This Agreement (the "Agreement") is made on Master Service Agreement Date (the "Effective Date") by Fixed Ops Digital, LLC , a Texas limited liability company ("Agency") and Dealership Set Forth Above ("Dealership ").
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. DEFINITIONS
1. "Dealership -Provided Materials" means the materials, designs, photos, drawings, renderings, strategy, and technology owned, authorized for use,or otherwise legally controlled by Dealership that Agency reasonably requires to perform the Services.
2. "Deliverables" means the website, design, development, hosting, and marketing services provided by Agency.
3. "Agency Materials" means Agency’s pre-existing or preparatory materials created by Agency including but not limited to ideas, sketches, initial copy, concepts, proof of concepts, artwork and type, proprietary information, data, technology, methods and methodologies, software code, documentation, tools, software and interfaces, trade secrets, works of authorship, intellectual property, and other proprietary materials, and all other information, inventions, materials, data, software, hardware, technology, trademarks and works of authorship, (collectively "Agency Materials") whether protected by Intellectual Property Rights held by Agency or not, or used by Agency in the performance of the Services. The definition of Agency Materials does not include Third-Party Materials, except to the extent that Agency Materials exist in such Third-Party Materials.
4. "Intellectual Property Rights" means any and all now known and hereafter existing (a) copyrights, and copyrightable works of authorship, exploitation rights, moral rights and mask work rights, (b) trademark, trade name and service mark rights, (c) trade secret rights, including, without limitation, all rights in Confidential Information and proprietary rights whether arising by law or contract, (d) patent rights, patentable inventions and processes, designs, algorithms and other industrial property rights, and (e) other intellectual and industrial property and proprietary rights of every kind and nature throughout the world, whether arising by operation of law, by contract, by license or otherwise.
5. "Services" means software development services, graphic design services, including but not limited to website development, logo, visual communications, print media, signs, cards, brochures or other communication designs or layouts, any portion of which or all of which is performed by Agency pursuant to this Agreement.
6. "Third-Party Materials" means proprietary information, concepts, artwork, type, data, technology, methods and methodologies, software, hardware, documentation, tools, software and interfaces, trade secrets, works of authorship, trademarks and other proprietary materials of a party other than Agency or Dealership .
2. CLIENT DUTIES
1. Dealership -Provided Materials and Information. Dealership will provide Agency with the Dealership -Provided Materials as well as assistance and information reasonably requested by Agency to perform all work required under this Agreement. Dealership acknowledges and agrees that Dealership owns, is authorized to use, or otherwise legally controls the Dealership -Provided Materials and information
2. Content. Dealership is responsible for all content. Dealership is legally responsible for all information, data, text, photographs, graphics, video, messages or other materials ("Content") uploaded, posted or stored through Dealership ’s use of this website and/or the Services. Dealership grants Developer a worldwide, non- exclusive license to host and use the Content in order to provide the Services. Dealership agrees not to use the Services for any illegal purpose or in violation of any applicable local, state, federal or international law. Dealership is encouraged to archive the Content regularly and frequently. Dealership is responsible for any Content that may be lost or unrecoverable through the use of the Services. Dealership agrees not to use the Services to upload, post, distribute, publish, reproduce, engage in or transmit any of the following, including but not limited to:
1. Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation, conduct that would encourage or constitute an attack or "flaming" others, or criminal or civil liability under any local, state, federal or foreign law;
2. Content or data that would impersonate someone else or falsely represent Dealership ’s identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third-party without their consent (or a parent’s consent in the case of a minor);
3. Except as otherwise permitted by Agency in writing, advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
4. Virus, trojan horse, worm or other disruptive or harmful software or data; and
5. Any information or Content which is not legally the Dealership ’s and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright owner or intellectual property rights owner.
3. Agency and Dealership agree that Agency has the sole discretion to immediately remove, delete, terminate or prevent any Dealership uploads, posts, distributions, publications, reproductions, or transmissions that Agency deems to be in violation of Section 2.2 (2.2.1 through 2.2.5).
4. INTELLECTUAL PROPERTY RIGHTS
1. Dealership -Provided Materials. Dealership hereby grants Agency a non-exclusive, non- transferable license to use and modify the Dealership -Provided Materials, solely in order for Agency to perform the Services and develop and prepare the Deliverables. Dealership hereby represents and warrants that to the extent Dealership provides to Agency any Dealership -Provided Materials, Dealership will have obtained all necessary permissions, licenses, and consents and will have the authority to provide such Dealership -Provided Materials to Agency, in accordance with Section 2.1.
2. Agency’s Use of Deliverables for Advertising and Marketing. Subject to the confidentiality protections in Section 13, Dealership grants Agency the right to show images and a description of the deliverable for sales and marketing purposes. Dealership also agrees to permit its name to appear on client lists used by Agency for sales and marketing purposes. Dealership warrants and represents that Dealership owns or otherwise controls the rights to the Content and grants Agency a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third-parties, and publicly display the Content on and through the Service and in promotional or advertising materials, and (ii) sublicense to third-parties such Content to the extent necessary for the creation and maintenance of, in part or in whole, such Services and materials. Dealership also grants Agency the right to link Agency’s website to any website that Agency develops on behalf of Dealership .
3. Dealership ’s Rights to Use the Services and Restrictions. The Services are protected by copyright, trade secret, and other intellectual property laws. Dealership is only granted the right to use the Services as expressly provided below, and Agency reserves all other rights in the Services not granted to Dealership expressly in writing here. As long as Dealership meets any applicable payment obligations and companies with this Agreement, Agency grants to Dealership a personal, limited, non-exclusive, non-transferable, non- sublicensable right to use the Services, subject to the provisions of this Agreement, only for the period of use provided in the Terms, and only for the purposes described by Agency on the website for the Services.
4. Usage Restrictions. Dealership agrees not to use the Services or the Content in a manner that violates any applicable law, regulation or this Agreement. Dealership agrees not to:
1. Provide access to or give any part of the Services to any third-party.
2. Reproduce, duplicate, copy, deconstruct, sell, trade or resell the Services.
3. Attempt to access any other systems provided by Agency that are not part of these Services.
4. Excessively overload the systems or the services provided by Agency, including but not limited to bandwidth and storage.
5. If Dealership violates any of these terms and/or this Agreement Dealership ’s right to use the Services may be immediately terminated by Agency in its sole discretion
5. COPYRIGHT AND TRADEMARK NOTICES.
1. All components of the Services and related materials, and any Software provided by Agency as part of the Services (as well as the organization and layout of the Services) and all intellectual property rights therein are owned or licensed by Agency, its affiliates or its suppliers. Reproduction, distribution, or transmission of the copyrighted materials related to the Services, which includes the Agency’s websites or additional websites or any co-branded websites and any Software, is prohibited without the written permission of Developer. Any rights not expressly granted herein are reserved. Kicks Digital Marketing, kicksdigitalmarketing.com, the Agencylogo, and other Agencytrademarks, logos and product and service names are trademarks of AgencyLLC.
6. FEEDBACK.
1. Agency may freely use Dealership feedback. Dealership agrees that Agency may use feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. Dealership grants Agency a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use Dealership provided feedback in any way.
7. EXPORT RESTRICTIONS
1. Dealership acknowledges that the Services, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. Dealership agrees to comply with these laws and regulations, and will not export or re-export the Services, or any part of the Services, in violation of these laws and regulations, directly or indirectly. The obligations under this section shall survive any termination or expiration of this Agreement or Dealership ’s use of the Services.
8. MONITORING.
1. Agency may monitor Dealership ’s content from time to time. Agency may, but has no obligation to, monitor content on the Services. Agency may disclose any information necessary or appropriate to satisfy Agency’s legal obligations, protect Agency or its clients, or operate the Services properly. Agency, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, illegal, or in violation of these this Agreement.


9. ADDITIONAL PRODUCTS, SERVICES AND TERMS
1. Additional Agency Services. Dealership may be offered Additional Agency Services. If Dealership decides to use any of these Additional Agency Services, additional terms and conditions and separate fees may apply. Dealership acknowledges that some Additional Agency Services require uploading or entering data from Dealership ’s account such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. Dealership grants Agency permission to use information about Dealership ’s business and experience to help Agency provide the Additional Agency Services, including updating and maintaining Dealership ’s data, addressing errors or service interruptions, and enhancing the types of data and services Agency may provide in the future. Agency may use this data to improve services and to compare business practices with other company standards. Agency may use Dealership ’s data to create, market or promote new Agency offerings to Dealership and others. Dealership also grants Agency permission to share or publish summary results relating to research data and to distribute or license such data to third-parties.
2. Third-Party Services. Agency may tell Dealership about third-party products or services. If Dealership decides to use any Third-Party Products or access any Third-Party Sites, Dealership is responsible for reviewing the third-party’s separate product terms, website terms and privacy policies. Dealership agrees that the third-parties, and not Agency, are responsible for their product’s performance and the content on their websites. Agency is not affiliated with these Third-Party Products or Third-Party Sites and has no liability for them.
3. Communications. Agency may be required by law to send Dealership communications about the Services or Third-Party Products. Dealership agrees that the Agency may send these communications via email or by posting them in the Administrative section of Dealership ’s website.
10. WARRANTIES
1. Agency Warranty. Agency warrants for the duration of the support period as outlined in the Service Editor that the Services provided hereunder will be performed in a professional manner. Agency warrants that the Deliverables will be the original work product of Agency (except to the extent agreed in writing by Dealership ) and, warrants that, to the best of Agency’s knowledge, no Deliverable delivered to Dealership hereunder shall infringe on any third-party patent, copyright or other Intellectual Property Right. THE FOREGOING LIMITED WARRANTY IS AGENCY’S ONLY WARRANTY CONCERNING THE SERVICES AND ANY DELIVERABLES, IS MADE FOR THE BENEFIT OF CLIENT ONLY, AND IS IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
11. INDEMNIFICATION
1. Scope. Agency will defend, indemnify and hold Dealership and its directors, officers, agents, representatives, members, managers, employees, successors and assigns, harmless from and against any and all costs, damages, claims, suits, actions, liabilities, losses and judgments, based upon (a) a claim of personal injury, death, or damage to Dealership ’s tangible property resulting from the negligence or willful misconduct of Agency or its agents; or (b) a claim that the process utilized by Agency in creating the Deliverables infringes on the Intellectual Property Rights of a third-party. Dealership will defend, indemnify and hold Agency and its directors, officers, agents, representatives, members, managers, employees, successors and assigns, harmless from and against any and all costs, damages, claims, suits, actions, liabilities, losses and judgments, based upon a claim of personal injury, death, or damage to Agency’s or a third-party’s tangible property resulting from the negligence or willful misconduct of Dealership or its agents.
2. Procedure. If any claim or action (a "Claim") is commenced against a Party for which indemnification is sought under this Section (the "Indemnified Party"), the Indemnified Party will give written notice to the other Party (the "Indemnifying Party") within a reasonable time of its receipt of notice of such Claim. If the Indemnifying Party is obligated under this Section to defend the Indemnified Party against such Claim, then the Indemnifying Party will take control of the defense and investigation of the Claim, with counsel reasonably acceptable to the Indemnified Party. The Indemnified Party will cooperate in all reasonable respects in such investigation and defense; and may participate in the defense with counsel of its choosing, at its own expense. The Indemnifying Party will not enter into the settlement of any Claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed.
12. LIMITATIONS ON LIABILITY
1. THE MAXIMUM LIABILITY OF AGENCY, ITS MANAGING MEMBER AND OFFICERS TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CLIENT TO AGENCY HEREUNDER FOR THE PORTION OF THE SERVICES GIVING RISE TO ANY CLAIM. IN NO EVENT WILL EITHER PARTY, ITS MANAGING MEMBERS AND OFFICERS BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY INCLUDING BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY AND PRODUCT LIABILITY) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. CONFIDENTIALITY
1. Confidential Information. Each party (the "Disclosing Party") may from time to time during the term of this Agreement disclose to the other party (the "Receiving Party") certain information regarding the Disclosing Party’s business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information, which information is either marked as confidential or proprietary (or bears a similar legend) or which a reasonable person would understand to be confidential given the circumstance and nature of the disclosure ("Confidential Information"), and whether disclosed orally or in writing. Confidential Information does not include information that: (i) is in the Receiving Party’s possession at the time of disclosure as shown by credible evidence; (ii) before or after it has been disclosed to the Receiving Party, enters the public domain, not as a result of any action or inaction of the Receiving Party; (iii) is approved for release by written authorization of the Disclosing Party; (iv) is disclosed to the Receiving Party by a third-party not in violation of any obligation of confidentiality; or (v) is independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party, as evidenced by such party’s written records.
2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than performing its obligations or exercising its rights under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to Receiving Party’s employees, agents, directors, officers, auditors, regulators and contractors on a "need to know" basis, provided such persons are under a contractual obligation with Receiving Party to maintain the confidentiality of such Confidential Information, which obligation is consistent with, and no less protective of Confidential Information, than the terms of this Section 13. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Notwithstanding the foregoing, Confidential Information may be disclosed as required by law or by order of a court of competent jurisdiction. In such event and if reasonably possible under the circumstances of disclosure, the Receiving Party will provide the Disclosing Party with prompt prior notice of such obligation in order to permit the Disclosing Party an opportunity to take legal action to prevent or limit the scope of such disclosure, including the opportunity to seek a protective order. Unauthorized disclosure or use of the Disclosing Party’s Confidential Information may cause irreparable harm to the Disclosing Party for which recovery of money damages would be inadequate; consequently, the Disclosing Party shall be entitled to timely injunctive relief to protect its rights under this Section 13, without the necessity of posting a bond therefore, in addition to any and all remedies available at law or in equity.
14. TERMS AND TERMINATION
1. Initial Term. The initial term of this Agreement commences on the Effective Date and shall continue for an initial period of six (6) months, then the client can terminate with written notice to sales@fixedopsdigital.com.
2. Duration of Term and Termination – This agreement will continue on a month to month basis after the initial six (6) month commitment. The Dealership shall have the option of canceling any of the services for any rooftop at any time. Cancelation WILL be effective on the last day of the first full month following WRITTEN NOTICE TO sales@FIXEDOPSDIGITAL.COM. In the event the Dealership or Fixed Ops Digital, LLC terminates or otherwise cancels this Agreement, the Dealership retains the rights to all pages, urls, internal link building and written content on each and every page. All Fixed Ops Digital, LCC deployed images, offers within Drive Service Specials and Dealer Wallet will be removed at the conclusion of this agreement. In the event THE DEALERSHIP or FIXED OPS DIGITAL, LLC terminates or otherwise cancels this Agreement. Either party may terminate this Agreement if the other party discloses or misuses Confidential Information in breach of Section 13. Upon termination or expiration of this Agreement for any reason, all Services will immediately terminate and all charges for Services performed prior to the date of termination will become immediately due and payable.
15. GENERAL
1. Independent Entities. The parties are separate independent entities, and nothing herein is intended or will be construed as creating a partnership, employment, joint venture or agency relationship between the parties.
2. Assignments. Agency may not assign or transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement to any third-party without prior written consent of Dealership (such consent not to be unreasonably withheld). Any attempted assignment or transfer in violation of the foregoing will be void. Dealership may assign all of its rights and delegate all of its obligations hereunder to an entity assuming all of such rights and obligations, without consent of Agency, in the event of Dealership ’s merger, change of control, reorganization, or acquisition of all or substantially all the assets or business to which this agreement relates.
3. Governing Law and Venue. This Agreement will be governed by the laws of the State of Indiana in the United States of America, without giving effect to the choice or conflicts of law provisions of any jurisdiction to the contrary. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal court seated in Indianapolis, Indiana or in state court of competent jurisdiction seated in Hamilton County, Indiana, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought to enforce this Agreement, the prevailing party shall be entitled to receive its reasonable attorneys’ fees, costs, and other expenses, in addition to any other relief it may be entitled to receive.
4. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
5. Severability. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
6. Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.


7. Dealership acknowledges and agrees that Agency may retain an independent contractor to provide content work on behalf of Agency.
16. SERVICE EDITOR OFFERINGS, PROFESSIONAL SERVICES AND FEES
1. A current, exhaustive list of all of the services offered and performed by the Agency is attached for separate Dealership approval. Accepting the Services and Fee Schedule Agreement, the Dealership agrees to those deliverables and pricing through distinguished documentation. Prices of all subscriptions, products, and Services, including but not limited to monthly subscription plan fees, are subject to change upon 60 days notice. Such notice may be provided at any time as outlined in Section 9.3. Approval of that documentation, the Dealership hereby engages Agency to provide the services selected by Dealership , as shown in the issued invoice and Dealership will pay to Agency the fees for Accepted Deliverables in accordance with the payment schedule set forth.
17. TERMS, CONDITIONS AND PAYMENT * As replicated in the Dealership Enrollment
1. DEALER IS OBLIGATED TO PAY FIXED OPS DIGITAL, LLC THE APPLICABLE INVESTMENT EACH MONTH AND WILL BE BOUND BY THE TERMS AND SHALL BECOME EFFECTIVE on the signed agreement date.
18. MUTUAL WARRANTY
1. Both parties represent and warrant that they have the legal power to accept and enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization; and when accepted, this Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.
19. ENTIRE AGREEMENT
1. This Agreement and the Services and Fee Schedule Agreement constitute the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties.