DEFINITIONS

• “Agreement” means this Sub- licence agreement and the terms contained herein;
• “Applicable Laws” means, with respect to any person, property, transaction, event or other matter, the provincial and federal laws of Canada, and all applicable municipal and local laws, and regulation, order, judgment, decree, treaty or other requirement having the force of law, in each case relating or applicable to such person, property, transaction, event or other matter;
• “Applicable Privacy Laws” means the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5; Personal Information Protection Act, S.B.C. 2003, c. 63, Personal Information Protection Act, S.A. 2003, c. P-6.5, An Act respecting the Protection of personal information in the private sector, R.S.Q. c. P-39.1, and any other applicable law relating to the protection of personal information in the private sector; in each case as amended from time to time, and includes any successors thereto;
• “Audit” means an audit conducted pursuant to Section 4.3;
• “Auto Check™ Data means the data contained in Auto Check™ searches performed by the Member;
• “Member” means member of the UCDA
• “PI” means personal information under Applicable Privacy laws.
• “Privacy Breach” means an unauthorized access, alteration, collection, disclosure or use of PI provided pursuant to this Agreement.
• “Privacy Complaint” means any complaint made to a federal or provincial privacy commissioner concerning the collection, use and disclosure of PI provided pursuant to this Agreement;
• “Security Breach” means any unauthorized access, alteration, collection, disclosure or use of the non-PI Auto Check™ Data;
• “Security Policies” has the meaning set out in Section 4.1;
• “Sub-licence” means the agreement between UCDA and any Member which has entered into this Agreement regarding the use of the Auto Check™ Data;

SUB-LICENCE AND DATA TRANSFERS

Subject to the terms of this Agreement, in consideration of the provisions hereof and for other good and valuable consideration, UCDA hereby grants Member a royalty-free, non-exclusive, non-transferable sub-licence to:

Use the Auto Check™ Data obtained by the Member through authorized searches of the UCDA’s Auto Check™ database for the sole purpose of complying with the disclosure obligations of the Motor Vehicle Dealers Act, 2002 (MVDA) and regulations made thereto,in particular disclosure to a consumer or dealer pursuant to a purchase and sale or lease agreement by the Member of the fact that as a result of an incident a vehicle has sustained damages requiring repairs in excess of $3,000.00, and the total cost of repairs if known. (Sections 40, 41, and 42 of Regulation 333/08 under the MVDA).

For greater certainty, Member agrees that, without the prior written consent of the UCDA, which consent may be refused at the sole discretion of UCDA, the Sub-licence is subject to the following restrictions:

• Member shall not use, or permit the Auto Check™ Data to be used, other than for the sole and specific purpose of facilitating compliance by the Members with the disclosure obligations set out in the MVDA; and
• without limiting the foregoing, Member shall not use, or permit to be used, the Auto Check™ Data, to conduct any form of financial check; for any use relating to purchasing an automobile; for marketing; or for any form of data mining.

For greater certainty, Member agrees that, without the prior written consent of the UCDA, which consent may be refused at the sole discretion of the UCDA, the Sub-licence is subject to the following restrictions:

• Member shall not use any of the Auto Check™ Data, for any purpose other than as expressly permitted by this Agreement

For the purposes of this Agreement, the UCDA,, vis a vis the Member, is, and shall at all times remain, the sole and exclusive owner of all right, title and interest in the Auto Check™ Data and all intellectual property rights, and other proprietary rights in the same; and the Member is not, and shall not be deemed to be, a transferee of any or all of the UCDA’s right, title or interest of any kind whatsoever in the Auto Check™ Data.

2.5 In consideration for the Sub-licence and related data transfers, Member shall pay, on a timely basis, all costs invoiced by the UCDA for Auto Check™ searches performed by the Member.

MEMBER REPRESENTATIONS, WARRANTIES AND COVENANTS

Member hereby represents, warrants, covenants, acknowledges and agrees that the UCDA is relying upon each such representation, warranty, and covenant, that:

• The Member is properly authorized to enter into and perform its obligations under this Agreement, and that the person signing this Agreement on behalf of the Member has read and understands this Agreement;
• The Member shall perform its obligations in a professional manner, in accordance with all Applicable Laws, including Applicable Privacy Laws;
• The Member shall collect and use the Auto Check™ Data provided by the UCDA only in accordance with this Agreement and in accordance with all Applicable Laws, including Applicable Privacy Laws;
• The Member shall not combine the Auto Check™ Data with any other data elements that would reconstitute the Auto Check™ Data as PI other than as required by Applicable Laws or without the written approval of the UCDA;
• The Member shall notify the UCDA immediately in writing if the Member acting reasonably knows or ought to know that the Auto Check™ Data has been reconstituted into PI;
• The Member is only permitted to purchase, use and access the Auto Check™ Data specifically consented to by the UCDA;
• The Member may retain a copy of the relevant Auto Check™ Data in a file associated with the sale of the vehicle which is the subject of such Auto Check™ Data, but, unless otherwise required by Applicable Laws, may not otherwise retain a copy of any Auto Check™ Data on its electronic systems or in tangible form; and
• The Member has implemented, and shall continue to maintain and test with reasonable frequency, an industry standard record retention and destruction policy, one of the requirements of which is that, as of the expiry of a reasonable document retention period, the Member must destroy each record containing Auto Check™ Data, on a secure, unrecoverable and documented basis, other than to the extent required by Applicable Law, including Applicable Privacy Laws.

AUDIT, INSPECTION AND COOPERATION

Subject to and in accordance with Applicable Laws, the Member shall have and maintain in place, appropriate security and privacy policies and procedures to safeguard the Auto Check™ Data provided to the Member pursuant to this Agreement from unauthorized access, use or disclosures, which shall be in compliance with the requirements of this Agreement (the “Security Policies”).

The Member may be asked to provide a certification to the UCDA every year, commencing June 1, 2011, that it has implemented and complies with the Security Policies and that the use of the Auto Check™ Data remains consistent with the terms of this Agreement.

The UCDA reserves the right at its sole discretion to Audit the Member’s use of the Auto Check™ Data on the first (1st) anniversary of this agreement and every two (2) years thereafter.

The UCDA may appoint an auditor to carry out such Audit of the Member.

With respect to each Audit conducted:

The auditor shall prepare and deliver a confidential Audit report to the UCDA and the Member in each case within twenty (20) Business Days of commencing the Audit. The Audit report shall not be publicly disclosed by the UCDA, the Member, or the auditor. In each case, the Audit will be conducted at the cost of Member.

The Member shall provide reasonable assistance to the auditor in connection with the Audit and shall assign an appropriate individual or individuals to respond to questions that the auditor may have.

The Member shall provide reasonable assistance to the auditor in connection with the Audit and shall assign an appropriate individual or individuals to respond to questions that the auditor may have.

The Member and UCDA acknowledge and agree that, without limiting or restricting any other obligations of the Member, where any Audit identifies any issues of non-compliance with this Agreement, including requirements relating to the Security Policies of the Member, the Member shall, at its cost and as expeditiously as reasonably possible, (A) review the non-compliance finding; (B) correct each issue relating to such finding; and (C) notify the UCDA of each action taken to address such Finding.

The auditor may conduct a follow-up Audit to confirm that all non-compliance findings have been corrected, and such Audit shall not constitute an Audit for the purposes of Section 4.3 above.

For greater certainty, nothing in this Section 4 shall be deemed to limit or prejudice the rights and obligations of the UCDA under any other provision of this Agreement or at law or in equity.

DISCLAIMER

The Auto Check™ Data is provided “as is” and the UCDA makes no, and actively disclaims any, warranties, representations, or conditions whatsoever, expressed or implied, regarding the Auto Check™ Data, including in regard to the accuracy, completeness or validity of such data, and any implied warranty of merchantability, fitness for a particular purpose or non infringement of third-party intellectual property rights, or any warranties arising from course of dealing, usage of trade or from statute.

The Member shall not make any representation, warranty or condition to any third party either directly, indirectly or through omission about the accuracy or completeness of the Auto Check™ Data. For greater certainty and without limitation, the Member agrees to indemnify and hold harmless the UCDA, under Section 9, from and against any damages that occur as a result of a breach of this Section 5.

CONFIDENTIAL INFORMATION, OTHER INSURER INFORMATION, AND PI

The Member acknowledges and agrees that the Member may receive information which is either identified as, or by its nature is, confidential and proprietary information, including Personal Information (“Confidential Information”). The Member agrees to not (a) use any such information, except to the extent required to perform its obligations hereunder. The Member agrees to protect the Confidential Information in the same manner it protects the confidentiality of its own information of similar sensitivity (and at all times exercising at least a reasonable degree of care).

Subject to Applicable Laws, including Applicable Privacy Laws, the Member shall notify the UCDA immediately and in writing of any Privacy Breach. Such notification shall include reasonable details, to the extent known, of (i) the date of the Privacy Breach; (ii) the description of the Privacy Breach and how the Privacy Breach occurred, including the unauthorized access, alteration, collection, disclosure or use of the PI, and (iii) a summary of the steps, if any, taken by the Member to control or respond to the Privacy Breach. The Member agrees that where it becomes aware of any Privacy Breach, it shall work jointly acting reasonably with the UCDA to develop an appropriate response plan, including, except as required by Applicable Law, the content and timing of any; (i) notification to subject individuals, (ii) reports, statements or any communication to any privacy commissioner, or (iii) any public statement.

Subject to Applicable Laws, including Applicable Privacy Laws, the Member shall further immediately notify the UCDA in writing of any Privacy Complaint, within its knowledge, by an individual and shall seek the reasonable input of the UCDA in responding to such a Privacy Complaint.

The Member agrees that other than to the extent that such Privacy Breach or Privacy Complaint was caused directly or indirectly by the actions or omissions of the UCDA, the Member shall at its cost, develop and implement an appropriate remedial plan to promptly remedy such Privacy Breach or Privacy Complaint (which plan may, without limitation, in the case of a Privacy Breach, include the requirement to notify the subject individuals and provide credit-monitoring coverage). If requested by UCDA, the Member shall provide reasonable cooperation and assistance to UCDA in investigating, limiting, stopping or remediating the cause of any Privacy Breach.

The Member shall notify the UCDA immediately and in writing of any Security Breach. Such notification shall include reasonable details, to the extent known, of (i) the date of the Security Breach; (ii) the description of the Security Breach and how the Security Breach occurred, and (iii) a summary of the steps, if any, taken by the Member to control or respond to the Security Breach.

SECURITY OBLIGATIONS

The Member shall at all times take all measures, consistent with leading industry practices, to retain, transfer and dispose of Auto Check™ Data in a secure manner, and to safeguard the security and confidentiality of all Auto Check™ Data, in accordance with all Applicable Laws, including without limitation, PIPEDA.

Without limiting the generality of the foregoing, at all times the Member shall:

• protect and maintain the security and integrity of all Auto Check™ Data, which is under the custody and control of the Member, and keep it in a physically secure location, protected safe from theft or loss and from unauthorized use, disclosure, alteration, copying, destruction, disposal, modification or intermingling with other records and databases, and the Member acknowledges and agrees to the following administrative, logical and technical, and physical safeguards, products, tools, measures and procedures that have been implemented by the UCDA:
• (i) Encryption. All Automobile Data transmitted over the Internet shall be encrypted using the current industry best practice standards, which shall not be less than 128 bit encryption, while in transit;
• (ii) Authentication Credentials. UCDA shall limit access to its Auto Check™ by providing unique user IDs and passwords to all authorized users (“Authentication Credentials”);
• (iii) Password Administration. All passwords stored at UCDA’s site shall be secured using no less than 128 bit encryption or another functionally equivalent safeguard that is intended to protect passwords from disclosure;
• (iv) Security Administration. UCDA shall provide for: monitoring by appropriate systems to detect attacks or intrusions via internal or external sources; and adequately developed and tested backup/recovery plans;
• restrict access to Auto Check™ Data to only those of its directors, officers, employees, agents, partners or affiliates who need it for the purpose of the Sub-licence, who have been specifically authorized by the Member to have such access for the purpose of providing the designated products and services, and who have agreed in writing to keep the Auto Check™ Data confidential;
• resist any subpoena, warrant, order, demand or request for Auto Check™ Data, made by any court or authority, unless it is a Canadian court of competent jurisdiction, or made by a Canadian authority except, in the case of PI, where the individual to whom the applicable PI relates has provided his or her consent to such disclosure of such PI or where such disclosure is required by Canadian law;
• bring an immediate application in a court of competent jurisdiction, on notice to the UCDA, to set aside any subpoena, warrant, order, demand or request made by a foreign court or other foreign authority for the disclosure of any Auto Check™ Data, including, in the case of PI, that is the subject of or protected by Canadian privacy laws unless the individual to whom the PI relates has provided his or her consent to such disclosure of such PI;
• without limitation, not subject, or allow to be subjected, any Auto Check™ Data to any form of data-mining software for any purpose whatsoever;
• retain Auto Check™ Data for only as long as required to fulfill the identified purposes for which it was collected, and thereafter destroy, erase or make it anonymous, in accordance with guidelines and procedures developed and implemented by Auto Check™ in accordance with Principle 5 of PIPEDA; and
• not use, hold, disclose or transfer any of the Auto Check™ Data outside of Canada without the prior written consent of the UCDA.

The Member will at all times ensure that no third party is able to collect, use or disclose the PI data under the custody and control of the Member, except in accordance with the this Sub-licence, and in particular to take all reasonable steps required or reasonably necessary to ensure that no Auto Check™ Data is disclosed to or accessed by any person, except to the limited extent and in the limited circumstances, if any, permitted by or required by Applicable Law, and as reflected in this Sub-licence.

The member agrees that it shall not further Sub-licence or assign the performance of any of its obligations under this Sub-licence, except with the written consent of UCDA.

NON-TRANSFERABLE

Anything in the Agreement to the contrary notwithstanding, the Member may not assign the Agreement, in whole or in part, to any other entity, except where such assignment is approved in advance by the UCDA in writing, which approval the UCDA may in its sole discretion grant or deny.

INDEMNITY

The Member hereby agrees to indemnify and hold harmless the UCDA, the Insurance Bureau of Canada (“IBC”), insurers who supply data to Auto Check™, and each of the respective directors, officers, agents employees, partners, Affiliates, volunteers and independent contractors of the aforementioned from and against any and all liabilities, losses, costs, damages and expenses (including legal, expert and consultant fees), causes of action, actions, claims, demands, lawsuits or other proceedings, by whomever made, sustained, incurred, brought or prosecuted (each, a “Claim”), in any way based upon, occasioned by or attributable to any breach of this Agreement by, or the gross negligence or willful misconduct of, the Member or its respective directors, officers, agents, employees, partners, Affiliates, volunteers or independent contractors, in connection with this Agreement

LIMITATION OF LIABILITY

Neither the UCDA nor IBC shall be liable or be required to indemnify for any indirect, special, incidental or consequential losses or damages, or damages for business interruption, lost profits or failure to realize expected savings, even if the Member has advised of the possibility of such losses or damages in advance. The foregoing disclaimer shall apply regardless of whether such liability is based on breach of contract, tort (including without limitation, negligence), strict liability, breach of a fundamental term, or otherwise.

CARFAX CANADA

I Understand that I and/or my Dealership may use the CARFAX Canada Vehicle History Reports solely to evaluate vehicles for Dealer’s internal business purposes consisting of the acquisition or potential acquisition of used vehicles primarily for retail sale, and in no event may we resell, redistribute, compile, alter or disseminate the CARFAX Canada Vehicle History Reports. I understand that the purchase is subject to the End-User License.

TERM AND TERMINATION

This Agreement commences upon acceptance of its terms by the Member and continues indefinitely until terminated in accordance with this Agreement.

The UCDA may terminate the Agreement for convenience and without cause at any time, upon providing sixty (60) days written prior notice, in which case upon written request, the Member shall promptly (a) return (in the form originally provided to the Member) a copy of such Auto Check™ Data, and (b) destroy and certify the completeness of the destruction of, such Auto Check™ Data, other than to the extent required by Applicable Law, including Applicable Privacy Laws.

The UCDA may terminate the Agreement:

• (a) upon twenty (20) Business Days prior written notice to the Member, in the event that the Member is in material breach of this Sub-licence, and the Member does not within a twenty (20) Business Days notice period cure such breach to the satisfaction of the UCDA; or
• (b) immediately in the event that the Member ceases to do business; becomes unable to pay its debts as they fall due; becomes or is deemed bankrupt or insolvent; has a receiver, liquidator, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business (or is the subject of a filing with any court for the appointment of any such officer); makes any composition, assignment or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation other than for the purpose of solvent amalgamation or reconstruction); or any equivalent or similar action or proceeding is taken or suffered in any jurisdiction; or
• (c) the Member, for any reason, ceases to be a member of the UCDA.

The provisions of Sections 5, 6 and 8 survive the termination or expiration of this Agreement.

All Disputes that may arise with respect to any matter governed by this Agreement shall be referred to, and to the fullest extent possible shall be resolved jointly by, the Parties’ representatives, each of whom shall use all reasonable efforts to resolve the Dispute within ten (10) Business Days, which period shall be deemed to exclude weekends and statutory holidays.

If the Parties’ representatives are unable to resolve a Dispute within ten (10) Business Days, then the Dispute shall be referred to the Vice President of the relevant business unit (each an “Executive”). The Executives shall make all reasonable efforts to resolve the Dispute within twenty (20) Business Days of its referral. Each Party shall ensure that its Executive has the necessary authority to resolve that Dispute on behalf of that Party.

In the event that such Executives are unable to resolve any such Dispute, such Dispute shall be finally resolved by binding arbitration pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc, provided that the choice of procedure under such Rules (including whether to use the simplified procedure) shall be at the sole discretion of the UCDA. The place of arbitration shall be in Toronto, Ontario.

OTHER PROVISIONS

This Sub-licence is governed by the laws of Ontario and the laws of Canada.

All notices and documents required or permitted to be given by one Party to the other Party under this Sub-licence shall be in writing and (a) delivered personally or by courier; or (b) sent by facsimile:

• In the case of UCDA to: 230 Norseman Street Toronto, Ontario M8Z 6A2 Fax: 416-232-0775
• In the case of the Member to the mailing address or facsimile number of the Member on file with the UCDA:

Either Party may change its address by written notice to the other Party.

If any provision of this Agreement is invalid or unenforceable, the remainder of this Agreement shall not be affected.

Any failure by either Party to insist in one or more instances upon strict performance by the other Party of any of the terms of this Agreement shall not be construed as a waiver by the first Party of its right to require strict performance of any such terms or conditions, and the obligations of the other Party with respect to such performance shall continue in full force and effect.

The Parties acknowledge and agree that it is the express intent of the Parties that (a) this Agreement constitutes the entire agreement and understanding of the Parties relating to the subject matter of this Agreement and supersedes all prior directions, agreements, understandings, discussions, promises, proposals, including negotiations, commitments, representations and warranties, written or verbal, express, implied, collateral or otherwise, between the Parties which relate in any way to such subject matter.

This Agreement shall be effective once executed by an authorized representative of the Member. No changes shall be effective or shall be carried out in the absence of a written amendment.