Mitchell
Repair Information Company License Agreement
Please read the Online End User License Agreement
below.
MITCHELL® COMPUTERIZED REPAIR INFORMATION ONLINE END USER
LICENSE AGREEMENT
THIS ONLINE END USER LICENSE AGREEMENT (the "Agreement")
is by and between MITCHELL REPAIR INFORMATION COMPANY, LLC, P.O.
Box 509044, San Diego, California 92150-9044 ("MRIC") and the individual
and/or entity placing an online order ("Online Order") for a subscription
to ("Subscription") and/or lease of ("Lease") one or more Mitchell®
Computerized Repair Information Systems (the "Systems") on MRIC’s
Internet web site ("End User").
NOW THEREFORE, for valuable consideration, receipt of which
is hereby acknowledged, the parties agree as follows:
- System Ordered. The Online Order placed by the End User
is incorporated by reference herein. Each System contained in
the End User’s Online Order is subject to the terms of this Agreement.
In placing an Online Order for a System Subscription or Lease,
the End User has selected a term ("Term") and the number of users
authorized to use the System ("Single-User Version" or "Multi-User
Version"). As used herein, Multi-User Version includes licenses
for additional users of the Multi-User Version.
- Term. This Agreement is effective for the Term selected
by the End User on the Online Order and begins on the date the
Online Order is accepted by MRIC (the "Effective Date"). This
Agreement is renewable by End User for successive twelve (12)
month terms at the end of the Term and on each anniversary of
the Effective Date thereafter, unless MRIC notifies End User at
least thirty (30) days prior to the anniversary of the Effective
Date. End User’s obligations under Sections 1, 4, 5, 6, 8, 9,
10 and 11 survive termination of this Agreement.
- License. Subject to the terms and conditions of this
Agreement, MRIC grants to End User a nonexclusive and nontransferable
license to use the System solely (i) for the purpose of accessing
data on the System; or (ii) conducting shop management. End User
may not (a) copy the System; (b) download the System except for
an End User’s authorized use; (c) allow data from the System to
be made available to non-End Users except in print form only as
incidental samples used for illustrative or demonstration purposes;
(d) assign, sell, or pass along the System data; or (e) provide
services for a fee using the System without prior written agreement
from MRIC. The Single User Version may be used solely by the End
User. The Multi-User Version may be used on a network for no more
than the number of licensed users selected on the Online Order.
The End User is solely responsible for all security and all use
of the System, including unauthorized use and shall make reasonable
efforts to monitor compliance and correct misuse. MRIC reserves
the right to enter End User’s premises and conduct periodic audits
to confirm compliance with these provisions. MRIC shall retain
title at all times to the System and End User shall have no rights
therein except to use the System as set forth herein. End User
may be able to use the System for a period of time upon expiration
of a Subscription, except as a result of an Agreement breach by
End User, however, End User will not be entitled to technical
or content support.
- Price and Payment Terms. In consideration of MRIC’s System
license to End User, End User shall pay to MRIC the license fees,
or prices, sales taxes, and shipping set forth in the Online Order
(collectively, the "End User Fees") and hereby authorizes MRIC
to (i) charge the End User Fees to the most-current credit card
number provided by End User; and (ii) obtain credit reports, consumer
reports, and investigative consumer reports. MRIC may change End
User Fees at any time during the term of this Agreement or thereafter,
but, except for renewals, the license fees set forth in the Online
Order will not change during the Term of the System Subscription
or Lease. End User is responsible for any additional sales, use,
excise or other similar taxes on the System.
- Maintenance of Equipment and Software. End User, and
not MRIC, shall bear sole responsibility to obtain, maintain and
operate, or cause to be obtained, maintained and operated at its
own expense, all equipment and non-MRIC software that may be used
in conjunction with the System.
- Confidentiality. (Proprietary Rights). End User acknowledges
that the System comprises information which constitutes a trade
secret of MRIC in which MRIC has a proprietary interest. End User
therefore agrees that no portion of the information constituting
the System may be disclosed to others, copied, reproduced, disseminated,
broadcast, displayed, reverse engineered, disassembled, compiled
or used for any purpose or purposes other than as specifically
contemplated by this Agreement in paragraph above. End User shall
exercise its best efforts to protect the System and to prevent
its dissemination to unauthorized persons. Furthermore, End User
shall not assign, pledge, sublicense or permit any other use of
the System without obtaining the prior written consent of MRIC,
which consent may be withheld at the sole discretion of MRIC.
End User shall immediately return to MRIC all System discs and
other information together with all copies and derivatives thereof
immediately upon the (i) receipt of replacement discs or information
and a return request statement or (ii) termination of this Agreement.
- System Modification. MRIC may make changes in rules of
operation, security measures, accessibility, procedures, types
of terminal equipment, types of System equipment, System programming
languages and any other matters relating to the System and its
use without prior notice.
- Updates. MRIC may update the System data ("Data Updates")
from time to time during the course of this Agreement and shall
deliver any such Data Updates to End User during the term of the
license as determined by MRIC. Upon receipt of revised or replacement
CD-ROM discs and/or floppy diskettes, End User agrees to destroy
all previous discs or return them to MRIC upon request.
- Warranty. THE SYSTEM IS DELIVERED "AS IS" AND MRIC MAKES
NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE WITH RESPECT TO THE SYSTEM OR THE DATA UPDATES,
THE COMPUTER PROGRAM ALLOWING USE OF THE SYSTEM OR ANY SERVICES
PERFORMED BY ANY THIRD PARTY. IN PARTICULAR, MRIC DOES NOT WARRANT
THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
End User acknowledges and agrees that (i) MRIC is not the manufacturer
or distributor of any automotive repair parts referenced in the
System, (ii) MRIC makes no representations or warranties with
respect to the quality or availability of such parts or the accuracy
of the prices of such parts and (iii) if End User utilizes any
non-MRIC-supplied interface program to interface with the System,
End User shall look solely to the vendor of such interface program
with respect to any losses or damages caused by such interface
program. MRIC is not responsible for obsolescence of the System
and Data Updates and shall have no responsibility for suspended,
outdated or uncorrected versions of the System and Data Updates.
- Limitation of Liability. End User agrees that MRIC shall
not be liable to End User for any direct, indirect, special, incidental
or consequential damages, including but not limited to loss of
anticipated profits in connection with or arising out of the use
of the System and Data Updates. End User’s sole remedy upon breach
of this Agreement by MRIC that MRIC is unable to cure after a
reasonable notice period shall be termination of the Agreement
and refund of unearned portions of the End User Fee. End User
agrees to indemnify MRIC and hold it harmless against all claims
and damages, including without limitation, reasonable attorney’s
fees arising out of End User’s use of the System and the Data
Updates, unless such claims or damages result from, or unless
End User’s authorized use of the System has given rise to claims
or damages based on the infringement of any copyright or other
proprietary right of any Third Party.
- Termination. The following actions by the End User shall
constitute a breach of the Agreement and shall allow MRIC to terminate
the Agreement immediately upon notice: any use or dissemination
of the System or Data Updates which is not expressly permitted
herein, the appointment of a receiver to take possession of End
User’s assets or the institution of bankruptcy by or against End
User, dissolution or discontinuance of business operations of
End User or failure to make timely payment to MRIC of the End
User Fee, including any renewal fee. Immediately upon the effective
date of termination of this Agreement, End User shall cease using
the System, shall return the System Data Updates and all MRIC
documents and information pertaining thereto, and shall certify
to MRIC in writing that the System and all MRIC documents and
information pertaining thereto have been returned. Upon termination
of this Agreement by MRIC for any such cause, End User shall not
be entitled to any refund of the End User Fees.
- General Provisions.
12.1. Entire Agreement. This Agreement sets forth
the entire agreement and understanding between the parties
as to the subject matter hereof and supercedes all prior discussions
between them.
12.2. Export Laws. End User shall not export, disclose,
or distribute the System in violation of any applicable laws
or regulations, including the export laws and regulations
of the United States, and shall comply with all such laws
and regulations.
12.3. Arbitration. Any controversy or dispute between
the parties under this Agreement shall be submitted to final
and binding arbitration as the sole and exclusive remedy for
such controversy or dispute. Any claim shall be made by filing
a demand for arbitration within one (1) year following the
occurrence first giving rise to the claim. The right and duty
of the parties to this Agreement to resolve disputes by arbitration
shall be governed exclusively by the Federal Arbitration Act,
and arbitration shall take place according to the Commercial
Rules of the American Arbitration Association. The arbitrator
shall have no authority to amend or modify the terms of this
Agreement or to award punitive 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. The prevailing party shall be
entitled to its attorney’s fees and other costs and expenses
incurred in the arbitration and any related action or proceeding.
12.4. Assignment. End User may not assign its rights
or delegate its duties hereunder without first securing the
permission to do so from MRIC, which will not be reasonably
be withheld. For purposes of this section, the End User shall
be deemed to have assigned this Agreement if there is, in
the aggregate, a change of ownership of 25% or more of End
User or a merger or combination of End User with another entity
of business, whether End User is the surviving entity or not.
Any such attempted conveyance shall be void and shall constitute
a default entitling MRIC to terminate this Agreement. MRIC
may freely assign its rights hereunder without securing End
User’s permission to do so.
12.5. Choice of Law and Forum. This Agreement has
been entered into in San Diego, California under the laws
of the State of California and the parties hereto agree that
it shall be interpreted, and all disputes arising hereunder
shall be resolved, in accordance with California law. To the
extent recourse to a court is allowed hereunder, both parties
agree that jurisdiction of any claim or suit hereunder shall
be limited to the courts located within the County of San
Diego, State of California. Both parties hereby submit to
the exclusive personal jurisdiction of such courts.
12.6. Waiver. Failure of either party hereto to enforce
at any time any term of this Agreement shall not be a waiver
of that party’s right thereafter to enforce each and every
term of this Agreement.
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