DIGITAL FINANCING TERMS AND CONDITIONS

Applicability and Scope.
1. These Terms and Conditions (these “Terms”) govern the provision of products and services by CreditIQ, LLC, a Delaware limited liability company (“CreditIQ”) to the customer (“Customer”) stated on the accompanying Order (as defined below) signed or executed by the Customer.
2. From time to time, CreditIQ and Customer may execute one or more order forms (each, an “Order”) that will be accepted as set forth in Section 1(c). As applicable, each Order will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, and (iii) the price(s) for such Deliverables, (iv) the contract terms and agreed upon fees.
3. Acceptance of the Order and these Terms will be deemed the date of written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the Order by CreditIQ and the Customer. Notwithstanding the foregoing, modifications to the originally submitted Order will not be binding unless approved in writing by both CreditIQ and the Customer.
4. The Order, these Terms, and any exhibits, schedules or addenda hereto or thereto that are explicitly incorporated herein or therein (collectively, this “Agreement”) comprise the entire agreement between CreditIQ and the Customer (each, a “Party” and collectively, the “Parties”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. To the extent a term of the Order conflicts with these Terms, the term in the Order shall control.
5. These Terms will prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision or performance of Deliverables (defined below) to the Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. This Agreement may be amended only by a written document signed by both parties to this Agreement.
6. These Terms may be changed at any time by CreditIQ and Customer will be notified of any such changes by an update of the new Terms posted on growithcars.com. Customer’s continued use of the Deliverables after the posting of any amended Terms shall constitute Customer’s agreement to be bound by any such changes. CreditIQ may modify, suspend, discontinue or restrict the use of any portion of this website without notice or liability.
7. PLEASE BE ADVISED THAT THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
Credit IQ Specific Terms.
1. Definitions.
  1. “Applicable Law” means, with respect to any person or entity, all laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to such person or entity and his, her or its business, including but not limited to dealer licensing laws; Federal Trade Commission (“FTC”)laws and regulations; laws and regulations relating to false or deceptive advertising; laws and regulations relating to motor vehicle advertising; the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, as amended; Canada’s Anti-Spam Legislation, as amended; the Telephone Consumer Protection Act, as amended; the Gramm-Leach-Bliley Act, as amended; the Fair Credit Reporting Act, as amended; laws and regulations related to automotive finance and sweepstakes or other promotions and all laws and regulations applicable to the processing of User Data under the Agreement, including but not limited to the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., and all amendments thereto, including the California Privacy Rights Act of 2020, and any implementing regulations or guidance issued by the Attorney General of California.
  2. “DMS” means Customer’s dealer management system, if applicable.
  3. “DMS Data” means personally identifiable financial information supplied by Customer’s DMS provider on behalf of the Customer and not otherwise collected by or supplied to CreditIQ.
  4. “Deliverable(s)” means any product or service (including any deliverables related thereto) identified in the Order or that CreditIQ provides to Customer, including (a) access to the Platform which will allow the Customer to: (i) access the Finance Sources; (ii) submit credit applications or related information for its consumers via the Platform to the Finance Sources; and (b) providing Platform support to the Customer in accordance with the Terms.
  5. “Finance Sources” means one or more participating auto finance sources with whom CreditIQ has an existing relationship for the purpose of submitting credit applications.
  6. “Platform” means the Credit IQ platform.
  7. “Policies” means all policies, notices, and/or other documentation provided by CreditIQ to the Customer from time to time, including but not limited to any and all CreditIQ advertising policies.
2. Credit Reporting. Customer acknowledges that certain Deliverables require CreditIQ to access individuals’ credit report(s) to determine Customer credit eligibility. Customer acknowledges that CreditIQ is not a consumer reporting agency and that, by requesting the Deliverables, Customer directs CreditIQ to access such credit report(s) to the extent necessary to provide the Deliverables.
3. Grant of Permission Regarding Customer Data.
  1. Data in the Platform will be segregated into two categories: (a) all consumer-identifying User Data, including, but not limited to, consumer finance information, credit application, decision, and contract information (“Dealer Data”); and (b) Dealer Data stripped of all personally identifiable information and stripped of any other information determined by CreditIQ from time to time at CreditIQ’s sole discretion (“Anonymous Data”). Customer grants CreditIQ permission to generate reports on Dealer Data and Anonymous Data accessible by Customer and Customer’s representatives. The permission to share reports granted herein will continue until the effective date of any termination of these Terms. At any time during the Term, Dealer may direct CreditIQ, in writing, not to share Dealer Data or Anonymous Data with identified designees. CreditIQ shall rely on the accuracy of Customer’s instructions and, unless modified by Customer in writing, CreditIQ’s records of Customer’s instructions shall control.
  2. Customer also grants CreditIQ permission to access and aggregate Anonymous Data with other dealers’ similar anonymous data for the purposes of generating aggregate reports accessible by all participating Customers and Finance Sources. Customer acknowledges and agrees that CreditIQ exercises no independent judgment in whether any credit application will be submitted to a particular Finance Source for consideration, the credit rating assigned to any credit application and/or any other decision made with respect to any credit application and that all such decisions are made solely by the applicable Finance Source and Customer.
  3. CreditIQ agrees that it will not use or disclose the Dealer Data received from Customer except for purposes that are permitted by Applicable Law, and as authorized by these Terms, and/or necessary to provide the Deliverables to Customer under these Terms.
4. Data Security. The Parties shall maintain commercially reasonable physical, electronic, and procedural controls and safeguards designed to comply with Applicable Law to protect non-public personal information received from the other Party from unauthorized disclosure. The controls include, but are not limited to, maintaining appropriate safeguards to restrict access to the non-public personal information received from the other Party to those employees, agents, or service providers of who need such information to provide the Deliverables for which the non-public personal information was disclosed to the receiving Party. For data disclosed in electronic form, the safeguards also include electronic barriers (e.g., firewalls or similar barriers) and password-protected access to non-public personal information. For information disclosed in written form, the Parties agree that such safeguards must include secured storage of disclosed non-public personal information.
5. Dealer Management System.
  1. DMS Access. If applicable, Customer will provide Cars.com with information necessary for Cars.com and any agents and contractors working on Cars.com’s behalf to access the Customer DMS and extract Customer information, and Customer represents that such provision is legal and authorized by the relevant DMS provider or any other applicable third-party vendor. Customer expressly consents to Cars.com and its agents and contractors accessing and extracting information from the DMS on an ongoing basis until such consent is revoked with written notice to Cars.com. Subject to Applicable Law, Cars.com will have a reasonable period of time to cause such revocation.
  2. DMS Data. Except as has been specifically authorized by Customer in writing, CreditIQ agrees not to disclose Customer’s DMS Data to third parties, other than as necessary for such parties to provide attribution reporting and/or the Deliverables to Customer, or as otherwise required by Applicable Law.
  3. Licensure of Feedback. Customer hereby grants and agrees to grant to CreditIQ the perpetual, worldwide, royalty-free, transferable and sublicensable right and license to use any ideas, suggestions or other feedback about the Deliverables (or any other CreditIQ’s services or products) provided by Customer for any purpose, without payment or other compensation to Customer or any end user, forever and throughout the world.
6. Modification/Linked Websites. CreditIQ may modify, suspend, discontinue or restrict the use of any portion of its website without notice or liability. The website may include links to other websites not established or supervised by CreditIQ or any of its affiliate(s). CreditIQ and its affiliates do not endorse, sponsor or guarantee these linked websites and are not responsible in any way for any advice, content, information, practices, products or services related to or made available through such linked websites.
7. Updates to Deliverables. CreditIQ may launch new services and products, combine services and products, modify services and products or discontinue services and products for its Customers (“Deliverables Update”). In the event of a Deliverables Update, current Customers who are in good standing may continue to receive the Deliverables under an existing Order, but no new Customers will be eligible to sign up for new terms of the previous Deliverable. CreditIQ reserves the right to transition all existing Customers of a service and product to a Deliverable Update upon reasonable notice to the impacted Customers.
Beta/Pre-Release Products.
1. Beta/Pilot. From time to time, CreditIQ may provide a Beta and/or Pilot Programs (the “Beta Program”) to make pre-release software, features, and products (“Beta Products”) available to Customer if Customer opts in to the Beta Program. The Beta Program provisions of this Agreement will only apply to Customer’s use and access to the Beta Products. CreditIQ may make Beta Products available to Customer from time to time, provided that CreditIQ may modify or discontinue Beta Products at any time for any reason without liability or notice to Customer.
2. DUE TO THE NATURE OF BETA PRODUCTS, CREDITIQ PROVIDES ALL BETA PRODUCTS AS-IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY. Customer acknowledges and agrees that any use of Beta Products will be at its own risk and that Customer has no obligation to use the Beta Products.
3. DUE TO THE NATURE OF BETA PRODUCTS AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, NEITHER CREDITIQ NOR ITS PARENTS, AFFILIATES OR SUBSIDIARIES, THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, SHAREHOLDERS, OR OWNERS WILL BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, AND/OR PUNITIVE DAMAGES, EVEN IF CREDITIQ WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES FOR CUSTOMER’S PARTICIPATION IN THE BETA PROGRAM AND USE OF THE BETA PRODUCTS. IN NO EVENT WILL CREDITIQ’S TOTAL LIABILITY TO CUSTOMER FOR CUSTOMER’S USE OF THE BETA PRODUCTS AND PARTICIPATION IN THE BETA PROGRAM EXCEED THE AMOUNT OF FIVE DOLLARS ($5.00). THE FOREGOING LIMITATIONS WILL APPLY TO ALL CREDITIQ BETA PRODUCTS AND BETA PROGRAMS EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Fees.
1. Approval. CreditIQ’s performance under the Agreement is explicitly conditioned upon credit approval of Customer. Customer authorizes CreditIQ to obtain a credit report to determine, in accordance with the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., the creditworthiness of the Customer. Customer agrees to pay all fees specified in the Order within 30 days of the date of invoice. Any one-time setup fee is due upon Customer’s execution of the Order. All payments will be made in U.S. Dollars. If payment is made by credit card or ACH, Customer expressly authorizes CreditIQ and/or its designated billing vendor to draw items (checks, electronic fund transfers, charge card) for the purpose of paying the fees set forth on the Order. If any fees are not paid to CreditIQ by Customer when due, CreditIQ may charge and Customer will pay interest on unpaid amounts at the rate of 1.5% per month, or the highest rate permitted by Applicable Law, whichever is less. Customer agrees to pay all of CreditIQ’s costs, including attorneys’ fees, incurred in collecting overdue amounts. Customer is further responsible for NSF charges, wire fees, credit card fees and similar costs. Customer will be solely responsible for payment of any taxes applicable to its payment for and/or use of the Deliverables other than taxes on CreditIQ’s income. CreditIQ reserves the right to increase fees or terminate Deliverable subscriptions with 30 days’ notice to Customer, provided that Customer will have the right to terminate the Agreement in such case by providing CreditIQ with written notice prior to the end of such 30-day period.
2. Co-Op. If Customer requests the assistance of CreditIQ in any manufacturer co-op advertising program, Customer remains solely responsible for complying with all terms, conditions, and requirements necessary for reimbursement under such program.
Term and Termination.
1. Term. The “Initial Term” means the period specified on the Order (or if no such period is specified, 12 months), commencing upon delivery or commencement of performance of a Deliverable.
2. Renewal. Upon the expiration of the Initial Term, this Agreement shall automatically renew on a month-to-month basis (each, a “Renewal Term”) until either Party provides at least 30 days’ written notice of termination to the other Party. By way of example, if the Initial Term of the Agreement is 12 months, the earliest the parties may terminate this Agreement is after 13 months (a party may not give 30 days’ notice of termination during the Initial Term). The Initial Term and all Renewal Terms are collectively referred to herein as the “Term”.
3. Termination for Breach. Either Party may terminate this Agreement in the event the other Party is in material breach of this Agreement, including Customer’s failure to comply with Policies (defined below) and such breach is not cured by the Customer within 30 days of its receipt of written notice of such breach from the CreditIQ. Furthermore, CreditIQ reserves the right to modify or discontinue any Deliverable at any time and may suspend performance for Customer’s failure to pay any invoice when due or when Customer fails to comply with any of the Policies. This Agreement shall automatically terminate without any action or notice by either Party, and all amounts due to CreditIQ under this Agreement shall accelerate and become immediately due and payable, if: (i) Customer commences a voluntary case under Title 11 of the United States Code or the corresponding provisions of any successor laws; (ii) anyone commences an involuntary case against Customer under Title 11 of the United States Code or the corresponding provisions of any successor laws and either (A) the case is not dismissed by midnight at the end of the 60th day after commencement or (B) the court before which the case is pending issues an order for relief or similar order approving the case; (iii) a court of competent jurisdiction appoints, or Customer makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in Title 11 of the United States Code or the corresponding provisions of any successor laws) for Customer or all or substantially all of its assets; or (iv) Customer fails generally to pay its debts as they become due (unless those debts are subject to a good faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so. To be effective, notice of termination by the Customer must be emailed to pendingservice@cars.com and include the Customer name and product(s) being terminated.
4. Termination for Convenience. If Customer terminates the Agreement without cause prior to the end of Initial Term, then Customer will pay Cars.com a termination fee equal to the remaining outstanding fee for any relevant Deliverable(s) through the end of the Initial Term. To be effective, notice of termination by the Customer must be emailed to pendingservice@cars.com and include the Customer name and product(s) being terminated. CreditIQ and Customer may revoke any termination and in this event the Agreement will remain in full force and effect. Customer agrees to reimburse CreditIQ for all costs expended or incurred by CreditIQ and all charges paid by CreditIQ to or irrevocably due from CreditIQ to vendors and suppliers.
Warranties.
1. CreditIQ Warranties and Covenants. CreditIQ represents and warrants to Customer that: (i) CreditIQ has the requisite power and authority to enter into and perform its obligations under this Agreement; and (ii) to the knowledge of CreditIQ, nothing in the Deliverables developed by CreditIQ infringes or violates any right of any third party.
2. DISCLAIMER OF WARRANTIES REGARDING DELIVERABLES. NEITHER CREDITIQ NOR ANY OF ITS SERVICE PROVIDERS, EMPLOYERS, OR AGENTS OFFER OR PROVIDE ANY EXPRESS OR IMPLIED WARRANTY THAT THE DELIVERABLES WILL BE UNINTERRUPTED, ERROR FREE OR WILL PERFORM IN ANY PARTICULAR FASHION, NOR THAT THE DATA PROVIDED WILL BE ACCURATE OR COMPLETE OR THE USE OR PERFORMANCE OF THE PRODUCTS WILL GENERATE ANY PARTICULAR RESULTS, FINANCING OR SALES. NEITHER CREDITIQ NOR ANY OF ITS SERVICE PROVIDERS, EMPLOYEES, OR AGENTS OFFER OR PROVIDE ANY EXPRESS OR IMPLIED WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE DELIVERABLES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE DELIVERABLES SHALL BE PERFORMED AND DELIVERED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
3. DISCLAIMER OF WARRANTIES REGARDING THIRD PARTY PRODUCTS. CREDITIQ HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIRD-PARTY VENDOR PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY. CREDITIQ HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OF ANY WRITTEN MATERIAL, ACCOUNTS, DESCRIPTIONS OR DISCLOSURE BY THIRD PARTIES ON THE SITES.
4. Customer Warranties. Customer represents and warrants to CreditIQ that (i) Customer and its users accessing the Site are at least eighteen (18) years of age and, in any event, at least of legal age and with the necessary legal capacity to form a binding contract in your jurisdiction, (ii) all information Customer provides to CreditIQ in connection with Customer’s access to and use of the Site is true, accurate, and complete, and that Customer will maintain and routinely update such information to keep it true, accurate, and complete at all times, (iii) any materials, content, data, trademarks, service marks, trade names, logos or symbols provided by Customer, or CreditIQ’s exercise of any licenses granted herein shall not (A) infringe upon any copyright, patent, trademark, or other proprietary rights of any third party; (B) violate any Applicable Law or non-proprietary third-party rights; (iv) any information and data provided by Customer to CreditIQ will not constitute false advertising or any other unfair business practice; or (v) Customer will not defame, disparage, or violate the rights of publicity or privacy of any person.
Compliance with Applicable Law and Policies.
1. Compliance with Applicable Law. Customer covenants to Company that at all times during the Term that (i) Customer has the requisite power and authority to enter into and perform its obligations under this Agreement and (ii) Customer will comply with Applicable Laws and Policies. Company may suspend or terminate its performance under this Agreement without notice or penalty in the event of Customer’s failure to comply with this Section.
2. Compliance with Policies. CreditIQ may provide policies, notices, and/or other documentation on its Sites (“Policies”). Such Policies must be reviewed by the Customer. The Parties understand and acknowledge that the Policies reflect the standard website services package offered by CreditIQ. Customer covenants to CreditIQ that at all times during the Term, Customer will comply in all material respects with the Policies. CreditIQ may suspend or terminate its performance under this Agreement without notice or penalty in the event of Customer’s failure to comply with all Policies.
3. No Unauthorized Access. Subject to the limited license granted herein with respect to the Deliverables, CreditIQ grants the Customer a limited license to access and make use of this Site and the content thereof for legitimate purposes. By accessing this Sites, the Customer agrees that it will not use any automated mechanism, which may include but is not limited to such mechanisms as web robots, crawlers or spiders to access, query or otherwise collect information or scrape data from the Sites, and will not use any device or routine that would interfere with the proper working of the Sites. Unless otherwise permitted by CreditIQ, any alteration, modification, reproduction, redistribution, retransmission, redisplay or other use of any content in any other manner or for any other purpose constitutes an infringement of CreditIQ’s intellectual property and other proprietary rights. The Customer may not reproduce, copy, perform, create derivative works from, republish, upload, post, retransmit, or redistribute in any way whatsoever any content from the Sites or Deliverables, or any other website owned or operated by CreditIQ, without the prior written permission of CreditIQ. Use of the content or any portion thereof on any other website is expressly prohibited without prior written permission from CreditIQ. The Customer shall not remove or modify any copyright notice or trademark legend, author attribution or other notice placed on or contained within the content.
4. Use of User Data. To the extent that Customer agrees to process and safeguard any information relating to an identified or identifiable natural person that is received or processed by Customer on behalf of CreditIQ under this Agreement including any information defined as “Personal Data”, “Personal Information”, “Personally Identifiable Information”, or the like under Applicable Laws (collectively “User Data”), Customer shall process such User Data only for purposes for which CreditIQ permits access or as set forth in the Agreement, and will agree to execute a Data Processing Addendum (“DPA”) with CreditIQ to bind Customer to certain obligations and standards in regards to how Customer must process User Data. Upon execution of the DPA, the parties agree the DPA shall be expressly incorporated into this Agreement.
Indemnification.
1. Customer Indemnification. Customer shall indemnify, defend and hold harmless CreditIQ and its directors, officers, and employees (collectively, “CreditIQ Indemnitees”) against any and all claims, actions, damages, judgments, losses, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Damages”) incurred by CreditIQ Indemnitees relating to or arising out of Customer’s (a) negligence or willful misconduct; (b) use of the Deliverables in a manner not authorized by this Agreement; (c) use of the Deliverables in combination with data, software, hardware, equipment, or technology not provided by CreditIQ or authorized by CreditIQ in writing; (d) violation of this Agreement; (e) modifications to the Deliverables not made by CreditIQ; or (f) violation of Applicable Law or Policies; provided, that Customer may not settle any third-party claim against CreditIQ unless CreditIQ (in its sole discretion) consents to such settlement, and further provided that CreditIQ will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
2. CreditIQ Indemnification. Subject to the limitations set forth in herein, CreditIQ shall indemnify, defend and hold harmless Customer and its directors, officers, and employees (“Customer Indemnitees”) against any Damages incurred by Customer Indemnitees, solely to the extent and proportion such Damages arise from any third party claim based on (a) CreditIQ’s gross negligence or willful misconduct; (b) CreditIQ’s breach of Confidentiality, or (c) CreditIQ’s willful violation of any applicable law, regulation, judicial or administrative action, or the right of a third party (except as directed or approved by Customer).
Intellectual Property.
1. Ownership. As between the Parties, CreditIQ or, as applicable, its licensors or successors, shall own the entire, right, title and interest in the Deliverables and any technology developed by it, whether under this Agreement or otherwise, or that it uses to provide the Deliverables, including any software (including all routines and algorithms therein and documentation therefor), code, formulas, website platforms, website pages, page design and layout and associated techniques, CGI or PERL scripting, other works of expression (including literary works, audio works and visual works), inventions, discoveries, processes, methods, compositions, and techniques, and any and all intellectual property rights therein or thereto (the “CreditIQ Intellectual Property”).
2. Prohibited Activities. CreditIQ does not provide any implied rights of use or access to the Deliverables or any CreditIQ Intellectual Property. Without limiting the foregoing, except to the extent expressly permitted in this Agreement, Customer shall not (i) create derivative works based on the Licensed Intellectual Property; (ii) modify the Licensed Intellectual Property except to update certain modules identified by CreditIQ; (iii) operate or attempt to operate any of the Deliverables on a “service bureau” or “timeshare” or “software as a service” basis, provide services on behalf of or as a service to third parties or otherwise provide copies of any of the Deliverables or make any of the Deliverables available to any third parties; (iv) rent, lease, market, or sublicense the Licensed Intellectual Property to third parties, except pursuant to a separate, written distribution agreement with CreditIQ; (v) disassemble, decompile or otherwise reverse engineer any of the Deliverables for any purpose, including to gain access to the source code of any such software or accessing any component of software included in the CreditIQ Intellectual Property that is not licensed to Customer under this Agreement; or (iv) otherwise use, access, manipulate or modify any of the Deliverables for any purpose not expressly permitted under this Agreement. Customer consents to the use of technological security devices to regulate use of any of the Deliverables and agrees not to attempt to circumvent, reverse-engineer, or duplicate such devices.
3. Revocation for Unlicensed Use. Customer’s use of the Deliverables shall be limited to the usage rights granted herein and subject to the limitations set forth herein. In the event that Customer uses any of the Deliverables or any derivative works thereof at any other time or location, for another person, or otherwise uses any of the Deliverables, or any CreditIQ Intellectual Property, for any reasons other than the Licensed Uses, or in the event that Customer owes CreditIQ outstanding fees, CreditIQ may revoke any and all licenses granted herein and shall be entitled to pursue all remedies under law and equity. Any such revocation shall be effective immediately upon CreditIQ’s notice to Customer.
Confidentiality.
1. Confidentiality Obligations. Each Party receiving (the “Receiving Party”) business, technical or financial information hereunder relating to the other Party’s business (including but not limited to non-public information regarding features, functionality and performance of the Deliverables) (“Confidential Information”) from the other Party (the “Disclosing Party”) agrees: (i) to take reasonable precautions (but in any event, no precautions no less stringent than those used to protect its own Confidential Information) to protect such Confidential Information, and (ii) not to use (except in performance of the Deliverables or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by Applicable Law; provided that if a disclosure is required by Applicable Law, the Receiving Party first shall give written notice to the Disclosing Party and made a reasonable effort and allow the Disclosing Party to obtain a protective order. At the end of the Term, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
2. Rights and Ownerships. CreditIQ or its service provider owns and shall own and retain all right, title and interest in and to (a) the Deliverables, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Deliverables or support, (c) any documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of CreditIQ in the course of performing the Deliverables, and (d) all intellectual property rights related to any of the foregoing.
Limitation of Liability (for all U.S Customers).
1. Limitation of Liability. NEITHER CREDITIQ NOR ITS PARENTS, AFFILIATES OR SUBSIDIARIES, NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, SHAREHOLDERS, OR OWNERS SHALL BE LIABLE TO THE CUSTOMER IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, FOR ANY:
  1. INJURIES, CLAIMS, LOSSES, EXPENSES OR DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE DELIVERY OR PERFORMANCE OF DELIVERABLES HEREUNDER, FROM ANY CAUSE OR CAUSES INCLUDING BUT NOT LIMITED TO DIRECT DAMAGES, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHER CAUSE OR CAUSES WHATSOEVER, IN AN AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT PAID BY OR ON BEHALF OF THE CUSTOMER TO CREDITIQ UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM;
  2. INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, AND/OR PUNITIVE DAMAGES, EVEN IF CREDITIQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR
  3. LOST PROFITS, LOST REVENUES, LOSS OF PRODUCT, LOSS OF REPLACEMENT POWER, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES AND/OR BENEFIT OF THE BARGAIN DAMAGES.
2. CREDITIQ SHALL NOT BE LIABLE FOR ANY CLAIMS OR DEMAND AGAINST CUSTOMER BY ANY THIRD PARTY EXCEPT IF OTHERWISE PROVIDED HEREIN. CREDITIQ SHALL NOT BE LIABLE FOR THE ACTIONS OF ANY SUB-CONTRACTOR OR AGENT OF CREDITIQ.
3. CUSTOMER AGREES THAT NO ACTION AGAINST CREDITIQ MAY BE BROUGHT UNLESS THE ACTION IS BROUGHT WITHIN THE LESSER OF: (I) ONE (1) YEAR OF THE DATE OF THE EVENT THAT RESULTED IN THE DAMAGES AND (II) THE SHORTEST LIMIT OF TIME PERMITTED UNDER APPLICABLE LAW.
4. Customer Waiver. FOR ALL U.S CUSTOMERS, CUSTOMER EXPRESSLY WAIVES ANY CLAIM THAT IT MAY HAVE AGAINST CREDITIQ BASED ON ANY THIRD-PARTY VENDOR PRODUCT LIABILITY OR INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO ANY THIRD-PARTY VENDOR PRODUCT AND ALSO WAIVES ANY RIGHT TO INDEMNIFICATION FROM CREDITIQ AGAINST ANY SUCH CLAIM MADE AGAINST CUSTOMER BY ANOTHER PARTY. CUSTOMER FURTHER EXPRESSLY WAIVES ANY CLAIM THAT IT MAY HAVE AGAINST CREDITIQ BASED ON (x) ANY CLAIM THAT THE USE OR PERFORMANCE OF THE PRODUCTS FAILED TO GENERATE ANY PARTICULAR RESULTS OR SALES OR THAT THE PRODUCTS DID NOT PERFORM IN ANY PARTICULAR FASHION WHATSOEVER; or (y) ANY CLAIM RELATING TO OR ARISING OUT OF REVIEWS OR ANY OTHER WRITTEN INFORMATION, STATEMENTS, COMMENTS OR OPINIONS, MATERIAL, ACCOUNTS, DESCRIPTIONS OR DISCLOSURE BY THIRD PARTIES ON THE SITES.
  
  *If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
  
  THE FOREGOING CALIFORNIA WAIVER DOES NOT AFFECT ANY LIABILITY OR LIMITATION OF DAMAGES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, SUCH AS TORTIOUS ACT WHICH IS INTENTIONAL OR THE RESULT OF GROSS NEGLIGENCE.
5. Customer’s Acts or Omissions. If CreditIQ’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, CreditIQ shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
General Provisions.
1. Independent Contractors. The Parties are independent contractors. Neither Party is an agent, representative, or partner of the other Party, and these Terms shall not be construed as creating a partnership, joint venture or agency relationship or granting a franchise between the Parties. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party.
2. Assignment. CreditIQ may assign its rights and duties under these Terms at any time to any party without notice. Customer may not assign this Agreement or any right, interest, or benefit under this Agreement without the prior written consent of CreditIQ, which consent will not be unreasonably withheld. Notwithstanding the foregoing, Customer may assign its rights and responsibilities under this agreement to its parent or an affiliate under common control upon delivery of written notice to CreditIQ. This Agreement shall be binding on any and all successors and permitted assigns.
3. Expenses. Except as otherwise specifically provided herein, each Party shall be responsible for its own expenses incurred in performing its obligations hereunder.
4. Force Majeure. CreditIQ shall not be liable for any delays in delivery or performance of the Deliverables hereunder due to an act of God, action by any governmental or quasi-governmental agency, fire, flood, earthquake, strike, communicable disease outbreak, outside network difficulties (including, but not limited to, communication line failure) or other acts beyond the reasonable control of such Party (a “Force Majeure Event”), and in such an event, the Customer shall be released of its obligation to pay for any Deliverables not delivered or performed as a result of such event. Either Party may terminate this Agreement upon written notice to the other Party in the event that a material failure to deliver or perform Deliverables as a result of a Force Majeure Event continues unremedied for a period of thirty (30) days.
5. Survival. The obligations of the Parties under this Agreement that by their nature would continue beyond the expiration or termination of the Term (including, without limitation, the warranties, indemnification obligations, confidentiality requirements and ownership and property rights) shall survive any such expiration or termination of the Term.
6. Notices. Any and all notices required to be given hereunder shall be made in writing and delivered by overnight courier, facsimile, or e-mail to the following:
  To CreditIQ:
  CreditIQ, LLC
  Attn: Legal Department
  300 South Riverside Plaza, Suite 1000
  Chicago, IL 60606 USA
  Phone: 312-601-5000
  Fax: 312-601-5755
  Email: legal@carscommerce.inc
  
  To Customer: address or any other contact information as set forth in the latest Order.
7. Dispute Resolution. CreditIQ and the Customer agree that this Section shall be construed and interpreted under the Federal Arbitration Act, 9 U.S.C. Section 1, et. seq. CreditIQ and the Customer agree that any and all losses, actions, claims, proceedings, suits, judgments, settlements or liabilities (“Claims”) shall be submitted to final and binding Arbitration, to take place within and subject to the laws of Cook County in the the State of Illinois, before the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules (www.adr.org/commercial) (“AAA Rules”). Customer agrees that Claims submitted to arbitration shall be decided in a single arbitration before a single arbitrator who must be on the AAA National Roster of Commercial Arbitrators and selected in accordance with the AAA Rules. The arbitrator shall have the authority to award the same damages, including reasonable attorney’s fees, and all other relief that a court can award. Customer acknowledges and agrees that Customer voluntarily and knowingly entered into these Terms and chose to use or accept the Deliverables from CreditIQ rather than companies that offer similar services and who may not have an arbitration agreement.
8. WAIVER OF CLASS ACTION. CREDITIQ AND THE CUSTOMER AGREE THAT ANY DISPUTES, CLAIMS AND/OR CAUSES OF ACTION ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS AND CONDITIONS OR THEIR ACCESS TO AND USE OF THE SITE AND/OR ITS PRODUCTS OR SERVICES MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND IN THE NAME OF AN INDIVIDUAL PERSON OR ENTITY AND THAT SUCH CLAIMS MUST PROCEED ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS. CREDITIQ AND THE CUSTOMER AGREE THAT ANY SUCH CLAIMS OF TWO OR MORE PERSONS MAY NOT BE JOINED OR CONSOLIDATED IN THE SAME CLAIM UNLESS ARISING FROM THE SAME TRANSACTION.
9. International Access. The Sites and Deliverables are provided from the United States of America and Canada. The laws of other countries may differ regarding the access and use of the Sites or the Deliverables. CreditIQ makes no representations regarding whether the Sites, the Deliverables, or your access or use of the Sites or Deliverables complies with Applicable Laws of any country other than the United States of America or Canada. The export and re-export of software products are controlled by the United States Export Administration Regulations, and such software may not be exported or re-exported to certain designated countries, or any country to which the United States embargoes goods. In addition, CreditIQ software may not be distributed to certain designated persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. If the Customer uses or accesses the Sites or the Deliverables outside of the United States of America or Canada, it is the Customer’s responsibility to ensure that its use complies with all Applicable Law and, without limiting the generality of its obligations under the indemnity provisions in these Terms, Customer shall indemnify, defend and hold the CreditIQ Indemnitees harmless from any Damages arising out of Customer’s use or access of any of the Sites or Deliverables outside of the United States of America and Canada.
10. Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
11. Severability; Blue Pencil. No provision of this Agreement shall be deemed unenforceable if it is subject to an interpretation that would render it enforceable. If a court of competent jurisdiction finds that any provision of this Agreement is unenforceable, in whole or in part, (a) such a finding will not disturb the validity and enforceability of the remaining provisions of this Agreement, and (b) the court shall have the authority to modify and/or “blue pencil” this Agreement in order to render it enforceable and to effect the original intent of the Parties to the fullest extent permitted by Applicable Law.

Effective: August 5, 2024