Dealer Agreement

These Standard Terms and Conditions for Dealers (“T&Cs”) sets forth the terms and conditions pursuant to which TireTutor, Inc., a Delaware corporation (“Company”) will provide advertising, marketing and other services (“Services”) to a tire dealer (“Dealer”) either by way of (1) a 90 Days Free Premium Trial Agreement (“Trial Agreement”) or (2) execution of a Dealer Agreement (“Dealer Agreement”), Dealer Order Form (“Order Form”) or Dealer Change Order Form (“Change Order Form”) (such documents when taken collectively are referred to herein as “Dealer Contract”). In the event of any conflict between the terms of these T&Cs and a Trial Agreement or Dealer Contract, the terms of the T&Cs shall control.

1. SERVICES AND PAYMENT.

1. Services. The Services provided to Dealer are set forth in the Trial Agreement or Dealer Contract.
2. Modification by Company.Company may make any updates or changes to the Services that Company will provide to Dealer by updates to its website or by sending an email or other electronic communication to Dealer which communication will be deemed part of the Trial Agreement or Dealer Contract for purposes of these T&Cs.
3. Dealer Change Order Form.Dealer may request modifications to an Order Form by submitting a Change Order.Upon execution of a Change Order by Company, the Change Order will go into effect on the Effective Date set forth on the Change Order. Company and Dealer agree that the Order Form or Change Order (if any) will govern the Services and Fees (as defined below).
4. Fees and Invoices. Dealer agrees to pay the fees for the Services described in the applicable Dealer Agreement (collectively, “Fees”). Company, in its sole discretion, may change the amount, structure, method, and/or basis for Fees at any time. Any changes shall be effective upon thirty (30) days’ prior notice to Dealer and shall not require an affirmative response or any further action by the Dealer.
5. Fees are due and payable by Dealer upon receipt of an invoice from the Company. Company invoices will be deemed correct and accepted by Dealer, and Dealer’s obligation to pay the invoiced amounts shall be absolute and unconditional and not subject to any offset, defense or counterclaim, unless Dealer advises Company by notice of any disputed items within fifteen (15) days of Dealer’s receipt of an invoice. Company reserves the right to suspend all Services under a Dealer Contract and Company upon thirty (30) days’ notice to Dealer, if any payment to Company is past due, until such account is made current.
   All Fees are exclusive of federal, state, and local excise, sales, use and other taxes or assessments now or hereafter levied or imposed for the provision of the Services. Except for taxes on Company’s net income, Dealer shall be liable for and pay for all other taxes, assessments, and levies, regardless of whether included on any invoice. Leads. Company is not obligated to provide Dealer with a minimum number of Leads. For the purpose of these T&Cs, “Leads” means any expressions of interest by a consumer in specific tires or Dealer services that are submitted to Company for transmission to Dealers. Company does not guarantee any sales in connection with use of the Services. Dealer’s obligation to pay Fees is unconditional and not dependent on any such sales. Dealer agrees not to resell or otherwise transfer to another dealer or any other entity any Leads (or any data included in any Leads) delivered by Company to Dealer.
6. Transaction Data. Dealer grants to Company a non-exclusive, worldwide, royalty-free, non-transferable, perpetual license to use Lead status data and tire transaction data (to the extent available) obtained from Dealer's management system, customer relationship management system, inventory management system, and/or such other dealer system as Dealer may elect to use (collectively, “Transaction Data”), on the condition that the Transaction Data is used only for the following purposes by the Company: (i) consumer, tire, and industry research and reference, including evaluation of Dealer performance, (ii) use in market analysis and the generation of other market intelligence data, (iii) improving Company’s other products and services, or (iv) billing of the Services.
7. Company will not (i) use the Transaction Data in a manner that would disclose to a viewer of the Company website, or any other third-party, the name of Dealer or any consumer, or (ii) sell or otherwise license the Transaction Data to any other person or entity.Notwithstanding the foregoing, Company may (a) provide the Transaction Data to third-party service providers that provide services to Company, or that assist Company in improving its data or services or to better understand their value to website visitors or to the companies with which Company does business, on the condition that each such service provider executes an agreement to maintain the confidentiality of the Transaction Data, and (b) communicate Transaction Data relating to a specific consumer who submitted a Lead to that consumer and/or to the Dealer that received that Lead.
   Dealer acknowledges Company may engage the services of one or more service providers to obtain and transmit the Transaction Data from Dealer's system to Company (unless otherwise agreed, at Company’s sole cost and expense). If Dealer provides access to Dealer's system for the purpose of Company's obtaining Transaction Data or otherwise facilitates the transfer of Transaction Data to Company, such actions will constitute Dealer's consent to such access to Dealer's system and the use of the Transaction Data as described herein, even if such permission has previously been withheld.Dealer-Supplied Information. Dealer understands and agrees that (i) it is responsible for the accuracy, completeness, applicability, compliance with law, rule and regulation, and non-violation of any third-party rights (“Compliance”, or when used as an adverb, “Compliant”) of all tire, dealer, and other information, and/or creative content or components thereof, provided or made available to Company (by Dealer’s employees and its agents) for use by Company in connection with the advertising and promotion of Dealer or Dealer’s tires, (ii) Company does not have the ability or obligation to determine the Compliance of that information and, accordingly, Dealer will be solely liable if the information is not Compliant as provided or made available, and (iii) Company does not have the ability or obligation to determine whether the photos provided or made available for a particular tire that Dealer offers for sale are of that vehicle or are "stock" photos and, accordingly, does not label as "stock" in any tire advertisements any of the photos provided or made available by Dealer; and Dealer will be solely liable if the photos are not Compliant.
8. Dealer License. Dealer grants to Company a non-exclusive, worldwide, royalty-free license to use, copy, encode, store, archive, distribute, transmit, and publicly display Dealer logos, marks, trademarks, and/or other Dealer intellectual property (“Marks”) provided to and used by Company in performing the Services. Company is further granted the right to sub-license the Marks to its third-party service providers providing services to or on behalf of Company. Such right to use said Marks shall be limited to those uses reasonably required to perform the Services. Dealer further grants Company all additional rights and licenses (and the right to sub-license such rights and licenses) reasonably required to perform the Services.
9. Advertising and Data Use. Company may, in the course of performing services to Dealer, obtain data (“Data”) relating to Dealer and Dealer business (for example, inventory listings and related inventory data). Company will use Data solely for the following purposes: (i) reporting and analytics, (ii) optimizing the manner in which Company is operated and managed for Dealer, including by modifying or refining the audience to whom advertisements are displayed, and (iii) for Company’s internal purposes, including the optimization and management of Company’s products and services. Data will not be disclosed to other dealers or other third parties unless Company has Dealer permission or is required to do so by law or legal process. However, Company may provide Data to third-party service providers that provide services to Company, or that assist Company to improve Company’s data or Services or to better understand their value to Company visitors or to the companies with which it does business, on the condition that each such service provider executes an agreement to maintain the confidentiality of the Data.
10. Sharing of Data and Information. If Dealer holds a franchise, Company may share data and information it obtains from Dealer, as well as any other information concerning Dealer’s websites or customers that Dealer may have or obtain, with the manufacturer or distributor that granted Dealer that franchise and with any affiliated entities, agents and contractors of that manufacturer or distributor. Dealer consents to the sharing of data and information as set forth in this section.

1. INTELLECTUAL PROPERTY.

1. Intellectual Property Rights.Each party is the owner of all right, title, and interest in and to its Intellectual Property Rights. “Intellectual Property Rights” refers to all right, title, and interest (including patent rights, copyright rights, trade secret rights, mask work rights, trademark rights, sui generis database rights and all other intellectual and indusTrial Agreement property rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), technologies, works of authorship, software, mask works, designs, know-how, ideas, data and other information and work products that are made, conceived, reduced to practice, or obtained. All Intellectual Property Rights associated with the Company’s website, or online platform, are owned by and proprietary to the Company or its third-party vendors. Each party specifically acknowledges that these T&Cs do not confer upon such party any interest in or right to use any Intellectual Property Rights of the other party or its third-party vendors except as expressly set forth in these T&Cs.
2. Ownership and Use of Compiled Information. The Company shall own all right, title, and interest in the Trial Agreement or Dealer Contracts and all information included therein. During the term of the Trial Agreement or Dealer Contract (as applicable), the Company grants to Dealer a limited, non-exclusive, revocable, nontransferable license to use the information set forth in the Trial Agreement or a Dealer Contract solely in accordance with the terms and conditions of these T&Cs.
3. Confidentiality.Dealer agrees that all financial, business, legal, and technical information (including, without limitation, the identity of and information relating to customers, prospects, vendors, affiliates, and employees) that Dealer learns or obtains in connection with the Services, or that are received by or for Company in confidence, constitute “Proprietary Information”. Dealer will hold in strict confidence and exercise all reasonable precautions to prevent unauthorized access to, and not disclose or, except in performing the Services, use any Proprietary Information. However, Proprietary Information will not include information that Dealer can document is or becomes readily publicly available without restriction through no fault of Dealer. Upon termination and at Company's request at any other time, Dealer will promptly return to Company all materials and copies containing or embodying Proprietary Information, except that Dealer may keep a personal copy of its compensation records and the Dealer Contract and these T&Cs. Dealer also recognizes and agrees that Dealer has no expectation of privacy with respect to Dealer's telecommunications, networking, or information-processing systems (including, without limitation, stored computer files, email messages, and voice messages) and that Dealer’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.
4. These T&Cs does not affect any immunity under 18 U.S.C. Sections 1833(b) (1) or (2), which read as follows (note that for purposes of this statute only, individuals performing work as contractors or consultants are considered to be employees):
   (1) An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
   (2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.Non-Solicitation; Restrictions.As additional protection for the Proprietary Information, Dealer agrees that from the Effective Date of a Trial Agreement or a Dealer Contract and for one year thereafter, Dealer will not encourage or solicit any employee, contractor, or consultant of Company to leave Company for any reason, or service or solicit the business or patronage of any of Company's customers, suppliers or prospects for the benefit of Dealer or any other person, or divert, entice, or otherwise take away from Company the business or patronage of any customer, supplier, or prospect. Dealer understands that the restrictions set forth in Section 2(c) are intended to protect Company's interest in its Proprietary Information and established relationships and goodwill with employees and business partners, and Dealer agrees that such restrictions are reasonable and appropriate for this purpose.

1. REPRESENTATIONS AND WARRANTIES.

1. Representation and Warranties of Company. Company represents and warrants that it is duly licensed, authorized, and certified by all applicable governmental regulatory authorities to operate its business as it is now conducted and no known applicable law, regulation, court order, or material agreement to which Company is a party is or will be violated by Company’s execution, delivery, or performance of a Dealer Contract.
2. Representation and Warranties of Dealer. Dealer represents and warrants that it is duly licensed, authorized, and certified by all applicable governmental regulatory authorities to operate its business as it is now conducted and no applicable law, regulation, court order, or material agreement to which Dealer is a party is or will be violated by Dealer’s execution, delivery, or performance of the Dealer Contract or entering into a Trial Agreement.
3. DISCLAIMER OF WARRANTIES. COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND LICENSES PROVIDED HEREUNDER AND ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR SPECIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (AND WHETHER OR NOT COMPANY OR ANYONE ELSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OF USE OF MONEY, LOSS OF DATA, OR INTERRUPTION IN ITS USE OR AVAILABILITY, STOPPAGE OF WORK, IMPAIRMENT OF ASSETS, OR OTHERWISE ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHERWISE, AND WHETHER BASED ON ANY PROVISION OF THESE T&Cs, TRIAL AGREEMENT OR DEALER CONTRACT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES RELATING TO THE SERVICES, OR ANY TRANSACTION PERFORMED OR UNDERTAKEN UNDER OR IN CONNECTION WITH THESE T&CS, A TRIAL AGREEMENT OR DEALER CONTRACT. THE PRICES COMPANY DISPLAYS FOR TIRES ADVERTISED BY DEALER ARE GENERALLY CALCULATED BY US BASED ON DATA AND RULES SUPPLIED TO COMPANY BY DEALER, BY INTERMEDIARIES THAT TRANSMIT DATA FROM DEALER TO COMPANY; COMPANY IS NOT RESPONSIBLE FOR ANY ERRORS IN SUCH DATA OR RULES, OR FOR ANY ERRORS THAT MAY OCCUR IN THE MANNER IN WHICH COMPANY APPLIES SUCH DATA AND RULES TO DETERMINE THE TIRE PRICES DISPLAYED. COMPANY’S AGGREGATE LIABILITY FOR ACTUAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY DEALER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

1. INDEMNIFICATION. Dealer agrees to indemnify and hold harmless Company and its affiliates, and their respective officers, directors, shareholders, members, employees and agents (each of the foregoing, a "Covered Party") from and against any and all liabilities, losses, damages, judgments, costs and expenses (including reasonable attorney's fees and costs of any investigation or action related thereto) incurred by, or imposed on or asserted against, a Covered Party in connection with a claim, suit or other proceeding by a third party arising out of or relating to (i) Dealer performance under the T&Cs, Trial Agreement or Dealer Contract (ii) Dealer breach of these T&Cs, Trial Agreement or Dealer Contract including the breach of any representation or warranty, (iii) any claim by a customer relating to the purchase, lease or servicing of any product or service from Dealer, (iv) any error, omission, misconduct or negligence by Dealer or Dealer’s franchisees, or any of their officers, directors, shareholders, members, employees or agents, or (v) Dealer’s failure to comply with any law, rule or regulation applicable to Dealer’s business or performance hereunder.
2. TERM AND TERMINATION. These T&Cs commences on the entering into a Trial Agreement or the Effective Date set forth in the Dealer Agreement and will remain in effect until the termination or expiration of the Trial Agreement or the Dealer Contract (or with respect to a Dealer Contract only, longer if mutually agreed by the parties in writing, or by the execution of a Change Order). If Company breaches a material provision of these T&Cs, Trial Agreement or a Dealer Contract, Dealer may terminate the Trial Agreement or Dealer Contract upon thirty (30) days’ written notice, unless the breach is cured within that period. Company may terminate the Trial Agreement or Dealer Contract at any time, with or without cause, upon written notice. If Company terminates without cause, it shall refund Dealer for Services paid but not performed by Company prior to termination. Sections 2 through 6 (inclusive) of these T&Cs, and any remedies for breach of these T&Cs, Trial Agreement or Dealer Contract, shall survive any termination or expiration.

1. General Provisions.
2. Relationship. Notwithstanding any provision hereof, for all purposes of these T&Cs and a Trial Agreement or Dealer Contract each party shall be and act as an independent contractor and not as partner, joint venturer, employer, employee, or agent of the other and shall not bind nor attempt to bind the other to any contract. Dealer is an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including, but not limited to, workers' compensation insurance. Dealer agrees to defend, indemnify, and hold Company harmless from any and all claims, damages, liabilities, losses, attorneys' fees, and expenses on account of (i) an alleged failure by Dealer to satisfy any such obligations or any other obligation (under these T&Cs, Trial Agreement or Dealer Contract or otherwise) or (ii) any other action or inaction of Dealer. If Dealer is a corporation or other entity, Dealer will ensure that Dealer’s employees and agents are bound in writing to Dealer’s obligations under these T&Cs and the Trial Agreement or Dealer Contract (as applicable).
3. Governing Law. These T&Cs, Trial Agreement and Dealer Contract are governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflicts of law provisions.Exclusive jurisdiction and venue for any action arising under these T&Cs and a Trial Agreement or Dealer Contract is in the federal and state courts located in the Commonwealth of Massachusetts, and the party’s consent to the jurisdiction of, and irrevocably waive any objection to venue in (on the basis of an inconvenient forum or otherwise), such courts for this purpose. In any action or proceeding to enforce these T&Cs and Trial Agreement or Dealer Contract (as applicable), the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
4. Remedies. Dealer acknowledges and agrees that in the event of any breach or threatened breach of Section 2(c), Company will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, Company shall be entitled to injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of proving actual damages or posting any bond or surety, in addition to any other remedy that Company may have at law or in equity.
5. Notice. All notices and other communications under these T&Cs, Trial Agreement or Dealer Contract shall be in writing and may be given by any of the following methods: (a) personal delivery; (b) registered or certified mail, postage prepaid, return receipt requested; or (c) reputable overnight delivery service. In addition to the foregoing, the Company may provide notice to Dealer via email to an email account designated by Dealer. Notices shall be sent to Dealer at the address provided to Company upon signing up for a Trial Agreement or executing a Dealer Agreement and to the Company shall be sent to TireTutor, Inc., 60 Glen Rd, #110, Brookline, MA02445, Attention: Presidentor to such other address as either party may have furnished to the other in writing, except that notices of changes of address shall only be effective upon receipt. All such notices provided in accordance with this Section 6(d) shall be deemed delivered (i) upon personal delivery with signature required, (ii) one Business Day after they have been sent to the recipient by reputable overnight courier service (charges prepaid and signature required) (iii) upon successful transmission of an email message to a provided email address if sent between 9 a.m. and 5 p.m., local time of the recipient, on any Business Day, and as of 9 a.m. local time of the recipient on the next Business Day if sent at any other time, or (iv) three Business Days after deposit in the mail. The term “Business Day” as used in this Section 6(d) shall mean any day other than Saturday, Sunday or a day on which banking institutions are not required to be open in the Commonwealth of Massachusetts.
6. Assignment. The Trial Agreement or Dealer Contract and the performance contemplated thereunder are personal to Dealer and Dealer shall not have the right or ability to subcontract, delegate, assign, or otherwise transfer any rights or obligations thereunder without the prior written consent of Company. Any attempt to do otherwise shall be void and of no effect. Company may transfer these T&Cs, Trial Agreement and Dealer Contract without Dealer’s consent. These T&Cs, Trial Agreement and Dealer Contract will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
7. Miscellaneous. The T&Cs and Trial Agreement (taken together) or the T&Cs and a Dealer Contract (taken together) constitute the entire agreement, and supersedes all prior negotiations, understandings, or agreements (oral or written), between the parties concerning the subject matter hereof (and all past dealing or industry custom). Headings are for convenience of reference only and shall in no way affect interpretation of these T&Cs. The Dealer Agreement, Order Form and any Change Order may be executed in one or more counterparts, each of which is an original, but taken together constituting one and the same instrument. Execution of a facsimile copy (including .pdf) shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature. No change, consent, or waiver to the T&Cs, Dealer Agreement, Order Form or Change Order will be effective unless in writing and signed by the party against which enforcement is sought. The failure of a party to enforce its rights at any time for any period will not be construed as a waiver of such rights. Unless expressly provided otherwise, each right and remedy in these T&Cs is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of these T&Cs, Trial Agreement, Dealer Agreement, Order Form or any Change Order is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that such provision will otherwise remain in full force and effect and enforceable.