital agrees to maintain technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. These measures will include: (i) storing Client Data on servers located in a physically secured location and (ii) using firewalls, access controls and similar security technology designed to protect Client Data from unauthorized disclosure. If Client is a Covered Entity, as that term is defined in HIPAA, the Business Associate Agreement addenda applies and Dealers Digital agrees to secure and utilize Protected Health Information in accordance with such provisions and the requirements of HIPAA. Dealers Digital takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section.

6.4. Storage. Client shall not exceed 500GB of uploaded Content to the Dealers Digital Service. Notwithstanding the foregoing, Dealers Digital does not provide an archiving service. During the Subscription Term, Client acknowledges that Dealers Digital may delete Content no longer in active use. Except for requirements that are included in the Business Association Agreement addendum herein, as applicable, Dealers Digital expressly disclaims all other obligations with respect to storage.

7. CLIENT OBLIGATIONS; REPRESENTATIONS.

7.1. Customer Authorization. Client agrees to provide all required disclosures to Customers and obtain all required consents from Customers, based on applicable laws to Client prior to having Customers utilize the Dealers Digital Service.

7.2. Client Data. Client agrees to obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by the Agreement and to grant Dealers Digital the rights herein. Client represents and warrants that its Client Data will not violate third party rights, including intellectual property, privacy and publicity rights. If Client receives any take down requests or infringement notices related to Client Data or its use of Third Party Products, it must promptly stop using these items with the Dealers Digital Service and notify Dealers Digital.

7.3 Content. Client acknowledges that all Content is solely Client’s responsibility of the party from whom such Content originated. Client is solely responsible for ensuring that the Content you upload complies with applicable law. Dealers Digital will not provide or create any Content for Client to make available through the Services or any other medium. By providing any Content to Dealers Digital, the Client warrants and represents that the Client has sole ownership of such Content and that the Content is free of any intellectual property claims by any third party. Client also warrants and represents that Dealers Digital shall have no obligation to provide Client or third parties any compensation for such Content.

7.4. Compliance with Laws. Client also represents that it is in full compliance with all applicable state, federal and international laws, rules, and regulations.

7.5 Representations Regarding Messages.

(a) Client warrants and represents that it and its Authorized Users will not use the Dealers Digital Service in a manner that would violate any obligation with respect to the Telephone Consumer Protection Act of 1991, any policy or decision made by the Canadian Radio-television and Telecommunications Commission, Canada’s Anti-Spam Legislation, the Health Insurance Portability and Accountability Act of 1996, FERPA, the Gramm-Leach-Bliley Act of 1999, Electronic Signatures in Global and National Commerce Act, any Joint Commission requirements or standards, COPPA, and any other applicable federal, state, or international law and amendments thereto.

(b) Client further represents and warrants that (i) it, and not Dealers Digital, is the “sender” of all Messages transmitted using the Services; (ii) Client has consent to send automated Messages to the telephone numbers in the Submitted Data for purposes that include marketing, and Client acknowledges and agrees that it is solely responsible for ensuring such consent has been obtained; (iii) Client has procured all rights and licenses and has all power and authority necessary to use and text enable those phone numbers it registers or associates with Client’s account; (iv) Client will not use the Services on a phone number that has been exchanged, rented, or purchased from a third party without the permission of the phone number owner; and (v) the phone number is not a mobile subscriber phone number.

(c) Client acknowledges and agrees that Dealers Digital has no obligation to screen content for compliance with the TCPA, telemarketing, do-not-call or privacy laws, and Client acknowledges and agrees that it is solely responsible for such compliance.

7.6 Representations Regarding Reviews and Ratings. If monitoring and managing your online reviews or ratings is included in the Dealers Digital Service you order, you represent and warrant that (a) you are authorized to provide us with any Customer, Client or Authorized User information that you provide to us in connection with such services (the “Information”), including any personally identifying information of those parties; (b) our possession and use of the information on your behalf in connection with the Dealers Digital Service will not violate any contract, statute, or regulation; (c) any content that you and your authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, is the original work of your authorship, and will only concern you and the goods and services that you provide; (d) you and your authorized representative(s) will only request reviews via the Dealers Digital Service from bonafide Customers; and (e) you and your authorized representative(s) will only provide Information for Customers whose most recent transaction with your business occurred less than 12 months from the date you provide their information to Dealers Digital. Additionally, if an integration or auto-connector is included in the Dealers Digital Service you order, you grant Dealers Digital the right to access your Information or CRM system directly or through a third-party service for the purposes of fulfilling Dealers Digital’s obligations under the Agreement, and you warrant that you are not restricted by law or applicable agreement from granting Dealers Digital such right. Dealers Digital will not be held liable for any consequences of false or inaccurate content published to an online review or ratings website through the Dealers Digital.

7.7. Additional Covenants. Client covenants to Company that Client: (a) will comply with Company’s policies and procedures in effect from time to time; (b) not use Company’s name or logo, in any written material or advertisement, without Company’s prior written approval.

7.8. Electronic Communication. When Client visits Dealers Digital’s website, uses Dealers Digital’s mobile application, sends e-mails to Dealers Digital, or communicates electronically with Dealers Digital, in any form, Client consents to also receive communications from Dealers Digital electronically. Client agrees that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

8. HIPAA REQUIREMENTS. [THE PROVISIONS OF SECTION 8 ONLY APPLY IF CLIENT IS A COVERED ENTITY, AS THAT TERM IS DEFINED UNDER HIPAA]

8.1. Business Associate Agreement. The Parties acknowledge and agree that to the extent Company is a subcontractor of the Client that creates, receives, maintains or transmits Protected Health Information on behalf of the Client, Company is a Business Associate of the Client and the Parties agree to comply with HIPAA and to be bound by the Business Associate Agreement included as an addendum hereto.

8.2. Authorization to Disclose PHI. If the Client is a Covered Entity as that term is defined under HIPAA, any disclosure of PHI to third parties, must be authorized by the patient or legal guardian, or otherwise legally allowed under the Federal Privacy Regulations. The Client agrees that it is its sole responsibility to ensure that any PHI released to the Company, as part of the Services to be provided hereunder, is done so in full compliance with the Federal Privacy Regulations. If a patient of Client revokes their consent to disclosure of their PHI, Client will immediately notify Dealers Digital of such revocation, and to the extent possible and under the control of Dealers Digital, Dealers Digital will remove any related PHI from use related to the Services.

8.3. Authority. Dealers Digital is granted the right to view, access, handle, control, store, utilize and distribute Protected Health Information for the strict and sole purposes outlined and authorized under the Agreement, and only for the duration of the Agreement.

8.4. Use of Services in Compliant Manner. Client agrees that it is solely responsible for ensuring that it uses the Dealers Digital Services, including any communication with patients allowed for therein, in a manner that complies with HIPAA. Client is solely responsible for ensuring that it uses the Dealers Digital Services in a HIPAA-compliant manner, including but not limited to, properly training its staff on how to compliantly communicate with patients using the Dealers Digital Services. Client understands, warrants and represents that it will not use the text platform or any communication services provided as part of the Dealers Digital Services, to transmit, document or discuss PHI.

9. SUPPORT SERVICES.

Dealers Digital makes available web-based support through its website (currently available at www.Dealers Digital.com). Additional services may be available to Client upon payment of applicable fees (if any), as specified in Client’s Enrollment Form or any related Subscription Documentation. Any support services are subject to these Terms and Dealers Digital’s applicable support policies. Dealers Digital may also provide onboarding, deployment and other services under the Agreement. The scope, pricing and other terms for these additional services will be set forth in a proposal, Subscription Documentation, or other document referencing the Enrollment Form. Dealers Digital’s ability to deliver the Dealers Digital Service will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Dealers Digital Service.

10. SERVICE FEES AND PAYMENT.

Client agrees to pay all fees for the Services, including without limitation the Monthly Fee and the Setup Fee (as described in the Enrollment Form), in accordance with Client’s payment selection, as specified in the Enrollment Form or as evidenced in any Subscription Documentation. If Client has elected to pay via credit card, ACH, direct debit, etc., Client authorizes Dealers Digital to charge fees and other amounts automatically, on an auto-renew basis, so long as the Agreement remains in effect. Unless otherwise specified in the Enrollment Form, such charges typically occur monthly, in advance, though overage fees (if any) may be charged in arrears. Payments are non-refundable and non-creditable and payment obligations non-cancellable. If Client’s use of the Dealers Digital Services requires the payment of additional fees (per the terms of this Agreement), Dealers Digital shall notify Client and the parties shall work in good faith to promptly and jointly agree to any excess fees to be paid. The foregoing provision shall not apply to any increase in the fees if Client exceeds the Scope of Use per the term of this Agreement, as determined by Dealers Digital. Dealers Digital’s fees are exclusive of all taxes, and Client must pay any applicable sales, use, VAT, GST, excise, withholding or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Dealers Digital. Client will make tax payments to Dealers Digital to the extent amounts are included in Dealers Digital’s invoices. Should Dealers Digital be unable to process/receive the fees when due and owing, payment shall be considered overdue. Dealers Digital shall have the right to charge interest on all overdue amounts at the rate of 12%, compounded monthly, or the maximum lawful amounts, whichever is less. Additionally, Dealers Digital may revise the fees by providing Client at least thirty (30) days’ prior written notice. If Dealers Digital sends the account for collection or initiates legal action to collect overdue amounts, Client shall be liable for all cost and expenses of such action, including reasonable attorney’s fees, court costs, and expenses. Additionally, after payment becomes overdue, Dealers Digital shall have the right to immediately cease Client’s access to the Dealers Digital’s Service.

11. SUSPENSION OF SERVICE.

11.1. Suspension of Service. Dealers Digital may suspend Client’s access to the Dealers Digital Service if: (a) any monies are overdue to Dealers Digital; (b) Client has breached the Agreement and any addenda thereto; or (c) Client has exceeded its Scope of Use limits. Dealers Digital may also suspend Client’s access to the Dealers Digital Service, remove Client Data or disable Third Party Products if it determines that suspension is necessary to prevent harm or liability to other Clients or third parties or to preserve the security, stability, availability or integrity of the Dealers Digital Service. Dealers Digital will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of fees during any suspension period. However, unless the Enrollment Form has been terminated, Dealers Digital will cooperate with Client to restore access to the Dealers Digital Service once it verifies that Client has resolved the condition requiring suspension.

11.2. Effect of Termination. Upon any expiration or termination of the Enrollment Form: (a) Client’s license rights shall terminate and it must immediately cease use of the Dealers Digital Service (including any related Dealers Digital Technology) and delete (or, at Dealers Digital’s request, return) any and all copies of any Dealers Digital documentation, passwords or access codes and any other Dealers Digital Confidential Information in Client’s possession, custody or control and (ii) Client’s right to access any Client Data in the applicable Dealers Digital Service will cease and unless otherwise precluded by a Business Associate Agreement, Dealers Digital may delete any such data in its possession at any time. If Dealers Digital terminates the Enrollment Form for cause as provided in the Enrollment Form, any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

12. TERM AND TERMINATION.

12.1. Term. The term of this Agreement shall begin on the Effective Date and, unless terminated as provided herein, shall continue for an initial period of twelve (12) months (the “Initial Term“). Following the Initial Term, this Agreement will automatically renew for successive 12-month periods (each, a “Renewal Term“) unless Client provides written notice to the contrary at least thirty (30) days prior to the end of the then-current term, in which case, the Subscription Term will terminate automatically without penalty at the end of such term. The Initial Term and the Renewal Term are collectively referred to as the “Subscription Term“.

12.2. Termination by Client. Client may terminate this Agreement by giving at least thirty (30) days’ written notice to Dealers Digital prior to the expiration of the Initial Term, or the then-current Renewal Term. If such notice is provided, the termination of the Agreement will become effective upon the expiration of the then current one-year Term.

12.3. Termination by Company. Company may terminate this Agreement at any time, for any reason, by giving Client thirty (30) days’ written notice. Company may also terminate this Agreement immediately, without notice, for a material breach of the Agreement. For purposes hereof, a “material breach” shall include (i) Client’s breach of their obligations under the Agreement, including failure to pay any monies owed to Dealers Digital, when due, (ii) fraud or criminal conduct committed by Client, or (iii) insolvency of Client.

13. CONFIDENTIAL INFORMATION.

13.1. Obligation of Confidentiality. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by the Agreement; and (ii)use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under the Agreement. Each party may share the other party’s Confidential Information with its employees, agents or contractors having a legitimate need to know, provided that such party remains responsible for any recipient’s compliance with the terms of this Section 13 and these recipients are bound to confidentiality obligations no less protective than this Section.

13.2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party prior to receipt of the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.

13.3. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

14. NON-SOLICITATION/NON-COMPETITION.

14.1. Non-Solicitation. During the Term and for a period of three (3) years thereafter (the “Restricted Period”), Client shall not, (a) without Company’s prior written consent, directly or indirectly, solicit or encourage any employee or contractor of Company to terminate employment with, or cease providing services to, Company or (b) whether for its own account or for the account of any other person or entity, intentionally interfere with any person who is or during the Term was a partner, supplier, Client or client of Company.

14.2. Non-Competition. During the Restricted Period, Client will not, without the prior written consent of Company, (i) serve as a partner, employee, consultant, officer, director, manager, agent, associate, investor of, (ii) directly or indirectly, own, purchase, organize or take preparatory steps for the organization of, or (iii) build, design, finance, acquire, lease, operate, manage, invest in or work for any business in competition with or otherwise similar to Company’s business in the Territory.

a. Client’s fulfillment of the obligations contained in Section 14.2 above is necessary to preserve the Confidential Information, value and goodwill of Company. Client acknowledges the time, geographic and scope limitations of the obligations under Section 14.2 above are reasonable, especially in light of Company’s desire to protect trade secrets, and that Client will not be precluded from conducting its business if obligated to comply with Section 14.2 above.

b. The covenants contained in Section 14.2 above shall be construed as a series of separate covenants, one for each city, county and state of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in Section 14.2 above. If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from the Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of Section 14.2 above are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, then permitted by such law.

15. Dealers Digital TECHNOLOGY.

15.1. Ownership and Updates. The Agreement is a subscription for access to and use of the Dealers Digital Service. Client acknowledges that it is obtaining only a limited right to use the Dealers Digital Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Client under the Agreement. Client agrees that Dealers Digital (or its suppliers) retains all rights, title and interest (including all intellectual property rights) in and to all Dealers Digital Technology (which is deemed Dealers Digital’s Confidential Information) and reserves any licenses not specifically granted herein. The Dealers Digital Service is offered as an on-line, hosted product and a mobile application available for download onto Client’s mobile device. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Dealers Digital Service and that Dealers Digital at its option may make updates, bug fixes, modifications or improvements to the Dealers Digital Service from time-to-time. All Dealers Digital Technology is and shall be the sole and exclusive property of Company. Client agrees to assign and hereby does assign any and all right, title and interest in and to all Dealers Digital Technology. Client agrees to perform all acts deemed reasonably necessary or desirable by Company to carry out the purposes of this Section 15.1.

15.2. Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Dealers Digital (collectively, “Feedback”), Client hereby grants Dealers Digital a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in the Agreement limits Dealers Digital’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.

16. INDEMNIFICATION.

Client will indemnify and hold Dealers Digital harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to (i) any Client Data or Client property (including services or products provided through such property), (ii) breach or alleged breach of the Agreement by Client (including lack of authorization to contact telephone numbers contained in Submitted Data), (iii) any claim of a governmental entity or other party that you have violated any law, rule, or regulation, or, (iv) if applicable, alleged breach or breach of Client’s obligations contained in the Business Associate Agreement addendum. Client also agrees to defend Dealers Digital against these claims at Dealers Digital’s request, but Dealers Digital may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. Client must not settle any claim without Dealers Digital’s prior written consent if the settlement does not fully release Dealers Digital from liability or would require Dealers Digital to admit fault, pay any amounts or take or refrain from taking any action.

17. DISCLAIMERS.

ALL Dealers Digital TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY ALLOWED FOR IN THESE TERMS AND ANY ADDENDA THERETO, NEITHER Dealers Digital NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Dealers Digital MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT Dealers Digital TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT Dealers Digital TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. Dealers Digital WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD PARTY PRODUCTS, THIRD PARTY CONTENT, OR NON-Dealers Digital SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS) FOR THE COLLECTION, USE AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THE AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON Dealers Digital TECHNOLOGY OR Dealers Digital’S RELATED SERVICES. THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

18. LIMITATIONS OF LIABILITY.

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, WHETHER IN CONTRACT, TORT, NEGLIGENCE, MALPRACTICE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, RESULTING FROM OR ARISING OUT OF THE AGREEMENT OR THE PERFORMANCE THEREOF, WITHOUT RESPECT TO NOTICE OF THE POSSIBILITY THEREOF. COMPANY’S AGGREGATE LIABILITY TO CLIENT FOR ANY LOSSES, CLAIMS, BREACHES OR DAMAGES UNDER THE AGREEMENT WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY CLIENT UNDER THE AGREEMENT DURING THE ONE (1) MONTH PRIOR TO SUCH LOSS, OR (B) THE AMOUNT OF $5,000.00. CLIENT AGREES TO HOLD COMPANY AND ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS AND AGENTS (“REPRESENTATIVES”) HARMLESS FOR ANY CLAIMS, DAMAGES, SUITS, PROCEEDINGS, LIABILITIES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES AND COSTS) (COLLECTIVELY, “LOSSES”) RESULTING FROM, ARISING OUT OF, OR RELATING TO THE SERVICES, INCLUDING THE BAD FAITH, GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF COMPANY’S VENDORS AND SERVICE CLIENTS UNLESS CAUSED BY THE GROSS NEGLIGENCE, BAD FAITH OR WILFULL MISCONDUCT OF COMPANY OR ITS REPRESENTATIVES.

19. THIRD PARTY PRODUCTS AND INTEGRATIONS.

If Client uses Third Party Products in connection with the Dealers Digital Services, those products may make Third Party Content available to Client and may access Client’s Data contained in the Dealers Digital Service. Dealers Digital does not warrant or support Third Party Products or Third Party Content (whether or not these items are designated by Dealers Digital as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Dealers Digital Services, including their modification, deletion, disclosure or collection of Client Data. Dealers Digital is not responsible in any way for Client Data once it is transmitted, copied or removed from the Dealers Digital Services. Client may use Dealers Digital’s Add-on Platform to enable non-Dealers Digital Add-Ons for use with the Dealers Digital Services. If Client is a Covered Entity and thus subject to HIPAA, it is solely Client’s responsibility to ensure that any Third Party Products and the vendors thereof, comply with HIPAA.

20. DISPUTE RESOLUTION

If a dispute arises between the Parties related to the Agreement or the Services provided therefrom, and the dispute cannot be settled through informal negotiations, the Parties agree to resolve their dispute (referred to herein as “Claim(s)”) as follows:

20.1. Arbitration. Except as expressly provided otherwise in the Agreement, any and all disputes or claims involving anyone arising out of, relating to, or resulting from the Agreement, including Company’s performance of the Services or termination of the Agreement, shall be subject to binding arbitration administered in accordance with the American Arbitration Association’s National Rules for the Resolution of Commercial Disputes then in effect (the “Rules”) and Utah law, without regard to conflict of laws principles. Such arbitration shall be held in Salt Lake City, Utah before a neutral arbitrator selected in accordance with the Rules. The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including discovery motions, motions for summary judgment and motions to dismiss and demurrers, prior to any arbitration hearing. The arbitrator shall issue a written decision on the merits and will have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. BY AGREEING TO SUCH ARBITRATION OF SUCH DISPUTES AND CLAIMS, CLIENT HEREBY WAIVES ITS RIGHT TO A JURY TRIAL RELATING THERETO, INCLUDING ALL CLAIMS UNDER FEDERAL, STATE, MUNICIPAL OR OTHER JURISDICTIONAL STATUTE, RULE OR REGULATION.

20.2. Remedy. Except as provided otherwise by the Rules and the Agreement, arbitration will be the sole, exclusive and final remedy for any dispute between the Parties and neither Party shall be permitted to pursue court action regarding claims that are subject to arbitration. The Agreement does not prohibit either Party from pursuing an administrative claim, but does preclude each Party from pursuing court action regarding any such claim. Notwithstanding anything to the contrary in the Agreement, Company may pursue court action for recovery of any fees or other amounts owed to Company pursuant to the Agreement.

20.3. Injunctive Relief. Violation of the Agreement will cause irreparable injury and money damages will not provide an adequate remedy therefor. Client hereby consents to the issuance of injunctive relief as permitted by the Rules, without posting any bond or other security, compelling Client to comply with the Agreement. Company shall be entitled to recover reasonable costs and attorneys’ fees in any successful injunctive action under this Section.

21. GENERAL.

21.1. Assignment. The Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign the Agreement without the advance written consent of the other party, except that Dealers Digital may assign the Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign the Agreement except as expressly authorized under this Section 21.1 will be null and void.

21.2. Notices. Any notice or communication under the Agreement must be in writing. Client must send any notices under the Agreement (including breach notices) to Dealers Digital at the following address: W 2100 N, Suite 380, Pleasant Grove, UT 84062, and include “Attn. Legal Department” in the subject line. Dealers Digital may send notices to the e-mail addresses on Client’s account or, at Dealers Digital’s option, to Client’s last-known postal address. Dealers Digital may also provide operational notices regarding the Dealers Digital Service or other business-related notices through conspicuous posting of such notice on Dealers Digital’s website, Dealers Digital’s mobile application or the Dealers Digital Service. Each party hereby consents to receipt of electronic notices. Dealers Digital is not responsible for any automatic filtering Client or its network provider may apply to email notifications.

21.3. Publicity. Dealers Digital may use Client’s name, logo and marks (including marks on Client Properties) to identify Client as a Dealers Digital Client on Dealers Digital’s website, mobile application and other marketing materials.

21.4. Claims of Copyright Infringement. We comply with the “safe harbor” provisions of the Digital Millennium Copyright Act of 1998. If you see any materials on the website or mobile application that you believe violate any copyright rights, including yours, please send an e-mail describing the violation you believe exists to our copyright agent, Jeff Jones, at jjones@Dealers Digital.com. If we become aware of any such items on the website or mobile application, we will promptly take action to ensure we are in full compliance with all privacy and copyright laws.

21.5. Subcontractors. Dealers Digital may use subcontractors and permit them to exercise the rights granted to Dealers Digital in order to provide the Dealers Digital Service and related services under the Agreement. These subcontractors may include, for example, Dealers Digital’s hosted service and CDN providers. However, subject to all terms and conditions herein, Dealers Digital will remain responsible for: (i) compliance of its subcontractors with the terms of the Agreement; and (ii) the overall performance of the Dealers Digital Services if and as required under the Agreement.

21.6. Subpoenas. Nothing in the Agreement prevents Dealers Digital from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Dealers Digital will use commercially reasonable efforts to notify Client where permitted to do so.

21.7. Independent Contractors. The parties to the Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

21.8. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under the Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

21.9. Amendments; Waivers. Dealers Digital may update or modify these Terms (including referenced policies and other documents) from time-to-time. If Dealers Digital modifies these Terms during Client’s Subscription Term, the modified version will take effect upon Client’s next Subscription Term renewal, except that: (i) changes to the policies referenced herein (such as the Acceptable Use Policy) will take effect thirty (30) days from the date of posting; (ii) if Dealers Digital launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Client’s acceptance; and (iii) any updated or modified Terms will take effect immediately for Free Access Subscriptions or if Client enters a new Enrollment Form or the Subscription changes following the modification. Client may be required to click through the updated Terms to show acceptance; in any event, continued use of Free Access Subscriptions or any renewal of a Subscription Term following the update shall constitute acceptance of the updated Terms. If Client does not agree to the updated Agreement after it takes effect, Client will no longer have the right to use the Dealers Digital Service. Except as otherwise described in this Section, any modification or amendment to the Agreement, including these Terms, must be made in writing and signed by a duly authorized representative of each Party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by a duly authorized representative of the waiving Party.

21.10. Severability. If any provision of the Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the Agreement may otherwise remain in effect.

21.11. No Third Party Rights. Nothing in the Agreement confers on any third party the right to enforce any provision of the Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Enrollment Form and not any Affiliates.

21.12. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce the Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

21.13. Entire Agreement. The Agreement (together with all exhibits) constitutes the full and complete understanding and agreement of the Parties with respect to the subject matter herein and supersedes all prior oral and written understandings and agreements of the Parties with respect thereto.

21.14. Governing Law; Jurisdiction and Venue. The Agreement is governed by the laws of the State of Utah and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state courts located in Salt Lake County, Utah or the United States District Court for the District of Utah, and both parties submit to the personal jurisdiction of these courts.

ADDENDUM

BUSINESS ASSOCIATE AGREEMENT

This Business Associate Agreement (“Agreement”) is effective as of the Effective Date of the Enrollment Form entered by and between Dealers Digital, LLC (“Business Associate”) and the Client, as identified in the Enrollment Form (Client is referred to herein as the “Covered Entity”) (each a “Party” and collectively the “Parties”). By executing the Enrollment Form, the Parties agree that they are explicitly bound by the covenants found herein.

The Parties have previously executed or want to enter into contractual arrangements by which the Business Associate receives, uses or discloses PHI in performing Services on behalf of the Covered Entity (“Underlying Agreement”). When used in this Agreement, the term Underlying Agreement means all current or future agreements between the Parties in which Business Associate receives, uses or discloses PHI in performing Services on behalf of the Covered Entity. The Parties are committed to complying with the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Standards for Security of Electronic Protected Health Information (the “Security Rule) under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). This Agreement, in conjunction with the Privacy and Security Rules, sets forth the terms and conditions pursuant to which PHI (electronic and non-electronic) that is created, received, maintained, or transmitted by, the Business Associate from or on behalf of Covered Entity, will be handled between the Business Associate and Covered Entity and with third parties during the term of their Underlying Agreement and after its termination. If any provisions of this Agreement and the Parties’ Underlying Agreement conflict, the provisions of this Agreement shall supersede and govern. The Parties agrees as follows:

1. PERMITTED USES AND DISCLOSURES OF PHI

1.1 Services. Pursuant to the Underlying Agreement, Business Associate provides services (“Services”) for Covered Entity that involve the receipt, use and disclosure of PHI. Except as otherwise specified herein, the Business Associate may make any and all uses of PHI necessary to perform its obligations under the Underlying Agreement. All other uses not authorized by this Agreement are prohibited. Moreover, Business Associate may disclose PHI for the purposes authorized by this Agreement only: (i) to its employees, subcontractors and agents, in accordance with Section 2.1(d), or (ii) as otherwise permitted by or as required by the Privacy or Security Rule.

1.2 Business Activities of the Business Associate. Unless otherwise limited herein and if such use or disclosure of PHI would not violate the Privacy or Security Rules if done by the Covered Entity, the Business Associate may:

a. Use the PHI in its possession for its proper management and administration and to fulfill any present or future legal responsibilities of the Business Associate provided that such uses are permitted under state and federal confidentiality laws.

b. Disclose the PHI in its possession to third parties for the purpose of its proper management and administration or to fulfill any present or future legal responsibilities of the Business Associate, provided that the Business Associate represents to Covered Entity, in writing, that (i) the disclosures are required by law, or (ii) the Business Associate has received from the third party written assurances regarding its confidential handling of such PHI as required under 45 C.F.R. § 164.504(e)(4) and § 164.314, and the third party notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

c. Business Associate may provide data aggregation services relating to the health care operations of the Covered Entity.

2. RESPONSIBILITIES OF THE PARTIES WITH RESPECT TO PHI

2.1 Responsibilities of the Business Associate. With regard to its use and disclosure of PHI, the Business Associate hereby agrees to do the following:

a. Not use or disclose PHI other than as permitted or required by the Agreement or as required by law.

b. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI, to prevent use or disclosure of PHI other than as provided for by the Agreement.

c. Report, in writing, to Covered Entity within five (5) business days any use or disclosure of PHI not provided for by the Agreement of which it becomes aware, including breaches of unsecured PHI as required at 45 CFR 164.410, and any security incident of which it becomes aware, and cooperate with the Covered Entity in any mitigation or breach reporting efforts.

d. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, to ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information.

e. Ensure that any agent or subcontractor to whom the Business Associate provides PHI, as well as Business Associate, not export PHI for storage beyond the borders of the United States of America.

f. With respect to any agent or subcontractor who has access to PHI from beyond the borders of the United States of America: i. Ensure that any such individuals are bound by the terms and conditions of this Agreement or a subcontractor Agreement containing substantially similar terms and conditions; and

ii. Ensure that any such individuals with access to PHI beyond the borders of the United States of America are subject to the jurisdiction of the courts in the United States of America; and

iii. Ensure that any such persons with access to PHI have received current HIPAA Privacy & Security training.

g. Within ten (10) business days request of Covered Entity, make available PHI in a designated record set, if applicable, to Covered Entity, as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524.

h. Within ten (10) business days, make any amendment(s) to PHI, if applicable, in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526.

i. As applicable, maintain and make available the information required to provide an accounting of disclosures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528.

j. To the extent the Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations.

k. Make its internal practices, books, and records available to the Secretary and to the Covered Entity for purposes of determining compliance with the HIPAA Rules.

l. Comply with minimum necessary requirements under the HIPAA Rules.

2.2 Responsibilities of Covered Entity. With regard to the use and disclosure of PHI by the Business Associate, Covered Entity hereby agrees:

a. To inform the Business Associate of any limitations in the form of notice of privacy practices that Covered Entity provides to individuals pursuant to 45 C.F.R. §164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.

b. To inform the Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose PHI, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.

c. To notify the Business Associate, in writing and in a timely manner, of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may impact in any manner the use or disclosure of PHI by the Business Associate under this Agreement.

d. Except if the Business Associate will use or disclose PHI for (and the Underlying Agreement includes provisions for) data aggregation, or management/administrative//legal responsibilities of the Business Associate, Covered Entity will not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy and Security Rule if done by the Covered Entity.

3. TERMS AND TERMINATION

3.1 Term. The Term of this Agreement shall commence on the Effective Date, and shall terminate on the termination date of the relevant Underlying Agreement or on the date Covered Entity terminates this Agreement for cause as authorized in paragraph 3.2 of this Section, whichever is sooner.

3.2 Termination for Cause. Business Associate authorizes termination of this Agreement by Covered Entity, if Covered Entity determines Business Associate has violated a material term of the Agreement and Business Associate has not cured the breach or ended the violation within the time specified by Covered Entity.

3.3 Obligations of Business Associate upon Termination. Business Associate agrees to return or destroy all PHI pursuant to 45 C.F.R. § 164.504(e) (2) (ii)(J), if it is feasible to do so. If it is not feasible for the Business Associate to return or destroy said PHI, the Business Associate will notify Covered Entity in writing. Said notification shall include: (i) a statement that the Business Associate has determined that it is not feasible to return or destroy the PHI in its possession, and (ii) the specific reasons for such determination. Business Associate further agrees to extend any and all protections, limitations and restrictions contained in this Agreement to the Business Associate’s use and disclosure of any PHI retained after the termination of this Agreement, and to limit any further uses or disclosures to the purposes that make the return or destruction of the PHI infeasible. If it is infeasible for the Business Associate to obtain, from a subcontractor or agent any PHI in the possession of the subcontractor or agent, the Business Associate must provide a written explanation to Covered Entity of the reasons therefore, and require the subcontractors and agents to agree to extend any and all protections, limitations and restrictions contained in this Agreement to the subcontractors’ and agents’ use and disclosure of any PHI retained after the termination of this Agreement, and to limit any further uses and disclosures to the purposes that make the return or destruction of the PHI infeasible.

3.4 Automatic Termination. This Agreement will automatically terminate without any further action of the Parties upon the termination or expiration of the Underlying Agreement.

4. MISCELLANEOUS

4.1 Business Associate. For purposes of this Agreement, Business Associate shall include the named Business Associate herein. However, in the event that the Business Associate is otherwise a Covered Entity under the Privacy or Security Rule, that entity may appropriately designate a health care component of the entity, pursuant to 45 C.F.R. § 164.504(a), as the Business Associate for purposes of this Agreement.

4.2 Survival. The respective rights and obligations of Business Associate and Covered Entity under this Agreement shall survive termination of this Agreement indefinitely.

4.3 Amendments; Waiver. This Agreement may not be modified, nor shall any provision hereof be waived or amended, except in a writing duly signed by authorized representatives of the Parties. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.

4.4 Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.

4.5 No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.

4.6 Notices. Any notices to be given hereunder to a Party shall be made via U.S. Mail or express courier to such Party’s address given below, or (other than for the delivery of fees) via facsimile to the facsimile telephone numbers listed below.

If to Business Associate, to:

Dealers Digital, LLC

Attn: Jeff Jones

W 2100 Peasant Grove Blvd., Suite 380

Pleasant Grove, UT 84062

jjones@Dealers Digital.com

If to Covered Entity, to:

The primary contact and address listed in Covered Entity’s Dealers Digital account information.

5. DEFINITIONS.

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information (“PHI”), Required by Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use. Specific definitions include:

a. Business Associate. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this Agreement, shall mean Dealers Digital, LLC.

b. Covered Entity. “Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 CFR 160.103, and in reference to the party to this Agreement, shall mean the Client.

c. HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.

d. Electronic Protected Health Information or Electronic PHI. Electronic PHI which is transmitted by Electronic Media (as defined in the HIPAA Security and Privacy Rule) or maintained in Electronic Media.

e. Privacy Officer. Privacy Officer shall have the meaning as set out in its definition at 45 C.F.R. § 164.530(a) (1) as such provision is currently drafted and as it is subsequently updated, amended or revised.

f. Privacy Rule. Privacy Rule shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. part 160 and part 164.

g. Security Rule. Security Rule shall mean the Standards for Security of Electronic Protected Health Information at 45 CFR Parts 160, 162, and 164.