Blueprint





  Exhibit 10.5






 


	
DATA
CONFIDENTIALITY AGREEMENT


	
 February
8, 2017






                                                                                                                                          






1.

Sharing of Data. Cycle Express,
LLC (the “Company”) shall provide to Smart
Server, Inc. and its wholly-owned subsidiaries (collectively,
“Recipient”)
certain non-public, confidential auction data (“Confidential Information”),
including up to the number of NPA Value Guide API look-ups per year
specified on Annex A attached hereto (the “Pricing Annex”), to be used for
(i) trade-in appraisals and inventory valuation in
Recipient’s product known as “CyclePro” or (ii)
Recipient’s products that aggregate Confidential Information
with other proprietary data available to Recipient and deliver the
aggregated data or analysis derived therefrom to Recipient's
customers without attribution of individual sources of data
(collectively, the “Purpose”). For the purposes of
this agreement, Confidential Information shall include any notes,
analyses, reports, compilations, or studies that either contain or
are derived from such information. The parties acknowledge that the
Confidential Information may contain third party data. The
continued provision to Recipient by the Company of such third party
data is conditioned upon consent from the applicable third party to
such data sharing arrangement. As between Recipient and the
Company, the Company retains all right, title and ownership
interests in all Confidential Information. Recipient shall acquire
no rights in the Confidential Information other than those limited
rights of access and use specifically conferred by the terms of
this Agreement.






 




2.

Use of Data. The Confidential
Information shall be made available to Recipient on an on-demand
basis via electronic methods and in accordance with Company's
specifications. Recipient shall not use the Confidential
Information for any purpose other than the Purpose. For the
avoidance of doubt, Recipient shall not be permitted to publish,
license, sell or distribute the Confidential Information, other
than for the Purpose, nor shall Recipient be permitted to retain or
reuse Confidential Information for any purpose, except to the
extent such information is retained as part of the aggregated data
or analysis derived therefrom for no more than 30
days.






 




3.

Consideration. As consideration
for the rights granted to Recipient herein, Recipient shall pay to
the Company the sum specified on the Pricing Annex. Amounts payable
pursuant hereunder shall be paid in immediately available cash by
wire transfer, valid company check of Recipient, or such other
method of payment as may be agreed between the parties from time to
time to the Company on or prior to the 1st day of every
month.






 




4.

Confidentiality Obligations.
Recipient shall not disclose any Confidential Information to any
person except (a) authorized users of the CyclePro product or users
of any product of Recipient that uses Confidential Information only
in the aggregated form, (b) to its employees, officers, directors,
representatives, advisers, counsel or agents (any such person, a
"Representative" and the
Recipient together with its Representatives, the "Recipient Entities") who have a need to
know the Confidential Information in connection with the Purpose,
(c) with the written consent of the Company, (d) to its applicable
regulatory authorities, examiners (including self-regulatory
authorities) and auditors or (e) pursuant to a subpoena, civil
investigative demand (or similar process), order, statute, rule or
other legal requirement, including the rules of any stock exchange
on which Recipient's stock is traded. If the Recipient intends to
disclose any Confidential Information pursuant to clause (e) above,
Recipient will give the Company prompt written notice of such
intent so that the Company may seek an appropriate order or other
remedy protecting the Confidential Information from disclosure, and
Recipient will reasonably cooperate with the Company to obtain such
protective order or other remedy. In the event that a protective
order or other remedy is not obtained or the Company waives its
right to seek such an order or other remedy, Recipient may, without
liability under this Agreement, furnish only that portion of the
Confidential Information which, in the opinion of the
Recipient’s counsel, Recipient is legally required to
disclose, provided that Recipient gives the Company written notice
of the information to be disclosed as far in advance of its
disclosure as practicable and Recipient uses its commercially
reasonable efforts to obtain assurances that confidential treatment
will be accorded to such information.






 



 

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Recipient shall be
responsible for any actions taken by its Representatives in
violation of this agreement. Recipient further agrees (i) to notify
the Company promptly in writing of any use, disclosure or
misappropriation of the Confidential Information in violation of
this agreement which may come to Recipient’s attention and
(ii) to cooperate with the Company in remedying such unauthorized
use or disclosure or misappropriation of the Confidential
Information.


 


Information will
not be deemed Confidential Information if it is or becomes
available in the public domain on or after the date hereof (other
than as a result of a disclosure by any Recipient Entity in breach
of this agreement).


 




5.

Trademark. During the term of
this agreement, the Company hereby grants Recipient a limited,
non-exclusive, non-transferable, non-sublicenseable license to
display the mark “NPA Value Guide” (the
“Mark”) solely
for the Purpose stated in clause (i) of Section 1. Recipient shall
not acquire any right, title or interest in to the Mark, or any
goodwill associated with the Mark, by its use of the Mark;
Recipient’s use of the Mark inures solely to the benefit of
the Company. The foregoing license does not include the right to
use any marks of the Company other than the Mark.  Recipient
shall not do anything inconsistent with the Company’s
ownership of the Mark, interfere with the Company’s use
and/or registration of the Mark, or attempt to register a
trademark, service mark, logo, tag line, company name, trade name,
user name, e-mail address or domain name that contains, is
confusingly similar to, or is suggestive or derivative of the Mark.
Recipient shall not combine the Mark with any other trademarks,
service marks or copyrightable subject matter (other than the
"CyclePro" mark so long as the two marks are clearly
distinguishable) without prior written approval of the Company.
Recipient acknowledges the importance to the Company of the
goodwill of the Mark. Recipient shall conform its use of the Mark
to reasonable standards that the Company may establish from time to
time. Recipient shall use reasonable commercial efforts to protect
and preserve the commercial value of the Mark and to immediately
notify the Company in writing if it becomes aware of any
infringement, dilution, misappropriation or other violation of the
Company’s rights in the Mark by Recipient or its
Representatives. Company shall have the sole right and discretion
to bring and/or defend actions or proceedings involving the Mark,
including, without limitation, actions for infringement, dilution
and/or unfair competition.  At the Company's expense,
Recipient agrees to cooperate in any such proceedings brought by
the Company.  If the Company decides to enforce or defend its
rights in the Mark against a third party, all costs incurred and
recoveries made from such third party shall be for the account of
the Company. Recipient shall not delete, remove, modify, obscure or
in any way interfere with any trade secret, trademark or copyright
notice.






 



 

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6.

Security. Smart Server shall
comply with all applicable data security laws, use commercially
reasonable efforts to protect the electronic security of the
Confidential Information, including by using anti-virus, security
and firewall technology commonly used in the industry, and promptly
notify the Company of any failure to comply with law, breach of
security, unauthorized access to Confidential Information or
unauthorized access to Company's systems.






 




7.

Restrictive Covenant. Recipient
shall not use the Confidential Information or the Mark in any
business other than the Business or in any way that materially and
directly interferes with the Company’s auction and
auction-related business taken as a whole. "Business" means the
development, marketing, distribution, licensing, operation and/or
maintenance of CyclePro software and the product(s) contemplated in
clause (ii) of Section 1.






 




8.

Indemnity. From and after the
date hereof, Recipient shall indemnify, defend and hold harmless
the Company, its affiliates and each of their respective officers,
directors, members, partners, employees, agents and representatives
from and against any and all claims, liabilities, obligations,
losses, fines, costs, proceedings or damages, including all
reasonable fees and disbursements of counsel incurred in the
investigation or defense of any of the same or in asserting any of
the Company’s rights hereunder, based on, resulting from,
arising out of or relating to (a) Recipient’s use of the
Confidential Information or the Mark or (b) Recipient’s
breach of this agreement.






 




9.

Further Cooperation. When and
if the Company subsequently develops a form data licensing
agreement, Recipient agrees to enter into such agreement (on the
terms mutually acceptable to both parties) to formalize the terms
pursuant to which Recipient may continue to use the Confidential
Information.






 




10.

Termination. This agreement and
the obligations of all parties hereunder shall terminate one (1)
year from the date of this agreement.   In addition, the
Company may terminate this agreement by providing written notice to
Recipient if Recipient or any of its Representatives: (a) breaches
this agreement (other than Section 7 hereof) and fails to cure such
breach with 15 days of a notice by the Company specifying the
breach, (b) breaches Section 7 of this agreement and fails to cure
such breach within 30 days of a notice by the Company specifying
such breach, (c) disparages the Company, or its products, Mark or
clients (other than in the course of legal proceedings to enforce
the rights of the parties hereunder), (d) makes any unauthorized
use of the Mark, the Confidential Information and fails to
discontinue such unauthorized use within 10 days after receipt of a
notice from the Company specifying the unauthorized use, or (e)
takes any action which tarnishes the Company’s reputation or
Mark (other than in the course of legal proceedings to enforce the
rights of the parties hereunder).  Upon termination, Recipient
shall immediately cease all use of the Confidential Information and
the Mark and shall not thereafter use any name, mark, logo, trade
name, domain name or other indicia of origin that is identical or
visually, aurally or phonetically similar to the Mark. Sections 4,
8 and 10-13 of this agreement shall survive the termination of this
agreement.






 




11.

Assignment. This Agreement may
not be assigned by Recipient except to a successor to all of its
assets and business.






 



 

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12.

Disclaimer of Warranties &
Limitation of Liability.  Recipient acknowledges and
agrees that the Mark, Confidential Information and other materials
and products provided under this agreement are provided “AS
IS” and THE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS OR
IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY
WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.  Under no circumstances shall the Company
be liable to Recipient or any third party in connection with this
agreement for any special, indirect, incidental or consequential
damages, including, but not limited to, any loss of revenues, lost
profits or other lost or interrupted business, however caused and
whether based in tort (including negligence), contract or any other
theory of liability, even if such party had been advised of the
possibility of such damages.  In any event, under no
circumstances shall the Company’s aggregate liability to
Recipient or third parties under this Agreement exceed an amount
equal to $10,000.






 




13.

Miscellaneous. This agreement
shall be governed by and construed and enforced in accordance with
the laws of the State of Delaware, without respect to principles
regarding conflicts of law, and shall benefit and be binding upon
the parties hereto and their respective successors and assigns.
This letter agreement may be executed simultaneously in any number
of counterparts and may be executed by facsimile. Each such
counterpart shall be deemed to be an original instrument, but all
such counterparts together shall constitute one
agreement.






 


 


 


 


 


 


 


 


 




 

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IN
WITNESS WHEREOF, the parties have executed this Data
Confidentiality Agreement as of the date first set forth
above.


 


	
 

	


SMART
SERVER, INC.


 


 

By: /s/ Marshall Chesrown  
 



Name:
Marshall Chesrown


Title:
Chief Executive Officer



 


 


CYCLE
EXPRESS, LLC


 


 


By: /s/ James
Woodruff         






Name:
James Woodruff


Title:
Chief Operating Officer










 


 


 


 


 



  
[Signature Page to Data Confidentiality
Agreement]







 







ANNEX A


 



Pricing Annex


 

*
Confidential terms omitted and provided separately to the
Securities and Exchange Commission.