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DATA SERVICES AGREEMENT

               This Data Services Agreement (this "Agreement") is entered into as of this _____day of __________, 20___ ("Effective Date"), by and between Dealer Tire LLC, a Delaware limited liability company (“Dealer Tire”), and the undersigned Dealer Tire client (“Client”). Each party hereunder shall be referred to as a “Party” and collectively, as the “Parties”.

Dealer Tire is the creator and owner of one or more business methods, software systems, and databases that include proprietary programs, functionality, and operations (including underlying infrastructure and code) (the “System”), which are primarily used for the organization and analysis of data input into the System. Dealer Tire’s System contains proprietary data algorithyms and other information which Dealer Tire owns, licenses, has developed and may in the future develop (“System Data”).

Client desires to engage Dealer Tire to provide, and Dealer Tire desires to supply to Client, certain consulting and related data services (“Services”) pursuant to Statements of Work (“SOW”) entered into by the Parties referencing this Agreement, all of which shall be attached hereto and incorporated herein by reference (collectively, the “Engagement”).

TERMS AND CONDITIONS

NOW THEREFORE, for good and valuable consideration, Client and Dealer Tire agree to the premises set forth above and as follows:

1. PERFORMANCE OF SERVICES.
2. Standards. Dealer Tire will perform the Services and the Engagement in accordance with industry standards.
3. Performance Management: Dealer Tire shall, in all material respects, meet the performance standards set forth in each applicable SOW. Dealer Tire shall notify Client promptly, in writing, if it is unable to perform all or part of an SOW and/or Engagement for any reason, including due to Force Majeure conditions as provided in this Agreement.
4. Information and Performance Management Reports. Dealer Tire will make a good faith effort to accommodate any specialized record keeping requirements related to the Services as may be requested by Client. Dealer Tire will maintain complete and accurate records of expenses incurred, hours worked, services performed and any other records required to be maintained under applicable laws and in the performance of this Agreement and the Engagement. Dealer Tire will maintain originals of such records for a minimum of three (3) years following any termination of this Agreement.
5. INTELLECTUAL PROPERTY.
6. Dealer Tire IP. Client acknowledges and agrees that the System and System Data, along with all right, title and interest in and to any customizations, enhancements, modifications, improvements, derivations, or extensions to same (including all associated intellectual property rights), are and shall remain the exclusive property of Dealer Tire.
7. Restrictions. Client shall not, nor shall it assist or permit others to: (i) use, copy, modify, or distribute all or any part of the System or System Data, or any copy, adaptation, transcription, derivative, or merged portion thereof, except as expressly authorized under this Agreement and an applicable SOW; (ii) use the System, System Data or Service deliverables for the benefit of any third party other than as specifically authorized by this Agreement and an applicable SOW, or (iii) reverse assemble, reverse engineer, decompile or mirror the System or System Data, or otherwise examine same or the Service deliverables for purposes of reverse assembling or engineering. Dealer Tire claims patent, copyright, trade secret and confidential information protection in the System and System Data and the way in which it organizes, displays, and processes data and generates results. Client releases any rights or interests it may now or hereafter have in the System or System Data.

III.  CONFIDENTIALITY; NON-DISCLOSURE    

1. Confidentiality. The Parties may, in furtherance of this Agreement, share with one another data or other information of a confidential nature. As a result, The Parties have netered into a Mutual Non-Disclosure Agreement dated __________, 20____, the terms of which are incorporated herein by reference, and which is attached as Exhibit B. Client represents and warrants to Dealer Tire that it will not publish, disclose or otherwise permit the use or disclosure of System Data except as may be specifically permitted under an SOW.
2. Security Information. Client must keep the passwords and protocols which may be shared with it to access a Dealer Tire System or System Data (to the extent Client obtains knowledge thereof) confidential and not disclose any of the foregoing information to any other person or entity.
3. Data Usage and Protection. Where System Data or other Confidential Information that may be shared between the Parties contains information that can directly or indirectly identify an individual person or household, or may be considered “Personal Information”, “Non-Public Personal Information” or similarly defined information under applicable data protection and privacy laws, contemporaneous with this Agreement, the Parties shall enter into a Data Usage and Protection Agreement in the form attached as Exhibit C.
4. GENERAL
5. Term and Termination.
6. Term of Agreement. This Agreement is effective as of the above-referenced Effective Date and will continue for an initial term (the "Initial Term") of one (1) year unless earlier terminated pursuant to the terms of this Agreement. Upon expiration of the Initial Term or any Renewal Term (as defined below) the Term of this Agreement shall automatically renew for equal annual periods (each a "Renewal Term" and collectively with the Initial Term and all other Renewal Terms, the "Term") unless the Agreement is earlier terminated as permitted below, or notice of non-renewal is provided to the other Party no later than ninety (90) days prior to the end of the then current Term. Notwithstanding any provision herein to the contrary, the terms of this Agreement shall remain in full force and effect for so long as any SOW remains active.
7. Term of SOW(S). The term of each SOW shall be as set forth in the applicable SOW (“SOW Term”).
8. Termination. Either Party may terminate this Agreement (and any applicable SOWs, unless specifically stated otherwise in the SOW) for any reason on ninety (90) days written notice to the other Party. Further, if either Party breaches any material provisions of this Agreement or an SOW then the non-defaulting Party may terminate the applicable SOW or this Agreement, by written notice, unless the defaulting Party remedies such breach within a period of ten (10) days after written notice is delivered to the defaulting Party. Notwithstanding the above, Either Party may, immediately upon written notice to the other Party, terminate this Agreement and all SOW’s if the other Party (i) becomes insolvent, (ii) files or has filed against it and not dismissed within sixty (60) days, a proceeding under any federal or state insolvency, bankruptcy or other law for the relief of creditors, or (iii) ceases or admits in writing its intention to cease the operation of its business in the ordinary course.
9. Fees and Reimburseable Expenses. All fees, charges and other reimburseable expenses (“Fees”) shall be as set forth in each applicable SOW. Unless stated otherwise in an SOW, all Fees are due and payable to Dealer Tire no later than thirty (30) days after receipt of invoice. Failure to pay Fees when due can result in immediate suspension of Services under the applicable SOW and shall be considered a material breach of the applicable SOW and this Agreement.
10. Indemnification.
11. By Client. Client shall indemnify, defend and hold harmless Dealer Tire, its affiliates and their respective owners, officers, directors, shareholders, customers, employees, licensors, and agents (“Dealer Tire Indemnified Parties”) from and against any and all claims, demands, damages and/or  expenses (including reasonable attorneys’ fees), of any kind (“Damages”) asserted against or incurred by Dealer Tire Indemnified Parties and arising from: (i) Client’s unauthorized use, access, or modification or distribution of the System, System Data or the Service deliverables without the express written consent of Dealer Tire; or (ii) any third party claims for damages/injury to persons or property resulting from Clients, its employees, agents, or contractors negligence or willful misconduct with respect to their obligations under this Agreement. 
12. By Dealer Tire. Dealer Tire shall indemnify, defend and hold harmless Client, its affiliates and their respective owners, officers, directors, shareholders, employees and agents (“Client Indemnified Parties”) from any and all Damages asserted against or incurred by Client Indemnified Parties and arising from: (i) any actual or alleged violation or infringement of any person’s or entity’s rights or interests under any patent, copyright, trade secret or license arising from or based upon the Services; or (ii) any third party claims for damages/injury to persons or property resulting from Dealer Tire’s, its employees, agents, or contractors negligence or willful misconduct with respect to their obligations under this Agreement.
13. Conditions on Indemnity.

(a) The Indemnified Party shall promptly notify the indemnifying Party in writing of each claim for which indemnification is sought; provided that the failure to so notify the indemnifying Party shall not relieve the indemnifying Party of any liability it may have to the Indemnified Party hereunder except to the extent the indemnifying Party has been materially prejudiced thereby.

(b)  The indemnifying Party shall have sole control of the defense and all related settlement negotiations with respect to any claim, provided, however, that the Indemnified Party has the right, but not the obligation, to participate at its expense in the defense of any such claim or action through counsel of its own choosing; and further provided, that the indemnifying Party may not enter into any settlement (or require the Indemnified Party to enter into any settlement) which would require the Indemnified Party to take or omit to take any action (other than  payment of money or ceasing use of the items or information provided hereunder by the Indemnifying Party).

(c) The Indemnified Party must cooperate fully to the extent necessary, and executes all documents necessary for the defense of any claim for which indemnification is requested.

4. Sole Remedy. The provisions of this Section IV.B and C, below, state each Party’s sole responsibility and obligation, and each Party’s sole and exclusive remedy, for any infringement or other indemnification claim.
5. Warranty and Liability Disclaimer.
6. 1. EXCEPT AS SET FORTH IN THIS AGREEMENT, DEALER TIRE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE, NON-INFRINGEMENT, AND ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED.
7. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF OPPORTUNITY OR LOSS OF USE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF EITHER PARTY HAS, OR SHOULD HAVE HAD, ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT, REGARDLESS OF THE FORM OF CAUSE OF ACTION, SHALL DEALER TIRE’S LIABILITY OR DAMAGES UNDER THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE FEES PAID OR TO BE PAID TO DEALER TIRE FOR THE SERVICES PERFORMED HEREUNDER.
8. Governing Law; Venue. The laws of Ohio, excluding Ohio’s choice of law rules, and applicable federal United States laws shall govern this Agreement. The Parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
9. Entire Agreement; Amendment. This Agreement (including all Statements of Work, Schedules and exhibits referenced herein) sets forth the entire agreement between the Parties with regard to the subject matter hereof, and supersedes all prior or contemporaneous verbal or written agreements or representations.  Any amendment of this Agreement will require the written consent of both Parties In a writing referencing this Agreement. 
10. Contact Persons and Notice. Each Party designates the person it has listed on the last page of the Agreement to receive all notices to hereunder at the address set forth on the last page of the Agreement. Either party may change its contact person and address by providing written notice to the other party in compliance with the terms of this Section F. All notices shall be in writing and shall be deemed given (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, or (iii) upon verification of receipt of registered or certified mail.
11. Independent Contractors. The Parties hereto are and shall remain independent contractors and nothing herein shall be deemed to create any agency, partnership, or joint venture relationship between the Parties. Neither Party shall be deemed to be an employee or legal representative of the other nor shall either Party have any right or authority to create any obligation on behalf of the other Party.   
12. Publicity. Neither Party shall issue any press releases or announcements, or any marketing, advertising, or other promotional materials, related to this Agreement or an SOW without the prior written approval of the other Party. 
13. Force Majeure. Neither Party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
14. Non-Waiver. Failure by either Party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.
15. Survival. All provisions of this Agreement and any applicable SOW which by their nature are intended to survive termination of the applicable SOW and/or this Agreement, shall so survive.
16. Severability. If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise contrary to law, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions of this Agreement shall remain in full force and effect.
17. Headings. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
18. Counterparts. This Agreement may be executed in counterparts, including facsimile or electronically executed counterparts, together which shall be construed as a single and original document.
19. Assignment. Client may not assign this Agreement, any SOW, or any right, license, interest, or obligations thereunder without the express written permission of Dealer Tire.

IN WITNESS WHEREOF, an authorized representative of each Party has executed this Agreement as of the date first written above.

               Signature Page to Follow

Statement of Work