This Master Subscription Agreement sets forth the terms and conditions that govern access to and use of the Services (as defined below), and is between Ascent Dealer Services, LLC (“Ascent Dealer Services”), an Illinois limited liability company, and the person who signed an Order Form and who is accepting, agreeing to, and signing this Master Subscription Agreement
with Ascent Dealer Services (“Customer”). Ascent Dealer Services and Customer are collectively referred to as the “Parties” and individually as a “Party”. This Master Subscription Agreement permits Customer to purchase a subscription to, and to access and use Services (as defined below) provided by Ascent Dealer Services, through its Ascent Dealer Services Academy, pursuant to an Ascent Dealer Services Order Form, attached hereto as Exhibit A, and sets forth the terms and conditions under which those Services will be delivered, accessed, and used.
Unless otherwise agreed in writing by the Parties, this Master Subscription Agreement governs Customer’s purchase, access, and use of the Services provided by Ascent Dealer Services. This Master Subscription Agreement includes and incorporates by reference all exhibits, referenced policies, schedules and attachments and all Order Forms executed by the Parties. In the event of any inconsistency between the terms of an Order Form and this Master Subscription Agreement, the terms of this Master Subscription Agreement will apply. PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A BINDING MUTUAL ARBITRATION CLAUSE (INCLUDING A CLASS ACTION WAIVER). BY ACCEPTING THIS AGREEMENT, CUSTOMER WAIVES ITS RIGHT TO A JURY TRIAL AND AGREES TO BINDING ARBITRATION.
In consideration of the mutual promises, covenants, representations and warranties hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
1.1. “Agreement” means collectively, this Master Subscription Agreement, together with each Order Form and all attachments, exhibits, schedules, policies, and instructions incorporated by
1.2. “Ascent Dealer Services Technology” means the Platform, the Services, the
Documentation and any applicable software, data, or technical information contained within the foregoing.
1.3. “Customer” means the person who has signed an Order Form and who is accepting, agreeing to, and signing this Agreement with Ascent Dealer Services.
1.4. “Documentation” means all specifications, user manuals, and other technical materials relating to the Service as provided or made available to Customer, and as may be modified by
Ascent Dealer Services from time to time.
1.5. “Order Form” means an ordering document for services to be provided hereunder that is entered into by and between the Customer and Ascent Dealer Services.
1.6. “Platform” means the online learning management system used by Ascent Dealer Services to provide and deliver Services to Customer, as reflected on an Order Form, over the Internet and to which Customer is being granted access under this Agreement.
1.7. “Service” or “Services” means the products and services that are ordered by the Customer pursuant to and Order Form and provided to Customer by Ascent Dealer Service through the Platform or other means. Such Services include live in-person sales training and
coaching, live online sales training and coaching, F&I training, discussion groups, process implementation, and online access to training videos and documents.
2. Overview of the Service and Term
Ascent Dealer Services, through its Ascent Dealer Services Academy, offers Services to individuals in the automotive, RV, power-sports, and marine industry to help maximize profitability within the dealership while enhancing the ownership experience for the retail
customer. Pursuant to the terms and conditions of this Agreement, Ascent Dealer Services’ Services will be provided to Customer on Customer’s premises and/or on Ascent Dealer
Services’ premises, and/or via an online Platform that allows Customer to access online training courses and materials. The Service is provided on a subscription basis for a set term designated on the applicable Order Form (each, a “Subscription Term”). Each Subscription Term will automatically renew on the last day thereof for successive additional periods of one (1) month (each such period a “Renewal Term”) unless this Agreement or the applicable Order Form is sooner terminated by either Party pursuant to the terms of this Agreement or either Party provides the other Party with notice of nonrenewal.
3. Customer Access To, and Use of, the Service; Restrictions
3.1. Access and Use. Subject to the terms and conditions of this Agreement, Ascent Dealer Services hereby grants Customer a limited revocable, non-exclusive, non-transferable and non-
sublicensable license to access and use the Platform and the Services during the Subscription Term. All Service use must be in accordance with this Agreement, the Documentation provided with the Service, if any, and any scope of use restrictions designated in the applicable Order Form, if any. Ascent Dealer Services shall have sole discretion to determine the topics, scope, 3 and form of the Services. Ascent Dealer Services may amend, edit, remove, or add any materials or courses from the Platform at any time without prior notice to Customer. Customer acknowledges that Ascent Dealer Services may modify the features and functionality of the Services during the Subscription Term.
3.2. Necessary Equipment. Customer must provide all equipment and software necessary to connect to the Platform, including applicable application program interfaces that have sufficient bandwidth to facilitate the Services. Customer is solely responsible for any fees, including
internet connection fees, that Customer incurs when accessing the Platform and the Services.
3.3. Account, Username, and Password. Ascent Dealer Services will provide Customer with a single account username and password (“Credentials”) for Customer to access the Platform and
Services pursuant to the terms and conditions of this Agreement. Customer acknowledges and agrees that: (a) only Customer is entitled to access and use the Platform and Services with Customer’s Credentials and Customer will not share Customer’s Credentials with any other person or business entity; (b) Customer is responsible for maintaining the confidentiality of its
Credentials and ensuring that Customer’s Credentials are kept strictly confidential; (c) Customer is responsible for all actions taken using Customer’s accounts (excluding actions by Ascent Dealer Services or its agents); (d) Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Services; and (e) Customer will immediately notify Ascent Dealer Services of any actual or suspected unauthorized access to the Platform or Services or unauthorized use of Customer’s account, Credentials, or any other breach or suspected breach of this Agreement. Ascent Dealer Services reserves the right to suspend, disable or terminate Customer’s access to the Platform and Services in the event Ascent Dealer Services reasonably determines that Customer’s account and/or Credentials may have been used
by an unauthorized third party.
3.4. General Restrictions. Customer will not: (a) rent, lease, copy, provide access to or sublicense the Service (or any part thereof) to a third party, except as expressly permitted in this Agreement; (b) incorporate the Service (or any part thereof) into another product or service or
otherwise use the Service (or any part thereof) to provide any product or service to a third party in any manner unless otherwise agreed to in a writing signed by Ascent Dealer Services; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Ascent Dealer Services); (d) modify the Service or any
Documentation, or create any derivative product from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); (f) publicly disseminate information regarding the performance of the Service; (g) use the Service without all appropriate rights and licenses in place; (h) violate any laws or regulations in performance of this Agreement or use of the Services; (i) attempt to gain unauthorized access to any systems, networks, or data of Ascent Dealer Services or any third party; or (j) interfere with or disrupt the integrity or performance of any Ascent Dealer Services or third party systems, data, or networks.
3.5. Bulletin Boards, Blogs, and Chat Areas. The Platform may include bulletin boards, blogs, and chat areas which allow feedback to Ascent Dealer Services and users, and real-time 4 interaction between users. Ascent Dealer Services does not control the messages, information, or files delivered to bulletin boards, blogs, or chat areas unless otherwise noted therein. Ascent Dealer Services reserves the right at all times to monitor, edit, refuse to post or to remove any information or materials, in whole or in part, that in Ascent Dealer Services’ sole discretion are objectionable or in violation of any of the terms contained herein, and to deny, terminate, or restrict any user access to the Platform. Customer, when accessing bulletin boards, blogs, or chat areas, agrees not to: (a) restrict or inhibit any other user from using and enjoying the bulletin boards, blogs, or chat areas; (b) post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, or any blatant expression of bigotry, racism, hatred or harassment, including without limitation any transmission constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, provincial, federal or foreign law; and (c)
post or transmit or in any way exploit any information, software or material for commercial purposes or which contains solicitations for sales or purchases, advertising, promotion or marketing.
4. Term and Termination
4.1. Term and Renewal. This Agreement is effective on the Effective Date (which date is set forth at the beginning of this Agreement) and continues in full force and effect unless terminated pursuant to the terms hereof. The Service will be provided to Customer on a month-to-month subscription basis as set forth in the Customer’s Order Form (each, a “Subscription Term”). The initial Subscription Term will commence on the Subscription Term Commencement Date set forth in the Customer’s Order Form. Each Subscription Term will automatically renew on the last day of the Subscription Term for successive additional periods of one (1) month (each such period a “Renewal Term”) unless and until this Agreement or the applicable Order Form is terminated by either Party pursuant to the terms of this Agreement, or either Party provides the other Party with notice of nonrenewal or cancellation of this Agreement.
4.2. Termination. Customer may terminate or cancel its subscription to the Services at any time by contacting Ascent Dealer Services. Ascent Dealer Services will attempt to process all
termination and cancellation requests within 72 hours after receiving such request. For monthly subscriptions, to avoid a charge for the following month, Customer agrees that a termination or
cancellation request, or a notice of non-renewal, must be made at least three (3) days prior to the expiration of the Subscription Term or then-current Renewal Term, as applicable. Ascent Dealer Services will not offer partial month refunds in the event that Customer terminates or cancels its Service subscription in the middle of a Subscription Term or Renewal Term, subject to the provisions of Section 4.3. For example, if Customer pays the monthly Subscription Fee for the March term on March 1st, but Customer decides to terminate or cancel this Agreement and Service subscription on March 15 th , Customer will not receive a partial refund of the Subscription Fee for the month of March, and Customer will maintain access to the Platform and Services through the end of March. In such example, the expiration date of the Subscription Term or Renewal Term, and the effective termination date of this Agreement and Services would be March 31st, and Customer will no longer have access to the Platform of Services beginning on April 1st.
4.3. Effect of Termination. Upon cancellation or termination of Customer’s subscription, Customer will cease access to and use of the Service (including any and all related Ascent Dealer Services Technology) and delete (or, at Ascent Dealer Services’ request, return) any other Ascent Dealer Services Confidential Information (as defined and set forth in Section 9.1). Except for termination for Ascent Dealer Services’ uncured breach, or as set forth in Section 6.1 (Limited Warranty) or Section 10 (IP Indemnification), upon termination of this Agreement for any other reason by Customer or Ascent Dealer Services, Customer will not be entitled to receive a refund of any of the fees paid in accordance with this Agreement. Following termination, Ascent Dealer Services may deactivate Customer’s account and Credentials and delete any data of Customer stored by Ascent Dealer Services. Except where an exclusive remedy is specified, the exercise of either Party of any remedy under this Agreement, including termination, will be without prejudice to any other contractual, legal, or other remedies. The Parties agree that neither Party shall make any disparaging remarks about the other Party in the event this Agreement is terminated.
4.4. Survival. Sections 3.4 (General Restrictions), 8 (Ascent Dealer Services Technology), 5.1 (Fees and Payment), 4.3 (Effect of Termination), 4.4 (Survival), 6.3 (Warranty Disclaimer), 7 (Limitation of Liability), 10 (Indemnification), 9 (Confidential Information), 11 (Governing
Law, Arbitration Clause and Delegation Clause, Dispute Resolution), and 12 (General Terms) will survive any expiration or termination of this Agreement.
5. Fees and Payment
5.1. Fees and Payment. Customer agrees to pay Ascent Dealer Services a monthly “Subscription Fee” for the Services provided to Customer. The monthly Subscription Fee for the initial Subscription Term and each Renewal Term is set forth in the Customer’s Order Form. The first monthly Subscription Fee for the initial Subscription Term will be billed and due on the Subscription Term Commencement Date set forth in the Customer’s Order Form, payable in
U.S. dollars via ACH payment (details are set forth in the Customer’s Order Form) within forty-eight (48) hours of the Subscription Term Commencement Date. Following the initial Subscription Term, the monthly Subscription Fee for each Renewal Term will be billed and due on the first (1 st ) day of the month for that Renewal Term and on the first (1st) day of the month for each Renewal Term thereafter, payable in U.S. dollars via ACH payment (details are set forth in the Customer’s Order Form) within forty-eight (48) hours of the first (1 st ) day of the then-current Renewal Term. If Ascent Dealer Services does not receive payment of the monthly Subscription Fee within forty-eight (48) hours of the date payment is due, Ascent Dealer Services may, in its sole discretion, terminate or suspend the Services provided to Customer under this Agreement. Any such suspension or termination of the Service will not operate to limit any of Ascent Dealer Services’ rights under applicable law or this Agreement including the right to take any legal action necessary to enforce the terms of this Agreement. Except as otherwise expressly set forth in this Agreement, all fees are non-refundable and non-creditable. Fees are exclusive of, and Customer is required to pay, all sales, use, GST, value-added, withholding or similar taxes or levies, whether domestic or foreign, that are applicable to or result from Customer’s purchase or use of the Service, other than taxes based on Ascent Dealer Services’ net income.
5.2. Fee Increases. Ascent Dealer Services shall have the right to increase the Subscription Fee for its Services in its sole discretion by providing Customer at least thirty (30) days prior written notice in accordance with this Agreement. For the avoidance of doubt, no such Subscription Fee increase will take effect in connection with any Service that Customer has subscribed to until the current term of such Service has been completed.
6.1. Limited Warranty. Ascent Dealer Services warrants, that during the Subscription Term after the commencement of the Service provided hereunder (the “Warranty Period”), the Service will operate in substantial conformity with the Documentation, if any. Ascent Dealer Services does not warrant that Customer’s use of the Service will be uninterrupted or error-free. Should Customer notify Ascent Dealer Services in writing regarding a warranty breach during the Warranty Period, then as Ascent Dealer Services’ sole liability (and Customer’s sole and exclusive remedy) for any breach of such warranty, Ascent Dealer Services will, at Ascent
Dealer Services’ option and expense, correct or provide a workaround for the reported non-conformity, or if Ascent Dealer Services cannot do so, then Ascent Dealer Services will terminate the Subscription Term and refund any prepaid (prorated) fees to Customer. This
limited warranty and remedies do not apply if: (i) Customer makes a claim after the Warranty Period, or (ii) the error was caused by misuse, modifications to the Service or Ascent Dealer Services Technology other than by Ascent Dealer Services or its agents, or third-party hardware, software or services.
6.2. Additional Warranties. Ascent Dealer Services represents and warrants that (a) it is organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) this Agreement has been authorized by all necessary corporate action; (c) this
Agreement is the legal, valid, and binding obligation of Ascent Dealer Services, enforceable against Ascent Dealer Services in accordance with its terms; or (d) Ascent Dealer Services uses
commercially reasonable efforts to ensure that the Service, Platform, and any media upon which any of the foregoing is delivered, will not contain any virus, trap door, worm or any other device that is injurious or damaging to any hardware or software, or Customer systems.
6.3. Warranty Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED UNDER THIS AGREEMENT, THE PLATFORM, SERVICES, OFFERINGS, CONTENT
AND MATERIALS ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, COMPATABILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT ASCENT DEALER SERVICES DOES NOT WARRANT THAT THE SERVICES AND/OR PLATFORM WILL BE
UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE AND CUSTOMER AGREES THAT ASCENT DEALER SERVICES WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET,
ELECTRONIC COMMUNICATION FAILURES, OR SYSTEM FAILUES OUTSIDE ASCENT DEALER SERVICES’ REASONABLE CONTROL. ASCENT DEALER SERVICES
DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE, SERVICE OFFERINGS, SERVICE CONTENT AND SERVICE MATERIALS IN TERMS OF THEIR CORRECTNESS, ACCURACY, OR RELIABILITY. NO ADVICE OR INFORMATION, OBTAINED BY CUSTOMER FROM ASCENT DEALER SERVICES’ EMPLOYEES, COACHES,
CONTRACTORS, OR REPRESENTATIVES, OR OBTAINED THROUGH THE SERVICE OR PLATFORM, SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
7. Limitation of Liability
7.1. Consequential Damages Waiver. NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS AND THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT (INCLUDING ANY FORM OF NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.2. Liability Cap. EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATED TO THIS AGREEMENT OR THE SERVICE WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER HEREUNDER FOR
THE SUBSCRIPTION TERM OR THE THEN-CURRENT RENEWAL TERM, AS
8. Intellectual Property Rights
Ascent Dealer Services Technology. Ascent Dealer Services retains all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the
Service, the Platform, the Documentation, any other deliverables and any and all related and underlying technology and documentation, and any derivative works or modifications of the
foregoing (collectively, “Ascent Dealer Services Technology”). This Agreement does not grant to Customer any ownership interest in the Ascent Dealer Services Technology. The Ascent Dealer Services Technology, statistical data, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Platform and Service is proprietary to Ascent Dealer Services, and Ascent Dealer Services have and retain all right, title and interest, including all intellectual property rights therein. Customer acknowledges that any trademarks, trade names, logos, service marks, or symbols adopted by Ascent Dealer Services to identify the Platform and the Services belong to Ascent Dealer
Services and/or its licensors, and that Customer has no rights therein. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding
the Ascent Dealer Services Technology, including any right to obtain possession of any source code, data or other technical material relating to the Ascent Dealer Services Technology.
9. Confidential Information
9.1. All code, inventions, know-how, pricing, business, marketing, technical and financial information, and any other information that could reasonably be considered confidential or proprietary that one Party (“Recipient”) obtains from the other Party (“Discloser”) constitute
Discloser’s confidential information (“Confidential Information”). Any Ascent Dealer Services Technology and performance information relating to the Platform and Service are Ascent Dealer
Services’ Confidential Information. This Agreement is each Party’s Confidential Information. Except as expressly authorized herein, Recipient will hold in confidence and not use or disclose
any Confidential Information to any third party except for its employees and contractors who need to know such information in connection with their performance of services for Recipient,
and who are under confidentiality obligations consistent with the terms of this Agreement. Recipient’s nondisclosure obligation will not apply to information which Recipient can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of Recipient; (c) is rightfully obtained by Recipient from a third party without breach of this section; or (d) is
independently developed by employees of Recipient who had no access to such information. Recipient may disclose Discloser’s Confidential Information if required pursuant to a regulation, law or court order, but only to the minimum extent required to comply therewith, and upon prior notice to Discloser.
9.2. The Recipient shall, within thirty (30) calendar days after the expiration or termination of this Agreement, or an Order Form, as applicable, and at any other time upon written request by the Discloser, either: (i) return to the Discloser in a secure manner, all Confidential Information (or such portion requested), including any copies, duplicates, summaries, abstracts or other
representations of any such Confidential Information, in whatever form, then in its possession or control; or (ii) permanently delete such Confidential Information from its computer and storage systems and media, and destroy any and all tangible copies thereof.
9.3. During and after the Term of this Agreement, the Recipient shall: (a) not use (except for performance of this Agreement) or disclose Confidential Information of the Discloser without
the prior written consent of the Discloser; and (b) take no less than the same measures that it takes with its own Confidential Information, and in any case no less than reasonable measures,
to maintain the Confidential Information of the Discloser in confidence. Either Party may disclose Confidential Information to the extent required by law, provided that the Recipient gives the Discloser reasonable advance notice of such required disclosure and cooperates with the Discloser so that the Discloser has the opportunity to obtain appropriate confidential treatment for such Confidential Information.
9.4. Customer agrees that the Services provided under this Agreement and pursuant to the Order Form are strictly confidential and may not be disclosed to any third party without the express prior written consent of Ascent Dealer Services, including but not limited to, the
materials provided to Customer by Ascent Dealer Services, the techniques and methodologies utilized by Ascent Dealer Services in rendering Services under this Agreement and the substance
of the communications between Customer and Ascent Dealer Services. Customer agrees that it shall not reproduce any materials provided to Customer by Ascent Dealer Services and, further,
that Customer will not remove any proprietary markings from materials provided to Customer by Ascent Dealer Services, including any confidentiality notices and/or copyright notices. It is
expressly understood and agreed to by the Parties that Ascent Dealer Services is the sole and exclusive owner of all concepts, programs, ideas, materials, copyrights, trademarks and other
intellectual property rights associated with the Services.
10.1. Indemnification by Ascent Dealer Services. Ascent Dealer Services agrees to defend, at its expense, Customer against any third-party suit brought against Customer, and will pay any
settlement Ascent Dealer Services makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third-party alleging that the Platform or the Services infringes such third-party’s patents, copyrights, trademarks, or trade secret rights under applicable laws. If any portion of the Platform or Services becomes, or in Ascent Dealer Services’ opinion is likely to become, the subject of a claim of infringement, Ascent Dealer
Services may, at Ascent Dealer Services’ option: (a) procure for Customer the right to continue using the Platform and/or Service; (b) substitute substantially a functionally similar Platform and/or Service; (c) replace the infringing Platform and/or Services (or any infringing portion thereof) with a non-infringing Platform and/or Service which does not materially impair the functionality of the Platform or Services; (d) modify the Platform and/or Services so that the Platform and/or Services are no longer infringing or misappropriating; or (e) terminate this Agreement and applicable Order Form and refund to Customer any portion of the Subscription
Fee for the remainder of the Subscription Term then in effect that Customer prepaid, and upon such termination, Customer agrees to immediately cease all use of the Ascent Dealer Services
Technology. Notwithstanding the foregoing, Ascent Dealer Services will have no indemnification obligations under this Section or otherwise with respect to any infringement claim based upon: (i) any use of the Platform or Services not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Platform or Services in combination with other products, equipment, technology, software, or data not supplied by Ascent Dealer Services; (iii) any modification of the Platform or Services by any person or entity other than Ascent Dealer Services; (iv) any unauthorized use of the Platform or Service; and (v) Customer’s breach of this Agreement. Nor will Ascent Dealer Services’ indemnification obligations apply if Customer settles or makes any admissions with respect to a claim without Ascent Dealer Services’ prior written consent.
10.2. Indemnification by Customer. Customer agrees to defend, at its expense, any third-party suit brought against Ascent Dealer Services, and will pay any settlement Customer makes or
approves, or any damages finally awarded in such suit, insofar as such suit is based on a third-party claim brought against Ascent Dealer Services that arises out of or relates to: (i) Customer’s
breach of any provision of this Agreement; (ii) Customer’s violation of any rights, including intellectual property and/or proprietary rights) of a third party through Customer’s use of the Services and/or Platform; or (iii) injury or death of any individual, or any loss or damage to real or tangible personal property, caused by an act or omission of Customer.
10.3. Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified Party promptly notifying the
indemnifying Party in writing of any threatened or actual claim or suit (provided that a Party may not settle or defend a claim unless it unconditionally releases the other Party of all liability
to any third party); (b) the indemnifying Party having sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party cooperating with the indemnifying Party to facilitate the settlement or defense of any claim or suit at the indemnifying Party’s cost.
11. Governing Law, Arbitration Clause and Delegation Clause, Dispute Resolution
11.1. Governing Law. The Parties agree that this Agreement, claim, controversy, or dispute arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the state of Illinois without regard to conflicts of laws provisions thereof.
11.2. Arbitration Clause and Delegation Clause. The Parties agree that any claim, controversy, or dispute arising out of or in connection with this Agreement, including but not limited to any claim, controversy, or dispute regarding its existence, interpretation, validity, performance,
enforcement, breach, the Services provided pursuant to this Agreement, termination, or any dispute between the parties arising from the parties’ relationship created by this Agreement,
shall be referred to and settled by binding arbitration administered by the American Arbitration Association (“AAA”) pursuant to the AAA Consumer Arbitration Rules
(https://adr.org/sites/default/files/Consumer%20Rules.pdf) then in effect. The Parties agree that any arbitration proceeding shall be heard and held in Madison County, Illinois. Any claim,
controversy, or dispute shall be submitted to and heard by a single neutral arbitrator (the “Arbitrator”) selected by and agreed to by the Parties. If the Parties cannot agree upon a single neutral arbitrator to use, the Parties shall request the AAA to propose five (5) arbitrators and each Party shall rank the proposed arbitrators, and the AAA shall then select and appoint a single arbitrator from the list of five (5) based on the Parties’ rankings. The Parties agree that the Arbitrator will be bound by the terms of this Agreement. The Parties further agree that the Arbitrator shall be responsible for determining all threshold arbitrability issues, including, but not limited to issues relating to whether this Agreement (or any aspect or section thereof) is valid, enforceable, unconscionable, or illusory and any defense to arbitration, including, but not limited to, waiver, delay, laches or estoppel. The decision (including any award) of the Arbitrator shall be final and binding on the Parties, and the decision (including any award) rendered by the Arbitrator may be entered as a judgment in any court of competent jurisdiction.
The Parties agree that payment of all filing, administration, Arbitrator and attorneys’ fees shall be governed by the Consumer Arbitration Rules of the American Arbitration Association. All
aspects of any arbitration proceeding brought pursuant to this Agreement, along with any decision, written decision, and award by the Arbitrator, shall be considered Confidential Information under the terms of this Agreement. This section sets forth the Parties’ sole recourse for obtaining a settlement and/or resolution of any claim, controversy, or dispute arising out of
or in connection with this Agreement. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER
ARBITRATIONS ARE NOT PERMITTED. THE PARTIES AGREE TO WAIVE ANY RIGHT TO HAVE THEIR CASES DECIDED BY A JURY AND WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION CONCERNING ANY CLAIM, CONTROVERSY, OR
DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
11.3. Injunctive or Other Equitable Relief. Subject to and without waiver of the Arbitration Clause and Delegation Clause provision set forth in Section 11.2 above, nothing in this Agreement shall prevent or preclude a Party from seeking a temporary restraining order, a preliminary injunction, or other equitable relief in a court of competent jurisdiction against the other Party for any misuse or misappropriation of a Party’s intellectual property rights or Confidential Information, or to prevent irreparable harm in which equitable relief is appropriate.
11.4. Jurisdiction and Venue. The Parties agree that the Third Judicial Circuit Court for Madison County, Illinois shall be the exclusive jurisdiction and venue for all legal proceedings seeking a temporary restraining order, a preliminary injunction, or other equitable relief that are not subject to arbitration under this Agreement. Each Party further agrees to submit to the jurisdiction of the Third Judicial Circuit Court for Madison County, Illinois in any such legal proceeding brought pursuant to Section 11.3.
12. General Terms
12.1. Assignment. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither party may assign this Agreement without the other Party’s prior
written consent; however, either Party may, upon notice, but without obtaining consent, assign this Agreement in connection with a merger, acquisition, or transfer of all or substantially all of such Party’s assets or voting securities. Any attempted assignment in violation of this section will be null and void.
12.2. Force Majeure. Neither Ascent Dealer Services nor Customer will be liable for any failure to perform hereunder due to causes beyond its reasonable control. Neither Party will be responsible for any delay, interruption or other failure to perform under the Agreement or any
Subscription Orders due to acts, events and causes beyond the control of such Party, including, without limitation, acts of God, fires, floods, storms, earthquakes, riots, terrorism or restraints of government, interruptions of Internet, third-party facilities, equipment or telecommunications, or acts of third parties beyond a Party’s reasonable control.
12.3. Subcontractors. Ascent Dealer Services may engage subcontractors for performance of Services under this Agreement, provided that Ascent Dealer Services remains responsible for the
overall performance of the Service as required under this Agreement.
12.4. No Third-Party Beneficiaries. This Agreement and each Subscription Order (a) is entered into solely between Ascent Dealer Services and Customer and will not be deemed to create any rights in or obligations of any third-parties, and there are no intended third-party beneficiaries.
12.5. Independent Contractors. The Parties hereto are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby
between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
12.6. Publicity. Ascent Dealer Services may identify Customer, including use of Customer’s logo(s), as an Ascent Dealer Services customer in marketing materials, provided such identification does not indicate endorsement.
12.7. Media Consent and Release. Customer understands that Ascent Dealer Services may take photos and/or videos of training participants during program activities and events for use in
training or promotional materials in print, multimedia, or web form. Customer hereby authorizes Ascent Dealer Services and anyone acting pursuant to its authority to (a) record Customer’s
likeness and voice on a video, audio, photographic, digital, electronic or any other medium, and (b) use, reproduce, exhibit or distribute in any medium for any purpose that Ascent Dealer Services deems appropriate, including educational or promotional/advertising purposes.
Customer releases Ascent Dealer Services and those acting pursuant to its authority from liability for any violation of any personal or proprietary right Customer may have in connection with
such use. Customer understands that all such recordings, in whatever medium, shall remain the property of Ascent Dealer Services.
12.8. Amendments; Waivers. Except as otherwise set forth herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each Party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party
claimed to have waived.
12.9. Notice. Any notices hereunder will be in writing and sent to the other Party at its addresses set forth below or at such other address as may be provided by such Party in writing pursuant to this section and will be deemed received by the addressee: (a) if delivered in person,
immediately upon receipt; (b) if sent by overnight courier service, the first business day following dispatch, or (c) if sent by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is mailed. However, Ascent Dealer Services may provide notice regarding operational aspects of the Platform and/or its Services by
means of a general notice on the Platform, electronic mail to Customer’s e-mail address on record with Ascent Dealer Services, or both. All notices to Ascent Dealer Services must be sent
to the attention of its CEO, Adam Marburger. Notices to Ascent Dealer Services, LLC: Notices to Customer:
12.10. Severability. If any provision hereof is found by a court to be unenforceable, it will be enforced to the maximum extent permissible under the circumstances so as to effect the Parties’
intent, and the remaining provisions hereof will remain in full force and effect.
12.11. Entire Agreement. This Agreement, together with Exhibit A and any additional Order Form(s) and any mutually agreed attachments and/or schedules entered into hereunder (which
are collectively incorporated herein by this reference), are the complete and exclusive statement of the Parties’ understandings, rights, and responsibilities; it supersedes all previous or contemporaneous agreements and communications relating to the subject hereof and will not be superseded by any other agreement except by written agreement of the Parties.
12.12. Opportunity to Obtain Independent Legal Advice. Customer acknowledges and agrees that Customer has been afforded the opportunity to obtain independent legal advice with respect
to this Agreement and, even if Customer has chosen not to obtain independent legal advice, that Customer understands the nature, terms, and consequences of this Agreement. IN WITNESS WHEREOF, an authorized representative of each Party has signed this Agreement, effective as of the last signature date below.