Online Subscription and Use Agreement: TERMS & CONDITIONS
Effective on April 29, 2011
IMPORTANT – READ CAREFULLY:
BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS AND CLICKING THE ACCEPTANCE BUTTON, YOU REPRESENT AND WARRANT THAT YOU: (i) ARE 18 YEARS OF AGE OR OLDER; (ii) ARE, OR ARE AUTHORIZED TO SIGN FOR AND BIND, THE CONTRACTING PARTY DEFINED BELOW AS “CUSTOMER;” AND (iii) HAVE READ, UNDERSTAND AND AGREE ON BEHALF OF CUSTOMER TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS ONLINE SUBSCRIPTION AGREEMENT. OTHERWISE, DO NOT CLICK THE ACCEPTANCE BUTTON TO PROCEED AND YOUR REGISTRATION PROCESS WILL BE DISCONTINUED.
THIS ONLINE SUBSCRIPTION AGREEMENT (the “Agreement“) is a legal and binding instrument entered into as of the date of electronic acceptance by Customer (the “Effective Date“) by and between eAutoClub, Inc. and you the (“Customer“), the individual or entity entering into this Agreement. It contains rights and restrictions associated with the usage of the software (including all upgrades, updates, corrections, enhancements, modifications, new versions, and derivative thereof, collectively, the (“Software“) that you, the Customer are installing. Read this Agreement carefully before installing and using the Software. By clicking the Acceptance button, installing and using the Software, the Customer acknowledges that it has read and understood, and agrees to comply with, each and every term and condition of this Agreement. The Software contains copyrighted material, trade secrets, and other proprietary information, and is protected by both United States copyright law and international treaty provisions. Unauthorized use, reproduction, or distribution of the Software is subject to civil and criminal penalties.
- Software. The Software (sometimes referred to herein as “EAUTOCLUB or SERVICEINTELLIGENCE”) contains some or all of the following modules, which are subject to change without notice (the “Modules”): SI Auto Pro Customer Contacts for Thank You’s, Declined Work and Appointment Reminders, Service Tracking Reminder, SI CRM, Business Website, Review and Referral, Online Appointments, Online Promotions, Facebook Application Services, Service Need Targeted Marketing service (“SI Social CRM“), SI Auto Pro Point-of-Sale service tracking/vehicle profiling service (“SI POS“), New Customer Acquisition (“NCA“), Search Engine Optimization and Social Networking service (“SI SMO“), SI Communicator service (“SI COMM“), Collectively or individually generally referred to as SI Auto Pro (“SI Modules and Services“). Subject to Section 8 of this Agreement, a description of the features and functionality of each of the Modules can be obtained from EAUTOCLUB, INC.(“EAC”), whose address is 528 Palisades Drive, P.O. BOX 503, Pacific Palisades, California 9272. The Software is being licensed hereunder by EAC. The specific Modules of the Software that Customer is installing depend on the version of the Software that Customer has licensed pursuant to this Agreement. EAC is the owner and licensor hereunder of all the Modules listed. Additional modules are introduced from time to time and therefore included by reference. As used in this Agreement, the term “Licensor” means and refers to EAC, a 3rd party software or both of EAC and 3rd party software, as applicable to the Modules being licensed by EAC hereunder.
- License; Restrictions; Reservations.
- Limited Software License. Licensor grants Customer a non-exclusive, non-assignable, non-transferable, revocable, limited license, with no rights of sublicense, to use the Software for Customer’s internal business purposes in the manner intended by Licensor, subject to the terms and conditions of this Agreement. Licensor grants Customer the right to install the Software on one (1) stand-alone computer or one (1) computer server that serves up to 5 client computers, which must have high-speed connectivity to the Internet. Customer agrees that it shall not install the Software in or on any other computer, computer server, computer system, or location. Licensor also grants Customer the right to make one (1) archival copy of the Software for purposes of restoring the Software to its initial condition in the event of computer hardware failure.
- No Distribution. Customer may not sell, rent, lease, lend, license, sublicense, redistribute, export, import, act as an intermediary or provider, or otherwise allow third parties to use the Software, directly or indirectly, including as part of a time sharing, remote job entry, service bureau arrangement, or hosting services. Customer’s licensed right to use the Software does not include any right to copy, sell, license, sublicense, distribute, perform, display, make derivative works of, or integrate the Software with any third party software or firmware. This Agreement is for the use of the Software in object code form only. Customer may not (a) modify, change, or alter the Software, or otherwise decompile, disassemble, decrypt, extract, hack, reverse engineer, or create derivative works of the Software, or make any attempt to accomplish any of the foregoing; (b) use the Software for any unlawful purposes; or (c) copy, reproduce, or use the Software in any manner inconsistent with the terms and conditions of this Agreement or as otherwise intended by Licensor. Customer agrees to take all reasonable precautions to secure the Software from distribution to any third party. Customer shall use the Software only to support its own activities and shall not use the Software, directly or indirectly, for the benefit of any third parties.
- Reservation of Rights. Licensor reserves the right to: (a) use third parties to license or provide any of the SI Modules and Services under this Agreement (each a “Third Party Provider”); (b) modify or discontinue, temporarily or permanently, all or a part of the SI Modules and Services and all services provided to Customer in connection therewith, including, without limitation, all services provided in connection with the DP Module; (c) suspend or terminate provision of any SI Modules and Services in a particular jurisdiction if Licensor determines, in its reasonable discretion, that the SI Modules and Services cannot be provided in accordance with applicable laws; (d) enforce its legal rights against any individual or entity using the SI Modules and Services without Licensor’s consent or in violation of this Agreement; and (e) make changes to the rules of operation, security measures, accessibility, procedures, types of terminal equipment, types of system equipment, operating system requirements, programming languages, and any other matters relating to the SI Modules and Services and its use, without prior notice to, or obtaining the consent of, Customer. All rights not expressly granted to Customer hereunder are reserved to Licensor. Customer shall remove all versions of the Software deemed outdated by Licensor from Customer’s computer servers and systems and return the same to Licensor upon Licensor’s request.
- Data; Communications.
- Customer acknowledges that the Software transmits, from Customer to EAC, and certain Third Party Providers, certain data that is entered into and derived from the Software, including, without limitation, customer lists, servicing histories, parts and labor lists, price lists, marketing information, and other data of Customer and meta-data related to the Software and software used in connection with the Software (the “Data”). Customer hereby grants EAC, and the Third Party Providers the perpetual, irrevocable right to collect, use, store, copy, modify, analyze, display, translate, make derivative works of, share with and sell or license to other parties (including Third Party Providers), and otherwise exploit, the Data, including but not limited to, the right to aggregate and market the Data for purposes of benchmarking, research, and data analysis. The Data collected and stored by EAC (and all copies and derivative works thereto) shall be owned by EAC, and Customer hereby assigns its right, title, and interest therein and thereto. Notwithstanding the above, EAC will use due care and implement best business practices in protecting the customer lists from being disclosed or shared in any way with competitors of the Customer.
- Customer acknowledges and agrees that the Software sends information to, and receives information from, Licensor’s servers and computer systems, which allows Licensor to update, modify, revise, and fix the Software, and collect information and track and monitor Customer’s usage of the Software. Customer acknowledges and agrees that it shall not hinder, limit, or disable this feature of the Software or otherwise take steps to prevent the Licensor from tracking and monitoring Customer’s usage of the Software.
- No Transfer of Ownership. No right, title, or interest in or to the Software or any part thereof, is being transferred to Customer under this Agreement. Licensor retains all right, title, and interest (including all Intellectual Property Rights, defined below) in and to the Software, except to the extent of the limited license granted to Customer in Section 2.1 of this Agreement. The parties agree that neither this Agreement, nor any action of the parties related hereto, may be interpreted as conferring by implication, estoppel, or otherwise, any license or rights under any Intellectual Property Rights of Licensor other than as expressly and specifically set forth in this Agreement. This Agreement does not authorize Customer to use any name, trademark, icons, or logo of the EAC, or any Third Party Providers. Customer shall neither take nor permit any action which will delete or obscure the copyright, trademark notification, or other similar legend or identifying mark on any Software and any related documentation and materials. As used in this Agreement, the term “Intellectual Property Rights” shall mean all intellectual property rights, including without limitation patent rights, copyrights, moral rights, trademark rights, trade name rights, service mark rights, trade dress rights, trade secret rights, proprietary rights, privacy rights, and publicity rights, whether or not those rights have been filed, registered, or applied for under any statute or are protected or protectable under applicable law, foreign and domestic.
- SI Modules and Services. If Customer is licensing an SI Module: EAC will notify Customer via on-screen User Interface acceptance notice, e-mail or telephone when the SI is available for Customer’s use. Within three (3) business days after such notice, the SI Modules shall be deemed activated, unless EAC receives written notice from Customer during such five (5) business day period of Customer’s request for material changes to the SI Module. EAC will make any reasonable changes to the SI Modules that Customer requests and again notify Customer that the SI Modules is available for Customer’s review, restarting the three (3) business day review period. The date of activation of the SI Modules will determine the date of the beginning of the term of the services being provided in connection with the SI Module. Solely in connection with the SI Module, and in EAC’s sole discretion, EAC agrees to make available updates and revisions that EAC makes generally available to all its customers; provided, however, that the SI Modules and any service provided with respect thereto, DO NOT include any custom modifications to the functionality of the SI Modules or any special features, with the express understanding that such additional customization or special features are outside the scope of this Agreement and terms and conditions for such additional customization or special features will be agreed upon mutually by the parties and billed out by EAC at its standard rates. Customer grants to EAC, a nonexclusive, nontransferable, revocable, nonsublicensable, worldwide license to use, display, transmit, and broadcast Customer’s name in promoting SI Module, including, but not limited to, web site development, design, and creation services on the Internet, and otherwise in our advertising and marketing materials distributed to customers and potential customers.
- Natural Language Processing. Customer acknowledges that as a result of the differences in spelling, differences in management system database structures, and other reasons, the SI Modules of the Software may produce inaccurate or erroneous conclusions on the vehicle service profiling reports. Customer’s sole remedy for such inaccuracies and errors is to deliver to EAC the SI Auto Pro report together with the corresponding invoice from the management system, noting the error, and associated supporting documents. EAC will attempt to resolve such inaccuracies and errors within a reasonable time period at no charge. Licensor shall not be liable for any inaccurate or incorrect SI Auto Pro reports or recommendation, or offensive material or improper grammar printed on any SI Auto Pro reports, and it shall be Customer’s sole responsibility
- SI Communicator. With respect to the SI COMM Module: Customer acknowledges that the scope of services for data processing is limited to the following elements: customer records and history, vehicle history, historical invoices, recommendations, inventory, and customer totals. Customer shall be responsible for allowing the daily transferring to EAC all Shop Management System databases and maintaining the confidentiality of all passwords for all applicable accounts. Information is shared with vendors such as printers and other forwarding and transmission services.
- Fees; Payment. In consideration of the rights granted to Customer herein, Customer shall pay to EAC, from time to time during the Term (defined below) of this Agreement, the applicable license, installation, service, and other fees (both initial and recurring) owed in connection with the Software (the “Fees“). Customer may obtain a list of the then-applicable Fees from EAC. Customer acknowledges that Licensor may, in its sole and absolute discretion, update, change, and increase the Fees during the Term of this Agreement. The payment of all Fees shall be due within thirty (30) days following the earlier of (a) the date of EAC’s invoice for payment of the Fees to Customer, or (b) the due date otherwise provided to Customer. Late payments will accrue interest at a rate equal to the lesser of (x) one and one half percent (1.5%) per month, or (y) the maximum interest amount allowed by local law. If any payments owed in connection with the Software is more than thirty (30) days past due, EAC shall have the right to suspend any or all of the SI Modules and Services until the account is made current. EAC shall have the right to take possession of the system and all related materials in Customer’s possession and cease delivery of any updates or upgrades to the Software. Customer shall be responsible for all collection costs, including costs incurred by EAC in taking possession of the Software and documentation, plus attorney’s fees incurred with respect to such action.
- Term. The term of this Agreement (“Term“) will commence on the date that Customer installs the Software (“Effective Date“) and unless terminated earlier in accordance with the Agreement, will remain in full force and effect for a period of twelve (12) months (“Initial Term“). Following the Initial Term, the Term of this Agreement will continue and automatically renew for additional, consecutive month to month intervals (each a “Renewal Term“) unless Customer cancels this Agreement in writing at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term, as the case may be. If Customer elects to terminate this Agreement prior to the expiration of the Initial Term or any Renewal Term, Customer shall pay an early termination fee equal to three (3) months of the Fees that Customer is then paying in connection with license granted for the Software. Notwithstanding the above, a termination of this Agreement is permissible without cause within the first thirty (30) days of this Agreement. Customer is entitled to a “Risk Free Trial” refund of first month fees (excluding postcards or postage), if after allowing EAC the opportunity to customize key words to correct issues, accuracy level is not equal to or higher than four (4) errors per one hundred (100) detailed line items.
- Publicity. Customer shall not use the name or marks of EAC or refer to or identify EAC in advertising or publicity releases, promotional, or marketing correspondence to others without first securing the written consent of such parties. Customer grants EAC the right to refer to and identify Customer in advertising or publicity releases, promotional, or marketing correspondence, including without limitation, to: (a) use Customer’s name in oral sales presentations, client lists, press releases, brochures, marketing materials, and financial reports indicating that Customer is a customer of EAC, and (b) disclose the terms of this Agreement, or any part thereof, to potential investors or acquirers of for purposes of complying with the disclosure requirements of federal and state securities laws.
- Confidentiality. Customer acknowledges and agrees that the SI Modules and Services and all portions thereof and all information and data contained therein, together with such other materials, data, and information that Customer has access to, or receives from, EAC (all such information and materials collectively called “Proprietary Materials and Information”), are the unique, valuable, confidential, and proprietary materials and information of EAC, contain substantial trade secrets of EAC, and are entrusted to Customer in confidence to use only as expressly authorized in this Agreement. Customer shall, and shall cause its employees and other third parties, including its independent contractors, representatives, affiliates, and agents, who, with the express consent of EAC, as applicable, have access to any Proprietary Materials and Information to, (a) keep all Proprietary Materials and Information confidential and not disclose or permit access to the Proprietary Materials and Information to any person or entity other than its employees for the purpose of attaining the objects of this Agreement, and (b) not use the Proprietary Materials and Information for any purpose other than as expressly permitted herein. Customer shall be required to apply the same standard of care that it uses with respect to its own valuable confidential information, and Customer represents that it uses commercially-reasonable efforts at all times to protect such information. Customer shall promptly notify EAC in writing of any unauthorized knowledge, possession, or use of the Proprietary Materials and Information of which it becomes aware. Customer’s obligations under this Section 6 shall survive termination and/or expiration of this Agreement.
- Additional Hardware and Software Required. Customer acknowledges that it will need additional hardware and software to use the Software, including, without limitation, (a) an operating system, computer hardware, and internet connectivity that are compatible with the Software (specifications may be obtained from EAC), (b) high speed internet connectivity, and (c) if Customer is licensing the SI Module, an Updated Windows Operating System, .Net Framework 3.5 or higher and Internet Explorer web browser. Customer acknowledge that such hardware and software are not being licensed, sold, or otherwise provided to Customer by Licensor, and Customer, and not Licensor, shall bear the sole responsibility for obtaining, maintaining, and operating any and all equipment and software required to be used in conjunction with the SI Modules and Services. Customer agrees to install the Software on only those computers and operating systems in which the Software is intended to run and only in the manner prescribed by Licensor.
- NO WARRANTY AND DISCLAIMER. THE SOFTWARE IS BEING MADE AVAILABLE AND PROVIDED TO CUSTOMER ON AN “AS IS”, “WHERE IS”, AND “WITH ALL FAULTS” BASIS, WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARE DISCLAIMED BY LICENSOR AND ITS AGENTS, REPRESENTATIVES, DISTRIBUTORS, AND SUPPLIERS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, INFORMATION CONTENT, DATA ACCURACY, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, SATISFACTORY QUALITY, ACCURACY, TIMELINESS, HIDDEN OR LATENT DEFECTS, OR OTHERWISE. NO DEALER, RESELLER, AGENT, OR REPRESENTATIVE OF LICENSOR IS AUTHORIZED TO MAKE ANY REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES IN CONTRADICTION TO THE DISCLAIMERS SET FORTH IN THIS SECTION. CUSTOMER HEREBY ACKNOWLEDGES THAT IT IS NOT RELYING UPON ANY SUCH REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES, AND HEREBY RELEASES AND WAIVES ALL RIGHTS TO SUCH REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTEES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR DOES NOT WARRANT, AND HEREBY DISCLAIMS ALL WARRANTIES, THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS, OR DATA, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. LICENSOR IS NOT RESPONSIBLE FOR PROBLEMS CAUSED BY CHANGES IN THE OPERATING CHARACTERISTICS OF CUSTOMER’S COMPUTER HARDWARE, NETWORK, SYSTEM, CONNECTIVITY, VOICE, FAX BOARDS, OR OPERATING SYSTEMS. LICENSOR IS NOT RESPONSIBLE FOR ANY ACTIONS OF THIRD PARTIES WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE INTERCEPTION OF ANY DATA TRANSMITTED BY THE SOFTWARE (INCLUDING IN RESPECT OF THE SI MODULES) OR ANY DENIAL OF SERVICE, VIRUS, TROJAN HORSE, OR OTHER ATTACK OR MALICIOUS ACTIVITY TAKEN AGAINST THE SOFTWARE. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE MAY BE VULNERABLE TO ELECTRONIC ATTACKS BY THIRD PARTIES. LICENSOR RESERVES THE RIGHT TO MAKE CHANGES TO THE SPECIFICATIONS OF THE SOFTWARE WITHOUT OBLIGATION TO NOTIFY, OR OBTAIN THE CONSENT OF, CUSTOMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT IF CUSTOMER UTILIZES ANY SOFTWARE TO INTERFACE WITH THE SOFTWARE THAT IS NOT PROVIDED BY LICENSOR, CUSTOMER SHALL LOOK SOLELY TO THE VENDOR OF SUCH SOFTWARE WITH RESPECT TO ANY LOSSES, COSTS, CLAIMS, DAMAGES, AND EXPENSES CAUSED THEREBY. LICENSOR IS NOT RESPONSIBLE FOR UPDATING THE SOFTWARE OR THE OBSOLESCENCE OF THE SOFTWARE, AND SHALL HAVE NO RESPONSIBILITY FOR SUSPENDED, OUTDATED, OR UNCORRECTED VERSIONS OF THE SOFTWARE.
- LIMITATION OF LIABILITY.
- IN NO EVENT SHALL EAC OR CUSTOMER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY OTHER PARTIES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF USE, TRADING LOSSES, LOSS OF SAVINGS, BUSINESS INTERRUPTION, OPPORTUNITY, LOSS OF DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATED TO THE SI MODULES AND SERVICES, THE DATA, THE USE OF OR INABILITY TO USE THE SI MODULES AND SERVICES, OR THE TERMS OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR SHALL NOT BE LIABLE FOR ANY INCORRECT PERFORMANCE REPORTS OR SERVICEINTELLIGENCE REPORTS PRODUCED BY THE SOFTWARE. CUSTOMER AGREES THAT IT SHALL USE THE PERFORMANCE REPORTS REPORTING DATA FOR BUSINESS BENCHMARKING ONLY, AND NOT FOR OFFICIAL, GOVERNMENTAL, OR FINANCIAL AUDITING OR REPORTING.
- NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND REGARDLESS OF THE CAUSE OR FORM OF ACTION (WHETHER BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE), ANY PARTY’S LIABILITY TO THE OTHER FOR DAMAGES SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES, AND SHALL NOT EXCEED THE AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER FOR THE AFFECTED SI MODULES AND SERVICES DURING THE MONTH IN WHICH THE CLAIM FIRST ACCRUED. MULTIPLE CLAIMS WILL NOT EXPAND THE AGGREGATE LIMIT DESCRIBED IN THIS SECTION. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO ANY PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR TO CUSTOMER’S BREACH OF THE LICENSE AND RESTRICTIONS SET FORTH IN THIS AGREEMENT.
- CUSTOMER’S SOLE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY LICENSOR THAT LICENSOR IS UNABLE TO CURE FOLLOWING RECEIPT OF WRITTEN NOTICE FROM CUSTOMER AND THE LONGER OF (A) 90 DAYS, OR (B) A REASONABLE TIME PERIOD REQUIRED TO CURE SUCH BREACH, SHALL BE THE TERMINATION OF THE AGREEMENT AND A REFUND OF THE UNEARNED, PRORATED PORTIONS OF THE FEES PAID BY CUSTOMER IN CONNECTION WITH THE SOFTWARE. CUSTOMER HEREBY WAIVES ALL OTHER RIGHTS OR REMEDIES NOT CONSISTENT WITH THIS SECTION 9.3. CUSTOMER HEREBY (X) RELEASES EAC, AND SHALL HOLD EAC HARMLESS, FROM ANY BREACH OF THIS AGREEMENT BY LICENSOR ARISING FROM THE MODULES OF THE SOFTWARE BEING LICENSED HEREUNDER BY EAC, AND (Y) RELEASES EAC, AND SHALL HOLD EAC HARMLESS, FROM ANY BREACH OF THIS AGREEMENT ARISING FROM THE MODULES OF THE SOFTWARE BEING LICENSED HEREUNDER BY EAC.
- NO CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT MAY BE ASSERTED MORE THAN ONE (1) YEAR AFTER THE FIRST OCCURRENCE FIRST GIVING RISE TO THE CLAIM.
- Equitable Relief; Irreparable Harm. Customer acknowledges that any breach by Customer of its obligations under Sections 2, 5, or 6 of this Agreement will cause Licensor irreparable harm for which monetary damages would not be an adequate remedy. Therefore, Customer agrees that in the event of any such breach, Licensor will have the right to seek injunctive or other equitable relief against any continuing or further breach by Customer, without any obligation to post a bond or the necessity of proving actual damages. This right to injunctive or other equitable relief will be in addition to any other right that Licensor may have under this Agreement, or otherwise in law or in equity.
- Indemnification. To the maximum extent permitted by applicable law, Customer shall defend, indemnify, and hold EAC, and the Third Party Providers, and each of its and their shareholders, stockholders, members, directors, managers, officers, consultants, employees, successors, and assigns, harmless from and against any and all losses, costs, claims, damages, and expenses, including without limitation, attorney’s fees arising from, related to, or otherwise in connection with Customer’s use of the SI Modules and Services.
- Termination. Licensor shall have the right to terminate this Agreement with respect to some or all of the Modules comprising the Software upon the occurrence of the following: (a) Customer defaults in the performance of any of Customer’s obligations under this Agreement involving the payment of money or Fees, and the same shall not be cured by Customer within ten (10) business days after written notice to Customer; (b) Customer defaults in the performance of any of Customer’s obligations under this Agreement or breaches any restriction imposed on it by this Agreement, other than the payment of money or Fees, and Customer does not commence the cure the same within ten (10) business days after written notice to Customer, and such default or breach is not thereafter cured within thirty (30) days; (c) a receiver is appointed or one or more creditors takes possession of all or substantially all of the assets of Customer, or Customer shall make a general assignment for the benefit of creditors, or resolves to go into voluntary liquidation; or (d) for any reason, or no reason, upon at least thirty (30) days prior notice to Customer. For sake of clarity, Licensor is expressly permitted to terminate this Agreement pursuant to the foregoing Section 12(d) following any allegation that the Software infringes upon the Intellectual Property Rights of any third party.
- Effect of Termination. In the event of the expiration or termination of this Agreement for any reason: (a) the license set forth in Section 2.1 of this Agreement shall terminate and Customer may no longer use those Modules of the SI Modules and Services for which the termination occurred; (b) with respect to the termination of the SI Module, any SI Modules and EAC Network Number shall immediately be shut down; (c) Customer shall not be relieved of any of its obligations which have accrued on or prior to the date of expiration or termination of this Agreement; (d) if requested by Licensor, Customer shall return the Software, data updates, and all EAC documents and information pertaining thereto; (e) Customer shall not be entitled to any refund of any payments or Fees paid by Customer, except for the unearned, prorated portions of the Fees paid by Customer if the termination is undertaken by Licensor pursuant to Section 12(d) of this Agreement; (f) Customer shall immediately return to EAC any and all Proprietary Materials and Information; and (g) all other obligations of Customer set forth in this Agreement shall survive the termination.
- Assignment. Licensor may freely assign its rights hereunder without any requirement to provide notice to, or obtain the consent of, Customer. Customer may not assign its rights or delegate its duties hereunder without first securing the permission to do so from EAC, which permission may be withheld at the sole discretion of EAC. For purposes of this section, Customer shall be deemed to have assigned this Agreement if there is, in the aggregate, a change of ownership of twenty-five percent (25%) or more of the ownership interests of Customer or a merger or combination of Customer with another entity of business, whether Customer is the surviving entity or not. Any such attempted conveyance shall be void and shall constitute a default entitling EAC to terminate this Agreement. Notwithstanding the foregoing, upon payment by Customer of a reasonable transfer fee, this Agreement may be assigned by Customer to a purchaser of all or substantially all of its business upon the prior written consent of EAC, such consent not to be unreasonably withheld.
- Choice of Law and Forum. This Agreement shall be interpreted, and all disputes arising hereunder shall be resolved, in accordance with California law, without regards to choice of law principles. To the extent recourse to a court is allowed hereunder, Customer and EAC agree that jurisdiction of any claim or suit hereunder shall be brought and heard in the courts located within the County of Los Angeles, California; provided, however, that if EAC is not a party to the dispute, then any claim or suit hereunder shall be brought and heard in the courts located within the County of Los Angeles, California. All parties hereby submit to the exclusive personal jurisdiction of such courts. All parties hereby disclaim the applicability of the Uniform Commercial Code, the Uniform Computer Information Transactions Act, and the United Nations Convention of Contracts for the International Sale of Goods.
- Arbitration. Notwithstanding the provisions of Section 15 to the contrary, any dispute, claim, or controversy arising out of or relating to this Agreement or breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration, before a sole arbitrator, in San Diego, California (except that if EAC is not a part of the dispute, claim, or controversy, the arbitration shall be heard in Los Angeles, California) in accordance with the laws of the State of California for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. The arbitrator shall have no authority to amend or modify the terms of this Agreement or to award punitive or consequential, indirect, special, or exemplary damages, and the award may be enforced by judgment. Before, during, or after arbitration each party shall have the right, without awaiting the outcome of the arbitration, to seek provisional remedies from an appropriate court including but not limited to temporary restraining orders or preliminary injunctions. Seeking any such remedies shall not be deemed a waiver of either party’s right to compel arbitration.
- Attorney’s Fees. If any action or proceeding (including arbitration) is brought in connection with this Agreement, the prevailing party shall be entitled to its attorney’s fees and other costs and expenses incurred in such action or proceeding, including any appeals or petitions, and enforcements of decisions and judgments therefor.
- Notice. Any notice or other communication required or permitted to be given to any party hereunder shall be in writing and shall be deemed to have been properly given and effective as of the date of delivery, if delivered in person, or by facsimile (with electronic confirmation of receipt and mailing a copy) or five (5) days after mailing by registered or certified mail, postage paid, to the other party at the following addresses: (a) to EAUTOCLUB, INC., whose address is 865 Via de la Paz, P.O. BOX 207, Pacific Palisades, California 9272, Fax: 877-865-9200, and (b) if to Customer: to the address given by Customer to EAC on the order form, invoice, or other document (written or electronic) specifying Customer’s address. Any party may change its address during the Term of this Agreement by delivering written notice of the same to the other parties.
- Waiver. No delay or omission by any party hereto to exercise any right occurring upon any noncompliance or default by any other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by any of the parties hereto of any of the covenants, conditions, or agreements to be performed by the others shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained.
- Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable any other part of this Agreement, but the Agreement shall be construed as not containing the particular provision or provisions held to be invalid or unenforceable.
- Third-Party Beneficiaries. The Third Party Providers retained by EAC shall be beneficiaries of the provisions of this Agreement that are for the benefit of EAC, and the Third Party Provided retained by EAC shall be beneficiaries of the provisions of this Agreement that are for the benefit of EAC. Such Third Party Providers shall have the right to enforce this Agreement against Customer with respect to any violation by Customer affecting the licenses, products, or services granted or provided by the Third Party Providers under this Agreement. Except as provided in the foregoing sentence, this Agreement is intended for the benefit of only Customer and EAC, and no other party.
- Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Section 22 shall not be construed to alter or modify the prohibitions upon assignments or transfers by Customer expressed elsewhere in this Agreement.
- Force Majeure. Licensor will not be liable for, or be considered to be in breach or default of this Agreement, on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control. Licensor may suspend or terminate provision of any service as a result of any such cause or condition.
- Entire Agreement. This Agreement sets forth the entire, final, and exclusive agreement between the parties hereto as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties. Any terms set forth on a purchase order or other written documentation from Customer shall be considered void and of no force and effect. This Agreement may be modified only pursuant to a writing executed by authorized representatives of Customer and EAC.
- English Version; Interpretation. The original version of this Agreement is in the English language. Any discrepancy or conflicts between the English version and any other language version will be resolved with reference to and by interpreting the English version. This Agreement shall be construed in accordance with its fair meaning with no one party being considered the draftsperson. As used herein, the term “include” and “including” shall not be limiting and shall mean “including but not limited to”. Where applicable the singular of any word or term shall include the plural of such word or term and vice versa.
- Authority. Customer represents and warrants to Licensor that the person installing the Software is at least eighteen (18) years of age, has authority to acknowledge acceptance and agreement to the terms and conditions of this Agreement, and the terms of this Agreement are enforceable against Customer. The individual installing the Software represents and warrants to Licensor that (a) he or she has authority to install the Software on behalf of Customer, (b) Customer has acknowledged and agreed to the terms and conditions of this Agreement, and (c) Customer, and not the person installing the Software, shall be the sole licensee hereunder.