This Master Services Agreement (the “Agreement”) is made by and between PENCILWRENCH, LLC ("Pencilwrench") and the party using the services (the “Customer”) as may be identified in any order or by use of the services. Pencilwrench and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."

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WHEREAS, Pencilwrench provides access to the Subscription Services to its customers; and

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WHEREAS, Customer desires to access the Subscription Services, and Pencilwrench desires to provide Customer access to the Subscription Services, subject to the terms and conditions of this Agreement.

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WHEREAS, Pencilwrench additionally performs certain Professional Service, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

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1.              Definitions.

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(a)            "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Pencilwrench in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services provided that it any data used is de-identified, aggregated and/or anonymized; in any way, in Pencilwrench’s sole discretion, provided that it does not identify the Customer or any personally identifiable information.

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(b)            "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.

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(c)            "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services (for example, Customer Data includes any user stories or individual workflows).

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(d)            "Documentation" means Pencilwrench's documentation relating to the Services provided by Pencilwrench to Customer electronically relating to the Services.

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(e)            "Professional Services" means various setup and training services as may be set forth in the Order Form.

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(f)             "Order Form" means the order form which orders the Services.

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(g)            "Pencilwrench IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Pencilwrench IP and includes Aggregated Statistics and any information, data, or other content derived from Pencilwrench's monitoring of Customer's access to or use of the Services, but does not include Customer Data.

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(h)            "Subscription Services" means the software-as-a-service offering described in the Order Form.

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(i)             “Services” means the Subscription Services and Professional Services.

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2.              Access and Use.

(a)            Provision of Access. Subject to and conditioned on Customer's payment of Fees, completion of an Order Form, and compliance with all terms and conditions of this Agreement, Pencilwrench hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by up to the number of Authorized Users set forth in the Order Form and in accordance with the terms and conditions herein. Such use is limited to Customer's internal use.

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(b)            Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

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(c)            Reservation of Rights. Pencilwrench reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Pencilwrench IP.

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(d)            Suspension. Notwithstanding anything to the contrary in this Agreement, Pencilwrench may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Pencilwrench reasonably determines that (A) there is a threat or attack on any of the Pencilwrench IP; (B) Customer's or any Authorized User's use of the Pencilwrench IP disrupts or poses a security risk to the Pencilwrench IP or to any other customer or vendor of Pencilwrench; (C) Customer, or any Authorized User, is using the Pencilwrench IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Pencilwrench's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Pencilwrench has suspended or terminated Pencilwrench's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with non-payment of fees due (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Pencilwrench shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Pencilwrench shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Pencilwrench will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

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(e)             Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Pencilwrench may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Pencilwrench and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Pencilwrench. Customer acknowledges that Pencilwrench may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Pencilwrench may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify personally identifiable data, Customer or Customer's Confidential Information.

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3.              Customer Responsibilities. Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Customer is responsible for all acts and omissions of Authorized Users including inappropriately relying on the Services.

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4.              Fees and Payment.  Customer shall pay Pencilwrench the fees ("Fees") as set forth in the Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, without limiting Pencilwrench's other rights and remedies: (i) Pencilwrench may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Pencilwrench for all reasonable costs incurred by Pencilwrench in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; (iii) if such failure continues for fifteen (15) days or more, Pencilwrench may remove any Loyalty Discount as may be in any Order Form; and (iv) if such failure continues for thirty (30) days or more, Pencilwrench may suspend Customer's and its Authorized Users' access to any portion or all of the Services including only some sub-accounts (if relevant) until such amounts are paid in full. Additionally, if Customer is the head of a dealership group and any individual dealer does not pay, then such turn off will only affect that individual dealer not the dealership group. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Pencilwrench's income.

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5.              Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, 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. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

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6.              Intellectual Property Ownership; Feedback.

(a)            Pencilwrench IP. Customer acknowledges that, as between Customer and Pencilwrench, Pencilwrench owns all right, title, and interest, including all intellectual property rights, in and to the Pencilwrench IP.

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(b)            Customer Data. Pencilwrench acknowledges that, as between Pencilwrench and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Pencilwrench a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Pencilwrench to provide the Services to Customer , and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.

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(c)            Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Pencilwrench by mail, email, telephone, or otherwise, suggesting or recommending changes to the Pencilwrench IP, including without limitation, new features or functionality relating thereto, notices, bulletins, advice or any comments, questions, suggestions, or the like ("Feedback"), Pencilwrench is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer represents and warrants they have the right to give the Feedback. Customer hereby assigns to Pencilwrench on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Pencilwrench is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Pencilwrench is not required to use any Feedback.

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7.              Limited Warranty and Warranty Disclaimer. Pencilwrench does not make any representations or guarantees regarding uptime, accuracy, or availability of the Services. THE SERVICES AND THE PENCILWRENCH IP ARE PROVIDED "AS IS" AND PENCILWRENCH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PENCILWRENCH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PENCILWRENCH MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, PENCILWRENCH IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS (FOR EXAMPLE, BUT NO LIMITED TO THE SERVICES FORCING COMPLIANCE WITH ANY NOTICES, REQUIREMENTS, RECALL UPDATES OR APPLICABLE LAWS), OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

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8.              Indemnification.

(a)            Pencilwrench Indemnification.

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(i)             Pencilwrench shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that is based on the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights provided that Customer promptly notifies Pencilwrench in writing of such Third-Party Claim, cooperates with Pencilwrench, and allows Pencilwrench sole authority to control the defense and settlement of such Third-Party Claim (now a “Third-Party-IP Claim”).  If a Third Party-IP Claim is made or appears possible, Customer agrees to permit Pencilwrench, at Pencilwrench's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Pencilwrench determines that neither alternative is reasonably available, Pencilwrench may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. Regarding any Third-Party-IP Claim this section sets forth the sole remedy for Customer and Pencilwrench’s sole liability and obligation for any actual, threatened or alleged claims of intellectual property infringement or misappropriation of any IP of any third party.

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(ii)            This Section will not apply to the extent that the alleged infringement arises from: (A) use of the Subscription Services in combination with data, software, hardware, equipment, or technology not provided by Pencilwrench or authorized by Pencilwrench in writing; (B) modifications to the Subscription Services not made by Pencilwrench; or (C) Customer Data.

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(b)            Customer Indemnification. Customer shall indemnify, hold harmless, and, at Pencilwrench's option, defend Pencilwrench from and against any Losses resulting from any Third-Party Claims based on Customer's or any Authorized User's (i) use of the Services in a manner not authorized by this Agreement; (ii) any Feedback, materials, or intellectual property contributed by Customer (iii) any errors in any repairs, claims, user stories or otherwise whether or not the Services or the result thereof were used by the Customer or (iv) modifications to the Services not made by Pencilwrench, provided that Customer may not settle any Third-Party Claim against Pencilwrench unless Pencilwrench consents to such settlement which requires any obligation on Pencilwrench, and further provided that Pencilwrench 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.

 

(c)            Mutual Indemnification. Each party shall indemnify, hold harmless, and, defend the other party from and against any Losses resulting from any Third-Party Claims based on their own gross negligence or willful misconduct.

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9.              Limitations of Liability. IN NO EVENT WILL PENCILWRENCH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PENCILWRENCH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PENCILWRENCH'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PENCILWRENCH UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

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10.            Term and Termination.

(a)            Term. The term of this Agreement will continue in effect until the expiration of any current Order Form or in accordance with section (b) below.

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(b)            Termination. In addition to any other express termination right set forth in this Agreement:

(i)             Pencilwrench may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than 15 days after Pencilwrench's delivery of written notice thereof; or (B) breaches any of its obligations under section 2(b).

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(ii)            either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or

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(iii)          either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

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(c)            Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Pencilwrench IP and Customer shall delete, destroy, or return all copies of the Pencilwrench IP and certify in writing to the Pencilwrench that the Pencilwrench IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.

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(d)            Survival.  Sections 1, 5, 6, 7, 8, 9, 10, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

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11.            Miscellaneous.

(a)            Entire Agreement. This Agreement, together with the Order Form constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

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

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(c)            Force Majeure. In no event shall Pencilwrench be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond Pencilwrench's reasonable control, including but not limited to acts of God, flood, fire, earthquake, regional cloud services failure, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

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(d)            Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

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(e)            Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

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(f)             Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement, Order Form, or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the state of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

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(g)            Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Pencilwrench which consent shall not be unreasonably withheld. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

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(h)            Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

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(i)             Counterparts. The Parties expressly acknowledge and agree that this Agreement may be validly executed using an e-signature device and shall be deemed an original including by the signature of the Order Form or by use of the Services. Consents by Customer to any amendments, changes, Order Forms, or modifications to contractual documents, incorporated in the Order Form or MSA or the Services via hyperlinks, may be validly provided by use or by email issued by Customer’s authorized representative. The Parties acknowledge and agree that the executed MSA as well as any consents to amendments granted pursuant to this section would qualify as valid evidence between the Parties.