Preview
FILED
4/9/2021 7:53 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
CAUSE NO. DC-21-02846
EZ360, LLC IN THE DISTRICT COURT
Plaintiff
mn 162%” JUDICIAL DISTRICT
INDY AUTO MAN, LLC
Defendant DALLAS COUNTY, TEXAS
DEFENDANT’S MOTION FOR STAY OF LITIGATION
COMES NOW, Indy Auto Man, LLC, Defendant in the above-styled cause, and applies to
this Court for an order pursuant to the Federal Arbitration Act to stay these judicial proceedings
pending arbitration of all arbitrable issues in controversy between the parties, and in support of
this motion, respectfully shows as follows:
1 On or about December 14, 2019, EZ360, LLC (“Plaintiff”) and Indy Auto Man,
LLC (“Defendant”) entered into a written agreement for Plaintiff to construct a photo studio for
Defendant in the state of Indiana (the “Agreement”). Plaintiff is a Texas Limited Liability
Company, and Defendant is an Indiana Limited Liability Company.
2. In paragraph 8.3 of the Agreement, the parties agreed as follows:
In the event of any dispute, claim, question or disagreement arising from or relating
to this Agreement or the alleged breach thereof, the parties shall use their best
efforts to mutually settle such dispute, claim, question or disagreement. To this
effect, they shall consult and negotiate with each other in good faith, and,
recognizing their mutual interests, attempt to reach a just and equitable resolution
satisfactory to both parties. If they do not reach such a resolution within a period of
60 days, then, upon notice by either party to the other, all such disputes, claims,
questions or disagreements shall be finally settled by binding arbitration. Such
arbitration shall be administered in accordance with the commercial arbitration
tules of the American Arbitration Association with the arbitration being located
exclusively in Dallas, Texas.
(the “Arbitration Clause”)
Motion to Stay Litigation Page |
3346387
Page 1
3 A copy of the Agreement is attached as Exhibit A and incorporated herein by
reference. The Arbitration Clause is valid and enforceable, and supported by adequate
consideration.
4 A dispute has arisen between Plaintiff and Defendant as to the respective parties’
obligations under the Agreement. Plaintiff alleges, among other things, that Defendant breached
the Agreement, violated the Texas Uniform Trade Secrets Act by breaking Defendant’s agreement
to maintain the secrecy of Plaintiff's trade secrets under the Agreement, and tortuously interfered
with EZ360s contract with its subcontractor who was performing work under the Agreement.
Defendant denies each and every of Plaintiff's allegations, and asserts that Plaintiff breached the
Agreement, among other acts and omissions. Each and every of Plaintiffs and Defendant’s
disputes arise under the Agreement.
5 On or about March 4, 2021, Plaintiff filed Plaintiff's Original Petition against
Defendant in the above-captioned action, asserting claims for breach of contract, violations of
TUTSA, and tortious interference with contract. All of these claims arise from or relate to the
Agreement, and are therefore subject to Paragraph 8.3’s arbitration clause.
6 On March 24, 2021 and again on March 29, 2021, Defendant attempted to initiate
arbitration of the above-described controversy in accordance with the terms of the Agreement by
making a written demand for arbitration to Plaintiff, true and correct copies are attached as Exhibit
B, and fully incorporated by reference. Plaintiff did not respond to these requests.
7 Defendant requests that notice of hearing on this Motion be sent to Plaintiff, and
that, on hearing, the Court order as follows:
A This litigation be stayed in its entirety;
B If the parties do not commence arbitration in Dallas County, Texas on or
before May 31, 2021, the Court will dismiss Plaintiffs claims with
prejudice to refile;
Motion to Stay Litigation Page 2
346387
Page 2
c Defendant have such other and further relief to which defendant may be
justly entitled.
Respectfully submitted,
ABERNATHY, ROEDER,
BOYD & HULLETT, P.C.
/s/__Lucas Henry
Lucas Henry
State Bar No. 24101901
Paul M. Lopez
State Bar No. 24076516
1700 Redbud Blvd., Suite 300
McKinney, TX 75069
214-544-4000 (phone)
214-544-4040 (fax)
Ihenry@abernathy-law.com
plopez@abernathy-law.com
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF CONFERENCE
I certify that I personally attempted to confer with counsel for Plaintiff, Melanie Kemp
Okon and Clayton Thomas Lynn, via email and letter correspondence on March 24, 2021 and
again on March 29, 2021, and again by telephone on April 1, 2021 and again on or about April 6,
2021. Counsel for Plaintiff did not respond to my letters, emails, or phone messages at all.
/s/ Lucas Henry
Lucas Henry
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing document was
electronically served upon parties and counsel of record, on April 9, 2021 via the Court’s electronic
filing and management system.
/s/ Lucas Henry __
Lucas Henry
Motion to Stay Litigation Page 3
3346387
Page 3
VERIFICATION
STATE OF INDIANA $
§
COUNTY OF _ MARION 8
BEFORE ME, the undersigned authority. on this day personally appeared Indy Auto
Man, LLC, by and through its authorized agent, Yevgeniy Gorin, who. by me being duly sworn
on oath says that it is a named Defendant, that Yevgeniy Gorin has reviewed the foregoing
Motion to Stay Litigation, and tet hs information contained therein is = personal
.
Chae—
TO BEFORE sii ily pecan! ee
tough etre agent Yori Gos o ee
hand and seal of office.
my ess
which witn S
‘State
of indiana
2 / Cemenission Expires
Notary Public in and for
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7 Teta
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EXHIBIT A
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EZ360 Photo Studio Sale Order Form (Q4-2019)
The Photo Studio is a complete turnkey solution, built on-site and customized to the client’s needs. The
ideal space requirements is 28’ x 32’ x 12’H.
Client Name:
Indy Auto Man
Website: Phone:
indyautoman.com BI7 675. A723
Contact: Title:
Victor Figlin General Manager
Email: victor@indyautéGom Phone: 317-814-7520
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Product section
Photo Studio Turnkey installation of the photo studio including:
e Steel studs framing - provides rigidity and lasts forever. $19,950
° Interior walls with rounded corners - made of special photographic
material (ePVC) that creates soft glow bouncing light.
Surrounding LED lights - complete set of LED lights, totaling 1,250 watts,
generates over 100,000 lumens to produce high-quality images.
Wall to wall diffusers - eliminate hot spots.
Exterior Coroplast walls - applied on the visually exposed walls to create
an architecturally appealing image.
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Turntable
$ 22,900
e 13’ heavy-duty turntable can handle the largest vehicles in the marketplace
(such as F-450 crew cab, RAM 3500 and large vans) and is ideal for dealers
who sells 350-900 vehicles a month.
This turntable isconstructed exclusively of a high-grade powder coating and powered
using gear & pin qpectenism with reflective finish.
| Total Product order $ 42,850
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Note: add $ 3,000 iforderihg just the turntable or the photo studio.
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Photo Studio options
Bouncer - Substitute the diffuser ceiling with a bouncer and surrounded lighting - $1,750
may be required if the existing roof is too low.
(2) Lexin LED with diffuser dome - highly recommended if a Bouncer is used.
These apertures provide high intensity, diffused (diffuser dome included) light for $1,850
better pictures. |
Raised floor - build a new floor (wood or concrete) around the turntable to $ 6,900
eliminate the need of skirts (ramps around the turntable) and create “infinity look”
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Automation Packag
Control center - monitors, computers, power supplies, two keyboards & 2
mouses, remote casting device, and bluetooth devices all mounted on tool cart.
The Control Center eliminates the need for trained photographer/s.
Cameras package- Three (3) Android devices with hi-res cameras and one (1) 360 $4,900
ameras, camera arms & stands, and accessories (any additional fixed camera is $ 750)
Calibration and hands on training - our team will synchronize the turntable with
the cameras and provide four (4) hours hands on training as well as one week
remote monitoring of the dealer’s operation.
$58,250
Gross product orde
- $2,913
Less 5% Group 20 Discount
Net product orde: $ 55,337
A% 35
Paymentterms: $26,000 down payment and the remaining $27,580 upon completion.
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Professional service
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On going support_- unlimited phone and online meeting for training, knowledge Include with
transfer and problem solving. Premium service
Note - Custom programing and changes, subject to the Dealer’s request and
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approval, are billed at$ 120 per hour.
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Service Packages
The Ez: incl led with the pre jase.
The EZ360 app, Ivana, provides picture taking, automated upload, publication, and syndication. Ivana
frees the photographer from the time-consuming task of uploading pictures and posts the pictures
instantly
to the Dealer's website. No more manual upload and no more 24 to 48 hours delay.
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Additional service packages are available:
Packages (monthly charge, per brand *) Basic Advanced | Premium
$295 $495 $795
Exterior Spin and Interior 360
v v
Interactive media increases buyers attention by 300% !
iContent - Online Content Management System with vehicle editing,
user management, and reports.
Enhance efficiency and production quality with instant editing.
Branding - add Dealership overlay and water marks automatically
Stand above the competition!
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Magazines - customized templates guide the users through the
precise order and positions of the details pictures.
TheMagazines provide consistency and cost saving.
Points of Interests PO's - automatically highlight vehicle features
as well as imperfections and blemishes.
Virtual tour capture attention and create trust.
Multi Spin Cameras - Support for multi point of view Spin (such as
top and normal view) as well as close up view.
| Capture attention with dramatic views
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Merchandiser - add custom and stock overlay and messages to any
picture and syndicate them to all 3rd party sites.
Capture buyers’ attention and stand above the competition !
Copy Content - create a library of pictures and rich media that can be
applied tosimilar vehicle automatically.
Save up to 60% of NEW vehicle pictures taking.
Video - Add video with real human voice (Full Motion or Pic-to-Vid ) $ 100 $100 v
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Basic ium
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For each additional brand (a separate physical location or an OEM)
or has separate dealer ID in the incoming data feed)
$195 $295 $395
Main Brand
Indy Auto Man_https://www.indyautoman.com $795
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Total Services $795
Special Terms and conditions
The following special terms and conditions are agreed upon: Can scale down the service upon
30 daysnotice.
Client’s initials.
Credit Card Payment Info (for the services only)
Credit card no: WLVE (5A GUI3 WH fs 70 Expiration:
Name on card: Ye
Address: | 4037 S CAST
A/P Contact name we Phone BIR
Client: EZ360:
Name: Aker Fg Lal Name: TSeAce AWERT
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Title: - Ove Gi Title: Loundm
Date: V4 S46, £05 Date: (2. (4. 2O1G
Signature: Signature:
47
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|| h I = o Booth ecification
Unless otherwise spedfied the photo studio will be provided on a turnkey basis, installed and ready to
Operate on site within an indoor space provided by the client. EZ360 will provide all parts and
accessories as specified below. Hands on training and calibration is included in the PB price.
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Toprovided
be by EZ360
1. Photo Studio — A custom built on site photo studio constructed of steel studs, ePVC walls and
access door with industrial vinyl curtains. The photo studio is 18’ x 32’ x 12” H.
2. Lighting —a set of high capacity, stadium LED with wall-to-wall diffuser or bouncer.
3. Photographic and Electronic - Automation Package - as specified in the Sale Order form.
4. Photo booth will be constructed so that the ceiling does not come in contact with the HVAC duct.
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To be provided by the Client
1. Scissor lift for the duration of the construction (app one week) and a forklift with operator to
offload building material as delivered to the site (app one day).
2. A dedicated 120v 20 amp circuits, power feed and circuit breaker.
3. An electrician to perform the wiring of the photo studio, lights and turntable. All incidental
material, such as wires, conduits, connection boxes, outlets, light switches etc are to be provided by the
client. EZ360 will provided the LED lights and turntable control box but all wiring and connection work
are to be provided by the client’s electrician.
4. High speed (at least 5 MBs upload and 3 MBs down) Wi-Fi internet connectivity. The connection
may be secured but the firewall must allow connectivity to certain sites per EZ360’s whitelist.
5. An adequate size dumpster and trash pickup services after construction.
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Layout of Photo studio
1
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Indy Automan ._ ver 1.0 (garage area) 17.25.2019
All dimensions
are internal. mes @PVC walls
| senne= Doors
2-3 space for maintenance
‘gccesa of the paint boath 7
won
te
f/
“se |
araver
“<7
eee 8
aa
(Control center
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Schedule B — Turntable
Provided by SiSTeR
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A turntable as specified in the Sale Order Form including control box and remote controls, installed in
placed, calibrated and \ready for operation.
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Client will provide the following
fork capabl and operator to offload the
turntable and deliver to within 30’ of the photo studio location. As well as disposition of the crates
and packing material after installation is completed.
Electricity:
1 For the 16’ turntable - a single phase, 15 amp duplex within 20’ of the turntable.
2 For the 18’ turntable - 240V, single phase 15A electric circuit and electrician to perform the
connectivity. Please note: the Turntable Controller (provided by EZ360) converts the input into a
240V three phases. The electrician has to provide the wiring accordingly.
Note: EZ360 will do its!best to coordinate the photo studio construction and turntable installation in the most efficient
way but cannot guarantee how many times an electrician will have to be present and / or how long the electrician’s
work may take.
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The Turntable will be provided by the manufacturer subject to the terms below:
[the manufacturer] warrants this PRODUCT against defects in material and workmanship under normal use and
service for five years from the original date of purchase. /the manufacturer] at its option, shall repair or replace the
defective unitcovered by this warranty.
This warranty does not cover any damage due to accident, misuse, abuse, or negligence.
Repair or replacement, as provided under this warranty, is the exclusive remedy. /the manufacturer] shall not be
liable for any incidental or consequential damages. Implied warranty of merchantability and fitness for a particular
purpose on this product are limited in duration to the duration of this warranty.
Exclusions: Any warranty applicable to third-party products is provided by the original manufacturer, and is not
covered by the [the manufacturer] s warranty. This includes, but is not limited to drive motors, reduction gear boxes,
electrical components, etc. Please refer to individual manufacturer’s terms for warranty coverage on those items.
Some states/countries do not allow the exclusion or limitation of incidental or consequential damages, so the above
limitation or exclusion may not apply to you. Some states/countries do not allow limitations on how long an implied
warranty lasts, so the above limitation may not apply to you. This warranty gives you specific legal rights, and you
may also have other rights that vary from state to state and country to country.
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h - eral Terms ani ‘ondition
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This Service Agreement along with the Order Form (“Order Form”) above and the attached exhibits constitute the entire
Service Agreement between EZ360 LLC ("EZ360") and the Client as identified on the Order Form.
(
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1 Section I - Equipment
Ll. EZ360 will deliver, install and configure the hardware and equipment (collectively “Product” that is as specified
in the Order Form above (which may include a photo booth, turntable, lighting, photographic equipment etc).
1.2. Building — it is the Client’s responsibility to provide the required space, free of any obstacles, for the Photo Booth,
Turntable and associated equipment as well as electrical and internet services as specified in schedule B and
schedule C above. If a Photo Booth is ordered, EZ360 will construct the Photo Booth within the building or
structure provided by the Client as specified in Exhibit A. If a work permit is required the Client will obtain such
permit at least 5 Gusiness days before construction starting date.
13. Turntable —If ordered, EZ360 will provide the motorized Turntable within the Photo Booth as specified in Exhibit
B. Price includes {shipping and installation on site.
1.4. Taxes. Clit series
it to pay all sales, value added and other taxes, if any, related to the delivery of the Product(s) or
Service:
15. Schedule - If a Photobooth is ordered the supply time is 2-4 weeks. However, if a Turntable is ordered too, the
supply is 6-8 weeks. The construction and shipping date is an approximate date only. EZ360 shall not be liable for
any delays, including but not limited to, delays in delivery, construction, setup, training and going alive regardless
of the cause of delay.
1.6. Product Warranty
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1.6.1 EZ360 warrants the Photobooth against defects in material and workmanship for a period of twelve (12)
months. EZ360, at its option, shall repair or replace the defect covered by this warranty.
1.6.2. This warranty does not cover any damage due to accident, misuse, abuse, or negligence or normal wear and
tear. This warranty is invalid if the carousel has been moved from its original installed location.
1.6.3. Exclusions: Any warranty applicable to third-party products is provided by the original manufacturer, and is
not covered by the EZ360 warranty. This includes, but is not limited to doors, lighting fixtures, cameras,
Turntable, drive motors, reduction gear boxes, electrical components, etc. Please refer to individual
manufacturer’s terms for warranty coverage on those items.
EZ360 MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR ANY PARTICULAR
PURPOSE, OTHER THAN STATED HEREIN. THE REMEDIES PROVIDED HEREIN ARE THE
EXCLUSIVE REMEDIES TO THE CLIENT, AND EZ360 SHALL NOT BE LIABLE TO THE CLIENT
OR ANY OTHER PARTY, FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR ANY
CAUSE, LOSS, ACTION, CLAIM OR DAMAGE WHATSOEVER, FOR INJURY TO PERSON OR
PROPERTY, OR ANY CONSEQUENTIAL, ECONOMIC OR INCIDENTAL LOSS RESULTING IN ANY
DEFECT IN MATERIALS OR WORKMANSHIP OF THE PRODUCT SOLD.
LIMITATION OF LIABILITY. NEITHER PARTY SHALL HAVE LIABILITY WITH RESPECT TO ITS
OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE, FOR CONSEQUENTIAL,
EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF
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PROFIT, REVENUE, DATA OR GOODWILL, WHETHER INCURRED OR SUFFERED AS A RESULT
OF THE USE OF THE PERFORMANCE OF ANY HARDWARE EVEN IF IT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING DOES NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS
AND SHALL NOT LIMIT CLAIMS FOR ACTUAL TANGIBLE PROPERTY DAMAGES, PERSONAL
INJURY DAMAGES, OR DAMAGES CAUSED BY EITHER PARTY’S GROSS NEGLIGENCE OR
INTENTIONAL MISCONDUCT.
1.7. Administration and Maintenance. Routine maintenance and periodic equipment or system repairs, upgrades and
reconfigurations may result in temporary impairment or interruption of services. As a result, EZ360 does not
guarantee continuous or uninterrupted service and reserves the right from time to time to temporarily reduce or
suspend such services without notice. EZ360 also reserves the right to take emergency administrative measures.
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2. Section II -Servi
2.2. EZ360 will provide the following services:
2.3. Installation of the EZ360 Server and training of the Client’s personnel.
2.4 Provide production and publication services as defined in Service Package (page 2 of the the Sale Order).
2.5. Store, host and publish the pictures, interior and exterior 360 and video (collectively “Media”) created by EZ360
software as long as that vehicle is in the Client’s inventory and for a period of 60 days afterwards.
2.6 Syndicate the Media through to the Client’s third party providers aggregate and distribute the utilizing EZ360’s
standard data feed or API. EZ360 reserves the right to apply additional charge if any custom work is required in
order to Provide such items.
2.7. EXCEPT OF THE SERVICES THAT ARE LISTED ABOVE AND IN SCHEDULE A THE CLIENT IS
SOLELY RESPONSIBLE FOR ALL OTHER ACTIVITIES THAT ARE REQUIRED IN ORDER TO CREATE
AND PUBLISH THE CONTENT INCLUDING BUT NOT LIMITED TO REQUEST INTEGRATION OF THE
CONTENT AND PLAYERS ON PRODUCT PROVIDED BY THIRD PARTIES.
2.8. EZ360 WILL NOT BE DEEMED RESPONSIBLE FOR SUCH THIRD PARTY UNWILLINGNESS OR
INABILITY TO PUBLISH THE CONTENT ON ANY OF THE CLIENTS’ WEB SITES OR BY A THIRD
PARTY AND / OR FOR ANY ADDITIONAL CHARGES APPLIED BY SUCH THIRD PARTY.
ACCORDINGLY, ANY DELAY CAUSED BY SUCH THIRD PARTY OR ANY FEES APPLIED WILL NOT
CONSTITUTE AS A REASON TO WITHHOLD PAYMENTS AND / OR MODIFY THE TERMS OF THIS
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3, Section III - Term and Termination.
3.2, The initial term of the Service Agreement shall become effective at the end of the Testing will continue for
a period of twelve (12) months (“Initial Term”) and will be renewed automatically for a period of twelve
(12) months (“Renewal Term” ) unless sooner terminated in accordance with the provisions of paragraph II
Termination
- below. Upon the expiration of the Initial Term, or any Renewal Term (as specified in the
Sale Order) this Agreement shall automatically renew for an additional Renewal Term, unless terminated
by either ty upon written notice delivered to the other party at least sixty (60) days prior to the end of the
Initial Ter or any Renewal Term.
3.3. Termination by the Client. The Client may terminate this agreement if EZ360 failed to deliver the Products
within 90 days after receiving the down payment. EZ360 will refund the client such down payment within
10 days after such notice of termination.
3.4. Termination by EZ360: If Client defaults on the payment of any Fees due to EZ360 and such failure shall
continue for ten (10) days, then EZ360 may immediately, a) suspend the services being provided to Client
by EZ360 hereunder until all Fees due and payable to EZ360 have been paid, or b) terminate this
Agreement.
3.5. For Breach and Insolvency. Either party may terminate this Agreement: a) if the other party breaches any
material term or condition of this Agreement and such breach continues unremedied for a period of ten (10)
days following receipt of written notice of said breach by the non-breaching party; or (b) if the other party
has a petition or action filed by or against it under any federal bankruptcy or state insolvency law which
petition or action has not been dismissed or set aside within sixty (60) days of its filing; or makes an
assignment for the benefit of its creditors.
3.6. Upon Termination or Expiration of this Agreement:
3.6.1. BZ360 shall discontinue all Services then being provided to the Client;
3.6.2. Client will return to EZ360 any product that was NOT fully paid for by the client within 10 days
of the effective termination date;
3.6.3. EZ360 shall destroy, or shall cause to be destroyed, all copies of Client’s data provided by Client
to EZ360 which is in EZ360’s possession or control, subject to EZ360’s backup and data retention
policies at that time and any legal requirements then applicable; and
3.6.4. Client agrees (a) to pay any Fees then due and payable for Services provided up through the date
of termination or expiration and to delete any documentation, technical manuals, marketing
material, or any other information that has been provided by EZ360 subject to any legal
requirements then applicable.
4 Section IV — Fees, Billing & Payments
4.2, The Client shall also pay EZ360 the fees for the Services as specified in the Order Form, and any additional
fees that are agreed upon between the parties from time to time (collectively, the “Fees”). The Client shall
also pay, or reimburse EZ360, for all applicable taxes (other than taxes based on EZ360’s income), which
are associated with the services.
43 Billing - 2360 shall invoice the Client according to the following schedule:
44 For Product - the down payment portion will be billed upon execution of the agreement and the
remainder upon completion of the delivery and construction. upon execution of the agreement.
4.5, For Services first time - on the Ist day of the month following the execution of this agreement. However,
if a photobooth is included than the Services will be billed on the 1st day of the month following the
completion of the Photobooth.
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4.6. For Services there after - on a monthly basis at the beginning of each month of full service. (“Billable
Period”).
UNLESS OTHERWISE AGREED SUCH INVOICES ARE DUE IMMEDIATELY.
47. The Clie it shall pay EZ360 for the down payment and the final payment of the Photobooth using a check
or a bank transfer. If the client opt to use a credit card for such purchase than a processing fee of 3% will be
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48. The Client shall pay EZ360 for the Monthly Services through a credit card on file (no processing fees will
be applied )
49. Adjustments - If the Client has any bona fide objection to an invoice, then the Client shall provide written
notice to EZ360 of such objection within 15 days after its receipt of the invoice. If Client does not raise
any written objection to an invoice within such 15-day period, Client shall be deemed to have accepted the
accuracy of such invoice and pay such amount in full.
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5. Section V — Intellectual Property
5.2. Intellectual Property, Ownership, Licenses and Indemnification:
5.3. Source Data — Ownership and License to EZ360. As between Client and EZ360, the vehicle information,
text, pictures and all other data submitted to EZ360 by the Client (“Source Data”) for use by EZ360 in
creating Content is the property of the Client. During the Term of this Agreement, Client hereby grants to
EZ360 a worldwide, non-exclusive, royalty-free, right and license to use, reproduce, distribute, prepare
derivative works of, display, and perform the Source Data in any media formats and through any media
channels as necessary for EZ360 to create the Content and publish the Content in accordance with the terms
of this Agreement, and otherwise to provide the Services described herein.
54. EZ360’s Intellectual Property Rights - As between Client and EZ360, (i) EZ360 is the owner of all
intellectual property rights (including all patent, trademark, trade secret, copyright or other proprietary
rights) in the Content (ii) EZ360 is the owner of all intellectual property rights (including all patent,
trademark, trade secret, copyright or other proprietary rights) in the technology used by EZ360 to create the
Content and provide the Services hereunder (collectively “EZ Technology”). EZ360 reserves all rights not
expressly granted herein in and to the EZ360 Technology. Client agrees that it will not use, copy, any of
the EZ360 Technology, other than expressly permitted herein.
Section VI— Gene ral
Confidential Information; Non-Solicitation of Employees.
6.2. Definition; Duty of Confidentiality. Each party acknowledges that it will have access to certain
confidential information and materials of the other party concerning the other party’s business, plans,
technology, and products, including but not limited to, the terms and conditions of this Agreement, the
EZ360 Technology and Source Data (collectively, “Confidential Information”).
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6.3. Each pai agrees that it will not disclose to any third party (except as required by law or to that party’s
attorneys, accountants and other professional advisors as are reasonably necessary), any of the other party’s
Confidential Information and will protect the confidentiality of such Confidential Information with at least
the same degree of care that it uses to safeguard its own confidential, proprietary, and trade secret
information, but in no event less than a reasonable duty of care. If the receiving party must disclose any
such Confidential Information pursuant to subpoena or order issued by a court of competent jurisdiction or
governmental authority, the receiving party shall provide prompt notice to the disclosing party of such
request and cooperate with any attempts by the disclosing party to contest such disclosure.
Notwithstanding anything elsewhere in this Agreement, the terms of this Section shall apply to Confidential
Information amounting to a trade secret for as long as such information remains a trade secret under
applicable law. The terms of this provision shall survive the termination of this Agreement.
6.4. Exceptions. Information will not be deemed Confidential Information if such information (i) becomes
known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly
from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes
known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly
from a source other than one having an obligation of confidentiality to the disclosing party; iii) becomes.
publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement
by thereqetving party; or (iv) is independently developed by the receiving party.
6.5. Remedies. Notwithstanding anything to the contrary in this Agreement, in the event of any breach of this
Section, the non-breaching party will be entitled to seek any and all remedies available at law and/or in
equity, including, but not limited to injunctive relief without the necessity of posting bond or other security,
to enforce its rights under this Section of the Agreement.
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Non-Solicitation of Employees. The parties acknowledge and agree that the other party’s personnel have been
acquired and trained by said party at considerable expense to them. The parties, therefore, agree that neither party
shall employ any of the other party’s technical, sales, or marketing employees, associated with this Agreement,
within one (1) year after such employee’s termination of employment with said Party.
Governing Law; Dispute Resolution
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8.2. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.
Venue shall lie exclusively in the state or federal courts of Dallas, Dallas County, Texas.
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8.3. In the event of any dispute, claim, question or disagreement arising from or relating to this Agreement or
the alleged breach thereof, the parties shall use their best efforts to mutually settle such dispute, claim,
question or disagreement. To this effect, they shall consult and negotiate with each other in good faith, and,
recognizing their mutual interests, attempt to reach a just and equitable resolution satisfactory to both
parties. If they do not reach such a resolution within a period of 60 days, then, upon notice by either party
to the other, all such disputes, claims, questions or disagreements shall be finally settled by binding
arbitration. Such arbitration shall be administered in accordance with the commercial arbitration rules of
the American Arbitration Association with the arbitration being located exclusively in Dallas, Texas.
9. Representations and Warranties.
9.2. EZ360 agrees that in connection with the performance of its obligations under this Agreement, EZ360 will
comply in all material respects with all applicable laws and regulations.
9.3. Non-Infringement. EZ360 represents and warrants that it is the owner or licensee of the EZ360
Technology, that it has the right to perform its obligations hereunder, and to grant to Client the right to use
the EZ360 Technology in accordance with the terms of this Agreement. EZ360 further represents and
warrants that, in performing the Services under this Agreement, EZ360 will not infringe upon any U.S.
patent, copyright, trademark or other similar intellectual property right of any third party.
9.4. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, EZ360 MAKES NO WARRANTIES
WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT AND EXPRESSLY
www.ez360.tv 72.855.3500 Page 14 of 16
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DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION.
IMPLIED WARRA
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FILED 4/9/2021 7:53 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY CAUSE NO. DC-21-02846 EZ360, LLC IN THE DISTRICT COURT Plaintiff mn 162%” JUDICIAL DISTRICT INDY AUTO MAN, LLC Defendant DALLAS COUNTY, TEXAS DEFENDANT’S MOTION FOR STAY OF LITIGATION COMES NOW, Indy Auto Man, LLC, Defendant in the above-styled cause, and applies to this Court for an order pursuant to the Federal Arbitration Act to stay these judicial proceedings pending arbitration of all arbitrable issues in controversy between the parties, and in support of this motion, respectfully shows as follows: 1 On or about December 14, 2019, EZ360, LLC (“Plaintiff”) and Indy Auto Man, LLC (“Defendant”) entered into a written agreement for Plaintiff to construct a photo studio for Defendant in the state of Indiana (the “Agreement”). Plaintiff is a Texas Limited Liability Company, and Defendant is an Indiana Limited Liability Company. 2. In paragraph 8.3 of the Agreement, the parties agreed as follows: In the event of any dispute, claim, question or disagreement arising from or relating to this Agreement or the alleged breach thereof, the parties shall use their best efforts to mutually settle such dispute, claim, question or disagreement. To this effect, they shall consult and negotiate with each other in good faith, and, recognizing their mutual interests, attempt to reach a just and equitable resolution satisfactory to both parties. If they do not reach such a resolution within a period of 60 days, then, upon notice by either party to the other, all such disputes, claims, questions or disagreements shall be finally settled by binding arbitration. Such arbitration shall be administered in accordance with the commercial arbitration tules of the American Arbitration Association with the arbitration being located exclusively in Dallas, Texas. (the “Arbitration Clause”) Motion to Stay Litigation Page | 3346387 Page 1 3 A copy of the Agreement is attached as Exhibit A and incorporated herein by reference. The Arbitration Clause is valid and enforceable, and supported by adequate consideration. 4 A dispute has arisen between Plaintiff and Defendant as to the respective parties’ obligations under the Agreement. Plaintiff alleges, among other things, that Defendant breached the Agreement, violated the Texas Uniform Trade Secrets Act by breaking Defendant’s agreement to maintain the secrecy of Plaintiff's trade secrets under the Agreement, and tortuously interfered with EZ360s contract with its subcontractor who was performing work under the Agreement. Defendant denies each and every of Plaintiff's allegations, and asserts that Plaintiff breached the Agreement, among other acts and omissions. Each and every of Plaintiffs and Defendant’s disputes arise under the Agreement. 5 On or about March 4, 2021, Plaintiff filed Plaintiff's Original Petition against Defendant in the above-captioned action, asserting claims for breach of contract, violations of TUTSA, and tortious interference with contract. All of these claims arise from or relate to the Agreement, and are therefore subject to Paragraph 8.3’s arbitration clause. 6 On March 24, 2021 and again on March 29, 2021, Defendant attempted to initiate arbitration of the above-described controversy in accordance with the terms of the Agreement by making a written demand for arbitration to Plaintiff, true and correct copies are attached as Exhibit B, and fully incorporated by reference. Plaintiff did not respond to these requests. 7 Defendant requests that notice of hearing on this Motion be sent to Plaintiff, and that, on hearing, the Court order as follows: A This litigation be stayed in its entirety; B If the parties do not commence arbitration in Dallas County, Texas on or before May 31, 2021, the Court will dismiss Plaintiffs claims with prejudice to refile; Motion to Stay Litigation Page 2 346387 Page 2 c Defendant have such other and further relief to which defendant may be justly entitled. Respectfully submitted, ABERNATHY, ROEDER, BOYD & HULLETT, P.C. /s/__Lucas Henry Lucas Henry State Bar No. 24101901 Paul M. Lopez State Bar No. 24076516 1700 Redbud Blvd., Suite 300 McKinney, TX 75069 214-544-4000 (phone) 214-544-4040 (fax) Ihenry@abernathy-law.com plopez@abernathy-law.com ATTORNEYS FOR DEFENDANT CERTIFICATE OF CONFERENCE I certify that I personally attempted to confer with counsel for Plaintiff, Melanie Kemp Okon and Clayton Thomas Lynn, via email and letter correspondence on March 24, 2021 and again on March 29, 2021, and again by telephone on April 1, 2021 and again on or about April 6, 2021. Counsel for Plaintiff did not respond to my letters, emails, or phone messages at all. /s/ Lucas Henry Lucas Henry CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing document was electronically served upon parties and counsel of record, on April 9, 2021 via the Court’s electronic filing and management system. /s/ Lucas Henry __ Lucas Henry Motion to Stay Litigation Page 3 3346387 Page 3 VERIFICATION STATE OF INDIANA $ § COUNTY OF _ MARION 8 BEFORE ME, the undersigned authority. on this day personally appeared Indy Auto Man, LLC, by and through its authorized agent, Yevgeniy Gorin, who. by me being duly sworn on oath says that it is a named Defendant, that Yevgeniy Gorin has reviewed the foregoing Motion to Stay Litigation, and tet hs information contained therein is = personal . Chae— TO BEFORE sii ily pecan! ee tough etre agent Yori Gos o ee hand and seal of office. my ess which witn S ‘State of indiana 2 / Cemenission Expires Notary Public in and for 3 ye 7 Teta bie et Pat i EXHIBIT A Page 5 | EZ360 Photo Studio Sale Order Form (Q4-2019) The Photo Studio is a complete turnkey solution, built on-site and customized to the client’s needs. The ideal space requirements is 28’ x 32’ x 12’H. Client Name: Indy Auto Man Website: Phone: indyautoman.com BI7 675. A723 Contact: Title: Victor Figlin General Manager Email: victor@indyautéGom Phone: 317-814-7520 | Product section Photo Studio Turnkey installation of the photo studio including: e Steel studs framing - provides rigidity and lasts forever. $19,950 ° Interior walls with rounded corners - made of special photographic material (ePVC) that creates soft glow bouncing light. Surrounding LED lights - complete set of LED lights, totaling 1,250 watts, generates over 100,000 lumens to produce high-quality images. Wall to wall diffusers - eliminate hot spots. Exterior Coroplast walls - applied on the visually exposed walls to create an architecturally appealing image. | Turntable $ 22,900 e 13’ heavy-duty turntable can handle the largest vehicles in the marketplace (such as F-450 crew cab, RAM 3500 and large vans) and is ideal for dealers who sells 350-900 vehicles a month. This turntable isconstructed exclusively of a high-grade powder coating and powered using gear & pin qpectenism with reflective finish. | Total Product order $ 42,850 || Note: add $ 3,000 iforderihg just the turntable or the photo studio. | | www.ez360.tv 972.855.3500 Page | of 16 Page 6 | | | Photo Studio options Bouncer - Substitute the diffuser ceiling with a bouncer and surrounded lighting - $1,750 may be required if the existing roof is too low. (2) Lexin LED with diffuser dome - highly recommended if a Bouncer is used. These apertures provide high intensity, diffused (diffuser dome included) light for $1,850 better pictures. | Raised floor - build a new floor (wood or concrete) around the turntable to $ 6,900 eliminate the need of skirts (ramps around the turntable) and create “infinity look” | Automation Packag Control center - monitors, computers, power supplies, two keyboards & 2 mouses, remote casting device, and bluetooth devices all mounted on tool cart. The Control Center eliminates the need for trained photographer/s. Cameras package- Three (3) Android devices with hi-res cameras and one (1) 360 $4,900 ameras, camera arms & stands, and accessories (any additional fixed camera is $ 750) Calibration and hands on training - our team will synchronize the turntable with the cameras and provide four (4) hours hands on training as well as one week remote monitoring of the dealer’s operation. $58,250 Gross product orde - $2,913 Less 5% Group 20 Discount Net product orde: $ 55,337 A% 35 Paymentterms: $26,000 down payment and the remaining $27,580 upon completion. , | | | Professional service | On going support_- unlimited phone and online meeting for training, knowledge Include with transfer and problem solving. Premium service Note - Custom programing and changes, subject to the Dealer’s request and | approval, are billed at$ 120 per hour. T www.e7360.tv 972.855.3500 Page 2 of 16 | | Page 7 | Service Packages The Ez: incl led with the pre jase. The EZ360 app, Ivana, provides picture taking, automated upload, publication, and syndication. Ivana frees the photographer from the time-consuming task of uploading pictures and posts the pictures instantly to the Dealer's website. No more manual upload and no more 24 to 48 hours delay. | Additional service packages are available: Packages (monthly charge, per brand *) Basic Advanced | Premium $295 $495 $795 Exterior Spin and Interior 360 v v Interactive media increases buyers attention by 300% ! iContent - Online Content Management System with vehicle editing, user management, and reports. Enhance efficiency and production quality with instant editing. Branding - add Dealership overlay and water marks automatically Stand above the competition! 7 Magazines - customized templates guide the users through the precise order and positions of the details pictures. TheMagazines provide consistency and cost saving. Points of Interests PO's - automatically highlight vehicle features as well as imperfections and blemishes. Virtual tour capture attention and create trust. Multi Spin Cameras - Support for multi point of view Spin (such as top and normal view) as well as close up view. | Capture attention with dramatic views ' Merchandiser - add custom and stock overlay and messages to any picture and syndicate them to all 3rd party sites. Capture buyers’ attention and stand above the competition ! Copy Content - create a library of pictures and rich media that can be applied tosimilar vehicle automatically. Save up to 60% of NEW vehicle pictures taking. Video - Add video with real human voice (Full Motion or Pic-to-Vid ) $ 100 $100 v | | 1 www.ez360.tv 972.855.3500 | Page 4 of 16 Page 8 Basic ium i For each additional brand (a separate physical location or an OEM) or has separate dealer ID in the incoming data feed) $195 $295 $395 Main Brand Indy Auto Man_https://www.indyautoman.com $795 Addition brands | q Total Services $795 Special Terms and conditions The following special terms and conditions are agreed upon: Can scale down the service upon 30 daysnotice. Client’s initials. Credit Card Payment Info (for the services only) Credit card no: WLVE (5A GUI3 WH fs 70 Expiration: Name on card: Ye Address: | 4037 S CAST A/P Contact name we Phone BIR Client: EZ360: Name: Aker Fg Lal Name: TSeAce AWERT | Title: - Ove Gi Title: Loundm Date: V4 S46, £05 Date: (2. (4. 2O1G Signature: Signature: 47 www.e860.tv 972.855.3500 Page 5 of 16 Page 9 www.ez360.tv 972.855.3500 Page 6 of 16 Page 10 I | || h I = o Booth ecification Unless otherwise spedfied the photo studio will be provided on a turnkey basis, installed and ready to Operate on site within an indoor space provided by the client. EZ360 will provide all parts and accessories as specified below. Hands on training and calibration is included in the PB price. i Toprovided be by EZ360 1. Photo Studio — A custom built on site photo studio constructed of steel studs, ePVC walls and access door with industrial vinyl curtains. The photo studio is 18’ x 32’ x 12” H. 2. Lighting —a set of high capacity, stadium LED with wall-to-wall diffuser or bouncer. 3. Photographic and Electronic - Automation Package - as specified in the Sale Order form. 4. Photo booth will be constructed so that the ceiling does not come in contact with the HVAC duct. | To be provided by the Client 1. Scissor lift for the duration of the construction (app one week) and a forklift with operator to offload building material as delivered to the site (app one day). 2. A dedicated 120v 20 amp circuits, power feed and circuit breaker. 3. An electrician to perform the wiring of the photo studio, lights and turntable. All incidental material, such as wires, conduits, connection boxes, outlets, light switches etc are to be provided by the client. EZ360 will provided the LED lights and turntable control box but all wiring and connection work are to be provided by the client’s electrician. 4. High speed (at least 5 MBs upload and 3 MBs down) Wi-Fi internet connectivity. The connection may be secured but the firewall must allow connectivity to certain sites per EZ360’s whitelist. 5. An adequate size dumpster and trash pickup services after construction. | ' www.cz360.tv 972.855.3500 Page 7 of 16 Page 11 Layout of Photo studio 1 | Indy Automan ._ ver 1.0 (garage area) 17.25.2019 All dimensions are internal. mes @PVC walls | senne= Doors 2-3 space for maintenance ‘gccesa of the paint boath 7 won te f/ “se | araver “<7 eee 8 aa (Control center www.ez360.tv 972.855.3500 Page 8 of 16 Page 12 Schedule B — Turntable Provided by SiSTeR 1 A turntable as specified in the Sale Order Form including control box and remote controls, installed in placed, calibrated and \ready for operation. |i Client will provide the following fork capabl and operator to offload the turntable and deliver to within 30’ of the photo studio location. As well as disposition of the crates and packing material after installation is completed. Electricity: 1 For the 16’ turntable - a single phase, 15 amp duplex within 20’ of the turntable. 2 For the 18’ turntable - 240V, single phase 15A electric circuit and electrician to perform the connectivity. Please note: the Turntable Controller (provided by EZ360) converts the input into a 240V three phases. The electrician has to provide the wiring accordingly. Note: EZ360 will do its!best to coordinate the photo studio construction and turntable installation in the most efficient way but cannot guarantee how many times an electrician will have to be present and / or how long the electrician’s work may take. | 1 The Turntable will be provided by the manufacturer subject to the terms below: [the manufacturer] warrants this PRODUCT against defects in material and workmanship under normal use and service for five years from the original date of purchase. /the manufacturer] at its option, shall repair or replace the defective unitcovered by this warranty. This warranty does not cover any damage due to accident, misuse, abuse, or negligence. Repair or replacement, as provided under this warranty, is the exclusive remedy. /the manufacturer] shall not be liable for any incidental or consequential damages. Implied warranty of merchantability and fitness for a particular purpose on this product are limited in duration to the duration of this warranty. Exclusions: Any warranty applicable to third-party products is provided by the original manufacturer, and is not covered by the [the manufacturer] s warranty. This includes, but is not limited to drive motors, reduction gear boxes, electrical components, etc. Please refer to individual manufacturer’s terms for warranty coverage on those items. Some states/countries do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some states/countries do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state and country to country. | www.ez360.tv 972.855.3500 Page 9 of 16 Page 13 h - eral Terms ani ‘ondition | This Service Agreement along with the Order Form (“Order Form”) above and the attached exhibits constitute the entire Service Agreement between EZ360 LLC ("EZ360") and the Client as identified on the Order Form. ( | 1 Section I - Equipment Ll. EZ360 will deliver, install and configure the hardware and equipment (collectively “Product” that is as specified in the Order Form above (which may include a photo booth, turntable, lighting, photographic equipment etc). 1.2. Building — it is the Client’s responsibility to provide the required space, free of any obstacles, for the Photo Booth, Turntable and associated equipment as well as electrical and internet services as specified in schedule B and schedule C above. If a Photo Booth is ordered, EZ360 will construct the Photo Booth within the building or structure provided by the Client as specified in Exhibit A. If a work permit is required the Client will obtain such permit at least 5 Gusiness days before construction starting date. 13. Turntable —If ordered, EZ360 will provide the motorized Turntable within the Photo Booth as specified in Exhibit B. Price includes {shipping and installation on site. 1.4. Taxes. Clit series it to pay all sales, value added and other taxes, if any, related to the delivery of the Product(s) or Service: 15. Schedule - If a Photobooth is ordered the supply time is 2-4 weeks. However, if a Turntable is ordered too, the supply is 6-8 weeks. The construction and shipping date is an approximate date only. EZ360 shall not be liable for any delays, including but not limited to, delays in delivery, construction, setup, training and going alive regardless of the cause of delay. 1.6. Product Warranty | 1.6.1 EZ360 warrants the Photobooth against defects in material and workmanship for a period of twelve (12) months. EZ360, at its option, shall repair or replace the defect covered by this warranty. 1.6.2. This warranty does not cover any damage due to accident, misuse, abuse, or negligence or normal wear and tear. This warranty is invalid if the carousel has been moved from its original installed location. 1.6.3. Exclusions: Any warranty applicable to third-party products is provided by the original manufacturer, and is not covered by the EZ360 warranty. This includes, but is not limited to doors, lighting fixtures, cameras, Turntable, drive motors, reduction gear boxes, electrical components, etc. Please refer to individual manufacturer’s terms for warranty coverage on those items. EZ360 MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR ANY PARTICULAR PURPOSE, OTHER THAN STATED HEREIN. THE REMEDIES PROVIDED HEREIN ARE THE EXCLUSIVE REMEDIES TO THE CLIENT, AND EZ360 SHALL NOT BE LIABLE TO THE CLIENT OR ANY OTHER PARTY, FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR ANY CAUSE, LOSS, ACTION, CLAIM OR DAMAGE WHATSOEVER, FOR INJURY TO PERSON OR PROPERTY, OR ANY CONSEQUENTIAL, ECONOMIC OR INCIDENTAL LOSS RESULTING IN ANY DEFECT IN MATERIALS OR WORKMANSHIP OF THE PRODUCT SOLD. LIMITATION OF LIABILITY. NEITHER PARTY SHALL HAVE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE, FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF ' 02360.tv 972.855.3500 Page 10 of 16 Page 14 PROFIT, REVENUE, DATA OR GOODWILL, WHETHER INCURRED OR SUFFERED AS A RESULT OF THE USE OF THE PERFORMANCE OF ANY HARDWARE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DOES NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS AND SHALL NOT LIMIT CLAIMS FOR ACTUAL TANGIBLE PROPERTY DAMAGES, PERSONAL INJURY DAMAGES, OR DAMAGES CAUSED BY EITHER PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. 1.7. Administration and Maintenance. Routine maintenance and periodic equipment or system repairs, upgrades and reconfigurations may result in temporary impairment or interruption of services. As a result, EZ360 does not guarantee continuous or uninterrupted service and reserves the right from time to time to temporarily reduce or suspend such services without notice. EZ360 also reserves the right to take emergency administrative measures. | 2. Section II -Servi 2.2. EZ360 will provide the following services: 2.3. Installation of the EZ360 Server and training of the Client’s personnel. 2.4 Provide production and publication services as defined in Service Package (page 2 of the the Sale Order). 2.5. Store, host and publish the pictures, interior and exterior 360 and video (collectively “Media”) created by EZ360 software as long as that vehicle is in the Client’s inventory and for a period of 60 days afterwards. 2.6 Syndicate the Media through to the Client’s third party providers aggregate and distribute the utilizing EZ360’s standard data feed or API. EZ360 reserves the right to apply additional charge if any custom work is required in order to Provide such items. 2.7. EXCEPT OF THE SERVICES THAT ARE LISTED ABOVE AND IN SCHEDULE A THE CLIENT IS SOLELY RESPONSIBLE FOR ALL OTHER ACTIVITIES THAT ARE REQUIRED IN ORDER TO CREATE AND PUBLISH THE CONTENT INCLUDING BUT NOT LIMITED TO REQUEST INTEGRATION OF THE CONTENT AND PLAYERS ON PRODUCT PROVIDED BY THIRD PARTIES. 2.8. EZ360 WILL NOT BE DEEMED RESPONSIBLE FOR SUCH THIRD PARTY UNWILLINGNESS OR INABILITY TO PUBLISH THE CONTENT ON ANY OF THE CLIENTS’ WEB SITES OR BY A THIRD PARTY AND / OR FOR ANY ADDITIONAL CHARGES APPLIED BY SUCH THIRD PARTY. ACCORDINGLY, ANY DELAY CAUSED BY SUCH THIRD PARTY OR ANY FEES APPLIED WILL NOT CONSTITUTE AS A REASON TO WITHHOLD PAYMENTS AND / OR MODIFY THE TERMS OF THIS AGREEMENT. | | | | www.ez360.tv 972.855.3500 Page 11 of 16 Page 15 | 3, Section III - Term and Termination. 3.2, The initial term of the Service Agreement shall become effective at the end of the Testing will continue for a period of twelve (12) months (“Initial Term”) and will be renewed automatically for a period of twelve (12) months (“Renewal Term” ) unless sooner terminated in accordance with the provisions of paragraph II Termination - below. Upon the expiration of the Initial Term, or any Renewal Term (as specified in the Sale Order) this Agreement shall automatically renew for an additional Renewal Term, unless terminated by either ty upon written notice delivered to the other party at least sixty (60) days prior to the end of the Initial Ter or any Renewal Term. 3.3. Termination by the Client. The Client may terminate this agreement if EZ360 failed to deliver the Products within 90 days after receiving the down payment. EZ360 will refund the client such down payment within 10 days after such notice of termination. 3.4. Termination by EZ360: If Client defaults on the payment of any Fees due to EZ360 and such failure shall continue for ten (10) days, then EZ360 may immediately, a) suspend the services being provided to Client by EZ360 hereunder until all Fees due and payable to EZ360 have been paid, or b) terminate this Agreement. 3.5. For Breach and Insolvency. Either party may terminate this Agreement: a) if the other party breaches any material term or condition of this Agreement and such breach continues unremedied for a period of ten (10) days following receipt of written notice of said breach by the non-breaching party; or (b) if the other party has a petition or action filed by or against it under any federal bankruptcy or state insolvency law which petition or action has not been dismissed or set aside within sixty (60) days of its filing; or makes an assignment for the benefit of its creditors. 3.6. Upon Termination or Expiration of this Agreement: 3.6.1. BZ360 shall discontinue all Services then being provided to the Client; 3.6.2. Client will return to EZ360 any product that was NOT fully paid for by the client within 10 days of the effective termination date; 3.6.3. EZ360 shall destroy, or shall cause to be destroyed, all copies of Client’s data provided by Client to EZ360 which is in EZ360’s possession or control, subject to EZ360’s backup and data retention policies at that time and any legal requirements then applicable; and 3.6.4. Client agrees (a) to pay any Fees then due and payable for Services provided up through the date of termination or expiration and to delete any documentation, technical manuals, marketing material, or any other information that has been provided by EZ360 subject to any legal requirements then applicable. 4 Section IV — Fees, Billing & Payments 4.2, The Client shall also pay EZ360 the fees for the Services as specified in the Order Form, and any additional fees that are agreed upon between the parties from time to time (collectively, the “Fees”). The Client shall also pay, or reimburse EZ360, for all applicable taxes (other than taxes based on EZ360’s income), which are associated with the services. 43 Billing - 2360 shall invoice the Client according to the following schedule: 44 For Product - the down payment portion will be billed upon execution of the agreement and the remainder upon completion of the delivery and construction. upon execution of the agreement. 4.5, For Services first time - on the Ist day of the month following the execution of this agreement. However, if a photobooth is included than the Services will be billed on the 1st day of the month following the completion of the Photobooth. | www.ez360.tv 972.855.3500 Page 12 of 16 | | | Page 16 | | | 4.6. For Services there after - on a monthly basis at the beginning of each month of full service. (“Billable Period”). UNLESS OTHERWISE AGREED SUCH INVOICES ARE DUE IMMEDIATELY. 47. The Clie it shall pay EZ360 for the down payment and the final payment of the Photobooth using a check or a bank transfer. If the client opt to use a credit card for such purchase than a processing fee of 3% will be added. | 48. The Client shall pay EZ360 for the Monthly Services through a credit card on file (no processing fees will be applied ) 49. Adjustments - If the Client has any bona fide objection to an invoice, then the Client shall provide written notice to EZ360 of such objection within 15 days after its receipt of the invoice. If Client does not raise any written objection to an invoice within such 15-day period, Client shall be deemed to have accepted the accuracy of such invoice and pay such amount in full. | 5. Section V — Intellectual Property 5.2. Intellectual Property, Ownership, Licenses and Indemnification: 5.3. Source Data — Ownership and License to EZ360. As between Client and EZ360, the vehicle information, text, pictures and all other data submitted to EZ360 by the Client (“Source Data”) for use by EZ360 in creating Content is the property of the Client. During the Term of this Agreement, Client hereby grants to EZ360 a worldwide, non-exclusive, royalty-free, right and license to use, reproduce, distribute, prepare derivative works of, display, and perform the Source Data in any media formats and through any media channels as necessary for EZ360 to create the Content and publish the Content in accordance with the terms of this Agreement, and otherwise to provide the Services described herein. 54. EZ360’s Intellectual Property Rights - As between Client and EZ360, (i) EZ360 is the owner of all intellectual property rights (including all patent, trademark, trade secret, copyright or other proprietary rights) in the Content (ii) EZ360 is the owner of all intellectual property rights (including all patent, trademark, trade secret, copyright or other proprietary rights) in the technology used by EZ360 to create the Content and provide the Services hereunder (collectively “EZ Technology”). EZ360 reserves all rights not expressly granted herein in and to the EZ360 Technology. Client agrees that it will not use, copy, any of the EZ360 Technology, other than expressly permitted herein. Section VI— Gene ral Confidential Information; Non-Solicitation of Employees. 6.2. Definition; Duty of Confidentiality. Each party acknowledges that it will have access to certain confidential information and materials of the other party concerning the other party’s business, plans, technology, and products, including but not limited to, the terms and conditions of this Agreement, the EZ360 Technology and Source Data (collectively, “Confidential Information”). | www.cz360.tv 972.855.3500 Page 13 of 16 Page 17 6.3. Each pai agrees that it will not disclose to any third party (except as required by law or to that party’s attorneys, accountants and other professional advisors as are reasonably necessary), any of the other party’s Confidential Information and will protect the confidentiality of such Confidential Information with at least the same degree of care that it uses to safeguard its own confidential, proprietary, and trade secret information, but in no event less than a reasonable duty of care. If the receiving party must disclose any such Confidential Information pursuant to subpoena or order issued by a court of competent jurisdiction or governmental authority, the receiving party shall provide prompt notice to the disclosing party of such request and cooperate with any attempts by the disclosing party to contest such disclosure. Notwithstanding anything elsewhere in this Agreement, the terms of this Section shall apply to Confidential Information amounting to a trade secret for as long as such information remains a trade secret under applicable law. The terms of this provision shall survive the termination of this Agreement. 6.4. Exceptions. Information will not be deemed Confidential Information if such information (i) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; iii) becomes. publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by thereqetving party; or (iv) is independently developed by the receiving party. 6.5. Remedies. Notwithstanding anything to the contrary in this Agreement, in the event of any breach of this Section, the non-breaching party will be entitled to seek any and all remedies available at law and/or in equity, including, but not limited to injunctive relief without the necessity of posting bond or other security, to enforce its rights under this Section of the Agreement. | | Non-Solicitation of Employees. The parties acknowledge and agree that the other party’s personnel have been acquired and trained by said party at considerable expense to them. The parties, therefore, agree that neither party shall employ any of the other party’s technical, sales, or marketing employees, associated with this Agreement, within one (1) year after such employee’s termination of employment with said Party. Governing Law; Dispute Resolution | 8.2. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Venue shall lie exclusively in the state or federal courts of Dallas, Dallas County, Texas. | 8.3. In the event of any dispute, claim, question or disagreement arising from or relating to this Agreement or the alleged breach thereof, the parties shall use their best efforts to mutually settle such dispute, claim, question or disagreement. To this effect, they shall consult and negotiate with each other in good faith, and, recognizing their mutual interests, attempt to reach a just and equitable resolution satisfactory to both parties. If they do not reach such a resolution within a period of 60 days, then, upon notice by either party to the other, all such disputes, claims, questions or disagreements shall be finally settled by binding arbitration. Such arbitration shall be administered in accordance with the commercial arbitration rules of the American Arbitration Association with the arbitration being located exclusively in Dallas, Texas. 9. Representations and Warranties. 9.2. EZ360 agrees that in connection with the performance of its obligations under this Agreement, EZ360 will comply in all material respects with all applicable laws and regulations. 9.3. Non-Infringement. EZ360 represents and warrants that it is the owner or licensee of the EZ360 Technology, that it has the right to perform its obligations hereunder, and to grant to Client the right to use the EZ360 Technology in accordance with the terms of this Agreement. EZ360 further represents and warrants that, in performing the Services under this Agreement, EZ360 will not infringe upon any U.S. patent, copyright, trademark or other similar intellectual property right of any third party. 9.4. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, EZ360 MAKES NO WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT AND EXPRESSLY www.ez360.tv 72.855.3500 Page 14 of 16 Page 18 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION. IMPLIED WARRA