IMPORTANT – READ CAREFULLY: eVN, LLC, a Delaware limited liability company doing business as eVN (“eVN”), makes the Services, as defined below, available as part of the General Motors Dealer Digital Program Terms. This “Agreement” includes these Terms and Conditions of Use and End User License Agreement, and the Additional Service Terms, if any. Although the General Motors Dealer Digital Program is sponsored by General Motors Holdings, LLC (“GM”), GM is not providing or otherwise responsible for the Services and is not a party to this Agreement. This Agreement is a legal contract between you, the automotive dealer (“Dealer”) subscribing to the Services, and eVN. The Services are subject to the terms set forth in this Agreement.

Dealer’s enrollment for any Services authorizes eVN to provide the Services and bill the Dealer. Dealer agrees to pay the applicable fees for Services as set forth in the electronic enrollment portal (e.g., GM Dealer Digital Program Enrollment Portal) or order form, incorporated herein by reference.

IN ORDER TO USE THE SERVICES, DEALER MUST FIRST AGREE TO THE TERMS SET FORTH IN THIS AGREEMENT BY COMPLETING ENROLLMENT ON THE ENROLLMENT PORTAL OR BY SELECTING SERVICES AND SIGNING A SERVICES ENROLLMENT FORM. DEALER MAY NOT USE THE SERVICES IF DEALER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT. DEALER CAN ACCEPT THE TERMS OF THIS AGREEMENT BY ENROLLING FOR AND/OR BY USING THE SERVICES, IN WHICH CASE, DEALER UNDERSTANDS AND AGREES THAT eVN WILL TREAT DEALER’S USE OF THE SERVICES AS ACCEPTANCE OF THE TERMS OF THIS AGREEMENT.

1. Services.

The “Services” are the products and services, including, without limitation, eVN AutoGraph™ Standard Vehicle Image Service, Enhanced Background Image Service, Self-Shoot Dealer Background, and all other the vehicle image merchandising services and related products and services provided by eVN to Dealer.  eVN agrees to provide the Services to Dealer in accordance with the terms and conditions of this Agreement. eVN may provide all or part of the Services through one or more third party service providers (“Service Providers”) that eVN selects. eVN, in its sole discretion, may change any Service Provider, at any time and for any reason.

2. Use of the Services.

In order to access certain Services, Dealer may be required to provide information about Dealer and Dealer’s business (such as identification, billing or contact details, or background images and materials). Dealer agrees that any information Dealer provides will be accurate, complete, and up to date. Dealer agrees that Dealer is solely responsible for all fees, costs or other expenses charged related to any selections made by Dealer or Dealer’s designees.

3. Restrictions on Use of Services.

Dealer agrees to not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Without limiting the foregoing, Dealer agrees not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of any Service or other program associated with the Services.

4. Compliance with Applicable Laws

eVN shall provide the Services and perform its obligations under this Agreement, and Dealer shall use the Services and perform its obligations under this Agreement, in compliance with all applicable laws and regulations. Dealer may use the Services only for purposes that are permitted hereunder and in accordance with applicable laws and regulations. Dealer shall at all times comply with all applicable laws, legislation, rules, regulations, governmental requirements and industry standards with respect to Dealer’s use of the Services and the performance by Dealer of Dealer’s obligations hereunder.

5. Ownership of Content and Services.

Dealer acknowledges and agrees that all materials and information (such as eVN’s propriety software used to provide vehicle and background images), except for the Dealer Content, which are provided by eVN, its Service Providers, or GM in connection with the Services, or which Dealer may have access to as part of, or through Dealer’s use of, the Services (the “Provided Content”), together with the Services, including any copyright and/or other intellectual property rights in the Services and the Provided Content, are owned by eVN, GM, the Service Providers and/or their licensors. Dealer may not reproduce, adapt, publish, perform, or publicly display the Provided Content or the Services or create derivative works based on the Provided Content or the Services (either in whole or in part), except as provided in this Agreement. Dealer further acknowledges that the Services may contain information which is designated by eVN as confidential. Dealer agrees not to use such confidential information for any purpose not expressly authorized by this Agreement or to disclose such confidential information without eVN’s prior written consent.

6. Dealer Content

Dealer agrees that it is solely responsible for that all final vehicle images and background imagery created, approved, transmitted, displayed or otherwise made available to Dealer in connection with the Services (“Dealer Content”) and for the consequences of these actions (including any loss, liability, fine or damage). Dealer represents, warrants, and covenants that the Dealer Content shall not contain anything that infringes copyrights, trademarks, publicity, or any other rights of others; violates any law or regulation, is defamatory or libelous; is abusive, harassing, or threatening; is obscene, vulgar, or profane; is fraudulent or deceptive; is discriminatory; or violates someone’s privacy.

7. Licenses.

Provided Dealer is not in default of any obligation under this Agreement, and provided Dealer has paid all applicable fees, subject to the terms and conditions of this Agreement, eVN grants Dealer a limited, restricted, revocable, personal, royalty-free, non-assignable, nontransferable, non-sub-licensable and non-exclusive license to use the Services and the Provided Content provided to Dealer in the United States. This license is for the sole purpose of enabling Dealer to use and enjoy the benefit of the Services in the manner permitted by this Agreement. Dealer retains any copyright and/or other intellectual property rights Dealer holds in Dealer Content. Dealer may not (and Dealer may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of the software used to provide the Services or any part thereof, or any of the other proprietary elements of the Service, or allow any third parties to use the Services, or any portion thereof, in any way. Dealer may not assign (or grant a sublicense of) any rights to use the Services, or any of the other proprietary elements of the Service, grant a security interest in or over Dealer’s rights to use the Services or any other proprietary elements of the Service, or otherwise transfer any part of Dealer’s rights to use the Services or any other proprietary elements of the Service. Dealer agrees not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.

Dealer hereby grants to eVN a royalty-free, non-exclusive, nontransferable, non-cancelable, perpetual license to use the data processed by eVN in connection with the Services, including without limitation any sales and inventory data (to the extent available) obtained from Dealer’s computer systems or use of the Services for the purposes of (i) performing the Services; (ii) consumer, vehicle, and industry research and reference; (iii) combining with other data to create proprietary market price and incentive guides; (iv) the generation of market analysis data and related products; (v) development of reports for GM; (vi) in promotional materials of eVN but only for such purpose when the data is aggregated, anonymized, or otherwise de-identified; and (vii) eVN’s business and operations, which may include (1) analyzing and reporting such aggregated and de-identified data in connection with the eVN’s business and operations, (2) creation of operational statistics for internal use only; (3) creation and inclusion in financial reporting of aggregate statistics regarding services performed; (4) creation and inclusion in marketing materials of aggregate statistics highlighting the capabilities of eVN’s products and services; and (5) advancing and improving existing products and services, creating new and enhanced product and services, and development and publication of market and industry intelligence and expertise by eVN.

8. Modification to Services; Termination of the Services.

eVN reserves the right to modify or change the Services provided hereunder by modifying current features, deleting features, and/or adding features, upon prior notice to Dealer. Some modifications or changes may result in a fee increase or decrease for such Services. Dealer’s continued use of the Services hereunder after notice will constitute Dealer’s acceptance of the change in the Services and Dealer’s agreement to pay the fees associated with such change in Services. Dealer acknowledges and agrees that eVN may stop (permanently or temporarily) providing the Services, or any part thereof, to Dealer if: (a) Dealer has breached any provision of this Agreement (or has acted in manner which reasonably shows that Dealer does not intend to, or is unable to comply with the provisions of this Agreement); or (b) eVN is required to do so by law (for example, where the provision of the Services to Dealer is, or becomes, unlawful); (c) eVN is no longer authorized by GM to provide the Services to Dealer, or (d) the provision of the Services to Dealer by eVN is, in eVN’s sole opinion, no longer commercially viable; or (e) eVN provides Dealer with thirty (30) days prior written notice of its intent to terminate the Services, or any part thereof, with or without cause. If Dealer wishes to stop using the Services at any time, Dealer agrees to provide eVN with prior written notice of its intent to cancel receiving the Services in accordance with the provisions of Section 12, below. In addition, eVN may disable access to Dealer’s Services for nonpayment of Services. Dealer acknowledges and agrees that if eVN disables access to Dealer’s Services, Dealer may be prevented from accessing the Services or any files or other content in connection with the Services. Dealer acknowledges and agrees that eVN and the Service Providers will not be liable in any way for any inconvenience, delay, damages, losses, or other claims related to disabling Dealer’s access to the Services.

9. Payment of Fees and Billing.

Dealer agrees to pay the fees for the Services in the amounts set forth in the online registration process or, if an order form was used, on the order form. The fees for the Services shall be billed to and Dealer agrees to pay the fees for the Services. eVN will invoice Dealer directly for the Services, and Dealer agrees to pay such invoice within 30 days of receipt. Dealer may cancel the Services at any time by following the cancellation process on GM’s Enrollment Portal (please also send a courtesy cancellation notice to eVN to legal@evnusa.com, which shall not constitute notice of cancellation without completing the cancellation process on the GM Enrollment Portal). Cancellations that occur on or before the 15^th day of each calendar month will be billed for the remainder of that month. Cancellations that occur after the 15^th of any month will be billed for the remainder of that month and the following month. Except as set forth otherwise herein, all charges under this Agreement will be due and payable within 30 days of the date of eVN’s invoice. eVN may increase fees by giving Dealer not less than sixty (60) days written notice prior to the effective date of the price increase. If Dealer fails to pay for the Services timely, Dealer agrees to pay to eVN, in addition to the fees for the Services: (i) a finance charge equal to the lower of 1.5% per month or the maximum amount permitted by law, and (ii) all costs incurred in connection with collection of past due amounts (including collection agency fees and reasonable attorney fees). In addition to the other rights reserved hereunder, eVN expressly reserves the right to terminate the Services and disable Dealer’s access to the Services for non-payment.

By entering Dealer’s billing information, Dealer is authorizing eVN to charge Dealer’s credit card or withdraw funds from a bank account for use of the Services. Dealer is responsible for maintaining accurate and current account information. If a charge for Services is denied for any reason, use of the services will be terminated. Services provided are on a pre-paid basis and Dealer is charged on a monthly cadence.

Please note a 3.5% processing fee will be applied to all credit card interactions. “eVN” may appear as the entity name on invoices and the Dealer’s credit card statements in connection with the billing for Services. If Dealer resides in AZ, CT, IN, LA, MA, MS, NM, NY, OH, PA, SC, SD, TN, TX, UT, or WA certain products may incur applicable state taxes. Dealer in other states may be notified if Services become taxable in their state. Regardless of whether Dealer is notified, Dealer is responsible for all applicable local, state, federal, and any other taxes imposed on the purchase of Services, if any.

10. Taxes.

All fees stated hereunder are subject to applicable sales, use, excise, or similar taxes, whether or not included at the time the fees are billed. Dealer assumes exclusive liability for, and shall pay before delinquency, all sales, use, excise, and other taxes, charges, or contributions of any kind now or hereafter imposed on, with respect to, or measured by the Services except for taxes based on the net income of eVN. Invoices may include any such taxes that eVN determines it is obligated to collect from Dealer with respect to the Services, and Dealer agrees to timely remit the same to eVN.

11. Dealer Warranties.

DEALER HEREBY REPRESENTS AND WARRANTS THAT ANY AND ALL DEALER CONTENT SUBMITTED FOR PUBLICATION OR DISPLAYED ON DEALER’S WEBSITE OR IN DIGITAL ADVERTISING, OR IN ANY SOCIAL MEDIA, WILL NOT VIOLATE OR OTHERWISE INFRINGE UPON ANY COPYRIGHT, TRADEMARK, PATENT, STATUTORY, COMMON LAW, OR PROPRIETARY RIGHT OF OTHERS, OR CONTAIN ANYTHING CONSIDERED OBSCENE OR LIBELOUS.

12. Termination.

Dealer may cancel the Services online through the GM Enrollment Portal as set forth above in Section 9. Except as otherwise set forth on the enrollment form for a particular Service, cancellations that occur on or before the 15th day of the month will be effective as of the end of that month and Dealer will be billed for the Services, and be responsible for payment of the Services, through the end of that month. Cancellations that occur after the 15th day of the month will be effective at the end of the following month and Dealer will be billed for the Services, and be responsible for payment of the Services, for the remainder of that month and the following month. If eVN materially defaults in its performance under this Agreement and fails either substantially to cure such default within thirty (30) days after receiving written notice specifying the default or, for those defaults that cannot reasonably be cured within thirty (30) days, promptly to commence curing such default and thereafter proceed with all due diligence substantially to cure the default, then Dealer may terminate this Agreement by written notice to eVN. eVN may, at any time and for any reason, terminate this Agreement upon thirty (30) days prior written notice to Dealer. This Agreement will automatically terminate without requirement of notice by either party effective on the date of: i) the expiration or termination of Dealer’s franchise agreement with GM for any reason, and ii) that eVN is no longer authorized to provide the Services to GM dealers.

13. NO WARRANTIES.

DEALER EXPRESSLY UNDERSTANDS AND AGREES THAT DEALER’S USE OF THE SERVICES, THE DEALER CONTENT, AND THE PROVIDED CONTENT IS AT DEALER’S SOLE RISK AND THE SERVICES AND THE PROVIDED CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”. IN PARTICULAR, eVN, THE SERVICE PROVIDERS AND THEIR AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO DEALER THAT: (A) DEALER’S USE OF THE SERVICES, THE DEALER CONTENT, OR THE PROVIDED CONTENT WILL MEET DEALER’S REQUIREMENTS, OR (B) DEALER’S USE OF THE SERVICES, THE DEALER CONTENT, OR PROVIDED CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, INCLUDING ANY DEALER CONTENT, PROVIDED CONTENT, IS DONE AT DEALER’S OWN DISCRETION AND RISK AND THAT DEALER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO DEALER’S COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DEALER DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY DEALER FROM eVN, ANY SERVICE PROVIDER, OR GM, OR THROUGH OR FROM THE USE OF THE SERVICES SHALL CREATE ANY WARRANTY. eVN AND EACH SERVICE PROVIDER EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE DEALER CONTENT, AND THE PROVIDED CONTENT INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

14. LIMITATION OF LIABILITY.

SUBJECT TO APPLICABLE LAW, DEALER UNDERSTANDS AND AGREES THAT NEITHER eVN, NOR THE SERVICE PROVIDERS, NOR ANY OF THEIR AFFILIATES OR LICENSORS SHALL BE LIABLE TO DEALER FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY DEALER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY DEALER, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF: (I) ANY CHANGES WHICH eVN OR ANY SERVICE PROVIDER MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (II) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY DEALER CONTENT, DEALER DATA, AND/OR OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH DEALER’S USE OF THE SERVICES; OR (III) DEALER’S FAILURE TO PROVIDE eVN OR ANY SERVICE PROVIDER WITH ACCURATE ACCOUNT INFORMATION OR INFORMATION NECESSARY FOR eVN TO PROVIDE THE SERVICES. DEALER AGREES THAT THE AGGREGATE MAXIMUM LIABILITY OF eVN UNDER THIS AGREEMENT FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY DEALER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE LAST EVENT GIVING RISING TO LIABILITY. THE ABOVE LIMITATIONS ON LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY IS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

15. INDEMNIFICATION.

DEALER WILL DEFEND, INDEMNIFY AND HOLD eVN, THE SERVICE PROVIDERS, GM, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, AND AFFILIATES (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ALL THIRD PARTY CLAIMS, DEMANDS, SUITS, CAUSES OF ACTION, AND ADMINISTRATIVE OR REGULATORY ACTIONS OF WHATEVER KIND OR CHARACTER, AND INCLUDING ANY RELATED LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, FINES, JUDGMENTS, SETTLEMENTS, CHARGES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND ACCOUNTANTS’ FEES AND DISBURSEMENTS (COLLECTIVELY, “CLAIMS”) TO THE EXTENT THAT SUCH CLAIMS RELATE TO, ARISE OUT OF OR RESULT FROM: (I) ANY INTENTIONAL OR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY DEALER OR OF ANY OF DEALER’S EMPLOYEES, AGENTS, OR SUBCONTRACTORS; (II) A BREACH OF THIS AGREEMENT BY DEALER, INCLUDING A BREACH OF ANY OF DEALER’S REPRESENTATIONS, WARRANTIES, OR COVENANTS UNDER THIS AGREEMENT; (III) DEALER’S USE OF THE SERVICES; OR (IV) DEALER’S VIOLATION OF APPLICABLE LAW, BUT EXCLUDING, IN EACH CASE, CLAIMS, DEMANDS AND CAUSES OF ACTIONS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PERSON OR ENTITY SEEKING INDEMNIFICATION.

16. AUTHORIZED THIRD PARTY BENEFICIARIES.

GM SHALL BE DEEMED A THIRD PARTY BENEFICIARY OF THE INDEMNIFICATION AND LIMITATION OF LIABILITY PROVISIONS OF THIS AGREEMENT.

17. Force Majeure.

Each party hereto shall be excused from performance hereunder, except for payment obligations, and to the extent that it is prevented from performing any obligation hereunder, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance, or other cause beyond its reasonable control, including failures, fluctuations, or non-availability of electrical power, heat, light, air conditioning, computing, or information systems, or telecommunications equipment, or the inability of hardware or software leased or acquired by sale or license from third parties to process without error or malfunction any data. Such nonperformance shall not be a default or ground for termination as long as reasonable means are taken to remedy expeditiously the problem causing such nonperformance.

18. Relationship of Parties.

eVN is an independent contractor, and no agency, partnership, joint venture, employer-employee or other similar relationship is intended or created between or among Dealer, eVN, or any Service Provider under this Agreement.

19. Waiver.

Any failure or delay by eVN in exercising or enforcing any rights or remedies that are available under this Agreement (or that eVN has the benefit of under any applicable law or otherwise) shall not be deemed to be a waiver of any other rights or remedies, and all such rights and remedies will remain available.

20. Notices.

Any notice to be provided under this Agreement shall be in writing (email sufficient) and shall be delivered to the last known address of the party to receive the notice, which shall be considered delivered three days after mailing if sent certified mail, return receipt requested, or when received, if sent by e-mail, facsimile, prepaid courier, express mail, or personal delivery.

21. Entire Agreement.

This Agreement constitutes the entire agreement and understanding of the parties in respect of the subject matter contained herein and supersedes all prior agreements, consents and understandings relating to such subject matter. The parties agree that there is no oral or other agreement relating to such subject matter between the parties which has not been incorporated into this agreement.

22. Survival.

The provisions of Sections 2, 3, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 of this Agreement, and any right or obligation of the parties in this Agreement which, by its express terms or nature and context, is intended to survive termination, will survive the termination of this Agreement and the Services.

23. Changes to this Agreement.

eVN may make changes to this Agreement or put into place Additional Terms from time to time at its discretion. When these changes are made, eVN will notify Dealer and send a copy of the new Agreement to Dealer’s last known email address.

Dealer understands and agrees that its use of the Services after the date on which this Agreement or any Additional Terms have changed shall constitute Dealer’s agreement to and, acceptance of the updated Agreement or Additional Terms. Except as set forth herein, this Agreement may be modified or amended only by a duly authorized written instrument executed by the parties hereto.

24. Severability.

If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. Headings used in this Agreement are for reference purposes only and are not a part of this Agreement.

25. Assignment. Dealer may not assign this Agreement without the prior written approval of eVN, except that no approval shall be required to assign this agreement to any person or entity which is, directly or indirectly, controlled by, controlling, or under common control with Dealer and is a licensed dealer authorized to sell and service automobiles under a franchise agreement with GM. This Agreement and all rights of eVN hereunder may be assigned by eVN without consent, payment, or other condition. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.

26. Choice of Law; Venue.

This Agreement shall be construed in accordance with the substantive laws of the State of Michigan without reference to its conflicts of law principles. The parties expressly disclaim any application to this Agreement of the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods. Any action to enforce any arbitration proceeding, and any other legal action, suit or proceeding that is not otherwise subject to mandatory arbitration pursuant to Section 27 and arises under or relates this Agreement or the use of the Services shall be heard exclusively in the either the state courts located in the County of Oakland, Michigan, U.S.A. or the Federal court located in the County of Wayne, Michigan, U.S.A., and the parties hereby submit to the jurisdiction thereof and venue therein. Notwithstanding the foregoing, a party may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any appropriate jurisdiction.

27.         Arbitration and Class Waiver.

27.1       Arbitration. Dealer agrees to arbitrate any dispute or claim that it may have with eVN or its affiliates that arises out of or relates in any way to this Agreement or Dealer’s use of or access to any Services. Such arbitration will be final and binding. If eVN elects in its discretion to submit to arbitration any dispute or claim that it may have against Dealer, any such arbitration will be governed by the provisions of this Section 27.

27.2       Class Waiver. Any arbitration proceeding under this Section 27 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 eVN or its affiliates. If the arbitration clause is found inapplicable to Dealer’s dispute with eVN, this class waiver will continue to apply in litigation. Dealer agrees that this class waiver is an essential element of the agreement between Dealer and eVN and that this class waiver may not be severed. In the event that this class waiver is deemed invalid or unenforceable, then the entire agreement to arbitrate in this Section 27 will be null and void.

27.3       Arbitrator Authority. Any dispute or claim subject to arbitration pursuant to this Section 27 must be submitted to binding arbitration before a single arbitrator administered by JAMS pursuant to JAMS Streamlined Rules. The arbitrator will be bound by and will strictly enforce this Agreement and any other applicable Additional Terms between Dealer and eVN, including any limitations of liability contained therein, and may not limit, expand or otherwise modify any of the provisions of the foregoing. Any arbitration will be held in Birmingham, Michigan, 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 will award the applicable Party any costs and fees to which it may be entitled under Section 15 in connection with any indemnification claim.

Dealer represents and warrants that it is a licensed automotive dealer authorized to sell and service vehicles under a franchise agreement with GM.

GM is a third party beneficiary of this Agreement as provided in Section 17 of the Agreement, however, eVN does not have the power or authority to bind GM through this Agreement or otherwise.

Dealer agrees to deliver all notices required hereunder to eVN to legal@evnusa.com.