Terms of Use

Last updated: May 26, 2021

THIS TERMS OF USE (“AGREEMENT”) IS A LEGAL DOCUMENT BETWEEN YOU (“USER”) AND REACH AUTOMOTIVE. THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY ACCESS THE REACH ANALYTICS APPLICATION TO RECEIVE SERVICES. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE REACH ANALYTICS APPLICATION. BY CLICKING THE ACCEPT BUTTON AND ACCESSING THE REACH ANALYTICS APPLICATION YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, USER SHALL CLICK THE REJECT BUTTON AND SHALL NOT USE OR ACCESS THE REACH ANALYTICS APPLICATION.

REACH ANALYTICS APPLICATION TERMS OF USE

This Terms of Use ("AGREEMENT") is made as of the Effective Date and for any renewal Fee Period(s), by and between Make & Model Software, LLC, an Ohio company located at 4507 Lorain Avenue Cleveland, Ohio 44102 dba Reach Automotive Analytics (“REACH AUTOMOTIVE”) and you, the party seeking access to the REACH ANALYTICS Application for use to obtain Services under this AGREEMENT (“USER”).

WITNESSETH

WHEREAS, REACH AUTOMOTIVE has developed and owns that certain software REACH ANALYTICS application (as defined herein) provided by the System for use and access by users through the Internet or some other access medium in return for a regular User Fee; and

WHEREAS, Clients, Customers, and Associates and other users, collectively referred to as USER, desire to access the REACH ANALYTICS application and use the provided Services (as defined hereinafter) in accordance with the terms and provisions of this AGREEMENT; and

WHEREAS, REACH AUTOMOTIVE desires to provide USERS (as defined herein) access to the REACH ANALYTICS application for purposes of receiving the Services.

NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, USER and REACH AUTOMOTIVE hereby agree as follows:

ARTICLE I: RECITALS AND DEFINITIONS

Section 1.01 – Recitals: The above recitals and identification of parties are true and correct.

Section 1.02 – Definitions: The definitions provided in the attached Appendix A shall apply as if provided in this section and are incorporated herein.

ARTICLE II: SCOPE OF SERVICES

Section 2.01 – Access & Use: REACH AUTOMOTIVE hereby grants USER a non-exclusive and non-transferable license to access the REACH ANALYTICS application by the electronic means provided by REACH AUTOMOTIVE to the USER subject to the terms and conditions of this AGREEMENT. USER is provided the Services and granted the right to generate, view, and print displayed Outputs of the REACH ANALYTICS application solely in an as-is manner with full attribution to REACH AUTOMOTIVE and without any rights to modify or use such Outputs in any manner other than as provided herein. The Outputs shall remain the property of REACH AUTOMOTIVE at all times with a limited right granted to USER to use and view said Outputs (a limited use license). USER shall not remove or modify any authorship or copyright information provided with or on or in the Outputs or otherwise provided by the REACH ANALYTICS application without the prior written consent of REACH AUTOMOTIVE.

Section 2.02 – User Content: USER may input, retrieve, provide, and modify User Content in connection with the Services using the REACH ANALYTICS application. USER shall not modify the Data or any Outputs, except the User Content or the User Vender & Partner Data provided by third parties, without the permission of REACH AUTOMOTIVE.

Section 2.03 – Password: USER shall use a secure password meeting the security requirements of REACH AUTOMOTIVE as provided herein or in the Policy Statement, whichever is more current, solely for purposes of accessing the REACH ANALYTICS application and using the Services. USER hereby accepts responsibility for, and shall be liable for, all access to the REACH ANALYTICS application, Data, and Services in connection with the Password. USER shall access the REACH ANALYTICS application and the Services only using the Password. USER shall be responsible for the confidentiality and maintenance of the Password. Modification or replacement of the Password shall meet the security requirements of REACH AUTOMOTIVE. All assignments of the Password by USER to any party not an employee or agent of USER shall be void.

Section 2.04 – Unauthorized Access: USER shall prevent Unauthorized users from accessing the REACH ANALYTICS application and the Services using the Password. USER shall prevent Unauthorized Access to the REACH ANALYTICS application and the Services using the Password. When within its control, USER shall prevent any other Unauthorized Access to the REACH ANALYTICS application. USER shall not aid any other party to obtain Unauthorized Access.

Section 2.05 – Lawful Purpose: USER represents and warrants that USER access to the REACH ANALYTICS application shall not violate any contract, statute, rule, regulation, or other obligation under which USER is bound. USER represents and warrants that USER shall not access the REACH ANALYTICS application or Services to conduct or solicit the performance of any business or activity that is tortious or prohibited by law or by agreement, or counter to this AGREEMENT or in violation of the rights of any other party.

Section 2.06 – Policy Statement: USER shall comply with the Policy Statement that may be provided, by any reasonable manner, to the USER by REACH AUTOMOTIVE. REACH AUTOMOTIVE may modify the Policy Statement from time to time in the exclusive discretion of REACH AUTOMOTIVE which shall be effective upon notice to USER.

Section 2.07 – Back-Up: REACH AUTOMOTIVE may perform routine backup of files stored on the System using commercially reasonable measures. REACH AUTOMOTIVE disclaims, and USER hereby waives, any responsibility for, or liability for failure to, backup of the Data or other information required for using the REACH ANALYTICS application, receiving the Services, or for any other failure or shortcoming of the REACH ANALYTICS application. REACH AUTOMOTIVE shall be under no obligation to provide backups to any data, services, or other materials for, or on behalf of, the USER.

Section 2.08 – User Vender & Partner Data: USER hereby grants REACH AUTOMOTIVE access and rights to use, copy, modify, and store any data provided by User Venders & Partners (“User Vender & Partner Data”) as required by the REACH ANALYTICS application to provide the Services to USER with no restrictions on the use, modification, or copying of such data by REACH AUTOMOTIVE. USER agrees to hold REACH AUTOMOTIVE harmless from any harm or claim that may result from copying, modifying, or use of such data, and USER shall indemnify REACH AUTOMOTIVE for any harm to any third party that may be caused by use of such data. User acknowledges that the User Vender & Partner Data is not under the control of REACH AUTOMOTIVE and hence REACH AUTOMOTIVE is not responsible for the accuracy or correctness or provision of such data. REACH AUTOMOTIVE does not warrant that such data is accurate or correct, and USER hereby waives any damages or other claim that may arise from any use of such data in providing the Services. USER hereby grants REACH AUTOMOTIVE all necessary rights to negotiate and work with User Venders & Partners to obtain any User Vender & Partner Data necessary or desirable to provide the Services. USER shall ensure that all requirements and permissions needed of the User Venders & Partners are obtained and USER shall waive any claim against for any failure to meet such requirements and obtain such permissions.

Section 2.09 – As Is: REACH AUTOMOTIVE shall provide access to the REACH ANALYTICS application and the provided Services in an As Is and As Provided manner with no warranties, no claim of specific functionality, and no representations of suitability for any particular purpose other than as provided by this AGREEMENT. The USER waives any claim of damages or other harm against REACH AUTOMOTIVE regarding the REACH ANALYTICS application and the Services, and any claim of the USER against REACH AUTOMOTIVE for lack of performance or any other breach is limited to the amount paid by USER to REACH AUTOMOTIVE in fees for accessing and using the REACH ANALYTICS application and the Services.

ARTICLE III: TERM OF AGREEMENT

Section 3.01 – User Fee: USER shall pay the current User Fee for an associated Fee Period to REACH AUTOMOTIVE according to the current payment process solely to obtain access to the REACH ANALYTICS application via the Internet to obtain the Services for the Fee Period represented by such User Fee. This fee is for access only and does not transfer any rights to USER beyond providing such access and the Services. REACH AUTOMOTIVE may change the User Fee and/or the associated Fee Period at any time without notice in any reasonable manner.

Section 3.02 – Shut-off & Termination: REACH AUTOMOTIVE shall have the right to refuse USER access to the REACH ANALYTICS application, and to disable and deny the Password and terminate this AGREEMENT without prior notice upon (i) Expiration of the Fee Period where there has been no renewal of the User Fee by USER for another Fee Period; (ii) User violation of Section 2.05; (iii) any breach of this AGREEMENT, or (iv) For any other reason at the discretion of REACH AUTOMOTIVE. USER’s sole recourse for any such cancellation shall be a refund of any unused portion of the User Fee.

Section 3.03 – Deactivation and Removal: Upon termination of this AGREEMENT, REACH AUTOMOTIVE shall have the right to disable and deny the Password and cease all USER access to the REACH ANALYTICS application, REACH ANALYTICS application Technology, and the Services, and may demand return of the Outputs. Upon termination of this AGREEMENT, REACH AUTOMOTIVE shall have the right to remove, migrate, destroy, convert, save, archive, or otherwise preserve (as the case may be) any or all User Content and Data in its possession. USER shall destroy or return any copies of REACH AUTOMOTIVE property, other than the Outputs (unless requested by REACH AUTOMOTIVE), in possession of USER. All restrictions on the Outputs and the terms of Article IV shall remain in force after any termination of this AGREEMENT.

ARTICLE IV: INTELLECTUAL PROPERTY & ATTRIBUTION

Section 4.01 – Ownership and Title: Title to the REACH ANALYTICS application, the Outputs, the Documentation, the REACH ANALYTICS application Technology, and the Services, including ownership rights to inventions, patents, writings, graphical works, copyrights, trademarks and trade secrets in connection therewith, shall be the exclusive property of REACH AUTOMOTIVE or its assigns. No transfer to USER or any other party of any rights to any property including any intellectual property, other than the limited use rights specifically provided by this AGREEMENT, are provided or implied by this AGREEMENT.

Section 4.02 – No Reverse Engineering: USER and any agent or party under the control of USER shall not reverse engineer the REACH ANALYTICS application or the Services or the Outputs and USER shall use reasonable efforts to prevent any such reverse engineering by any party within its control. USER shall disclose to REACH AUTOMOTIVE any attempt to perform such Reverse Engineering of which it becomes aware.

Section 4.03 – No Modifications: USER shall not copy the REACH ANALYTICS application or the Documentation or the Outputs (other than as expressly permitted by this AGREEMENT) and shall not allow the REACH ANALYTICS application and/or the Documentation to be copied without the prior written consent of REACH AUTOMOTIVE. USER shall not modify the REACH ANALYTICS application or the Outputs or Documentation and shall not allow the REACH ANALYTICS Application, the Outputs, and/or the Documentation to be modified without the prior written consent of REACH AUTOMOTIVE. If the REACH ANALYTICS application, the Outputs, and/or the Documentation is/are modified, such modifications shall be the sole and exclusive property of REACH AUTOMOTIVE and REACH AUTOMOTIVE shall own any and all of the rights, title, and interest to such modifications, including (but not limited to) any and all inventions, writings, graphical works, copyrights, patents, trademarks, and trade secrets related thereto.

Section 4.04 – Proprietary Information: USER shall not disclose any Proprietary Information of REACH AUTOMOTIVE except to Authorized Persons. USER shall hold Proprietary Information in strict confidence and shall not duplicate, use or disclose Proprietary Information except as otherwise permitted under this AGREEMENT. USER hereby acknowledges and agrees that the Proprietary Information derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements. USER expressly agrees that any and all information or Data provided to REACH AUTOMOTIVE under this AGREEMENT or as part of accessing or using the REACH ANALYTICS application or its Outputs or any User Vender & Partner Data shall not be considered confidential information of USER and that REACH AUTOMOTIVE shall have no duty to treat such data as confidential information other than as may be required by separate agreement.

Section 4.05 – No Contest: USER shall not contest or aid in contesting the ownership or validity of the patents, copyrights, trademarks, service marks and trade secrets or any other property or ownership rights of REACH AUTOMOTIVE in connection with the REACH ANALYTICS application, REACH ANALYTICS application Technology, the Services, and/or Outputs and any related technology.

Section 4.06 – Employee Pirating: USER shall not induce or solicit (directly or indirectly) any Associate of REACH AUTOMOTIVE to leave the employ or hire of REACH AUTOMOTIVE or engage (directly or indirectly) the services of such Associates (as an employee, consultant, independent contractor, agent, or otherwise) without the prior written consent of REACH AUTOMOTIVE.

Section 4.07 – Noncompete: USER shall not (directly or indirectly) promote, advertise, market, or provide any product or service similar to or competitive with the REACH ANALYTICS application, its Outputs, or the Services.

ARTICLE V: WARRANTY

Section 5.01 – Warranty: REACH AUTOMOTIVE hereby represents and warrants that access to the REACH ANALYTICS application and the Services shall be provided on a reasonable efforts basis and shall conform to the standards generally observed in the industry for similar services.

SECTION 5.02 – WARRANTY LIMITATION: THE WARRANTY SET FORTH IN SECTION 5.01 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY. EXCEPTING THE WARRANTY SET FORTH IN SECTION 5.01, REACH AUTOMOTIVE HEREBY DISCLAIMS AND USER HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY. THE REACH ANALYTICS APPLICATION AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. REACH AUTOMOTIVE DOES NOT GUARANTEE OR WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF THE REACH ANALYTICS APPLICATION OR THE SERVICES. REACH AUTOMOTIVE DOES NOT MAKE ANY WARRANTY AND USER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF THE REACH ANALYTICS APPLICATION. USER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE REACH ANALYTICS APPLICATION AND THE SERVICES SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF USER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND THE POLICY STATEMENT GOVERNING THEM. REACH AUTOMOTIVE SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR HARM OR DAMAGES RESULTING FROM OR ARISING OUT OF USER INABILITY TO USE THE REACH ANALYTICS APPLICATION OR THE SERVICES OR FOR ANY INACCURACIES OR ERRORS THEREIN OR IN THE DATA.

Section 5.03 – Inaccuracies & Errors: USER hereby acknowledges that the Data, the Outputs, and/or the User Vender & Partner Data may contain errors, inaccuracies and/or omissions, or may become unavailable at any time with or without notice. USER shall assume any and all risk of loss, harm, or damage associated with USER access to and use of the REACH ANALYTICS application Technology, the Services, and the Outputs. User expressly disclaims any right to any damages or other harm whatsoever due to such Inaccuracies or Errors of the Data, the Outputs, and/or the User Vender & Partner Data.

Section 5.04 – Express Warranties: USER hereby acknowledges and agrees that REACH AUTOMOTIVE (including the officers, employees, agents, directors and independent contractors of REACH AUTOMOTIVE) has not made or granted to USER any express warranties concerning the REACH ANALYTICS application, REACH ANALYTICS Technology, Services, Outputs, or the Data, excepting the warranty in Section 5.01.

Section 5.05 – Limitation of Damages: REACH AUTOMOTIVE shall not be liable to USER for any lost profits or consequential, exemplary, incidental or punitive damages, in connection with (i) use, performance or operation of the REACH ANALYTICS application or Services; (ii) use, performance or operation of the Internet or use of the Internet or use of any other method of access by USER; (iii) loss or use of the Data, regardless of the form of action, whether in contract or in tort, including negligence, or (iv) use of the Services and/or generation or use of the Outputs, regardless of whether REACH AUTOMOTIVE has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable.

Section 5.06 – Remedies: The sole remedy for USER for any reason and for any cause of action whatsoever in connection with this AGREEMENT and the REACH ANALYTICS application, REACH ANALYTICS Technology, Outputs, or Services, regardless of the form of action, whether in contract or in tort, including negligence, shall be a return of the User Fee paid for the most recent Fee Period. REACH AUTOMOTIVE may modify the REACH ANALYTICS application at its sole discretion, as determined by REACH AUTOMOTIVE.

Section 5.07 – Force Majeure: REACH AUTOMOTIVE shall not be liable to USER for failing to perform its obligations hereunder because of circumstances reasonably beyond the control of REACH AUTOMOTIVE. Such circumstances shall include (without limitation) any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, labor disputes, power failure, delays in transportation or deliveries of supplies or materials, acts of God, computer failure, hardware failure, telecommunications failure, software failure, failure of User to cooperate with the reasonable requests of REACH AUTOMOTIVE, breach of this AGREEMENT by USER, and any other events reasonably beyond the control of REACH AUTOMOTIVE.

Section 5.08 – Content Warranty: USER represents and warrants that any and all information provided by USER in connection with this AGREEMENT, the Password, Services, the User Content, regarding the User Venders & Partners and the User Vender & Partner Data are true, accurate, complete, current, and rightfully provided by USER without legal encumbrances.

Section 5.09 – Indemnification: USER shall release, defend, indemnify, and hold harmless REACH AUTOMOTIVE from and against any and all claims, liability, losses and/or damages arising in connection with: (1) USER access to the REACH ANALYTICS application Technology; (2) use of the Services by USER; (3) the User Content; (4) the Outputs; (5) any cause of action arising from copying or other use of the User Vender & Partner Data; (6) breach of this AGREEMENT by USER, or (7) any wrong act of USER.

Section 5.10 – Export Assurance: USER shall not disclose, export, distribute or transfer any Data to any third party individual or entity or any division, affiliate or subsidiary of USER located in any country other than the United States. USER shall not perform any act in conflict with or in violation of the export laws and regulations of the United States.

Section 5.11 – Loss or Dissemination of User Content & Data: Programming, design errors, maintenance of the REACH ANALYTICS application, the Services, breach of security, or unauthorized access to the REACH ANALYTICS application or Services may result in the loss or dissemination of User Content and/or Data and/or User Vender & Partner Data. REACH AUTOMOTIVE shall not be responsible for any loss of User Content and/or Data and/or User Vender & Partner Data.

ARTICLE VI: MISCELLANEOUS

Section 6.01 – Assurances: USER represents and warrants that all representations, warranties, recitals, statements and information provided to REACH AUTOMOTIVE under this AGREEMENT are true, correct and accurate as of the Effective Date and any Fee Period.

Section 6.02 – Entire Agreement: This AGREEMENT contains the entire understanding of the parties relating to the REACH ANALYTICS application, REACH ANALYTICS application Technology, and the Services, and supersedes all previous verbal and written agreements between REACH AUTOMOTIVE and USER relating to these matters. The Policy Statement (if provided and as modified by REACH AUTOMOTIVE from time to time) is incorporated herein by reference and made a part of this AGREEMENT. This AGREEMENT may be modified by REACH AUTOMOTIVE at any time and is binding upon USER upon notice and acceptance. Acceptance of this AGREEMENT, and any modifications thereto, is evidenced by submission of any User Fee and/or by use of the USER of the REACH ANALYTICS application and/or the Services.

Section 6.03 – Continuation: The terms and provisions of Articles I, III, IV, V, and VI of this AGREEMENT shall survive termination and cancellation of this AGREEMENT.

Section 6.04 – Amendments and Modifications: Excepting modifications to the Policy Statement, any alteration, modification, or amendment of this AGREEMENT shall be binding on USER upon notice, and payment of the User Fee and/or continued use of the REACH ANALYTICS application and Services shall indicate acceptance by USER of any such Amendments and Modifications.

Section 6.05 – Severability: If a provision of this AGREEMENT is rendered invalid the remaining provisions shall remain in full force and effect.

Section 6.06 – Captions: The headings and captions of this AGREEMENT are inserted for convenience of reference and do not define, limit or describe the scope or intent of this AGREEMENT or any particular section, paragraph, or provision.

Section 6.07 – Counterparts: This AGREEMENT may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Section 6.08 – Governing Law: This AGREEMENT is governed by the laws of the State of Ohio, without regard to any rules of conflict or choice of laws that require the application of laws of another jurisdiction.

Section 6.09 – USER Notice: All notices shall be in writing which includes electronic notices of REACH AUTOMOTIVE. Notices to USER shall be deemed delivered when delivered electronically, by posting on the REACH ANALYTICS application, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested - or by hand to an address set forth for USER as maintained in the records of REACH AUTOMOTIVE. Notices to USER shall be deemed given on the date notice is delivered electronically or by hand to USER or on the date of receipt by USER (as evidenced in the case of Certified or Registered Mail by Return Receipt), whichever occurs first. Notices delivered to USER electronically (including, without limitation, electronic mail) shall be deemed written notices.

Section 6.10 – REACH AUTOMOTIVE Notice: Notices to REACH AUTOMOTIVE shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested - or by hand to the person and address set forth herein for REACH AUTOMOTIVE, or in an alternative manner as provided by REACH AUTOMOTIVE. Notices to REACH AUTOMOTIVE shall be deemed given on the date notice is received by REACH AUTOMOTIVE (as evidenced in the case of Certified or Registered Mail by Return Receipt).

Section 6.11 – Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, singular or plural, as the context shall require.

Section 6.12 – Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy to REACH AUTOMOTIVE. In addition to all other remedies that may be available at law or equity, REACH AUTOMOTIVE shall have the rights of specific performance and injunction in the event of a breach or threatened breach of this AGREEMENT by USER.

Section 6.13 – Waiver: Waiver of a breach of this AGREEMENT shall not constitute a waiver of any other breach. All remedies under this AGREEMENT are in addition to equitable remedies and remedies provided by law. Failure to enforce any provision of this AGREEMENT shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this AGREEMENT shall not be binding unless such waiver is in writing and signed by the waiving party.

Section 6.14 – Assignments: Any and all assignments of rights hereunder by USER shall be void.

Section 6.15 – Public Announcements: All public announcements concerning the REACH ANALYTICS application Technology or Services or the relationship of USER and REACH AUTOMOTIVE under this AGREEMENT shall be subject to the prior written approval of REACH AUTOMOTIVE.

Section 6.16 – Arbitration: Any controversy or claim arising out of or relating to this AGREEMENT, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in Ohio. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of American Arbitration Association. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by American Arbitration Association.

Section 6.17 – Litigation Expense: In the event of litigation or arbitration arising out of this AGREEMENT, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).

APPENDIX A

(1) Access: The term “access” and variants thereof (including, without limitation, “accessing” and “accessible”) shall mean to log into, store data in, retrieve data from, or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise including, but not limited to, via the Internet and/or any public or private computer or other communication network, the System and/or the REACH ANALYTICS application and/or the REACH ANALYTICS application Technology.

(2) Associates: The term “Associates” shall mean employees, agents, officers, and representatives of REACH AUTOMOTIVE and independent contractors hired by REACH AUTOMOTIVE.

(3) Authorized Person: The term “Authorized Person” shall mean a person or organization who is authorized in writing to receive Proprietary Information and who agrees to maintain the propriety and confidentiality of such Proprietary Information.

(4) Client or Customer: The term “Client” or “Customer” shall mean an individual or organization that has engaged REACH AUTOMOTIVE to perform services as of the Effective Date or for a Fee Period and includes the USER.

(5) Data: The term “Data” shall mean any and all data and information used, stored on or transmitted through the System, including (without limitation) data generated by REACH AUTOMOTIVE, the User Content, and any User Vender & Partner Data that is accessed or otherwise used by the System from whatever source.

(6) Documentation: The term “Documentation” shall mean any and all written manuals, user’s guides, FAQs, and Policy Statements concerning the Data and REACH ANALYTICS application or Services as provided to USER in printed or electronic or any other form.

(7) Effective Date: The term “Effective Date” shall mean the first date by which REACH AUTOMOTIVE assigns or accepts a Password to USER.

(8) Internet: The term “Internet” shall mean that certain global network of computers commonly referred to as the Internet.

(9) Licensed Content: The term “Licensed Content” shall mean third party Technology incorporated in whole or part into the REACH ANALYTICS application Technology to which REACH AUTOMOTIVE has obtained a license or any other rights of use.

(10) REACH ANALYTICS application Technology: The term “REACH ANALYTICS application Technology” shall mean the Password, Data, REACH ANALYTICS application, System, Documentation, Services, Outputs, and any and all technology developed by or for REACH AUTOMOTIVE including any Licensed Content.

(11) REACH ANALYTICS application: The term REACH ANALYTICS or REACH ANALYTICS application shall mean that certain web or other application developed by or for REACH AUTOMOTIVE, which is integrated with and implemented on the System and accessible by USER via the Internet or another computer or communication network, including information, data, Data, communication and text transmitted through the REACH ANALYTICS application and used or stored on the System for providing the Services to USER. The REACH ANALYTICS application includes any Licensed Content utilized or otherwise incorporated by the application.

(12) Password: The term “Password” shall mean that certain user name and password assigned by REACH AUTOMOTIVE to USER or chosen by USER for purposes of accessing the REACH ANALYTICS application and Services.

(13) Policy Statement: The term “Policy Statement” shall mean that certain written statement of policies (in printed or electronic form) concerning USER access to the REACH ANALYTICS application Technology and use of the Services as may be adopted by REACH AUTOMOTIVE and as modified by REACH AUTOMOTIVE from time-to-time and provided to User. The generation and adoption of a Policy Statement is at the discretion of REACH AUTOMOTIVE and may be provided at any time by any reasonable means.

(14) Proprietary Information: The term “Proprietary Information” shall mean the Password, Data, Documentation, Policy Statement, and any and all information and data in connection with the REACH ANALYTICS application Technology or otherwise marked or indicated as being proprietary or confidential information which is disclosed to USER by REACH AUTOMOTIVE or learned or obtained or generated by USER and is not: (i) conveyed to USER by a third party (such as the User Vendors and Partners); (ii) released by REACH AUTOMOTIVE without restriction; (iii) independently developed by USER not in relation to this AGREEMENT; or (iv) required by Court Order to be released by USER.

(15) Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act and 18 U.S.C. § 1839.

(16) Services: The term “Services” shall mean those certain services as provided by REACH AUTOMOTIVE to USER through the REACH ANALYTICS application via network access including generation, display, and/or printing of the Outputs.

(17) System: The term “System” shall mean hardware and software including any computer systems, servers, and communications equipment owned or leased or otherwise utilized by REACH AUTOMOTIVE at any location that is used for hosting or otherwise supporting the REACH ANALYTICS application, the REACH ANALYTICS application Technology, and/or providing the Services.

(18) Technology: The term “technology” shall mean any and all information, data, applications, scripts, software, methodologies, techniques, ideas, solutions, processes, adaptations, products, concepts, procedures, works of authorship, REACH ANALYTICS application, scripts, documentation, flow charts, diagrams, software libraries, databases, data structures, data models, data dictionaries, fields, records, screen displays and graphic interfaces and any technology related thereto.

(19) Unauthorized Access: The term “Unauthorized Access” shall mean any access to the REACH ANALYTICS application except for: the exclusive purposes of using the Services specifically as permitted under this AGREEMENT; accessing, retrieving, and viewing Data; and inputting and retrieving User Content and generating the Outputs; or any access prohibited by this AGREEMENT.

(20) Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the REACH ANALYTICS application except for: (1) Associates, USERS, and Clients authorized by REACH AUTOMOTIVE to access the REACH ANALYTICS application for purposes of using the Services; accessing, retrieving, and viewing Data, inputting and retrieving User Content, and generating the Outputs; and (2) Authorized Persons who are authorized in writing by REACH AUTOMOTIVE to access the REACH ANALYTICS application and the Services.

(21) USER: The term “USER” shall mean Clients, Associates, employees of Client, and independent contractors hired by Client, and any person authorized by REACH AUTOMOTIVE to access the REACH ANALYTICS application and utilized the Services under this AGREEMENT.

(22) User Content: The term “User Content” shall mean any and all USER data and information used, stored on, received by, or transmitted through the System in connection with a USER, Associate, or Client (as the case may be).

(23) User Venders & Partners: “User Venders & Partners” are USER engaged vendors or partners or providers of USER that collect or generate data on behalf of or otherwise from the USER and that makes such data accessible or otherwise provides such data to REACH AUTOMOTIVE for use with the REACH ANALYTICS application for providing the Services to USER.

(24) User Vender & Partner Data: the data made accessible or otherwise provided to REACH AUTOMOTIVE by the USER Vendors & Partners for use with the REACH ANALYTICS application for providing the Services to USER.

(25) User Fee: The fee paid by the USER for access to the REACH ANALYTICS application to receive the Services for the duration of the Fee Period.

(26) Fee Period: The Fee Period is a fixed period of time for which the USER is provided access to the REACH ANALYTICS application by payment of the User Fee associated with a particular time period, said User Fee being paid to REACH AUTOMOTIVE for access to the REACH ANALYTICS application and to receive the Services. The Fee Period may vary based on the amount of the fee paid by the USER and may be changed and/or modified by REACH AUTOMOTIVE at any time without prior notice. The Fee Period expires after the fixed period of time.

(27) Outputs: The Outputs are any portion of textual and/or graphical and/or audio outputs and/or video, and any other outputs generated by the REACH ANALYTICS application that are displayed and/or printed and/or broadcast by or to the USER as part of the Services.