Urban Science End User License Agreement

IMPORTANT— PLEASE READ CAREFULLY. YOU AND THE ENTITY OR ENTITIES ON WHOSE BEHALF YOU ARE ACTING (COLLECTIVELY, “END USER”) WILL BE BOUND BY THIS AGREEMENT IF YOU CLICK THE “I ACCEPT” OPTION OR ACCESS OR USE ANY PART OF ANY URBAN SCIENCE PROPRIETARY SOLUTION THAT YOU ARE AUTHORIZED TO ACCESS (EACH AND EVERY SUCH SOLUTION SHALL HEREINAFTER BE REFERRED TO AS, THE “APPLICATION”). BY CLICKING ON THE “I ACCEPT” OPTION PRIOR TO ACCESSING THE APPLICATION FOR THE FIRST TIME, AND AS MAY BE REQUIRED FROM TIME TO TIME THEREAFTER TO REAFFIRM YOUR ACCEPTANCE OF THESE TERMS, YOU AGREE TO BE A LICENSEE AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. A REFERENCE TO “YOU” OR “YOUR” IN THIS AGREEMENT IS A REFERENCE EACH AND EVERY END USER.

You are not required to accept these terms, but unless and until you do Urban Science will not grant you the right or ability to use the Application. Before you are entitled to use the Application, you must read and accept all of the terms and conditions set out below by clicking on the “I ACCEPT” option at the end of this license. If you do not accept these terms, please click “Decline” and cease any attempts to use or access the Application.

END USER LICENSE AGREEMENT

CONDITIONS TO LICENSE: This End User License Agreement (“Agreement”) is a binding legal agreement between you and Urban Science. This Agreement contains the terms upon which Urban Science grants you a limited license to access and use the Application.

You acknowledge that the rights granted by Urban Science to you under this Agreement are solely as a result of an agreement that is in place between Urban Science and an automobile manufacturer (“Manufacturer”) and that the Manufacturer has separately authorized certain persons to access and use the Application. You hereby represent to Urban Science that you have been authorized by Manufacturer to access and use the Application.

Urban Science may amend the terms of this Agreement from time to time at its sole discretion by giving you notice. Continuing use of the Application following such changes shall constitute acceptance of them by you and you will be subject to the terms in force when you use the Application.

LICENSE GRANT: In consideration of the mutual promises and obligations provided in these terms and conditions, Urban Science hereby grants to you for a limited period, a limited, personal, non-exclusive, non-transferable license (with no right to sub-license or to resell) to access and use the Application in accordance with this Agreement.

PERMITTED USE: You may use the Application solely for the purpose of carrying out services authorized by the Manufacturer or on behalf of any persons authorized by the Manufacturer (“Permitted Use”). You may download and print any reports generated by the Application as long as this is strictly for the Permitted Use, provided that you do not alter, amend or delete any metadata, notices relating to copyright or other intellectual property rights or any trade marks contained in the printed report.

LICENSE LIMITATIONS: You must not use, access, copy, distribute, loan, lease, sub-license, transfer, adapt, modify, translate, re-arrange, reverse engineer, reverse assemble, disassemble, decompile, convert or otherwise deal with the Application or any data or other content included within the Application except as expressly permitted by this Agreement or to the extent that such operations cannot be prevented or restricted by law. You further agree that you will not use the Application in violation of any applicable laws.

You shall not grant any other person access to the Application or any data or other content included within the Application, nor shall you use the Application to process data for the benefit of any third party on a “service bureau” basis or otherwise (i.e. any work performed to generate direct revenue or other benefit from a third party). You must keep your username and password secure to protect against unauthorized access to the Application. In particular, but without prejudice to the generality of the foregoing, you must not disclose your password to any other person.

PROPRIETARY RIGHTS: The Application and any and all intellectual property rights contained within either the Application or any data or other content included within the Application shall remain the sole and exclusive property of Urban Science. You will not acquire any intellectual property rights in the Application by virtue of this Agreement or through using or accessing the Application. You agree not to remove, suppress, or modify in any way any notices relating to copyright or other intellectual property rights or any trade marks. You shall immediately notify Urban Science if you become aware of any unauthorized access to, use or copying of any part of the Application by any person.

CONFIDENTIALITY: You acknowledge that the Application and any data or other content included with the Application include confidential information of Urban Science and/or third parties. You agree to treat as confidential all information contained in or otherwise received from Urban Science as part of or in connection with the Application and shall not use or disclose the same other than (i) as required for use of the Application in accordance with this Agreement, (ii) where the information is already in the public domain (except where this is as a result of a breach of this Agreement or any other confidentiality obligation) or (iii) where the disclosure of the information is required by law or regulation.

WARRANTY:
(i) Urban Science does not warrant that the operation of the Application will be uninterrupted or error-free and you hereby acknowledge that the Application and any data or other content included within the Application is being provided on an “as is” basis.

(ii) Urban Science does not warrant that any data or other content included within the Application is accurate, up to date or fit for any purpose and in particular, you hereby acknowledge that:

(1) If the Application is a scenario planning tool, it should not necessarily be construed as Manufacturer’s communication of performance and that the metrics displayed in the Application may not be the same metrics used by Manufacturer to determine dealer performance; and

(2) Urban Science does NOT screen any customer lists, prospect lists or other personally identifiable information that may be made available through the Application against any applicable legislation or regulation that prohibits or limits sales or marketing communications, such as “do not call” registries.

(iii) Without limiting the generality of the foregoing, Urban Science makes no representations or warranties of any kind, express or implied, oral or written, including without limitation, warranties of satisfactory quality, non-infringement of any intellectual property, or fitness for a particular purpose and Urban Science hereby expressly disclaims any such warranties to the maximum extent permitted by law.

COMPLIANCE WITH LAW: You shall comply with all laws and regulations in all jurisdictions in which you are using the Application or any content within the Application and you shall not take any action to place Urban Science in breach of any such laws or regulations, including but not limited to, any applicable data protection or privacy laws.

LIMITATION OF LIABILITY: In no event will Urban Science, its affiliates, officers, directors, employees, agents, suppliers and licensors, be liable for any lost revenue, lost profit, or lost or damaged data, business interruption, loss of capital, or for direct, special, indirect, consequential, incidental, or punitive damages, howsoever arising, including, without limitation, in contract, tort (including negligence) or whether arising out of the use of or inability to use the Application, even if Urban Science has been advised of the possibility of such damages. Because some states or jurisdictions do not allow limitation or exclusion of certain direct, consequential or incidental damages, the above limitation may not fully apply to you. The foregoing exclusion shall not apply to any liability arising out of or in connection with: (i) death or personal injury, (ii) fraudulent misrepresentation, or (iii) Urban Science’s liability in connection with any terms that cannot be excluded under applicable law.

INDEMNIFICATION OF URBAN SCIENCE: You, at your own expense, shall defend, indemnify and hold harmless Urban Science from and against any and all losses, damages, liabilities and costs (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by Urban Science in connection with any claim arising out of any breach by you of this Agreement or claims arising from your use of the Application. You shall use your best efforts to cooperate with Urban Science in the defense of any claim. Urban Science reserves the right, at its own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification pursuant to this section.

TERM AND TERMINATION: This Agreement shall become effective and binding once you have clicked the “I Accept” option or accessed or used any portion of the Application as described above. Urban Science may terminate this Agreement (and your access to and use of the Application) at any time, and for any reason or no reason, without advance notice.

TRANSFER: You may not sub-license, assign or transfer in any way any of your rights, liabilities and/or obligations under this Agreement on a temporary or permanent basis to any third party without the prior written consent of Urban Science.

SEVERABILITY: The parties desire and intend that all of the provisions of this Agreement will be enforceable to the fullest extent permitted by law. If any of the provisions of this Agreement are found to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the remaining provisions of this Agreement. Instead, this entire Agreement shall be construed as though not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly.

SOLE AGREEMENT: This Agreement constitutes the entire agreement of the parties, and supersedes all prior discussions, negotiations, agreements (including prior versions of this Agreement) and understandings between the parties with respect to the subject matter of this Agreement.

NOTICES: Urban Science may provide you with notices relating to this Agreement, including notice varying or terminating this Agreement, through a pop-up window, dialog box or other similar message presented to you on log-in to the Application. This notice will be effective at the beginning of the first business day following the date on which Urban Science posts the message (or such later date established by the message) irrespective of whether you log into the Application during that period.

All notices, requests, demands and other communications by you under this Agreement shall be in writing and shall be deemed to have been duly given (i) upon receipt if delivered to Urban Science in person, or (ii) within three business days if mailed, first class certified, registered or express mail, return receipt requested and postage prepaid, or (iii) the following business day if sent by recognized courier, with proof of delivery requested and charges prepaid to 400 Renaissance Center, Suite 2900, Detroit, MI 48243, or to such other address as Urban Science may specify by notice provided in accordance with this paragraph, with a copy to the attention of René M.L. Hansemann, Esq., Pepper Hamilton, LLP, 4000 Town Center, Suite 1800, Southfield, MI 48075.

NON-WAIVER: Any failure to exercise or any delay in exercising a right or remedy provided by this Agreement or at law shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement shall not constitute a waiver of any other breach or default and shall not affect the other terms of this Agreement.

GOVERNING LAW, JURISDICTION: If you are licensing the Application in the United States, Latin America, or the Caribbean, this Agreement is controlled by and construed under the laws of the State of Michigan, United States of America, notwithstanding any conflicts of law provisions; and the state and federal courts of Michigan shall have exclusive jurisdiction over any claim arising under this Agreement. If you are licensing the Application in Canada, unless expressly prohibited by local law, this Agreement is controlled by and construed under the laws of the Province of Ontario, Canada, notwithstanding any conflicts of law provisions; and the courts of the Province of Ontario shall have exclusive jurisdiction over any claim arising under this Agreement. If you are licensing the Application in Europe, the Middle East, Africa, Asia or Oceania (excluding Australia), unless expressly prohibited by local law, this Agreement is controlled by and construed under the laws of England, notwithstanding any conflicts of law provisions; and the English courts shall have exclusive jurisdiction over any claim arising under this Agreement. In addition, if this Agreement is controlled by the laws of England, no person who is not a party to this Agreement shall be entitled to enforce or take the benefit of any of its terms under the Contracts (Rights of Third Parties) Act 1999. If you are licensing the Application in Japan, unless expressly prohibited by local law, this Agreement is controlled by and construed under the laws of Japan, notwithstanding any conflicts of law provisions; and the Tokyo District Court of Japan shall have exclusive jurisdiction over any claim arising under this Agreement. If you are licensing the Application in Australia, unless expressly prohibited by local law, this Agreement is controlled by and construed under the laws of the State of Victoria, Australia, notwithstanding any conflicts of law provisions; and the State and federal courts of Victoria shall have exclusive jurisdiction over any claim arising under this Agreement. If you are licensing the Application in any other country, unless expressly prohibited by local law, this Agreement is controlled by and construed under the laws of the State of Michigan, United States of America, notwithstanding any conflicts of law provisions; and the state and federal courts of Michigan shall have exclusive jurisdiction over any claim arising under this Agreement.

For all countries referred to above, the parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights.

Export Control: You are advised that the Application is of U.S. origin and subject to the U.S. Export Administration Regulations (EAR) and any other applicable countries’ laws and regulations. Diversion contrary to U.S. and/ or applicable local country law and/ or regulation is prohibited. The Application and its underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) North Korea or Iran or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By clicking on the “I Accept” option or accessing or using any portion of the Application, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. You agree to comply with all export laws and other applicable laws.

Agreement in English: The parties confirm that it is their wish that this Agreement, as well as all other documents relating hereto, including all notices, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise. Las partes ratifican que es su voluntad que este Contrato, así como cualquier otro documento relacionado con el mismo, incluyendo todo tipo de notificaciones, han sido redactados y deberán continuar siendo redactados únicamente en el idioma inglés.

OPEN SOURCE SOFTWARE: The Application may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including any provisions governing access to source code, modification or reverse engineering.

THIRD PARTY DATA: The Application may contain certain third party data that is licensed to Urban Science to provide to you through the Application. Use of the following third party data is governed by and subject to additional terms and conditions of use and intellectual property rights notices as specified herein:

BING MAPS: Use of Bing Maps is governed by Microsoft’s Terms of Use incorporated by reference herein. Microsoft’s Terms of Use can be viewed by clicking on the following link, http://go.microsoft.com/fwlink/?LinkId=21969.

TOMTOM DATA: © 2006-2011 TomTom. All rights reserved. TomTom material is proprietary and the subject of copyright protection, database right protection and other intellectual property rights owned by TomTom or its suppliers. The use of this material is subject to the terms of a license agreement with Urban Science. Any unauthorized copying or disclosure of this material will lead to criminal and civil liabilities.