CORE TOOLS SUPPORT (CTS) SOFTWARE

TERMS OF SERVICE AGREEMENT

AUTOMOTIVE INDUSTRY ACTION GROUP, a Michigan nonprofit corporation (“AIAG,” “we,” “us,” or “our”), provides the AIAG Core Tools Support (CTS) Software services and software applications (together, the “Services”) through our website and Applications (the “Site”). Your use of the Site and Services are governed by this Terms of Service Agreement (the “Agreement”), the Acceptable Use Policy, our Privacy Policy and any additional written terms that you agree to with us (collectively, the “Agreements”).

You should review the Agreements carefully as they include terms regarding use, fees, limitations of liability, a class action waiver, and resolution of disputes by arbitration. If you do not agree with (or cannot comply with) the Agreements, you will not have access to the account. Please see Section 19 for definitions of certain capitalized terms used in this Agreement.

1. Acceptance of Agreements.

By creating an Account with us, clicking “I agree”, logging into the Site or otherwise using the Services, you, on behalf of yourself and those that you represent (“you” or “your”), acknowledge that you have read and understood the Agreements, accept the Agreements, and agree to be bound by them. If you represent a third party, such as the Customer, a legal entity or an employer, you also represent to us that you have full unconditional authority to accept the Agreements on behalf of such third party.

2. Changes to Terms.

We may, from time to time, make modification (by amendment, replacement, and/or adding new provisions) to this Agreement at any time. Unless a later effective date is stated, the modified version of this Agreement will be effective immediately when posted on our Site. We will provide notice of changes to the Terms by: (i) posting the amended version of the Terms on our Site; (ii) posting a notice on our Site; or (iii) emailing notice to the email account associated with Customer’s Account. You are responsible to check the Site regularly for modifications of this Agreement. Your continued use and/or access of any of the Services after the effective date of a modification to this Agreement will be conclusive proof that you agree to be bound by the modified version of this Agreement. Except as detailed in this section or a mutually agreed written amendment, this Agreement may not be modified or amended.

3. Account and Users.

3.1. Your Account. We will create an account for each Customer (each, an “Account”). The Account may be used by concurrent users consistent with the Customer’s Account. Unless waived by us in writing, every Account must be associated with a valid email address.

3.2. Administrative User. Each Account will be assigned at least one administrative user (an “Admin”) that will control the Account. We will provide the initial non-public credentials for the Customer’s first Admin to authenticate the specific Admin’s access to the Site and Services under Customer’s Account. Admins may change username and passwords from the Account Settings. Customer will be responsible for (i) all Service Fees related to Admins, and (ii) all actions (and subscriptions selected) by an Admin related to the Site, the Services, and the Account.

4. License for Use.

4.1. To Customer. Subject to the terms and conditions of this Agreement, we grant to you a non-sublicensable, non-transferable, non-exclusive, revocable, limited license for Customer’s own internal use only (the “License”) to: (i) access and use the Services to which you have subscribed; and (ii) as applicable, install and use the proprietary Service Capabilities, if any, developed by us as part of or for the Services. We reserve all other rights.

4.2. From Customer. Subject to the terms and conditions of this Agreement, Customer grants to us and its Third-Party Vendors the non-exclusive, nontransferable worldwide right to copy, store, record, transmit, display, view, print or otherwise use (i) Customer Data solely to the extent necessary to provide the Service and SaaS Materials to Customer, and (ii) any trademarks that Customer provides us for including them in Customer’s user interface of the Service (“Customer Trademarks”).

Customer acknowledges and agrees that Customer Data and information regarding Customer and Customer’s Users that is provided to us and its Third-Party Vendors in connection with this Agreement may be (i) processed by us and its Third-Party Vendors to the extent necessary to provide the Service and (ii) transferred outside of the country or any other jurisdiction where Customer and Customer’s Users are located.

In addition, Customer acknowledges and agrees that it is Customer’s obligation to inform Customer’s Users and customers of the processing of Customer Data and information regarding Customer and Customer’s Users pursuant to this Agreement and to ensure that such Users and customers have given any necessary consent to such processing as required by all applicable data protection legislation. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data and information regarding Customer and Customer’s Users. Customer agrees that the license to the Customer Data shall survive termination of this Agreement solely for storing backup Customer Data in accordance with the terms of this Agreement.

By providing Customer with the Services, we do not acquire any right, title and/or interest in the content material (including but not limited to text, Customer-provided software, scripts, trademarks, logos, links, graphics, audio, video, and any data) that Customer makes available for use by Users by means of the Services (collectively “Content”). Customer is solely responsible for all Content.

We may anonymously compile statistical information related to the performance of the Service for purposes of improving the Service or provide automotive industry trends and analysis reporting, but only if such information does not identify the data as Customer's or otherwise include Customer's name.

4.3. License Restrictions. The License will remain in effect during the Term only. You may use the Services only in accordance with this Agreement. All other uses of the Services are prohibited. Neither you or any third party under your control may (or may attempt to): (i) reverse engineer, disassemble, decompile, tamper with, work around technical limitations, or apply any other process or procedure to derive the source code of any Software included with or available through the Services, except to the extent that applicable law permits it despite these limitations; (ii) modify, alter, tamper with, repair, or otherwise create derivative works of any Service Capability included with, for or through any of the Services; (iii) access or use a Service in a way intended to avoid incurring Service Fees; (iv) resell, transfer, sublicense, lease, lend, or rent the Service or any portion thereof to or for third parties; or (v) use the Service for or as a data center, time-sharing, or service bureau. The License is for Customer’s benefit only and not the benefit of any third party. The License is conditional on your continued compliance with all of the terms and conditions of this Agreement and will immediately and automatically terminate if you do not so comply.

5. Service Levels.

We will use commercially reasonable efforts to make the Services associated with your Account available to you as needed to accomplish your business objectives. We are committed to the efficient delivery and performance of the Services.

6. Changes to Services.

6.1. Generally. We may add new Applications, Software, application program interface (“API”), tools, features and/or functionality (each a “Service Capability,” collectively, the “Service Capabilities”) available through the Services and/or install updates from time to time.

6.2. Discontinuance. We reserve the right to change, discontinue, or lessen Service Capabilities from time to time or to elect to discontinue the Services in their entirety. If we remove or discontinue a material Service Capability, Customer may (and Customer’s exclusive remedy is the option to) cancel the Account.

7. Service Fees and Payment Terms.

7.1. Service Fees. Customer agrees to pay us all applicable Service Fees, charges, and Taxes, if any, associated with the Account or otherwise caused by or related to each Concurrent User’s subscription and use of the Services. Unless Customer and we agree in writing otherwise: (i) our then current standard Service Fees will apply; (ii) Service Fees will be on a per Concurrent User basis; (iii) Service Fees will be based on an annual subscription for use of the Services and on a pre-selected number of Concurrent Users and disk space usage; and (iv) all Service Fees, including any applicable Taxes, must be paid in advance. Except as specifically provided in this Agreement, there are no refunds for Service Fees. Absent clear evidence of error, our records regarding Admin’s creation of Users and other Admins and the subscription of Services are final and conclusive. YOU RECOGNIZE AND AGREE THAT THE AMOUNT OF SERVICE FEES DUE EACH YEAR WILL VARY DEPENDING ON HOW MANY CONCURRENT USERS AND DISK SPACE STORAGE HAS BEEN ADDED TO THE CUSTOMER’S ACCOUNT. THE THEN CURRENT AMOUNT OF SERVICE FEES FOR THE CUSTOMER’S ACCOUNT, AS UPDATED FROM TIME TO TIME, BASED ON THE SUBSCRIPTIONS AND NUMBER OF CONCURRENT USERS AND DISK SPACE STORAGE UNDER THE CUSTOMER’S ACCOUNT, IS STATED ON THE ACCOUNT SETTINGS.

7.2. Service Fee Changes. Our current Service Fees will be listed on the Site at the time Customer’s Account is created and when additional Concurrent Users and or disk space is added to the Account. Absent a written agreement to the contrary, we may change the Service Fees from time to time. Any Service Fee changes will be effective upon renewal.

7.3. Delinquent Payments. We may lock a Customer’s Account if a payment is not made timely according to payment method. We may charge Customer interest at the rate of 1.5% per month (or the highest rate permitted by applicable law, if less) on all late payments until paid/collected in full. We may delete a Customer’s data after one year from the date the Account is locked if payment is not made.

7.4. Cancellation. An Admin may cancel the account at any time during the subscription term by contacting AIAG with written Cancellation Request Notice using the Contact Form in the application and the account will immediately discontinue. There are no refunds if an account is cancelled by the Customer.

7.5. Invoice Disputes. To the fullest extent permitted by law, Customer waives all claims relating to Service Fees (and all other amounts payable under this Agreement) unless claimed in writing to us within 60 days after charged (this does not affect Customer’s rights with the credit card issuer, if applicable). All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deductions or withholding fees.

7.6. No Refunds. All sales and services are final, and all Service Fees are fully earned upon payment. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED SUBSCRIPTION PERIODS. Nothing in this Agreement obligates us to extend refunds or credit to any party.

7.7. Taxes. Customer is responsible for the payment of any Taxes (including any past Taxes owed but not paid by Customer, regardless whether Customer was invoiced for the Taxes) and will pay us for the Services without any reductions for Taxes. You will provide us with any information we reasonably request to determine whether we are obligated to collect Taxes from Customer. Some taxing authorities require that sales tax, based on the total purchase price, be invoiced and collected at the time of sale. If we are obligated to collect or pay Taxes, the Taxes will be invoiced to Customer unless (and until) you provide us with legally-sufficient tax exemption certificates from the appropriate taxing authorities. If we are not obligated to collect or pay Taxes in connection with the Services and Customers owes use tax (or any similar tax), Customer shall be responsible for the payment of any such taxes and any corresponding required filings to the appropriate tax authorities. If Customer is require to withhold or deduct any Taxes from its payment to us, Customer must: (i) notify us in writing regarding the requirement; (ii) provide us with appropriate documentation to support such withholdings/deductions; (iii) pay us any additional amounts necessary to ensure that the net amount that we receive, after any deductions and withholdings, equals the amount we would have received if the withholdings/deductions were not required; and (iv) provide us with an official tax receipt evidencing that the amounts withheld/deducted were paid to the appropriate taxing authority.

8. Suspensions and Removals.

8.1. Access and Use. We may suspend your Account and your right to access or use any portion of the Services immediately if: (i) the creation of the Account and or your subscription for Services is (or reasonably appears to us to be) fraudulent; (ii) Customer fails to pay any amounts due under this Agreement; (iii) you or any User under Customer’s Account violate any provisions of this Agreement; or (iv) Customer ceases to operate in the ordinary course, makes an assignment for the benefit of creditors or similar disposition of your assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. The suspension will be lifted upon our reasonable satisfaction that the triggering issue has been resolved.

8.2. Emergency Suspension. If a Security Concern exists in our reasonable opinion, we may immediately suspend any or all Admin’s and User’s access to the Services, and may also remove, as applicable, the offending item, code, Content (including Your Content and Third-Party Content) until the Security Concern is resolved in our reasonable discretion.

8.3. Report Violations. If you become aware that another User’s access or use of the Services violates this Agreement, you will immediately: (i) notify us in writing regarding the violation; (ii) to the extent that you are capable (by administrative control or contractual right), immediately suspend the violating User’s access and use of the Services until such violations are corrected.

8.4. Effect of Suspension. Users that are suspended will not be able to access or use the Services or portions thereof (including Your Content) during the suspension. Our right to suspend your or any User’s right to access or use the Services is in addition to our right to terminate your Account, pursuant to the terms of this Agreement. If we suspend your right to access or use any portion or all the Services, Customer remains responsible for all Service Fees, charges, and Taxes, if any, associated with the Account. Absent a Security Concern, we will not erase any of Your Content due to a suspension, but such items may be subject to deletion in the event of a termination of the Customer’s Account.

9. Term, Cancellation, and Termination.

9.1. Term. This Agreement will continue to apply to your use of the Site and Services until terminated by either you or us.

9.2. Cancellation or Termination For Cause.

9.2.1. Terminated By Either Party. Either you or we may terminate this Agreement for cause if: (i) the other party is in material breach of any one or more of the Agreements and fails to cure that breach within 30 days after receipt of written notice (a “Default Notice”); or (ii) the other party is in material breach of any one or more of the Agreements more than two times notwithstanding any cure of such breaches following receipt of a Default Notice.

9.2.2. Terminated By AIAG. We may immediately terminate this Agreement upon notice to you: (i) for cause, if any act or omission by Customer or you results in a suspension of Customer’s Account for more than 30 days, in which event, Customer will be responsible for all Services Fee; (ii) if our relationship with a third party vendor who provides Software or other Content, hardware, servers, data, or other technology we use to provide a Service expires, terminates, or requires us to change the way we provide, integrate, or use such items with the Services; (iii) if providing the Services to you could create, in our sole opinion, a material security risk, an economic or technical burden, or a legal/regulatory burden; or (iv) in order to comply with applicable law or a request from a controlling governing authority.

9.3. Effect of Cancellation or Termination.

9.3.1. Generally. Upon termination or expiration of this Agreement (or the cancellation of your subscription), all your rights under this Agreement related to the Site and Services, including the License, immediately terminate; you will not, and will not allow third parties under your control, access or use any of the Services. However, you acknowledge and agree that the license granted to us by you in relation to Content will continue after expiration or termination of this Agreement for so long as such Content is in our possession, per Section 4.2.

9.3.2. Data Retention. Upon termination or expiration of this Agreement (or your cancellation of Customer’s Account), we will not erase your content for 90 days, but we may suspend your access or ability to extract such items until Customer pays all amounts due under this Agreement. Subject to the condition stated in the preceding sentence and upon payment of an additional fee for data retrieval, during this retention period, we will provide you with the same data retrieval assistance we generally make available to all of our customers. Following the expiration of the retention period, we may immediately delete any of Your Content, including any cached or back-up copies. You agree that we have no additional obligation to continue to hold, export, or return Your Content and that we have no liability whatsoever for their deletion pursuant to this Agreement.

9.3.3. Survival of Terms. The following Sections will survive expiration or termination of this Agreement: Sections 3.2, 4.2, 6, 7, 8.3, 9, 10.3, 10.4, 10.5, 10.7, 12, 13, 14, 15, 16, 17 and 18.

10. Customer Responsibilities.

10.1. Permitted Use. Your access and use of the Services must fully comply with the provisions and conditions of the Agreements.

10.2. Compliance. You must adhere to all laws, rules, and regulations applicable to you (and your industry) and your use of the Services, including, as applicable, import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Asset Control, Department of the Treasury (“OFAC”).

10.3. Account Security. You are responsible for maintaining the confidentiality of the non-public credentials that are associated with your Account. Customer is responsible for all activities, including the subscription of Services, that occur under Customer’s Account, regardless whether the activities are undertaken by you, Admins, your employees, your agents, or a third party (including your contractors) and we are not responsible for any unauthorized access to (and the activities undertaken with) Customer’s Account absent clear and convincing evidence that we breached this Agreement and that such breach caused the unauthorized access. You are required to take reasonable steps to prevent unauthorized access to your Account and the Services, and, further, you will cooperate with us in identifying unauthorized access or use related to your Account. You must promptly notify our customer support team in writing about any misuse (or any fact or circumstances which could reasonably be expected to result in or cause a reasonable suspicion of a misuse) of your Account, authentication credentials or any Security Concerns related to the Services or an Account.

10.4. Your Content. As between you and us, you are solely responsible for the development, content, operation, maintenance, and use of Your Content and for ensuring that Your Content complies with the Acceptable Use Policy. As between you and us, you are also solely responsible for any claims related to or stemming from Your Content and business, including all acts and transactions conducted with the Services. You will secure and maintain all rights in Your Content, as applicable, necessary for us to provide the Services to you without violating the rights of any third party or otherwise obligating us to you or any third party. We do not and will not assume any obligations with respect to Your Content other than as expressly set forth in this Agreement or as required by applicable law.

10.5. Privacy. You consent to our collection, use and disclosure of information associated with the Services in accordance with our Privacy Policy. If Your Content includes Third Party Content or information belonging to or related to third parties, you will protect the confidentiality of such Third-Party Content and information under all applicable agreements, laws, rules, and regulations.

10.6. Third Party Content. Your use of any Third-Party Content is at your sole risk and may be subject to separate terms and conditions, and/or fees from the applicable third parties.

10.7. Backup. You will be able to create, implement, and maintain backup of Your Content.

10.8. Security. As between you and us, you are responsible for the procurement, configuration, operation, performance, and security of all equipment and computing resources that you use with the Services, including any gateways or other devises you may use to access the Services.

10.9. Technical Documentation. You must comply with the Technical Documentation, if any, that we provide related to any of the Services associated with your Account. We reserve the right to update or modify the Technical Documentation at any time.

10.10. Maintenance. When feasible, upgrades, patches, bug fixes or other maintenance to the Services will be scheduled for and completed after normal business hours (i.e., after 6:00 p.m., EST). You agree to collaborate and make reasonable accommodations for all maintenance to the Services, regardless whether scheduled in advance or completed on an emergency basis.

11. AIAG Responsibilities.

11.1. Generally. We will provide the Services to you subject to the obligations, requirements and conditions of this Agreement.

11.2. Security and Data. We implement and maintain reasonable and appropriate measures, internal controls, and data security routines intended to protect Your Content against accidental or unlawful access, change, loss, or disclosure. Notwithstanding any other agreement (whether written or verbal) between you and us, the preceding sentence contains our and our Affiliate’s entire obligation regarding the security of Your Content.

11.3. Backups. We will complete periodic backups of Your Content at our discretion for our internal operations, backups, testing, use, and fixes.

11.4. Facilities and Data. Unless you and we have otherwise agreed in writing, we may host, access, use, process and reproduce Your Content and Third-Party Content in any country in which we or our service providers (including data centers) maintain facilities.

11.5. Privacy Policy. We value your privacy and detail our policies and procedures regarding the use of your information (including Your Content) in our Privacy Policy. Notwithstanding any other agreement (whether written or verbal) between you and us, the preceding sentence contains our and our Affiliates’ entire obligation regarding the privacy and confidentiality of Your Content.

12. Representations.

12.1. By AIAG. We represent and warrant to you that we have full power and authority to enter into this Agreement.

12.2. By Customer. You represent and warrant to us that: (i) you will comply with all laws, rules, and regulations applicable to you (and your industry); (ii) you or your licensors own all right, title, and interest in and to Your Content; (iii) you have all rights in Your Content necessary to grant the rights contemplated by this Agreement; (iv) Your Content has at all times, and will in the future be, in compliance with the Acceptable Use Policy; and (v) your use and access of the Services will comply with the Acceptable Use Policy.

13. Intellectual Property and Proprietary Rights.

13.1. AIAG Proprietary Rights. Except as expressly set forth herein, nothing in this Agreement grants you, Customer, or your Affiliates any rights, implied or otherwise, to any of our Intellectual Property Rights or the Services, and you hereby disclaim any interest. As between you and us, we or our Affiliates or licensors own and reserve all right, title, and interest in and to the Services and our Content.

13.2. Your Proprietary Rights. As between you and us, you own all right, title, and interest in and to Your Content, and except as expressly set forth herein, nothing in this Agreement grants us any rights, implied or otherwise, to Your Content.

13.3. Third Party Requests. We may disclose Your Content to comply with any request from a controlling government entity or a regulatory body (including law enforcement, subpoenas, or court orders).

13.4. Feedback and Suggestions. If you provide any Suggestions to us or any of our Affiliates, even if you designate the information as confidential, we and our Affiliates may use the information without restriction, and you irrevocably assign to us all rights, title, and interests in and to the Suggestions.

13.5. Publicity. If you provide us consent to disclose that you are one of our customers, we may state publicly that you are our customer and may include your name, logos, and/or trademarks in a list of our customers, online or in promotional materials. However, neither you nor we may issue a press release with respect to this Agreement without the mutual written consent. You may not use our name, logos, or trademarks without our prior written consent.

14. Disclaimer.

THE SERVICES ARE PROVIDED “AS IS” AND “WHERE IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATIONS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, SATISFACTION QUALITY, NONINFRINGEMENT, QUIET ENJOYMENT, USAGE OF TRADE, COURSE OF DEALINGS, OR ANY WARRANTY OR REPRESENTATION THAT A SERVICE, CONTENT, SOFTWARE, OR THIRD PARTY CONTENT WILL BE SECURE, TIMELY, ERROR-FREE, FREE OF VIRUSES OR HARMFUL COMPONENTS, OR UNINTERRUPTED. WE ALSO HEREBY DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE OR SHIPMENT OF YOUR CONTENT OR THIRD-PARTY CONTENT BY US OR OUR AFFILIATES OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS. YOU ARE SOLELY RESPONSIBLE FOR APPLYING APPROPRIATE SECURITY MEASURES TO YOUR CONTENT AND THIRD-PARTY CONTENT, INCLUDING ENCRYPTING SENSITIVE CONTENT.

15. Limitations of Liability.

15.1. LIMITATION ON THE AMOUNT OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT THAT CUSTOMER ACTUALLY PAID US FOR YOUR USE OF THE SERVICE(S) THAT GAVE RISE TO THE LIABILITY DURING THE 2 MONTHS IMMEDIATELY PRECEDING WHEN THE LIABILITY FIRST AROSE. THIS LIMITATION ON THE AMOUNT OF LIABILITY APPLIES TO ALL CLAIMS, WHETHER UNDER CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY AND REGARDLESS WHETHER THE LIABILITY ARISES FROM DAMAGES OR AN AWARD OF ATTORNEYS’ FEES AND COSTS.

15.2. LIMITATIONS ON LIABILITY AND DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY, WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS INTERRUPTION, GOODWILL, RELIANCE, USE, OR LOSS OF DATA OR BUSINESS INFORMATION). FURTHER, WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY DAMAGES, COMPENSATION, OR REIMBURSEMENT ARISING OR IN CONNECTION WITH: (I) YOUR OR ANY USER’S INABILITY TO ACCESS AND OR USE THE SERVICES OR ANY CONTENT, FOR ANY REASON; (II) AN INTERRUPTION, SUSPENSION OR CESSATION OF YOUR OR ANY USER’S ACCESS TO OR USE OF THE SERVICES OR CONTENT, FOR ANY REASON; (III) A SUSPENSION OR TERMINATION OF AN ACCOUNT; (IV) A CHANGE, DISCONTINUANCE, OR DEPRECATION OF ANY OF THE SERVICES (OR ALL OF THE SERVICES) OR CHANGE OR REMOVAL OF ANY SERVICE CAPABILITIES; (V) SCHEDULED AND UNSCHEDULED INTERRUPTIONS OR OUTAGES, FOR ANY REASON, (VI) COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR GOODS; (VII) ANY INVESTMENTS OR EXPENDITURES; (VIII) ANY CHANGE, LOSS, DELETION, DAMAGE, FAILURE, DISCLOSURE, OR UNLAWFUL (OR UNAUTHORIZED) ACCESS TO ANY CONTENT, INCLUDING YOUR CONTENT AND THIRD PARTY CONTENT; (IX) ANY BUGS, VIRUSES, MALICIOUS CODE, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; OR (X) ANY ERRORS OR OMISSION IN ANY CONTENT OR FOR ANY LOSS OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF AND CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. LIABILITY IS SO LIMITED AND EXCLUDED, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE ARE ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.

16. Indemnification.

16.1. General. Unless prohibited by applicable law, you will indemnify, defend, and hold harmless us, our Affiliates, and our licensors (and the respective employees, agents, officers, directors, members, managers, and owners of us, our Affiliates, and our licensors) from and against all damages, liabilities, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim concerning or arising from (each a “Third Party Claim”): (i) Your Content (including any damage caused by malicious or harmful code included in Your Content) or any allegation or claim that Your Content infringes or misappropriated a third party’s Intellectual Property Rights or makes unlawful or unauthorized use of a third party’s trade secrets; (ii) your access or use of the Services or any Software or other Content available from or through the Services, including any use in violation of the Acceptable Use Policy; (iii) your breach of any representation, warranty, or other provision of this Agreement; (iv) your violation of any law, rule, or regulation applicable to you (or your industry); (v) a dispute between you and any of your customers; and/or (vi) a dispute regarding or arising from any acts or omissions of any of your current or former employees or contractors.

16.2. Process. We will promptly notify you of a Third-Party Claim, but our failure to provide prompt notice will only reduce your obligations to the extent that such failure substantially prejudices your ability to defend the Third-Party Claim. You will have control over the defense and may select your own counsel, however, at our election, we may select separate counsel to defend us at our expense. You may settle the Third-Party Claim in your discretion, provided that any settlement which requires us to admit any liability or wrongdoing will require our prior written consent at our sole discretion. Further, any settlement which requires us to pay any money or incur any obligations may not be made without our prior written consent.

17. Dispute Resolution.

17.1. Governing Law. This Agreement, including related issues, and any dispute of any sort that might arise between you and us regarding or stemming from this Agreement are governed by the laws of the State of Michigan in the United States of America, without regard to its conflict of laws principles.

17.2. Precondition. You agree that as a condition for you to bring any legal claim against us (regardless whether brought as a complaint or a counterclaim) relating in any way to this Agreement or the Services, you must have provided us a Default Notice within 60 days that you first knew of (or with reasonable inquiry, could have discovered) the act or omission that gave rise to your claim.

17.3. Time Limitation. Any claim against us must be filed within 1 (one) year that you first knew of (or with reasonable inquiry, could have discovered) the act or omission that gave rise to your claim.

17.4. Class Action Waiver. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.

17.5. Small Claims. Any dispute relating in any way to this Agreement or the Services where a party seeks aggregate relief of $3,500 or less will be adjudicated in any small claims court in Oakland County, Michigan, and both you and we consent to exclusive jurisdiction and venue in those courts for such disputes.

17.6. Other Claims; Arbitration. Any dispute relating in any way to this Agreement or the Services where a party seeks aggregate relief in excess of $3,500 will be adjudicated by binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Both you and we consent to exclusive jurisdiction and venue in such arbitration proceedings for such disputes. The place of the arbitration shall be in the Oakland County, Michigan metropolitan area. Both you and we will select a single arbitrator who is acceptable to the parties. If you and we cannot reach agreement on a single arbitrator within thirty (30) days in which arbitration is demanded by the initiating party, you and we will each appoint an arbitrator and the two arbitrators selected will then select a third arbitrator. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of its costs and fees. As used in this Agreement, “costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees.

17.7. Equitable Relief. We may seek injunctive or other relief (without the necessity of posting a bond or demonstrating actual monetary damages) in any state, federal, or national court of competent jurisdiction for any actual or alleged unauthorized access or use of the Services or an infringement of our, our Affiliates, or any third party’s intellectual property or other proprietary rights.

18. Miscellaneous.

18.1. No Exclusivity. We are free to offer the Services to other customers. Nothing in this Agreement shall be interpreted to create any type of exclusivity for your use or access to the Services.

18.2. Entire Agreement. This Agreement sets out all of the terms and is the entire agreement between you and us regarding its subject matter. The provisions, if any, located at a URL referenced in this Agreement, as may be amended from time to time, are hereby incorporated by this reference. This Agreement supersedes all prior or contemporaneous representations, communications, understandings, or agreements between you and us, whether written or verbal, regarding its subject matter. In entering this Agreement, you have not relied on, nor will you any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. We will not be bound by, and specifically object to, any term, condition, obligation, or other provision which is different from or in addition to the provisions of this Agreement (regardless whether it would materially alter this Agreement) and which is submitted by you in an order, receipt, acceptance, confirmation, correspondence, or other document.

18.3. Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement or any notice, the English language version will control if there is any conflict.

18.4. Notices. We may provide notices regarding us, our Site, and/or the Services by posting a notice on our Site and such notices will be effective when posted on the Site. We may also provide any notice to you regarding or pursuant to this Agreement by emailing a message to the Admin at the email address associated with your Account. You are solely responsible for ensuring that the email account associated with your Account is accurate and current, and you agree that any notice sent by email to such email address will be effective when sent, whether or not you actually receive the email. To give us notice regarding this Agreement, the Services, or your Account, you must provide the notice by emailing a message to our support team at ctsinquiry@aiag.org Any such notice will be deemed effective 3 (three) business days after it was received.

18.5. Force Majeure. We, our Affiliates and licensors, will not be liable for any failure or delay in performance of any obligation under this Agreement where the failure or delay results from circumstances beyond our reasonable control, including acts of God, fire, explosion, earthquake, flood, storms or other elements of nature, blockages, embargoes, riots, acts of civil or military authority, war, terrorism (including cyber terrorism), labor disputes, strikes, acts or omissions of internet traffic carriers, internet service disruptions; utility failures, systemic electrical, telecommunications or other industrial disturbances, or actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services) (each an “Uncontrollable Event”).

18.6. Violations. If we reasonably believe that any of Your Content and/or Third Party Content violates the law, infringes or misappropriates the rights of any third party, or otherwise violates the terms of the Agreement (“Prohibited Content”), we may disable access to or remove the Prohibited Content from the Services, pursuant to the U.S. Digital Millennium Copyright Act (DMCA), or to comply with law or any judicial, regulatory or other government order or request. In the event that we disable access to or remove Prohibited Content without prior notice, we will provide prompt notice to you unless prohibited by law.

18.7. No Waiver. Neither you nor we will be deemed to have waived any rights by not exercising (or delaying the exercising) any rights provided under this Agreement. All waivers by us must be in writing to be effective.

18.8. Confidentiality. You may use the Confidential Information only as permitted by this Agreement. You will take all commercially reasonably efforts to avoid the unauthorized use, disclosure, dissemination, exploitation, or copying of any part of the Confidential Information, and will take, at a minimum, the measures you take to protect your own confidential or proprietary information. During the Term only, you may use the Confidential Information as reasonably needed for your use of the Services, but you will not disclose the Confidential Information during the Term nor at any time during the 3 year period following the end of the Term without our prior written consent, unless disclosure is required due to Legal Process. If disclosure is required by Legal Process, you will use commercially reasonable efforts to: (i) promptly notify us of the required disclosure before making the disclosure; and (ii) if applicable, comply with our reasonable requests regarding any lawful efforts to oppose the disclosure.

18.9. Assignments. We may assign this Agreement, including our respective rights and obligations, to an Affiliate or a third party at our discretion. You may not assign this Agreement, in whole or in part, or delegate or sublicense any of your rights and/or obligations under this Agreement, without our written consent. Any other attempt to assign or transfer is void. Subject to the restrictions provided in the preceding two sentences, this Agreement will be binding upon, and inure to the benefits of the parties and their respective successors and assigns.

18.10. No Agency. You and we are independent contractors. Nothing in this Agreement will be interpreted to create an agency, partnership, or joint venture. We may develop (or have developed) or assist third parties with their development of products, services, Content, concepts, systems, and/or techniques that are like or compete with your products, services, Content, concepts, systems, and/or techniques.

18.11. No Third-Party Beneficiaries. Nothing in this Agreement shall be interpreted to create or confer any rights or benefits for any third party.

18.12. Construction and Interpretation. No inference in favor of, or against, us shall be drawn from the fact that we drafted all or any portion of this Agreement. The titles and captions in this Agreement are for convenience of reference only and do not define, limit or control the scope, intent or effect of any part of this Agreement. As used in this Agreement, words of masculine, feminine or neuter gender shall mean and include the correlative words of the other genders, and words importing the singular number shall mean and include the plural number, and vice versa.

18.13. Severability. If any part of this Agreement is held to be invalid, illegal, or unenforceable, such portion(s) will be interpreted to affect the intent of the original portion. If such construction is not possible, the invalid, illegal, or unenforceable portions will be severed from this Agreement and the remaining portions of this Agreement will remain in full force and effect.

18.14. Conflicting Terms. If there is a conflict between this Agreement or any other written agreement between you and us (“Other Agreement”) regarding the subject matter of this Agreement, the documents will control (but only to the extent of such conflict) in the following order: (i) the Other Agreement, if any; then (ii) this Agreement.

19. Definitions.

Any reference in this Agreement to “day” will be a calendar day.

The words “include” and “including” mean “including but not limited to”.

“Acceptable Use Policy” means the policy, as it may be updated by us from time to time, currently available at https://www.aiag.org/terms-of-use.

“Account” means an account with us for the access and use of the Services, subject to terms of the Agreements as may be applicable.

“Account Settings” means those portions of the Site that are only accessible to Admins for the administration of the Customer’s Account.

“Affiliate” means any individual, corporation, association or other entity that directly or indirectly controls, is controlled by, or is under common control with the party in question. As used in this Agreement, the term “Control” (including the terms “controlling” and “controlled by” and “under common control with”) means either: (i) the actual power to direct or cause the direction of the management and policies of the other party, (ii) employing the other party; or (iii) ownership of more than 50% of the voting interests of the other party.

“API” means an application program interface.

“Application” or “Applications” means any web, mobile, or other application(s) that are created for the Services, including any source code written by or for us to be used with the Services.

“Concurrent User” means the number of Users that can access the site simultaneously.

“Confidential Information” means all nonpublic information disclosed to you (or any of your Affiliates) by us, our Affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or would normally under the circumstances be considered confidential information. Confidential Information includes: (i) nonpublic information relating to our or our Affiliate’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that we are obligated to keep confidential; and (iii) the nature, content and existence of any discussions or negotiations between you and us or our Affiliates. Confidential Information does not include information that: (a) you can show by documentation that you already knew prior to our disclosure; (b) you can show by documentation that becomes public through no fault of you; (c) you can show by documentation was independently developed by you, or that was lawfully given to you by a third party who did not acquire or disclose the same by wrong or tortious act.

“Content” means, unless the context requires otherwise, Software (including machine images), APIs, code, software libraries, command line tools, other related technology, data, text, files, audio, video, images and/or other content.

“Customer” is the party that has financial responsibility for your Account and the Account that it is under, whether that party is you, your employer, or a third party.

“Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.

“Legal Process” means a request for disclosure of data made pursuant to law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.

“Payment Method” means AIAG’s current, valid, acceptable methods of payment.

“Privacy Policy” means our privacy policy, as may be updated by us from time to time, currently referenced at: https://www.aiag.org/privacy-policy

“Security Concern” means any item, code, Content, or use or access of the Services which could result in: (i) unauthorized access to the Services or Content, (ii) a security risk to the Services or any third party, (iii) subjecting us, our Affiliates, our customers, or any third party to liability, or (iv) a disruption of: (a) the Services, (b) use and or access of the Services by us, our customers, you, or third parties, and or (c) our network or servers used to provide the Servicers.

“Service Fees” means the applicable fees for Service(s) and any applicable Taxes.

“Software” means any downloadable tools, software development kits or other such proprietary computer software.

“Suggestions” means all suggested improvements to or feedback regarding the Site and or Service that you provide to us.

“Taxes” means any federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes (other than our income tax), fees, duties, or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Services.

“Technical Documentation” means the developer guides, getting started guides, user guides, quick reference guides, and other technical and operations manuals and specifications for the Services that we may provide and/or update from time to time.

“Term” means the period from the date when you first accepted this Agreement to the date when this Agreement are terminated pursuant to the provisions of the Agreements.

“Third Party Content” means Content made available to you by any third party for or in conjunction with the Services.

“User” means a person authorized by a Customer to access the site and having a discrete log-in name and password.

“Your Content” means Content you or another User (i) install or run on the Services; (ii) cause to interface with the Services, and/or (c) input, add, edit or upload to the Services under your Account or otherwise transfer, process, use or store in connection with your Account.