PLEASE READ THE FOLLOWING LICENSE AGREEMENTS CAREFULLY. BY SIGNING WHERE INDICATED, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THE CENTRAL SERVICE LICENSE AGREEMENT. YOU FURTHER AGREE AND ACKNOWLEDGE THAT THESE TERMS AND CONDITIONS ARE A LEGALLY BINDING. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT SIGN WHERE INDICATED. IF YOU DO NOT ACCEPT THESE TERMS, YOU WILL NOT BE PROVIDED ACCESS.
1. License Grant: Subject to your (sometimes referred to herein as "Licensee") full compliance with the terms of this License, Progressive Automotive Systems, LLC ("PAS") grants to Licensee, and Licensee accepts from PAS, in accordance with the terms hereof, a non-exclusive, non-transferable, revocable, and limited license to use the R.O. Writer Central Service software application(s) (the "Software" and, together with the Service, "Central Service"). Licensee has the right to use Central Service solely for the internal business purpose of operating one or more vehicle repair shops, provided that each separate physical vehicle repair shop location shall be subject to a separate License Agreement accepted by Licensee. This License conveys no interest to Licensee, except as expressly stated herein. Central Service is copyrighted and licensed (not sold). All other use of Central Service is strictly prohibited. For purposes of this License, the term Central Service shall include any corresponding manuals, documentation, information and other support materials provided to Licensee by PAS
2. Proprietary Rights; Confidentiality: Central Service is proprietary to PAS. PAS retains all right, title and interest in and to Central Service and all modifications, derivative works, and related materials, ideas, methods, procedures, processes, know-how and techniques, including, without limitation, functions, models, templates, algorithms, processes, structure features, software sequence and organization, user interfaces, screen designs, consulting and software tools, utilities, routines, and systems operation methods (collectively, "PAS Materials"), all of which constitute PAS trade secrets and/or confidential information. Licensee agrees to maintain the confidentiality of the PAS Materials and, in particular, to restrict access to and use of Central Service to Licensee and Licensee's employees and agents (such as accountants and lawyers) who agree in writing not to disclose any PAS Materials to any third parties and to use Central Service strictly in accordance with the terms hereof ("Authorized Users"). Licensee acknowledges that Central Service and any third-party software that may be included therein are protected by United States copyright laws and international treaty provisions.
3. Further Restrictions: Authorized Users; Licensee Responsibilities: Licensee may only provide Authorized Users access to Central Service, including, without limitation, access to user IDs, passwords or electronic authentication keys. Licensee is responsible for the actions of Authorized Users as if Licensee had made the actions itself. Other than Authorized Users, no third party may have use of or access to Central Service. Under no circumstances shall an Authorized User be a person or entity engaged in point of sale software development. Licensee and Authorized Users shall not, nor shall they attempt to, or permit or assist any person or entity to: (i) sublicense, transfer, rent, lease, assign, reverse assemble, create a derivative work of, translate, modify, misuse, damage, impair, misappropriate, disassemble, decompile, reproduce, or reverse engineer all or part of Central Service, or otherwise attempt to derive algorithms, techniques, or non-public features of the Service or the Software; (ii) use Central Service to benefit a third party; (iii) develop, market, license or sell a product or service which appropriates or uses as source material any PAS Materials; (iv) breach a PAS security measure; (v) access or use another licensee's data (except as may be expressly permitted by Licensee); or (vi) use Central Service with Licensee Data that infringes a third-party right, or is obscene, defamatory or otherwise unlawful. Results of any breach of (i), (ii), and (iii) shall be PAS' property and confidential information.
Further, Licensee is responsible for compliance with this License by all persons and entities that obtain access to Central Service through or on behalf of Licensee. If PAS determines, in its sole discretion, that any Licensee Data stored within Central Service is illegal, infringing, or could create liability for PAS and/or its current and/or future subsidiaries, parents or affiliate(s), Licensee shall immediately, at its sole expense, destroy it, delete it or otherwise transfer it from Central Service. Notwithstanding the foregoing, neither PAS nor its parents or affiliate(s) shall have any duty to monitor Licensee Data to determine whether the same is illegal, infringing or could create liability.
Licensee further agrees and acknowledges that: (1) Licensee may not access Central Service or transmit Licensee Data to Central Service from a country prohibited by the United States Government; (2) use of Central Service requires Internet connectivity; (3) Licensee will not prevent or otherwise circumvent Central Service from connecting to the Internet as necessary (including, without limitation, by using firewalls or any other electronic methods); (4) except as expressly provided for in this License, no other right or license, either express or implied, under any patent, trademark, copyright, trade secret or intellectual property right of any kind is granted hereunder; (5) Licensee is not entitled under the terms of this License to receive support or maintenance from PAS, and PAS shall not be obligated to provide support and maintenance to Licensee, including, among other things, phone support or access to certain sections of the R.O. Writer support website (PAS offers a Software Maintenance Program directly to its licensees, subject to the terms of a separate Software Maintenance Program Agreement); and (6) PAS may, in any way, employ, modify, develop, market, disclose, and otherwise exploit Central Service, PAS Materials, and upgraded or modified versions thereof, including, without limitation, that which allows PAS, its parents or affiliate(s) to meter usage. Neither PAS nor its current and/or future subsidiaries, parents or affiliate(s) agree to any terms precluding or limiting its right to provide any product or service to any person or entity.
Licensee is responsible for: (A) ensuring proper use of Central Service; (B) implementing and maintaining audit controls, check points, safeguards, operating methods, and procedures for access to and use of Central Service; (C) ensuring that no credit card numbers, social security numbers, or other personally identifiable information is included in Licensee Data and/or transmitted to Central Service; and (D) complying with all laws, rules and regulations applicable to Licensee's operations, including, without limitation, Licensee's use and configuration of Central Service. PAS AND PAS' AFFILIATES SHALL NOT BE OBLIGATED TO CORRECT DEFECTS OR BE LIABLE FOR DAMAGES CAUSED BY LICENSEE'S FAILURE TO COMPLY WITH THE FOREGOING.
4. License From Licensee; Licensee Data Collection and Disclosure: "Licensee Data" shall mean any data, information or other materials of any nature whatsoever provided or made available to PAS in the course of Licensee's use of the Central Service. Licensee Data may include information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, or any other information that is regulated as "personal data" or "personal information" under applicable law ("Licensee Personal Data"). Licensee warrants it has all necessary rights to provide and make available the Licensee Data to PAS and its current and/or future subsidiaries, parents or affiliate(s) as described herein and hereby does grant to PAS and its current and/or future subsidiaries, parents or affiliate(s) a non-exclusive, royalty-free license to collect, access, copy, store, record, back-up, combine, analyze, transmit, maintain, display, disclose, share, make available, view, print, delete, or otherwise use or process ("Process") Licensee Data only as necessary for PAS to perform its obligations hereunder on Licensee's behalf, including PAS' provision, back-up, storage and maintenance of and modifications and improvements to Central Service. This includes, without limitation, for purposes of providing additional services requested by Licensee, for purposes of enforcing this License, and for purposes of complying with applicable law or court order. PAS may combine data received from one or more entities to which PAS is a service provider, to the extent necessary to detect data security incidents, or protect against fraudulent or illegal activity. PAS is prohibited from using, retaining, disclosing, or otherwise Processing Licensee Data for any other purpose. For the avoidance of doubt, PAS may not sell, resell, lease, assign, rent, sublicense, distribute, transfer, disclose, time-share or otherwise exchange Licensee Data (or any portion thereof) for monetary or other consideration. Licensee hereby grants to PAS and its current and/or future subsidiaries, parents or affiliates(s) a non-exclusive, royalty-free, irrevocable, perpetual license to Process Licensee Data that is "deidentified" or "aggregated" (as those terms are defined under applicable law), for analyzing and improving Central Service, marketing and promoting Central Service, and for other PAS purposes in PAS' discretion. Licensee also acknowledges and agrees that PAS may also collect general statistical information about Licensee's use of Central Service and information regarding Licensee's operating environment, including, without limitation, information regarding the Licensee's network, processor, computer memory, installed software and configurations and other miscellaneous hardware ("Usage Data"). Usage Data shall be owned by PAS, and PAS may Process the Usage Data for its own business and commercial purposes.
If Licensee is also a franchisee of one or more of PAS' current or future subsidiaries parents or affiliates, the following provisions shall also apply. Licensee hereby authorizes PAS to share the Licensee Data with such current and future subsidiaries, parents and affiliates to use for the purposes set forth above on behalf of Licensee, and as necessary for Licensee's other commercial purposes, including royalty reporting, warranty registration and compliance verification with respect to the foregoing items. In addition, Licensee permits and authorizes PAS and its current and future subsidiaries, parents, and affiliates to use the Licensee Data that is "deidentified" or "aggregated" (as those terms are defined under applicable law) in marketing and sales analytics systems, provided that said deidentified or aggregated Licensee Data is used only in connection with the franchise system of which Licensee is a part. In addition, on a bi-annual basis starting in calendar year 2014 and for so long as a material number of franchisees of one or more of PAS' current or future subsidiaries, parents or affiliates are Central Service licensees, PAS agrees to meet with applicable franchisee body representative organization(s), as PAS may reasonably determine, in order to review and discuss the types of data collected by PAS and shared with PAS' parents or affiliates under this License, in order for PAS to determine the appropriate scope and use of such data; provided, however, that any such change shall preserve PAS' designation as a "service provider", or equivalent term under applicable law, on behalf of Licensee. If there are no changes to the types of data collected by PAS and shared with PAS' parents or affiliates during said two year intervals, PAS shall not be required to extend such invitation. If Licensee is not a franchisee of a PAS affiliated or parent company, Licensee shall disregard this paragraph as it does not pertain to Licensee.
5. Fees: Licensee shall pay basic monthly subscription fees as described in PAS' then-current price list and additional fees for each increased level of Central Service functionality. PAS may, in its sole discretion, charge additional fees for updates to Central Service content, functionality and/or Central Service user interfaces. If Licensee fails to remit the subscription fees timely, PAS will notify Licensee that it is in default of this License and Licensee shall have ten (10) days to cure such default. If Licensee fails to cure the default within the ten (10) day cure period, PAS may deny access to Central Service. PAS, its current and future subsidiaries, parents or affiliates and it and their employees, officers, directors, or agents shall not be liable for any damages due to such interruption or termination, and Licensee shall pay PAS' any back due payments and the then-current commercially reasonable fees for any subsequent restoration of access.
6. Service; Availability; Security; Support: PAS will use commercially reasonable efforts to make Central Service available; restrict maintenance to occur during non-business hours; and provide Licensee with notification of scheduled downtime. Licensee agrees that occasional downtime, updates and maintenance are sometimes required during business hours, which may impair responsiveness and accessibility. Licensee further agrees that Central Service may also be unavailable due to emergency downtime to protect the system, back-up data, or because of events beyond PAS' control. Availability of Central Service is also subject to Licensee's maintenance of its interface and connectivity to Central Service. PAS follows commercially reasonable security measures, which may include firewalls, virus screening, logon IDs, passwords, intrusion detection, periodic reporting, security patches and virus definitions. PAS routinely backs up information, and archives and holds data in secure storage. Security policies address data retention and destruction to balance privacy, integrity, access controls, storage, cost management, and legal requirements. Loss of Licensee Data may occur and Licensee should provide for additional back-up storage of its original Licensee Data. If a disaster destroys the hosting data center, PAS will relocate the most recent available backups to its alternate data center. However, PAS shall not be liable for any lost or corrupted data.
Defects due to the following by Licensee or an Authorized User are not considered downtime: (i) negligence, errors, misuse, modification or damage to Central Service; (ii) failure to use defect corrections, enhancements, updates or workarounds; (iii) use combined with products, information, third-party software or an interface not provided by PAS; (iv) defects in quality or integrity of data from other systems, or in hardware, software or equipment not part of Central Service, or which is not operating according to manufacturer specifications; and (v) failure to maintain proper connectivity. If an issue is excluded by the foregoing, investigation and repair shall be additional services, paid for by Licensee.
7. Notice of Certain Occurrences: Licensee agrees to notify PAS immediately if Licensee becomes aware of an unauthorized use or transfer of Central Service, PAS Materials or any part thereof or information relating thereto in a manner inconsistent with this License. Licensee will furnish full details of any such occurrence to PAS, will assist in preventing the recurrence of such occurrence, and will cooperate with PAS in any litigation against third parties deemed necessary by PAS to protect its proprietary rights. Licensee's compliance with this paragraph shall not be construed as a waiver of any right that PAS may have to recover damages or obtain other relief from Licensee relating to any such occurrence.
8. No Transfer without Consent: Licensee shall not assign or otherwise transfer access to Central Service or this License to a successor, affiliate or any other person or entity, voluntarily, by operation of law or in any other manner, without the prior written consent of PAS. Any attempt by Licensee to assign any of its rights, duties or obligations under this License without such consent is void. Subject to the foregoing, this License shall be binding on, and inure to the benefit of, the heirs, successors and assigns of Licensee.
9. Remedies: If Licensee attempts to use, copy, license or convey Central Service in a manner contrary to the terms of this License or in derogation of PAS' proprietary rights, whether as explicitly herein stated, determined by law, or otherwise, PAS shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining such action, Licensee hereby acknowledging that other remedies are inadequate.
10. Termination: If any of the terms and conditions of this License are breached by Licensee or an Authorized User, in addition to any other rights and remedies of PAS, PAS may terminate this License and immediately prohibit Licensee from accessing Central Service. In addition, if Licensee is or was a franchisee of one or one or more of PAS' affiliates and, at any time after the acceptance of this License, ceases to continue to be a franchisee of PAS' affiliate(s), PAS and/or said affiliate may terminate this License and immediately prohibit Licensee from accessing Central Service, in addition to any other rights and remedies otherwise available to them. Within one (1) year after the termination or expiration of this License and upon Licensee's written request, at its sole expense and pursuant to PAS' then current rates for such services, PAS shall use commercially reasonable efforts to transfer Licensee Data from Central Service to Licensee. Paragraphs 1, 2, 3, 4, 6 11, 12, 13, 14, and 16 of this License shall survive any termination of this License and remain in effect in accordance with their respective terms, as shall any other provision hereof which, by its nature, needs to survive in order to be given its full force and effect.
11. Exclusion of Warranty: Except as stated in the Limited Warranty section of this License, CENTRAL SERVICE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED, SECURE OR ERROR-FREE USE, OR ARISING FROM COURSE OF DEALING OR TRADE PRACTICE. The entire risk as to the quality and performance of Central Service is with Licensee. Should Central Service or any part thereof prove defective, Licensee (and not PAS, its parent or affiliate companies, PAS distributor, or any owner or licensor to PAS of such program) assumes the entire cost of all necessary servicing, repair and correction. Licensee assumes all responsibility for Licensee's use of Central Service and the results or lack thereof obtained from such use.
12. Limited Warranty: PAS warrants that Central Service will be provided by PAS in a workmanlike, professional manner. In the event of a breach of this provision, PAS shall use commercially reasonable efforts to correct Central Service. If PAS is unable to cure a breach of this warranty after commercially reasonable efforts, PAS or Licensee may terminate this License and PAS shall refund Licensee the most recent monthly subscription fee paid by Licensee. THIS SECTION SETS FORTH LICENSEE'S SOLE REMEDY FOR BREACH OF THIS WARRANTY.
13. LIMITATION OF LIABILITY: NOTWITHSTANDING ANY CONTRARY TERM HEREIN, IN NO EVENT SHALL LICENSEE BE ENTITLED TO DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES OF THE TYPE, RESULTING FROM, OR CONCERNING THE FOLLOWING, WHICH ARISE FROM OR RELATE TO THIS LICENSE OR ANY USE OR INABILITY TO USE CENTRAL SERVICE: CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, OR PUNITIVE; LOSS OF REVENUE, BUSINESS, SAVINGS, GOODWILL AND PROFITS; SERVICE FAILURE OR DELAY; DATA LOSS OR CORRUPTION; SYSTEM ERRORS OR INCOMPATIBILITY; SECURITY BREACH; FAILURE TO ACCURATELY READ, UPDATE, PROVIDE OR TRANSMIT INFORMATION; FORCE MAJEURE EVENTS; AND TAX RELATED PENALTIES, INTEREST OR FEES, EVEN IF PAS, ITS PARENT OR AFFILIATE COMPANIES KNEW OR SHOULD HAVE KNOWN OF SUCH RISKS. LICENSEE ACKNOWLEDGES THAT PAS, ITS CURRENT AND FUTURE SUBSIDIARIES, PARENT OR AFFILIATE COMPANIES HAVE ESTABLISHED THE LICENSE FEES FOR CENTRAL SERVICE AND ARE ENTERING INTO THIS LICENSE IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS LICENSE AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. IN NO EVENT SHALL PAS', ITS CURRENT AND FUTURE SUBSIDIARIES, PARENT OR AFFILIATE COMPANIES', DISTRIBUTORS' OR ANY OTHER PARTY'S LIABILITY TO LICENSEE OR ANY OTHER PERSON, FOR ANY DAMAGES OR LOSSES OF ANY KIND, IN CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF THE MOST RECENT MONTHLY SUBSCRIPTION FEE PAID BY LICENSEE. PAS AND ITS CURRENT AND FUTURE SUBSIDIARIES, PARENT AND AFFILIATE COMPANIES EXPRESSLY DISCLAIM LIABILITY FOR ALL CLAIMS, DAMAGES, ACTIONS, FEES, EXPENSES AND LOSSES ARISING FROM OR RELATING TO LICENSEE DATA. NO THIRD PARTY MAY RELY ON OR BENEFIT FROM CENTRAL SERVICE, AND LICENSEE SHALL BE RESPONSIBLE FOR ALL LIABILITY ARISING FROM OR RELATED TO SUCH UNAUTHORIZED RELIANCE. LICENSEE'S SOLE REMEDY AND PAS' AND ITS CURRENT AND FUTURE SUBSIDIARIES PARENT OR AFFILIATE COMPANIES' SOLE OBLIGATION FOR LIABILITY ARISING FROM OR RELATED TO THIS LICENSE OR CENTRAL SERVICE, SHALL BE THE RETURN OF THE MOST RECENT MONTHLY SUBSCRIPTION FEE PAID BY LICENSEE.
14. Indemnification: Licensee agrees to indemnify, defend, and hold PAS and its current and future subsidiaries, parent and affiliate companies and it and their employees, officers, directors, and agents harmless for any losses, claims, or damages, including without limitation, reasonable attorneys fees, costs, and expenses, however arising, including without limitation, through negligence, arising out of or in connection with (1) the use or misuse of Central Service; and (2) any Licensee Data, including but not limited to illegality, infringement, obscenity, privacy violations, and defamation.
15. Taxes and Duties: Licensee is responsible for all taxes imposed in connection with the License for Central Service or which PAS may incur in respect of the License (except taxes imposed on PAS' income) and for all expenses that are not covered by the subscription fees, including, without limitation, all applicable sales, use, value added, gross receipts or other taxes of any kind or nature and any penalties, interest and collection or withholding costs associated with any of the foregoing items. All such amounts are in addition to other amounts payable hereunder, and this obligation shall survive termination or expiration of the License.
16. Miscellaneous: Licensee hereby acknowledges and agrees that this License may be amended or modified by PAS in its sole discretion and PAS may make available updates, amendments, modifications or upgrades to Central Service, which amendments or modifications may be presented to Licensee electronically at the time Licensee accesses Central Service. Licensee further acknowledges and agrees that it is Licensee's sole responsibility to read this License, as may be modified from time to time, and that Licensee shall be deemed to have accepted any amendments or modifications to this License if Licensee accesses Central Service after being presented with an updated License. Licensee shall not use the name, logo, or mark of Licensor (including its parent, subsidiaries, and affiliates) without the prior written approval of Licensor and shall upon request from Licensor cease such use and/or remove any reference of Licensor. Licensee further agrees that its continued access to Central Service shall also constitute acceptance of any amendments or modifications to this License. This License will be governed by the laws applicable to agreements made entirely in the State of Florida, without reference to any laws with respect to the conflict of laws. Any legal action relating to this License shall be instituted in a state or federal court located in Palm Beach County, Florida. The parties hereby agree to the jurisdiction of the state and/or federal courts in Palm Beach County, Florida and shall not contest the Court's jurisdiction (personal or subject matter) and ability to resolve any dispute. PAS and Licensee further agree venue is proper in, these courts in any such legal action. This License is the complete and exclusive statement of the agreement between Licensee and PAS with respect to the subject matter of this License. This License supersedes any proposal or prior agreement, oral or written, and any other communication between Licensee and PAS or any PAS distributor relating to the subject matter of this License. Should any part of this License be declared invalid for any reason, such decision shall not affect the validity of the remaining provisions of this License, which shall continue in full force and effect as if this License had been executed with the invalid portion thereof eliminated.
17. Assignment: Licensor may assign this agreement with notice to Licensee. Licensee may not assign this Agreement without the written approval of Licensor in Licensor's sole discretion.
(Last updated: 12.30.2019)
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