For the Term defined in Section 1, Licensor grants Customer, for use at the address shown in the Customer Information section a nontransferable, nonexclusive license right and license, to access and use the Software via internet facilities to perform the functions and operations for which Customer is licensed for Customer’s productive internal business requirements in relation to automobile dealership sales, customer service, and performing administrative functions pertaining thereto and for no other purpose. As used in this Agreement the term “Software” means the computer programs defined in Section 1 which are hosted on Licensor’s Web servers (“Hosted Applications”) and any computer programs necessary to enable Customer to access and use the Hosted Applications (“Client Applications”) for Customer’s business purposes as stated herein.
This is a concurrent use license and specifically permits Customer to access the Software simultaneously on a number of computers or other terminal devices which equals the number of licenses acquired by Customer as specified in Section 1. All licenses are granted exclusively to the Customer identified in the Customer Information section, and may not be used by or for the benefit of any affiliated company or other entity. If these usage limits are exceeded, Licensor reserves the right to impose additional charges. In the event that Licensor determines that another party has gained access to Customer’s passwords, user names, determines that another has wrongfully accessed the Software using Customer’s passwords or user names due to the acts of Customer, Licensor may, at its sole option, suspend the services and licenses provided hereunder, or terminate this Agreement. Customer acknowledges that the program flow and functionality of The Software cannot readily be ascertained except by access to the Software computer programming code, which is copyrighted and a valuable trade secret of Licensor, or by means of actual use of the program by a person possessing computer programming skill. Accordingly, Licensor strictly limits access to the Software to automobile dealers and does not distribute or provide access to persons known to be potential competitors of Licensor.
Customer does not own the Software, or any successor products by approved agents acting on behalf of Licensor; this Agreement only grants Customer a license to access the Software for the Term specified in Section 1. All right, title and interest in the Software, regardless of the medium on which it is recorded, belongs to Licensor. The Software is copyrighted and proprietary to Licensor, and no title to any part of the Software or any copyright, trademark, service mark, patent, trade secret, know how, code, idea or concept pertaining to the Software is transferred to Customer by this Agreement. Customer agrees not to sublicense, license, rent, sell, loan, give, assign, transfer or otherwise distribute all or any part of the Software or the licenses granted herein on a temporary or permanent basis to any third party, including but not limited to any successor, parent, subsidiary, or affiliate of Customer without the express written consent of an authorized officer of Licensor, and such consent shall not be unreasonably withheld. In the event Licensor consents to an assignment or transfer, Customer agrees to pay Licensor One Thousand Five Hundred Dollars ($1,500.00), for any services performed by Licensor in effecting such transfer. Customer agrees not to reverse engineer, disassemble, decompile, modify, or alter the Software or any copy thereof, in whole or in part. Customer may not prepare works which constitute works derivative of the Software under the Copyright Laws of the United States.
The Hosted Applications will be physically hosted on a web server owned or operated by Licensor at Licensor’s principal place of business, or other locations as determined by Licensor. Licensor will provide all equipment, software and services necessary for operation and maintenance of its host computer systems.
Customer is responsible for separately obtaining an ISP account with an Internet connection for communicating to Licensor’s server as described in Section 2.2. Any necessary Client Applications will be remotely downloaded from the Host Computer System and Customer has no responsibility for installing or configuring the Client Applications on its computers. Customer’s computer system must use Windows operating systems supported by Licensor. Customer must provide Power User rights to all designated users of the Software. Customer is responsible for providing a computer system compatible with Licensor’s requirements for acceptable access of the Software.
Licensor warrants solely for Customer’s benefit that during the Term of the licenses granted under this Agreement, the Software, when used in compliance with this Agreement, will provide the functions for which Customer is licensed. Customer agrees that Licensor will be relieved from any obligation under this warranty if Customer does not give Licensor prompt written notice of any claim that the Software is defective. Provided that Licensor is so notified and provided that Customer’s claim is covered by the warranty set forth in this Section 2.6.1, Licensor will, within a reasonable time period, correct the defect so as to conform to this warranty. The sole purpose of this exclusive remedy is to provide Customer with free repair or replacement modification of the Software in the event it becomes defective due to a condition covered by this warranty. This warranty is conditional upon: (a) Customer’s use of the Software in accordance with the provisions of this license, and any specific instructions relating thereto which are furnished by Licensor consistent with the terms of this Agreement ; (b) Customer’s compliance with Customer’s obligations, including any published training requirements set forth in this Agreement. In the event of a breach of this warranty, Licensor liability will not exceed the total fee paid to Licensor by Customer in the 360 days preceding the date that the claim is made.
Licensor warrants that the Hosted Applications (Software) will be operational in accordance with the terms defined herein. Should the Software be inaccessible to Customer due to Licensor’s Software server failure or bandwidth availability less than 99.0% of the time during the hours of 6:00 a.m. to 11:30 p.m. U.S.A. Central Time seven (7) days per week (the “Availability Objective”), exclusive of: unavailability due to events of Force Majeure; Customer’s equipment failures; Customers power failures; Customer’s ISP failures; failure of Customer’s Internet access communication services; or Licensor scheduled maintenance or updates, for any given calendar month for which Customer has paid the fees required by this Agreement, Customer may request a pro rata credit (“Service Credit”) on charges for the month’s license fees in proportion to the amount the level of access was below the stated objective for the month. For purposes hereof, the percentage of availability shall be obtained by dividing the total time during an applicable month that the Software was actually accessible by the total time during that month in which the Software was scheduled to be available as set forth above, and multiplying the result by 100. Claims for any and all Service Credits must be submitted by Licensor in writing within thirty (30) days of the last day of the month for which credit is claimed. Total Service Credit Customer can receive in a month may not exceed the amount of the Software license fees paid by Customer in such month. The exclusive remedy of 2 Customer, and Licensor’s sole obligation, in the event Customer notifies Licensor, of any claim of the warranty set forth in this Section 1.6.2, shall be for Licensor to issue the Service Credit.
Licensor will hold Customer harmless from any damages or liabilities resulting from third-party claims that the Software or its use infringe U.S. patents, copyrights or similar intangible rights, provided that Customer will promptly notify Licensor of the matter in writing, cooperate with Licensor as requested, and permit Licensor to control the investigation, defense and disposition of the same.
Licensor does not warrant that operation of the Software shall be uninterrupted or error free. Customer is solely responsible for the accuracy and integrity of its own data, reports, documentation and security. NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY LICENSOR WITH RESPECT TO Software, LICENSOR’S SERVICES OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND LICENSOR SPECIFICALLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Except for the Client Applications, Licensor does not provide any warranty, either express or implied, including but not limited to: any non-Licensor software installed on Customer’s computer Equipment; for the performance of Customers selected Internet services, and; for the performance of Customer’s computer equipment or dealership network system. The integration of the Software with any other application used by Customer is dependent on many factors beyond the control of Licensor, and the inability of the Software to integrate with such applications shall not be construed as a failure of the Software, or that the Software is defective. In the event any of Licensor’s owners, officers, employees or representatives have made oral statements about the Software and other service provided hereunder which conflict with any of the terms of this Agreement, the Software user instructions, the Software literature and bulletins, published user’s requirements, published pricing or any advertising materials and publications, such statements shall not be deemed warranties, shall not be relied upon by Customer and shall not be deemed part of this Agreement unless such statements are in a writing signed by a corporate officer of Licensor.
Customer shall pay the fees indicated in Section 1. No refund of any fees collected or contracted for or other license-related charges will be given or refunded to Customer in the event of termination for any reason. A prorated portion of the Monthly Payment based on a daily charge of 1/30 of the Monthly Payment from the date the Software has been released for use and accepted by Customer shall be invoiced to Customer and due as specified on invoice. All Initial Set up Fees and the first Monthly Fees are due on the Effective Date. Monthly Fees are due as specified on invoice or Finance Company agreement. All payments shall be made at the principal place of business of Licensor, or at any other the location designated by Licensor.
Within a reasonable time after the Effective Date, and prior to the Online Date, Customer will provide Licensor with applicable information required in the User Set up Packet which Licensor reasonably requires in order to properly configure Customer’s Software. Access to the Software will not be provided to Customer until such information is provided to Licensor.
Customer is responsible for obtaining a browser that satisfies Licensor’s browser requirements. Customer is solely responsible for obtaining Internet service to each personal computer from which Customer will access the Software. Customer may select Internet service via T-1 lines, DSL lines, and other sources that may become available from time to time, but the throughput of communications will depend on Customer’s selection of Internet services, and other factors which include, but are not limited to Customer’s computer equipment and Customer’s dealership network system. Customer acknowledges that there are certain security, corruption, transmission error, and access availability risks associated with using open networks such as the Internet, and Customer expressly assumes such risks. Customer acknowledges that Customer has made its own assessment of the adequacy of the Internet as a delivery mechanism for use with the Software, and is satisfied therewith.
It is recommended that Customer employ an appropriate number of persons who have received the Software user training to achieve the optimum results from the Software.
Licensor will provide Email and web-based technical support in the use and operation of the Software at no charge to Customer during the Central Time Zone hours of: 8:00 a.m. to 7:00 p.m. Monday through Friday; 9:00 AM to 3:00 PM on Saturday (Holidays excepted).
In the event Customer fails to make any part of any payment required by this Agreement when due, Licensor may, at its sole election, suspend all services and licenses provided under this Agreement, without prejudice to Licensor’s right to pursue any other remedy for nonpayment permitted by law, including but not limited to legal action to collect unpaid amounts. Amounts not paid when due will be charged finance charges equal to 1.5% per month or the highest rate permitted by law, whichever is less. The finance charge will be calculated and compounded daily from the due date until the date on which the past due amount is paid.
Licensor may assign all of its right, title, and interest in and to all moneys due and to become due as monthly fees for licenses or services hereunder, to a finance company chosen by Licensor (Finance Company), but Licensor shall continue to have all of the rights and obligations established by this Agreement, except the right to collect the monthly fee accruing after the date of assignment. Customer agrees to execute the required finance documents with the Finance Company and shall recognize the assignment and agrees unconditionally to pay directly to the Finance Company all sums due or to become due under this Agreement. Customer SHALL NOT ASSERT AGAINST THE FINANCE COMPANY ANY DEFENSE, COUNTERCLAIM OR SET OFF THAT THE CUSTOMER MAY HAVE AGAINST LICENSOR. Customer, however, may separately claim against the Licensor as to any matters which the Customer may be entitled to assert against the Licensor.
Licensor will make a reasonable attempt to be familiar with the taxes due on the Software and any services provided hereunder in each state, county, city, town, or any other taxing authority, and will charge customer what they understand to be the applicable taxes and submit them to the proper authorities. If an amount for any tax is not specifically stated on this Agreement no tax has been charged to Customer. However in the event any taxes shall be due on the Software or any services provided hereunder then Customer agrees to submit such taxes to Licensor or the appropriate taxing authorities. In the event Licensor should be required to pay any taxes for the Software or any other service provided by this 3 Agreement Customer agrees to reimburse Licensor for the entire amount of the taxes paid by Licensor within 10 days of invoice from Licensor and such invoice will be accompanied by the applicable proof of tax due and/or paid by Licensor. Customer shall hold harmless Licensor from all claims and liabilities arising in connection with Customer’s failure to pay such taxes. This section shall not apply to Licensor’s income tax responsibilities resulting from this Agreement or the Software and other services provided hereunder.
IN NO EVENT SHALL LICENSOR BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION OR SECURITY, OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST CUSTOMER BY ANY OTHER PARTY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. IN NO EVENT SHALL LICENSOR’S LIABILITY UNDER ANY CLAIM MADE BY CUSTOMER EXCEED THE TOTAL AMOUNT OF FEES THERETOFORE PAID BY CUSTOMER TO LICENSOR RELATING TO THE AFFECTED SOFTWARE OR SERVICES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF (I) THE TERMINATION OR EXPIRATION OF THIS AGREEMENT OR (II) THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
Customer authorizes Licensor to share information about Customer and Customer’s company with Licensor’s affiliates as necessary for Licensor to fulfill its obligations under this Agreement.
Neither party shall be in default if the failure to perform any obligation hereunder is caused primarily by supervening conditions beyond that party’s reasonable control, including, but not limited to, power outages, failures or interruptions of communications facilities or equipment of third parties, acts of God, civil commotion, strikes, labor disputes, natural disasters, world events, delay or disruption of shipment or delivery, trespass or interference of third parties, and governmental demands or requirements.
All notices under this Agreement shall be in writing and shall be delivered: a) personally; b) by overnight courier; or c) by United States Mail, registered or certified, return receipt requested, postage prepaid. Notices shall be deemed received on the date of personal delivery, the date of action receipt as indicated on the delivery notice or return receipt or the date the receipt is refused; whichever is earlier. Notices shall be sent to the parties at the addresses set forth herein, or on the software License Agreement.
No failure or delay of either party to exercise any rights or remedies under this Agreement or any Customer Order shall operate as a waiver thereof, nor shall any single or partial exercise of any rights or remedies preclude any further or other exercise of the same or any other rights or remedies, nor shall any waiver of any rights or remedies with respect to any circumstances be construed as a waiver thereof with respect to any other circumstances.
This Agreement and all dealings between the parties hereto shall be determined by and are governed by the laws of the State of Ohio. The parties agree that any dispute or claim relating to or arising out of the parties’ relationship or this Agreement shall be brought soly in the Federal or State Courts of either Cuyahoga County or Summit County Ohio and the parties agree that said courts will have personal jurisdiction over the parties., including the breach hereof. The prevailing party in any civil litigation action shall be entitled to reimbursement from the other party for costs, filing fees, reasonable attorney fees, witness fees, expert fees, court costs, arbitration panel fees, and related travel expenses as they may apply.
If any portion of this Agreement is determined