Terms of Use
GENERAL TERMS AND CONDITIONS
WHEREAS, Licensor owns and publishes electronic databases identified on the Term Sheet (collectively, the "Databases");
WHEREAS, Licensee has developed and currently maintains, manages, owns and controls a series of Web pages on the Internet using hyper-text markup language, commonly known as the "World Wide Web".
WHEREAS, Licensor desires to make its Databases available to end-user Licensees over the Internet, subject to specific restrictions on the use of the Databases.
NOW THEREFORE, for and in consideration of the premises and the terms and conditions hereinafter set forth, the parties hereby agree as follows:
1. Definitions.
1.1 "Licensee" shall mean a person that is a user of the Web Site.
1.2 "Site" shall mean a single physical address where a Licensee accesses the Databases.
1.3 "Web Site" shall mean a series of related Web pages located at the URL identified on the Term Sheet (as the same may be modified or expanded from time to time by Licensee), which is under the exclusive control of Licensee.
1.4 "Competitor" shall mean any other publisher or provider of information or products substantially similar in whole or in part to the Databases or any publications of Licensor.
1.5 "Proprietary Information" shall mean any written information marked as confidential at the time of disclosure, or any other information of either party which, under the circumstances, reasonably ought to be considered confidential and proprietary. The terms of this Agreement shall be deemed Proprietary Information of each party. Proprietary Information shall not include information which (i) is lawfully in the other party's possession prior to the disclosure; (ii) is lawfully disclosed to such party by a third party without restrictions on its disclosure; (iii) is independently developed by such party; or (iv) became known to such party from a source other than the other party other than by the breach of an obligation of confidentiality owed to the other party.
1.6 "Person" shall mean any individual, partnership, corporation or other entity capable of entering into a legally enforceable agreement.
1.7 "Territory" shall mean the United States and Canada.
1.8 "Term" shall mean the initial and any renewal terms as set forth in Section 9.
1.9 "Updates" shall mean any changes, additions, corrections or deletions from a Database.
2. Grant of Rights; Limitations; Reservation of Rights.
2.1 Databases. Licensor shall provide Licensee with the Databases via Web service or via e-mail. Updates to the Databases will also be furnished via Licensor's Web service or via e-mail. Licensee will provide Licensor with private space on Licensee's server to store Databases in a protected format. Licensor will transfer the data to Licensee's servers via a data transfer and will create a web service to allow access from Licensee to retrieve data. Licensee will make the Databases available as an identifiable part of the single Web Site to Licensees on an individual, vehicle by vehicle, lookup basis (without the ability to download the Databases, in whole or in part, other than the individual vehicle data); it being understood and agreed, however, that the Web Site screen and any printouts of information from the Databases will clearly identify Licensor as the owner and publisher of the Databases.
2.22.2 Limitations. Except as expressly permitted herein:
a) Licensee shall not, and shall not permit others including but not limited to third parties using or accessing the Databases, to directly or indirectly (i) alter or copy, in any form or medium, all or any part of the Databases (except for data located on an individual, vehicle by vehicle, lookup basis), nor make such data part of any electronic retrieval system or web service The Databases may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies. You may not alter, merge, adapt, display differently than what is called from the Licensor's web service, or translate the software, or disassemble without the express written consent of Smeralda Alliance Inc.. (ii) create any derivative work from, or adaptation of the Databases; (iii) lease, license, sell, or otherwise publish, communicate, distribute or display to third parties in any form or medium all or any part of the Databases, or (iv) create any vehicle publications, in electronic, printed or any other format, based in whole or in part on data from the Databases, alone or in combination with any other data; All other uses are expressly prohibited.
(b) Licensee shall not directly or indirectly distribute, reproduce or make the Databases available, in whole or in part, to any online services, or other categories of communication over the Internet other than the World Wide Web, or to other electronic distribution systems, including without limitation, web services, intranets, cable, satellite, microwave, television stations, and others engaged in the publication, reproduction and distribution of information.
(c) Licensor reserves the right to make changes to its Databases at any time. Licensor reserves the right, upon reasonable written notice to Licensee, to discontinue developing, producing, licensing or distributing information, or to modify, replace or add to its Databases, at Licensor's sole discretion for any manufacturer who restricts Licensor's ability to grant Licensee the rights licensed hereunder or otherwise imposes commercially unreasonable restrictions on the use of their information by Licensor, thus effectively terminating Licensor's right to grant all or a portion of the rights granted hereunder.
2.3 Reservation of Rights. Licensor reserves all rights to the Databases not expressly granted herein, including the rights, directly or indirectly, to publish, reproduce, distribute, license and sell the Databases in whole or in part, and any and all conversions or translations thereof into any and all languages (including, but not limited to, English) anywhere in the world including in electronic form and on the World Wide Web. Licensor reserves the right to make changes to the Databases at any time. Licensor reserves the right, upon reasonable written notice to Licensee, to discontinue developing, producing, licensing, or distributing any or all of the Databases or to modify, replace or add to the Databases, at its sole discretion.
3. Licensee's Obligations.
3.1 Compliance with Laws. Licensee shall comply with all applicable local laws and regulations of the Territory relating to the marketing, Licenseeing, and support of the Databases.
3.2 Intellectual Property Notices; Trademark Usage.
(a) The Web Site, and any documentation or promotional materials created or distributed by Licensee that describes the Databases shall include appropriate trademark and any other indicia of the intellectual property rights of Licensor.
(b) Licensor grants Licensee a limited, non-exclusive, non-transferable, royalty-free right, within the Territory and during the Term to use Licensor's trademarks, trade names, service marks and logos (the "Licensed Marks") for the purpose of advertising and promoting the availability of the Databases on the Web Site. Licensor reserves the right to review any use of the Licensed Marks and to require changes in such use, and Licensee agrees to comply with any such requirements. Licensee acknowledges and agrees that: (i) it shall not use the Licensed Marks in a manner likely to diminish the Licensed Marks' commercial value; (ii) it shall not knowingly permit any third party to use the Licensed Marks unless authorized in writing by Licensor; (iii) it shall not knowingly use or permit the use of any mark, name, or image likely to cause confusion with the Licensed Marks; (iv) all goodwill associated with Licensee's use of the Licensed Marks shall inure to Licensor; (v) the Licensed Marks are and shall remain the sole property of Licensor; (vi) nothing in this Agreement shall confer in Licensee any right of ownership in the Licensed Marks, and Licensee shall not make any representation to the effect, or use the Licensed Marks in a manner that suggests that such rights are conferred; and (vii) Licensee shall not now or in the future contest the validity of the Licensed Marks. (viii) Licensee shall display Licensor logo and website link to the Licensor's website stating fitment data provided by "Licensor's logo".
3.3 Security. Licensee shall take all commercially reasonable security precautions to prevent non-licensees of the Databases from obtaining access to the Databases.
3.4 Web Site Restrictions. Licensee agrees that during the Term (i) all advertising, content and links placed on the Web Site shall be those of responsible firms or companies with respect to reputable products or services and (ii) it will not permit the publication of any advertising or other content which Licensee knows or reasonably should know might injure the good name or reputation of Licensor or any of its affiliates. Licensee agrees to comply with the various policies of Licensor on this matter as they are from time to time communicated to Licensee (whether orally or in writing). The Web Site shall not contain advertisements, banners or links to or for or data of any Competitor.
4. Licensor's Obligations.
4.1 Updates. Licensor shall, at no additional charge, provide Licensee with periodic Updates via Licensor's Web Service or via e-mail, at Licensor's option. All such Updates shall be deemed included within the definition of "Databases" and shall, as such, be subject to all of the terms of this Agreement.
5. Ownership; Confidentiality.
5.1 Ownership. Licensee acknowledges that the Databases are confidential, proprietary material owned and copyrighted by Licensor. Licensee agrees that the Licensor shall retain exclusive ownership of the Databases, including all literary property rights, copyrights, trademarks, trade secrets, trade names or service marks, including goodwill.
5.2 Confidentiality.
(a) Neither party at any time during or after termination of this Agreement shall disclose any Proprietary Information to anyone other than (i) its employees who reasonably require such knowledge in order to implement the purposes of this Agreement; or (ii) its agents or representatives whose assigned duties reasonably require such disclosure, to the extent necessary to distribute the Databases. Such persons shall be required to affirm that they will protect the Proprietary Information. Notwithstanding the foregoing, Licensor agrees that Licensee shall be permitted to disclose relevant aspects of the Databases to its employees and agents to the extent reasonably necessary for the Licensee to use the Databases; provided that Licensee shall take all reasonable steps to ensure that Databases are not further disclosed or duplicated. Licensee shall not allow any attachment, levy, or execution upon or against the Databases, and shall immediately notify Licensor in writing regarding any such attempt.
(b) Nothing in this Section shall restrict disclosure by either party required by any applicable law, or regulation, or the order of any court or administrative agency having jurisdiction regarding such matters. However, either party shall promptly upon receiving notice of any required disclosure, notify the other in writing, providing all information and assistance for such party to defend its rights hereunder.
(c) In the event of a breach of this Section 5, the aggrieved party shall be entitled to seek to obtain injunctive or other equitable relief from a court of competent jurisdiction to restrain the use or disclosure of its Proprietary Information. Such remedy shall be in addition to, and not in lieu of, any other remedies provided for in this Agreement.
6. Payments; Audits.
6.1 Payments. In consideration of this Agreement, Licensee shall pay to Licensor and Licensor shall pay to Licensee the fees set forth on the Term Sheet.
6.2 Payment Terms. Such royalties shall be paid within ten (10) days following the end of each reporting period as listed in Section 6.2 for the preceding period.
6.3 Delinquent Payments and/or Reports. If any payment due Licensor hereunder shall remain unpaid for thirty (30) days following the date due, Licensor may impose interest thereon at 1.0% per month (12% APR), or at the maximum rate allowed by law, if lower, until paid. Failure to deliver Contact Reports within 30 days of the due date will result in a royalty surcharge of $500 per month. Surcharge will be assessed for each month the Contact Reports are past due, commencing on the 31st day after each report is due.
Contact Reports must contain the following:
· Company Name (If multiple locations Name/ Store Number, as applicable)
· Company Address
· Company Phone Number
· Company Contact Name
· Website
· Company Email Address
· Website Ipaddress
· "Report Certification Statement" as more fully described below.
Report Certification Statement:
"This Contact report submitted on (Insert Date) for the period of (Insert Dates) is a complete and accurate record of all Sites accessing the Databases to the best of my knowledge. (Insert Your Name, Title, Company Name)."
In the event the number of Sites accessing the Database is below the threshold for royalty assessment, prompt submission of a Contact Report with a Report Certification Statement is still required.
6.4 Tender and Payment. All amounts to be paid under this Agreement are payable in U.S. Dollars currency and all payments due hereunder shall be made payable to Licensor and forwarded to Licensor at the address on page 1 of the Agreement, Attn.: President.
6.5 Fee Increases. Licensor reserves the right to increase the fees for the Databases for any renewal periods upon written notification at least forty-five (45) days prior to the first date of any renewal period.
6.6 Taxes. Licensee shall collect, report, and pay to the relevant taxing authority, any property, customs excise, sales and/or use, or similar taxes (other than taxes on Licensor's income generally) that arise under this Agreement. Licensee agrees to indemnify and hold Licensor harmless from any claims or damages resulting from Licensee's failure to comply with this paragraph. This obligation shall survive expiration or termination of this Agreement.
6.7 Audits. Licensor shall have the right during the term of this Agreement, and for one (1) year following expiration or termination, at its own expense, to inspect and audit the books and records, including computer files and server logs, of Licensee, wherever located, that are relevant to verifying Licensee's compliance with the terms of this Agreement, provided that Licensor conducts such inspection and audit during regular business hours in such a manner as to not interfere with Licensee's normal business activities and Licensor provides Licensee with at least forty-eight (48) hours prior notice. The costs of such audit shall be borne by Licensor unless such audit reveals an underpayment by Licensee of five percent (5%) or more; in such case, Licensee shall reimburse Licensor for its reasonable costs and expenses in conducting such audit.
7. Indemnification.
7.1 Licensor. Licensor agrees to defend, indemnify and hold Licensee, and its officers, directors, agents and employees harmless from and against, or settle at its option, any and all claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees arising out of or resulting from allegations that Licensee's use of the Databases under this Agreement infringes upon or misappropriates any third party's copyright, trade secret or presently existing United States patent right. This obligation is contingent on Licensee's prompt written notification to Licensor of the claim, Licensor's retention of sole control of the defense and settlement negotiations related to the claim and Licensee providing reasonable assistance in the defense or settlement of any such claim, suit, action or other proceeding at Licensor's expense. Licensee may participate in all proceedings at its own cost and expense. Licensor may at its option modify the Databases so that they do not violate any such third party's rights or terminate this Agreement. Licensor shall use commercially reasonable efforts to ensure that Licensee's rights hereunder are not materially adversely affected by any such settlement or modification of the Databases. Licensor will not be liable to Licensee if an infringement claim is based on: (i) use of the Databases in combination with any product, software or system not delivered by Licensor; (ii) use of the Databases in any manner not authorized hereunder; (iii) Licensee's violation of this Agreement; or (iv) use of any version or release of the Databases where use of the most current version or release would have avoided the claim of infringement.
7.2 Licensee. Licensee agrees to defend, indemnify and hold Licensor and its officers, directors, agents and employees harmless from and against, or settle at its option, any and all claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees arising out of or resulting from (i) any breach of any representation, warranty, covenant or agreement made by or to be performed by Licensee hereunder; (ii) the development, operation, maintenance or content of the Web Site, other than the Databases; (iii) any infringement or alleged infringement or misappropriation of the intellectual property rights of a third party other than infringement arising solely out of the Databases, or (iv) Licensee's failure to comply with Section 3.5, prior to allowing a Licensee to have access to the Databases. Licensor shall provide Licensee with written notice of any such claim, suit, action or other proceeding and Licensee shall have sole control and authority over the defense or settlement of such claim, suit, action or other proceeding (provided that Licensee shall not enter into any settlement without Licensor's prior written consent, which shall not be unreasonably withheld). Licensor agrees to provide reasonable assistance in the defense or settlement of any such claim, suit, action or other proceeding at Licensee's expense and Licensor may participate in all proceedings at its own cost and expense.
8. Warranty Disclaimers; Limitations on Liability and Remedies.
8.1 Warranty Disclaimers.
(a) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE DATABASES ARE PROVIDED "AS IS" AND LICENSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF THE DATA FROM WHICH THE DATABASES ARE COMPILED, THE MERCHANTABILITY AND FITNESS OF THE DATABASES FOR A PARTICULAR PURPOSE, NOR THE COMPATIBILITY OF THE DATABASES WITH LICENSEE'S HARDWARE, WEB SITE, SOFTWARE OR SYSTEM.
(b) Licensor does not warrant that the information contained in the Databases will meet the requirements of Licensee or any other party or that the operation of the Databases will be uninterrupted or error-free.
(c) Licensor is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the Databases is procured, nor is Licensor responsible for problems which result from the use of the Databases in conjunction with software of third parties or with hardware which is incompatible with the operating system for which the Databases is being procured.
8.2 Limitations on Liability and Remedies.
(a) Except for the indemnity provided in Section 7, and Regardless of whether any remedy set forth herein fails of its essential purpose or otherwise, Licensee's sole and exclusive remedy for any damage or loss in any way connected with this Agreement and the Databases furnished hereunder, whether by the Licensor's breach of warranty, negligence, or any breach of any other duty, shall be, at Licensor's option, replacement of the Databases or return or credit of an appropriate portion of any payment made by Licensee with respect to LICENSEEING such Databases. under no circumstances shall licensor's liability exceed the amount actually paid to LICENSOR by LICENSEE under this agreement.
(b) Except for the indemnities provided in Section 7, or breach by Licensee of the restrictions on use of the Databases or Licensed Marks, or infringement, violation, or misappropriation of Licensor's intellectual property rights, under no circumstances shall either party be liable to the other party or any other person for any indirect, punitive, special or consequential damages of any kind, including without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction or any and all other commercial damages or losses.
9. Term and Termination.
9.1 Term. The initial Term of this Agreement shall be as indicated on the Term Sheet, unless terminated earlier, pursuant to this Section 9 or by the mutual written agreement of the parties. Licensee waives any right, either express or implied by law or otherwise, to renewal of this Agreement or to any damages or compensation for the expiration or termination of the Term in accordance with this Section 9. Each of the parties has considered the possibility of such expiration or termination and the possibility of loss and damage resulting therefrom in making expenditures pursuant to the performance of this Agreement. It is the express intent and agreement of the parties that neither will liable to the other for damages or otherwise by reason of the expiration or termination of the term as provided for herein.
9.2 Breach of Agreement. In the event either party fails to perform any of its material obligations hereunder, the other may give written notice to the non-complying party in of the breach. If the non-complying party fails to remedy the breach within thirty (30) days (five (5) days for breaches of Sections 5.2 or 6.1) from receipt of such notice, this Agreement will automatically terminate. This right to terminate shall be in addition to, and shall in no way limit the non-breaching party from pursuing other relief, except as otherwise limited herein.
9.3 Insolvency, Bankruptcy, etc. If either party becomes insolvent, fails to pay, or admits in writing its inability to pay, debts as they become due; or if either party applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other custodian for such party or for a substantial part of such party's property; or makes a general assignment for the benefit of creditors; or, if a trustee, receiver or other custodian is appointed for such party or for a substantial part of such party's property and is not discharged within sixty (60) days; or if any bankruptcy, reorganization, debt arrangement or other proceeding under any bankruptcy law, or any dissolution or liquidation proceeding is commenced by, consented to, or acquiesced in by such party and remains for sixty (60) days undismissed; or, if either party ceases to conduct its business in the normal course, this Agreement may be terminated by the other party immediately upon written notice without penalty of any kind.
9.4 Effect of Termination.
Licensee: Upon expiration or termination of this Agreement, Within ten (10) days after expiration or termination of this Agreement, Licensee shall (i) return, postage, prepaid, all copies of the Databases to Licensor, together with all removable physical media (i.e. CDs and floppy disks) upon which such Databases were delivered and/or stored (ii) purge the Databases from its computers and all media and storage devices, and (iii) deliver to Licensor a signed certification that it has complied with the provisions of this Section 9.4. Continued use or distribution of the Databases or any information contained therein, or supplied hereunder, after termination or expiration of this Agreement is expressly prohibited. Upon termination of this Agreement prior to its expiration for any reason other than due to a material breach by Licensor, Licensee shall (i) make immediate and full payment to Licensor for all amounts due and/or payable under the Agreement through the scheduled expiration of the Agreement; and (ii) provide to End-Users a pro rata refund of all and unearned fees previously paid by End-Users for access to the Databases.
9.5 Effect of Breach by Licensor. Upon expiration or termination of this Agreement by breach of contract, Licensor will compensate Licensee for every client under contract at the time of the breach one half of the monthly contract price between the Licensor and the Licensee until the contract expires between the Licensor and Licensee. All monies owed to be paid at the end of each month according to the number of contracts outstanding.
10. Miscellaneous Provisions.
10.1 Independent Contractors. The parties to this Agreement are independent contractors. Except as expressly provided herein, neither party is an agent, representative, or partner of the other party, and neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon either party.
10.2 Integration. This Agreement is the complete and exclusive statement of the understanding between the parties, with respect to the subject matter hereof, superseding all prior agreements, representations, statements and proposals, oral or written.
10.3 Assignment. Neither party may assign this Agreement by operation of law or otherwise without the prior written consent of the other party and any purported assignment in violation hereof shall be null and void; provided, however, that (a) Licensor may assign this Agreement to an affiliate of Licensor without the consent of Licensee, and (b) Licensor or Licensee may assign this Agreement in connection with a sale of all or substantially all of its assets or stock, or in connection with a merger or other corporate reorganization, except that in no event may this Agreement be transferred or assigned by operation of law or otherwise by Licensee to a competitor of Licensor or to an entity, or affiliate of an entity, controlled by or under common control with a competitor of Licensor. Subject to the foregoing, all of the terms, conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the respective parties hereto.
10.4 Amendments. All amendments to this Agreement shall be in writing, signed by both parties.
10.5 Notices. Notices hereunder shall be delivered by hand, or by certified or registered mail, return receipt requested, postage prepaid, to the addresses set forth above, and shall be deemed delivered three (3) days after mailing.
10.6 Waiver; Consent. No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
10.7 Authorization. Each party hereto warrants that it is authorized to enter into this Agreement, that the person signing on its behalf is duly authorized to execute this Agreement, and that no other signatures are necessary.
10.8 Choice of Law, Forum. This Agreement shall be governed by and construed in accordance with the internal laws of the Province of Quebec, without regard to its provisions governing conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Licensee hereby irrevocably and unconditionally submits to the exclusive jurisdiction of any province or federal court sitting in Quebec, Quebec over any suit, action or proceeding arising out of or relating to this Agreement.
10.9 Force Majeure. Except for payments due pursuant to this Agreement, neither party shall be liable for delays in its performance hereunder due to causes beyond its reasonable control, including but not limited to, acts of God, acts of public enemy, acts of government or courts of law or equity, civil war, insurrection or riots, fires, floods, explosions, earthquakes or other casualties, strikes or other labor troubles.
10.10 Severability. If any provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions hereof shall not be affected thereby.
10.11 Re-export of Databases. Licensee shall not export or re-export any Databases or technology to any country specified as a prohibited destination in applicable U.S. laws, regulations, or ordinances.
10.12 Survival. Sections 2.2, 2.4, 5.2, 6, 7, 8, 9.4 and 10 shall shall survive expiration or termination of this Agreement.