Revised 06.22.20

©2020 Cox Automotive, Inc. All Rights Reserved.

1. General Conditions

By clicking acceptance of this agreement, or by otherwise purchasing or using any DealShield wholesale vehicle purchase assurance product, including the “360 Return Guarantee” product (each, a “Product”) offered by Online Vehicle Exchange, L.L,C., d/b/a DealShield (“DealShield”), you, as the dealer customer, both individually and on behalf of your dealership, business, or other entity, or any Affiliates of any of the foregoing, as the case may be, (“Dealer”), acknowledge and agree that:

1.1. By purchasing or using any Product, regardless of who pays for the Product, Dealer, and the vehicle(s) for which any Product applies, will be subject to these DealShield terms and conditions (“Terms and Conditions”), and Dealer expressly agrees that purchase or use of any Product is only made available to Dealer contingent on the Dealer’s agreement to these Terms and Conditions;

1.2. Dealer has full authority to purchase and use any Product and to make these Terms and Conditions binding on any dealership, business, or other entity for whom Dealer may be acting as a representative or agent. For purposes of these Terms and Conditions, “Affiliate” means, with respect to either party, any entity that controls, is controlled by, or is under common control with, such party; Affiliates of DealShield include Cox Automotive, Inc., and all of its affiliated companies and businesses.

1.3. DealShield and its Affiliates, as private businesses, reserve the right to do business or not do business with any Dealer for any reason or no reason, just as a Dealer has no obligation to do business with DealShield or its Affiliates. Dealer shall have no right, remedy, or cause of action for same. Dealer acknowledges and agrees that there are numerous sources, other than DealShield and/or its Affiliates, for Dealer to obtain similar products.

1.4. DealShield reserves the right, in its absolute discretion, to decline or reject any acceptance by Dealer of an Offer Letter, as herein defined, for any Product, cancel any Product accepted by Dealer, or rescind the application of the benefits of any Product purchased by Dealer, where DealShield believes that (i) Dealer has violated these Terms and Conditions, (ii) Dealer has violated the terms of any Offer Letter, (iii) the purchase price of any vehicle exceeds the vehicle valuation according to the industry-recognized valuation tools used by DealShield to determine vehicle value, (iv) Dealer otherwise violates any Marketplace Policies of DealShield’s Affiliates, as then currently in effect, or (v) for any other reason as determined in DealShield’s sole discretion (each an “Invalidation”). Upon such Invalidation, Dealer’s sole remedy for such Invalidation will be the amount paid, if any, for such Product.

2. Product

2.1. Purchase Channels: For purposes of these Terms and Conditions, “Dealer Vehicle” means any eligible vehicle purchased by Dealer through a wholesale auction or wholesale vehicle exchange through which DealShield Products are offered, including, without limitation, Simulcast and Online Vehicle Exchange (each a “DealShield Auction”), or any other wholesale auction or sales channel that may be approved by DealShield as an authorized auction or sales channel (each, a “Partner Auction” and collectively with the DealShield Auction, the “DealShield Network Auctions,”) for which Dealer has purchased a Product and received the applicable confirmation from DealShield as set forth below.

2.2. Subscription: Product is offered by “Subscription” only, with the rate applied to each eligible Dealer Vehicle Purchased, which is activated by electronic acceptance of an offer letter (each an “Offer Letter”) The Offer Letter will contain the Program Terms & Limits of Dealer Subscription to Product, which includes:

2.2.1. Subscription Rate: by accepting the Offer Letter, Dealer agrees to the initial Subscription Rate stipulated in the Offer Letter. The Rate is applied to each eligible Dealer Vehicle.

2.2.1.1. Vehicle Price Surcharge: any Dealer Vehicle with a sale price exceeding $35,000 will be assessed an additional 1% surcharge for the sale amount in excess of $35,000.

2.2.2. Days of Coverage: by accepting the Offer Letter, Dealer agrees to the maximum number of coverage days stipulated in the Offer Letter. Product coverage begins on the calendar day following Purchase Date. In no event will Dealer Vehicles be able to be returned to DealShield beyond the allowed Days of Coverage. For the avoidance of doubt, days of coverage are calendar days and do not exclude weekends and holidays, except in the case where the final day of physical return of the Dealer Vehicle (as described in Paragraph 2.6.1, below) falls on a day on which the authorized auction facility is closed, in which case Dealer Vehicle is due to be returned to the authorized auction facility by close of business on the next calendar day on which the facility is open.

2.2.3. Odometer Mileage Covered: by accepting the Offer Letter, Dealer agrees to the maximum number of miles stipulated in the Offer Letter that Dealer may add to Dealer Vehicle prior to return of the Dealer Vehicle. Dealer Vehicles with odometer readings in excess of the Odometer Mileage Covered may not be returned to DealShield.

2.2.4. Further detail of Dealer Subscription is provided in the Program Terms & Limits of the Offer Letter.

2.3. Performance Management: Product is offered on a performance basis. DealShield reserves the right to change Subscription Rate either automatically thru electronic communication or via discussion with DealShield Performance Management Team. Rate will be re-assessed each month, and notification will be provided before any Rate adjustment, which may be higher or lower.

2.4. Exclusions: Unless otherwise agreed to by DealShield, the Products are not available and may not be purchased for:

2.4.1. vehicles having an odometer reading of more than 250,000 miles;

2.4.2. vehicles designated “true miles unknown” or “not actual miles,” or for which the true odometer reading is unknown;

2.4.3. vehicles having a purchase price in excess of $100,000 U.S. Dollars;

2.4.4. vehicles that have a model year 20 years or older than the current calendar year;

2.4.5. trailers, motorcycles, watercraft, recreational vehicles (RVs) or heavy equipment;

2.4.6. Class 4 and higher (weight greater than 14,000 pounds) trucks and other vehicles, as determined by the Gross Vehicle Weight Rating (GVWR) established by the US Department of Transportation;

2.4.7. vehicles that have been up-fitted for specialty purposes by non-OEM providers, including but not limited to: bucket trucks, tow trucks, stake-bed trucks, dump trucks, refrigerated trucks, shuttle vans, school vans, etc.;

2.4.8. salvage, salvage-rebuild, biohazard, total loss claim, flood, previously stolen vehicles, or vehicles acquired through a Total Resource Auction or other salvage sale;

2.4.9. vehicles sold under a Manufacturer’s Statement of Origin (MSO), Manufacturer’s Certificate of Origin (MCO) or otherwise sold without a negotiable US title.

2.4.10. vehicles with state-issued reassigned VIN numbers;

2.4.11. vehicles subject to or previously subject to a manufacturer buyback, consumer buyback by manufacturer, including vehicles subject to any “lemon law”;

2.4.12. kit vehicles, homemade vehicles and other modified vehicles; and,

2.4.13. hand-built or exotic vehicles (including, but not limited to, Audi R8, Aston Martin, Bentley, Bugatti, Dodge Viper, Ferrari, LaForza, Lamborghini, Lotus, Maserati, Maybach, McLaren, Panoz, H1 Hummer and Rolls Royce).

2.5. Purchase Confirmation Process: Upon completion of the purchase of an eligible Vehicle (a “Product Purchase Request”):

2.5.1. If the Product Purchase Request is automatically accepted, subject to Dealer’s payment of any applicable Fees (as defined below); and, these Terms and Conditions, DealShield will provide to Dealer the Product identified in the purchase confirmation notification (each a “Purchase Confirmation”).

2.5.2. If the Product Purchase Request is identified for further review, Dealer shall receive notice of the transaction being in “Pending” status.

2.5.2.1. If the Product Purchase Request is subsequently accepted as eligible, the Pending status will be removed, and Dealer will receive a Purchase Confirmation. Subject to Dealer’s payment of any applicable Fees (as defined below) and these Terms and Conditions, DealShield will provide to Dealer the Product identified in the Purchase Confirmation.

2.5.2.2. If the Product Purchase Request is subsequently determined to be ineligible, Dealer will receive a notice that the vehicle is ineligible for the Product.

2.5.3. DealShield reserves the right, in its sole discretion, to Invalidate Product or refuse to accept any Product Purchase Request from Dealer or any other person or entity for any reason whatsoever, including, but not limited to Dealer being not in good standing with or owing outstanding payables to DealShield, its Affiliates, or DealShield Network Auctions.

2.5.4. In any case in which the Product Purchase Request is accepted, Product is invalid until Dealer takes possession and control of the Dealer Vehicle, provided however, in no event will Dealer’s delay in taking possession and control of Dealer Vehicle extend the Days of Coverage.

2.6. Vehicle Returns:

2.6.1. To return a Dealer Vehicle, Dealer shall:

2.6.1.1. initiate a Vehicle Return Authorization (VRA) through the following website: dealshield.com. Upon receipt of the completed VRA from DealShield, Dealer shall return the Dealer Vehicle to the authorized auction facility chosen by Dealer during the return process within twenty-four (24) hours;

2.6.1.1.1. Any Dealer Vehicle returned to DealShield must be in the same condition as the condition of such Dealer Vehicle at the time of purchase by Dealer, as detailed in Paragraph 2.9, “Like Condition,” (subject to additional mileage on the Dealer Vehicle as permitted by the terms of the Offer Letter).

2.6.1.2. return a clear and negotiable title as defined in Paragraph 3, “Dealer Representations, Warranties, and Obligations,” below;

2.6.1.3. return vehicle within the number of days specified in the Offer Letter, as defined in Paragraph 2.2.2 above.

2.6.2. Upon payment of all applicable Fees associated with the Dealer Vehicle purchase and fulfillment of all Dealer Representations, Warranties, and Obligations as outlined in Paragraph 3 below, and upon delivery of the Dealer Vehicle and Dealer Vehicle’s clear and negotiable title to DealShield, DealShield will proceed with the repurchase of such Dealer Vehicle, or will otherwise arrange for the Reimbursement Amount, as defined in Paragraph 2.7 below.

2.7. Vehicle Reimbursement: For each Product purchased by Dealer and confirmed by DealShield as set forth above, if a vehicle return request is accepted, DealShield will reimburse or refund to Dealer the Reimbursement Amount for such Dealer Vehicle. For the purposes of these Terms and Conditions “Reimbursement Amount” shall mean the purchase price of the Dealer Vehicle and auction buy fee, netting out any price adjustments that may occur after the sale through arbitration or other post-sale adjustments.

2.7.1. Fees that will not be reimbursed by DealShield include but are not limited to: fees associated with transportation, vehicle reconditioning, the DealShield fee, and inspection fees.

2.7.2. DealShield reserves the right to deduct any outstanding payables, including but not limited to DealShield fees, or arbitration adjustments from the Reimbursement Amount.

2.8. Arbitration: With respect to Dealer Vehicles purchased through a DealShield Network Auction, the then-current arbitration policies of the DealShield Network Auction shall apply, based on purchase auction. With respect to Dealer Vehicles purchased through a non-DealShield Network Auction Sales Channel, the then-current arbitration rules and policies of the National Auto Auction Association (NAAA) shall apply (the “NAAA Arbitration Policy”). To the extent a Dealer Vehicle is eligible for arbitration under the DealShield Network Auction’s arbitration policy or the NAAA Arbitration Policy, Dealer agrees that the terms and conditions set forth in the DealShield Network Auction’s arbitration policy or the NAAA Arbitration Policy, shall control and remain applicable .

2.8.1. DealShield reserves the right to pursue arbitration on behalf of the Dealer in the case that a Dealer Vehicle is returned to DealShield within allowed arbitration time period. If Dealer returns Dealer Vehicle and DealShield arbitrates on behalf of the Dealer, DealShield will not refund the DealShield fee.

2.9. Like Condition: If DealShield reasonably determines that the condition of the Dealer Vehicle at the time of its return is different than its condition at the time of purchase of the Vehicle, (including any missing or replaced parts or accessories), DealShield may, in its sole discretion, refuse to repurchase or to accept the return of the Dealer Vehicle. If DealShield accepts return of and/or repurchases the Dealer Vehicle and determines afterward a change in condition of the Dealer Vehicle between the time of the offer of the Product and the date of return, DealShield reserves the right in its sole discretion to unwind such acceptance and/or repurchase of the Dealer Vehicle, per Paragraph 2.9.3, below.

2.9.1. For purposes of clarity, Dealer acknowledges and agrees that Dealer shall be exclusively responsible for any issue with respect to the changed condition of a Dealer Vehicle being returned to DealShield, regardless of whether such issue relates to damage caused by Dealer, any third party, any force majeure event or act of God (including any hail damage or any other weather related damage to a Dealer Vehicle, or any other damage that may have been caused by forces outside of Dealer’s control), or any other cause.

2.9.2. DealShield’s determination of the condition of any Dealer Vehicle shall be final and binding on the parties.

2.9.3. In the event that any Dealer Vehicle returned to DealShield is not in the same condition as the condition of such Dealer Vehicle at the time of purchase by Dealer (subject to additional mileage on the Dealer Vehicle as permitted by the terms of the Product), and such Dealer Vehicle is repurchased by DealShield or the Dealer is otherwise refunded the Reimbursable Amount for such Dealer Vehicle, then DealShield reserves the right, at its election, to either:

2.9.3.1. unwind such repurchase or refund transaction and charge Dealer’s account at the DealShield Network Auction for the full Reimbursable Amount, in which case Dealer shall be responsible for paying such amount and, if applicable, repurchasing the Dealer Vehicle, in each case in accordance with the normal payment policies of the applicable DealShield Network Auction, or

2.9.3.2. proceed to resell such Dealer Vehicle in whatever manner it deems appropriate (or proceed to resell such Dealer Vehicle on Dealer’s behalf in whatever manner it deems appropriate).

2.9.3.3. In the event of any unwind pursuant to Paragraph 2.9.3.1 above:

2.9.3.3.1. DealShield shall relinquish the applicable Dealer Vehicle (and transfer title and ownership thereto) to Dealer upon receipt of payment in full from Dealer for the Dealer Vehicle;

2.9.3.3.2. DealShield shall have the right to invoice Dealer for the difference between the net proceeds received from the resale of the Dealer Vehicle and the Reimbursable Amount, if the resale amount is less than the Reimbursable Amount.

2.9.4. Dealer acknowledges and agrees that, in the event of any dispute or disagreement with respect to the Product or any Dealer Vehicle, the refund of the Reimbursable Amount for the Product to Dealer shall be Dealer’s sole and exclusive remedy. DealShield shall not, in any event, have any obligation to refund or return the Reimbursable Amount for any Product to any third-party buyer of a Dealer Vehicle as a result of any dispute between Dealer and DealShield.

2.10. DealShield-Ordered PSI: DealShield reserves the right, at its own expense, to order a post-sale inspection (PSI) of any Dealer Vehicle, to be conducted by the DealShield Network Auction, on behalf of the Dealer, unless Dealer provides notice that Dealer declines performance of the PSI.

2.10.1. If Dealer Vehicle does not pass the PSI, Dealer may enter into arbitration, according to the then-current arbitration policies of the DealShield Network Auction or the NAAA Arbitration Policy.

2.10.1.1. In the event that Dealer chooses to keep the Dealer Vehicle after failing the PSI, the DealShield Product will remain in effect and the DealShield Fee will be assessed. If Dealer later returns Dealer Vehicle to DealShield, any vehicle price adjustments made during the arbitration process will be reflected in the Reimbursement Amount.

2.10.1.2. In the event of any unwind through an arbitration pursued by Dealer due to the results of a DealShield-ordered PSI, such Dealer Vehicle will not be subject to the Fee for the DealShield Product.

2.11. Time-Limited Price Surcharge: DealShield may, in its discretion, develop and/or utilize a surcharge mechanism to adjust pricing during certain current market conditions for Dealer Vehicles. DealShield will provide a minimum notice of 5 business days of any per-vehicle surcharge, and the expected timeframe for which this surcharge will be applied to all eligible Dealer Vehicles. Dealer acknowledges and agrees that DealShield shall have the right, in its sole discretion, to temporarily impose this uniform surcharge on the sale of Product on a national or regional basis, during a period of market distress.

2.12. Temporary Suspension of Product: DealShield may, in its discretion, temporarily suspend the sale of the Products during a period of severe market distress. DealShield will provide a minimum notice of 1 business day of any Product suspension, and the expected timeframe for which the suspension will be in effect. Dealer acknowledges and agrees that DealShield shall have the right, in its sole discretion, to temporarily suspend the sale of Product on a national or regional basis, during a period of severe market distress.

3. Dealer Representations, Warranties, and Obligations

3.1. Title and Documentation: Dealer will process the necessary paperwork to obtain clear title to the Dealer Vehicle and assign it to DealShield or its designee prior to return of the Dealer Vehicle to DealShield. Dealer will also cooperate in providing any other paperwork or signatures reasonably-requested by DealShield to process a returned Dealer Vehicle and/or reimbursement request.

3.1.1. Dealer represents and warrants that (i) each Dealer Vehicle sold to DealShield under these Terms and Conditions has clear title and is free and clear of any judgments, liens or citations, and (ii) the odometer reading on any Dealer Vehicle and the odometer statement related to such Dealer Vehicle is true and accurate in all respects.

3.1.2. For value received, Dealer hereby irrevocably appoints DealShield and its Affiliates and DealShield Network Auctions to be Dealer’s agent and attorney–in–fact with full and complete authority to take all steps, do all things, and authenticate, sign, E – sign, or otherwise acknowledge any and all documents, including but not limited to odometer disclosure statements, title documents (including applications for duplicates), bills of sale, invoices, and any other documents needed to perfect title in any Dealer Vehicle that may be repurchased or otherwise remarketed by DealShield or any of its Affiliates, in each case as deemed necessary, incidental, desirable, or expedient, in DealShield’s sole judgment, for any Dealer Vehicle under these Terms and Conditions, for the provision of any goods and/or services under these Terms and Conditions, and/or to assist DealShield with its efforts to provide Product or other goods and services. Dealer acknowledges that Dealer may be required to execute such valid power of attorney document(s) covering the foregoing activities and authority as DealShield may request from time to time in its sole discretion. Dealer hereby agrees that DealShield, its Affiliates and DealShield Network Auctions will be held harmless from any and all causes of action associated therewith.

3.2. Transaction Integrity:

3.2.1. Dealer further represents and warrants that:

3.2.1.1. the Product is being purchased by Dealer as part of a bona fide and valid arm’s length vehicle transaction through a DealShield Network Auction;

3.2.1.2. the Dealer Vehicle was purchased by Dealer in a transaction involving competitive bidding;

3.2.1.3. Dealer is not purchasing or selling the Dealer Vehicle (for which the Product is being purchased) in collusion with any other person or entity, including, without limitation the seller or any subsequent buyer of the Dealer Vehicle;

3.2.1.4. there is no crossover representation among parties to the vehicle transaction (i.e. an affiliated buyer and seller, a dual agent, etc.);

3.2.1.5. neither Dealer, nor to Dealer’s knowledge any other person or entity, has engaged in any kind of fraudulent, wrongful or improper conduct with respect to the Dealer Vehicle or any Product, including, by way of example and not limitation, bidding on the Dealer Vehicle in order to artificially inflate the sale price for such Dealer Vehicle.

3.2.2. DealShield reserves to right to take any applicable legal action against any Dealer whom DealShield reasonably suspects has committed or participated in any fraudulent, collusive, or wrongful conduct with respect to a Product.

3.2.3. Dealer acknowledges that DealShield is a private business and, at any time in its sole discretion, has the right to decline to do business with Dealer or any other person (including any buyer of a Dealer Vehicle), for any reason whatsoever.

3.2.4. Dealer acknowledges and agrees that neither it nor its Affiliates shall be permitted to repurchase any Dealer Vehicle back from DealShield or any of its Affiliates within the ninety (90) day period immediately following the date of DealShield’s repurchase of such Dealer Vehicle.

3.2.4.1. If Dealer repurchases any Dealer Vehicle from a DealShield affiliate within the ninety (90) day period, Dealer shall either:

3.2.4.1.1. return the Reimbursable Amount to DealShield, or

3.2.4.1.2. in the event that Dealer repurchases Dealer Vehicle for less than the original purchase price then Dealer shall pay to DealShield the difference between the original purchase price and the repurchase price of Dealer Vehicle

3.2.5. Dealer shall comply with all applicable federal, state, provincial and local laws, rules and regulations relating in any way to vehicle sales and purchases.

3.2.6. Dealer will maintain complete and accurate records of the transactions made pursuant to these Terms and Conditions for a period of at least three (3) years following the date of the applicable transaction. Dealer and its agents will, upon reasonable request by DealShield and at all reasonable times during the foregoing retention period, make such records available for inspection by DealShield or its authorized representatives, and give DealShield and its authorized representatives reasonable access, during regular business hours, to Dealer’s personnel and other representatives in connection with such audit.

3.2.7. Notwithstanding anything to the contrary set forth herein, Dealer hereby acknowledges and agrees that if DealShield, its Affiliate, or Partner Auction knows or reasonably believes that Dealer has breached any of the foregoing representations, warranties or covenants, DealShield, its Affiliates, and Partner Auctions may refuse to repurchase or accept the return of any Dealer Vehicle, and may pursue any other remedies available at law or in equity, under these Terms and Conditions or otherwise. Dealer further acknowledges and agrees that such remedies shall include, without limitation:

3.2.7.1. the right to deny Dealer access to auctions and other sales channels operated by Manheim and other Affiliates or DealShield Network Auctions;

3.2.7.2. the right to prohibit Dealer and its Affiliates from purchasing or benefiting from any Product; and,

3.2.7.3. the right to set-off any amounts owed to Dealer or its Affiliates as provided for herein.

3.3. Fees & Payment: Dealer will pay DealShield the fees specified in each Purchase Confirmation for the applicable Product (“Fees”). The Fee amount corresponds to the Subscription Rate, as outlined in Paragraph 2.2.1 above. DealShield, through its authorized vendor, may charge the credit card or other account used by Dealer to pay fees that is on file on the date on which Dealer purchases the applicable Product.

3.3.1. All Fees and other amounts paid by Dealer pursuant to these Terms and Conditions are non-refundable, except as specifically provided for herein. Dealer will be responsible for and will pay all federal, state, and local taxes that are imposed on the Fees paid or Products provided hereunder, other than taxes related to DealShield’s income arising out of the Products.

3.3.2. Notwithstanding anything to the contrary in these Terms and Conditions, in the event Dealer fails to timely pay to DealShield (or its designee) the Fees for any Product, DealShield shall have the right, in its sole discretion and without any prior notice to Dealer, to cancel any such Product order or otherwise reject Dealer’s Product Purchase Request for the applicable Dealer Vehicle. The rights set forth in the immediately preceding sentence shall be in addition to any other or further rights or remedies that may be available to DealShield under these Terms and Conditions or at law or in equity.

3.3.3. Dealer acknowledges and agrees that once a Dealer Vehicle for which a Product has been purchased is sold by such Dealer, that Dealer has received the full intended benefit of the Product, and DealShield shall under no circumstances be required to refund to Dealer the purchase price for such Product, even in those cases where DealShield may decline to repurchase or accept the return of such Dealer Vehicle from the buyer as provided for herein.

3.4. Excess Returns: DealShield reserves the right, in its sole discretion, to charge an excess return fee in accordance with the table below for each Dealer Vehicle returned by a Dealer operating under Excess Return Status.

3.4.1. For purposes hereof, a Dealer will be considered to be “operating under Excess Return Status” if, within any 30-day period:

3.4.1.1. such Dealer has purchased ten (10) or more Dealer Vehicles in that time period;

3.4.1.2. such Dealer has returned 20% or more (see table below) of the number of Dealer Vehicles purchased by such Dealer.

3.4.2. If one of the return thresholds below is met, the associated fees below will be assessed to each return above that threshold. DealShield will bill Dealer directly and will not reimburse for Dealer Vehicles until such excess return fees are paid in full. DealShield reserves the right to: (1) deduct the Excess Return Fees directly from the reimbursement of the vehicles that exceed the threshold; and (2) offer an option to Dealer to cancel returns to lower return rates below any of these thresholds:

3.4.2.1. If returns are 20% to 29% of the number of total guaranteed vehicles, each return will be assessed a $1,500 excess return fee;

3.4.2.2. If returns are 30% to 39% of the number of total guaranteed vehicles, each return will be assessed a $2,000 excess return fee;

3.4.2.3. If returns are 40% to 49% of the number of total guaranteed vehicles, each return will be assessed a $2,500 excess return fee;

3.4.2.4. If returns meet or exceed 50% of the number of total guaranteed vehicles, each return will be assessed a $5,000 excess return fee.

4. Indemnification: Dealer will indemnify, defend and hold harmless DealShield, its DealShield Network Auctions, Affiliates, subsidiaries, and their respective successors and assigns, and all of their respective officers, directors, employees and agents (collectively, the “DealShield Indemnified Parties”) from and against any and all claims, losses, demands, causes of action, debts or liabilities, including reasonable attorneys’ fees, arising out of (a) any third-party claim resulting from any breach or alleged breach of Dealer’s obligations, representations or warranties under these Terms and Conditions (or any obligations, representations or warranties of any buyer of any Dealer Vehicle that may be sold by Dealer), or (b) except as provided in Section 1, any claim or demand made by any buyer or future owner or holder of a Dealer Vehicle for which Dealer has purchased any Product.

5. LIMITATION ON LIABILITY: IN NO EVENT WILL THE DEALSHIELD INDEMNIFIED PARTIES BE LIABLE TO DEALER OR ANY THIRD PARTY (INCLUDING ANY BUYER OF A DEALER VEHICLE) FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, UNDER ANY CAUSE OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE DEALSHIELD INDEMNIFIED PARTIES’ TOTAL LIABILITY TO DEALER OR ANY THIRD PARTY CLAIMING THROUGH DEALER (INCLUDING ANY BUYER OF A DEALER VEHICLE) FOR ANY CLAIM ARISING OUT OF THE PRODUCTS OR THESE TERMS AND CONDITIONS WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY DEALER TO DEALSHIELD WITH RESPECT TO THE PRODUCT FOR THE DEALER VEHICLE AT ISSUE.

6. Proprietary Rights: The Products, and these Terms and Conditions, constitute the intellectual property of and are owned by DealShield. DealShield retains all rights, including all patent, copyright, trademark, trade secret, and other intellectual property or proprietary rights in and to the Products. The Products are valuable trade secrets of DealShield.

7. Account Information; Liability for Account Activity: Any user name or password provided to or created by Dealer for use in connection with the Products and the purchase thereof by Dealer may not be shared with any third party without the prior written authorization of DealShield. Notwithstanding the foregoing, Dealer is solely responsible for and liable for any and all activity occurring on Dealer’s accounts, and the payment of all Fees owed for Products purchased through such accounts.

8. Right of Set-Off: Notwithstanding anything to the contrary in these Terms and Conditions, in the event that Dealer has failed to pay any Fees or other amounts owed to DealShield or its Affiliates within thirty (30) days of the date on which such Fees or other amounts became due, DealShield and its Affiliates shall have the unconditional right to deduct and set-off such unpaid Fees or other amounts from any amounts that may become due or owing to Dealer (including any amounts owed to Dealer in connection with the return of any Dealer Vehicle as set forth above). Additionally, DealShield and its Affiliates shall have the unconditional right to deduct and set-off from any amount owed to Dealer for any Dealer Vehicle being repurchased or accepted for return by DealShield, an amount equal to any unpaid Fees or other amounts owed for any Product or service provided with respect to such Dealer Vehicle (irrespective of whether such unpaid Fees or other amounts are past-due).

9. ARBITRATION AND CLASS ACTION WAIVER

9.1. DEALER AGREES TO ARBITRATE ANY DISPUTE OR CLAIM THAT IT MAY HAVE WITH DEALSHIELD THAT ARISES OUT OF OR RELATES IN ANY WAY TO THESE TERMS AND CONDITIONS OR ANY PRODUCT. ARBITRATION CONDUCTED HEREUNDER SHALL BE FINAL AND BINDING. THIS ARBITRATION PROVISION MEANS THAT DEALER’S CLAIMS AGAINST DEALSHIELD WILL BE RESOLVED THROUGH ARBITRATION RATHER THAN LITIGATION IN COURT. DEALER ACKNOWLEDGES THAT DEALSHIELD MAY (BUT SHALL NOT BE REQUIRED TO) SUBMIT TO ARBITRATION ANY DISPUTE OR CLAIM THAT IT MAY HAVE AGAINST DEALER, WITH ANY SUCH ARBITRATION BEING GOVERNED BY THE PROVISIONS OF THIS SECTION 9.

9.2. DEALER MAY OPT OUT OF THIS ARBITRATION AGREEMENT AND DOING SO WILL NOT IN ANY WAY PREJUDICE OR AFFECT DEALER’S BUSINESS WITH DEALSHIELD. TO EXERCISE THIS OPT-OUT RIGHT, DEALER MUST PROVIDE WRITTEN NOTICE OF ITS ELECTION TO OPT OUT TO DEALSHIELD AT THE FOLLOWING ADDRESS: C/O MANHEIM, 6205 PEACHTREE DUNWOODY ROAD, ATLANTA, GEORGIA 30328, ATTN: LEGAL DEPARTMENT, NO LATER THAN THIRTY (30) DAYS AFTER DEALER’S INITIAL ACCEPTANCE OF THESE TERMS AND CONDITIONS. THE PROCEDURE SPELLED OUT HEREIN IS THE ONLY WAY TO OPT OUT OF THIS ARBITRATION AGREEMENT, AND ANY ATTEMPTS TO OPT OUT AFTER THE DEADLINE SET FORTH HEREIN WILL BE INEFFECTIVE.

9.3. ANY ARBITRATION PROCEEDING HEREUNDER WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS OR REPRESENTATIVE PROCEEDINGS OF ANY KIND ARE NOT PERMITTED AND DEALER EXPRESSLY WAIVES ITS ABILITY TO PARTICIPATE IN A CLASS OR REPRESENTATIVE PROCEEDING AGAINST DEALSHIELD. TO THE EXTENT THAT DEALER OPT OUT OF ARBITRATION FOLLOWING THE PROCEDURE SET FORTH IN SECTION 9(B), OR IF THIS ARBITRATION AGREEMENT IS FOUND INAPPLICABLE TO DEALER’S DISPUTE WITH DEALSHIELD, THIS CLASS ACTION WAIVER WILL CONTINUE TO APPLY IN LITIGATION. DEALER AGREES THAT THIS CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF ITS AGREEMENT WITH DEALSHIELD AND THAT IT MAY NOT BE SEVERED. IN THE EVENT THAT THIS CLASS ACTION WAIVER IS DEEMED INVALID OR UNENFORCEABLE, THEN THE ENTIRE AGREEMENT TO ARBITRATE WILL BE NULL AND VOID.

9.3.1. Any dispute or claim subject to arbitration hereunder shall be submitted to binding arbitration administered by the Judicial Arbitration and Mediation Service (“JAMS”) pursuant to its Streamlined Arbitration Rules and Procedures as in effect at the time of the submission of such dispute or claim (the “JAMS Streamlined Rules”). The disputes and claims subject to arbitration hereunder will be resolved by a single arbitrator selected pursuant to the JAMS Streamlined Rules. The arbitrator shall be bound by and shall strictly enforce these Terms and Conditions and any other applicable agreement between Dealer and DealShield, and may not limit, expand or otherwise modify any provision of these Terms and Conditions or the provisions of any other applicable agreement between Dealer and DealShield. The arbitrator may award any relief that a court of law could, applying the limitations of liability set forth in these Terms and Conditions. The arbitrator may award injunctive relief if permitted by law – but the injunctive relief awarded by the arbitrator may not extend beyond Dealer’s business and dealings with DealShield. The laws of the State of Georgia will apply to any claims or disputes between Dealer and DealShield. Any arbitration will be held in Atlanta, Georgia and conducted in English, unless otherwise agreed upon by the parties in writing. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator shall award DealShield its costs and fees if it is determined that Dealer submitted or filed any arbitration in bad faith or that Dealer’s claims against DealShield have no reasonable legal basis.

9.3.2. Dealer agrees that its transactions with DealShield evidence transactions in interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of this arbitration clause and class action waiver (notwithstanding the application of Georgia law to any underlying claims). Dealer also agrees that this arbitration clause and class action waiver survives any termination of these Terms and Conditions or any other agreement between Dealer and DealShield.

10. Governing Law/Venue: These Terms and Conditions and performance hereunder will be governed by the laws of the State of Georgia (except to the extent set forth in Section 9(e)), without regard to its conflicts of laws rules. The parties hereby agree that the sole jurisdiction and venue for any action to enforce any arbitration proceeding, or any other litigation arising from or relating to these Terms and Conditions, to the extent not otherwise subject to mandatory arbitration pursuant to the arbitration clause set forth in Section 9, will be an appropriate federal or state court located in Fulton County, Georgia.

11. Changes to Terms and Conditions: DealShield reserves the right to modify these Terms and Conditions from time to time and will post any such changes on the DealShield website. Dealer agrees that the purchase or use of any Product after such changes have been posted to the DealShield website will constitute Dealer’s assent to any such changes.

12. Miscellaneous: Any delay in or failure of performance by DealShield under these Terms and Conditions will not be considered a breach of these Terms and Conditions and will be excused to the extent caused by any occurrence beyond the reasonable control of DealShield. These Terms and Conditions, together with the Manheim Privacy Policy, specifically incorporated herein by reference, constitute the complete and exclusive agreement between the parties relating to the subject matter hereof. These Terms and Conditions supersede all prior proposals, understandings and all other agreements, oral and written, between the parties with respect to the subject matter hereof. DealShield’s failure to insist upon Dealer’s compliance with any requirement of these Terms and Conditions or exercise any right provided for herein will not be deemed a waiver of Dealer’s non-compliance or any right of DealShield. If any of these Terms and Conditions are held to be invalid, illegal or unenforceable by an arbitrator or by a court of competent jurisdiction (as applicable), such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of these Terms and Conditions will remain in full force and effect. The Parties hereto agree that this Agreement, and all correspondence, documentation, and legal proceedings relating to this Agreement, be written or otherwise conducted in the English language.