These Terms and Conditions govern the relationship between Progressive Automotive Systems, Inc. dba R.O. Writer ("PAS") and Customer (defined as the end user of PAS' products and/or services). PAS offers Customers various products and services and several payment options. Therefore, please read carefully these Terms and Conditions for the sections relative to your particular transaction. To assist better our Customer PAS separated this Agreement into sections pertaining to all Customers, Customers who paid up front in full for products and/or services and those who are leasing products and/or services.
ARTICLE I. GENERAL TERMS FOR ALL CUSTOMERS
1.0 Sales Order Form. PAS incorporates these Terms and Conditions into each Sales Order Form ("SOF") (collectively referred to as the "Agreement"). In the event of any inconsistency between the terms of an accepted SOF and these Terms and Conditions, these Terms and Conditions shall prevail unless the SOF specifically sets forth otherwise.
2.0 Delivery. PAS shall use reasonable efforts to deliver and/or make available the product at the location(s) listed on the SOF no later than the 20th day of the month proceeding the date on the SOF. Time is not of the essence.
3.0 Fee/Fee Increase. Customers must remit to PAS the fee, in U.S. Dollars, listed on the SOF by the payment date also listed on the SOF. Customer shall pay the fee by credit card or ACH, pursuant to the charge authorization attached to the SOF. PAS shall add a late charge equal to 1.5% per month, or, if less, the maximum amount allowed by applicable law for any amount Customer does not timely remit. PAS grants the Customer a five (5) business-day grace period in which to remit payment before applying the late charges. Customer's failure to pay a fee is sufficient cause for PAS to deny Customer access to the software and/or support and/or maintenance of the software suite and demand of the return of the hardware, as applicable. PAS, its parents, subsidiaries, and/or affiliates are not liable for any damages such interruption or termination may cause. Customer shall pay PAS its then-current commercially reasonable fees for any subsequent restoration of access. If third parties, whose software and data are included in the software services Customer selected (e.g., Smart eCat/Epicor), increase their fees, PAS shall be entitled to increase its fee to Customer by a corresponding amount.
4.0 Taxes. Customer is responsible for remitting all applicable sales, use, excise, value-added or other tax or governmental charges (other than taxes on PAS' income and payroll taxes related to PAS' employees) imposed on the licensing or use of the software, hardware, or other services to the applicable taxing authorities. Customer may remit the taxes to PAS with its up front lump sum fee or its monthly subscription payments/fee and PAS shall remit the taxes to the applicable authority. The monthly subscription fee or cost of the hardware, software and/or other services on the SOF does not include taxes. Customer's obligation to pay monthly subscription fee, and any other amounts that may come due under this Agreement, are absolute and unconditional and not subject to abatement, reduction, offset, recoupment, compensation, cross claim, counterclaim, or any other defense whatsoever, arising under this Agreement or otherwise, or against PAS or any other person/entity. However, the foregoing does not limit Customer's enforcement of rights against PAS in a separate action. If PAS or its parents, affiliates, and/or subsidaries or Customer is required by law or administrative practice to make any report or return with respect to taxes, that party shall give the other party prompt written notice and the Parties shall cooperate with each other to ensure that such action is properly made and each party's interests accurately reflected. PAS has no obligation to contest or preserve any right to contest taxes. However, Customer may contest taxes in its own name and at its own expense so long as, in PAS' opinion, the contest will not jeopardize PAS' rights or interests in any equipment, or software.>
5.0 Default. It is an event of default under this Agreement if Customer timely fails to pay the applicable fee as set forth on the SOF. It is also an event of default if either party does not observe any provision of this Agreement and/or a representation or warranty or statement made is incorrect in any material respect. A default occurs if either party seeks appointment, election, nomination, or either party makes or seeks an assignment for the benefit of creditors. In addition, an event of default occurs if either party makes any arrangement or composition with its creditors, becomes insolvent, commits any act of bankruptcy, or is the subject of a petition or proceeding under any bankruptcy, reorganization, arrangement of debts, insolvency, or receivership law.
5.1 In the event of default, PAS, without notice to Customer and in its absolute discretion may terminate this Agreement and/or deny access to the software services, support and/or maintenance. PAS may also proceed by court action to enforce performance by Customer of this Agreement and/or to recover all damages and expenses (including attorney's fees) it suffers as a consequence of any event of default or exercise any other right or remedy available at law or in equity. Customer shall reimburse PAS for all expenses (including legal fees and disbursements and costs and fees of collection agencies) PAS incurs in enforcing this Agreement. PAS, its parents, subsidiaries, and/or affiliates are not liable for any damages related to enforcing its default remedies or because of any interruption or termination.
6.0 Customer Warranties. Customer represents and warrants that it is duly organized and in good standing under applicable law in the jurisdictions of its organization, domicile, and in the jurisdiction governing the location of the product set forth on the SOF. Customer also warrants it has full power and authority to enter into this Agreement and this Agreement is enforceable against Customer in accordance with its terms, subject to laws of general application affecting creditors' rights generally, and does not breach or create a default under any instrument or agreement binding on Customer. Customer further warrants no proceedings exist before any court or administrative agency having a material adverse effect on this Agreement, this Agreement, or the product on the SOF, nor has any entity threatened Customer with such proceedings and its chief executive and registered office is located at its address specified in this Agreement.
6.1 PAS Warranties. PAS represents, covenants and warrants to Customer PAS is duly organized, validly existing and in good standing under the laws of Delaware. PAS has full authority to enter into and perform this Agreement and there are no outstanding assignments, grants, licenses, encumbrances, obligations or agreements (whether written, oral or implied) inconsistent with the rights granted or transferred herein. PAS is not bound by or subject to any contract, agreement, law, court order or judgment, administrative ruling, regulation or any other item which prohibits or restricts it from entering into and performing this Agreement and no existing or threatened legal proceedings PAS would have an adverse affect upon its ability to perform its obligations under this Agreement.
6.2 Customer Indemnification Obligations. For purposes of Section 7.2, the term "PAS" includes PAS' parents, affiliates, and subsidiaries, its and their officers, employees, and agents (collectively "Released Parties"). Customer agrees to defend and hold Released Parties harmless from all liabilities, damages, taxes, losses, penalties, expenses (including reasonable legal fees, disbursements and costs), arising from any claims, actions, and suits, (collectively "Claims"), directly or indirectly relating to the operation, condition, undiscoverable defects, selection, manufacture, purchase, ownership, leasing, possession, maintenance, delivery, return, or sale of the software, maintenance, support, and/or equipment listed on the SOF. Customer further agrees to defend and hold Released Parties harmless from the selection, licensing, provision, return or relinquishment, obtaining, use, creation, or ownership of Soft Cost Items (as defined in Section Article III, Section 1.1).
6.3 PAS Indemnification Obligations. PAS shall defend, indemnify and hold Customer harmless from and against any and all claims, losses, liability, damages, costs, and expenses (including reasonable attorneys' fees, expert witness fees, and court costs) directly arising from or relating to any claim by a third party alleging the Software infringes a United States patent, copyright, or trade secret. PAS has the right to assume the defense of such claim and select counsel and consent to the entry of judgment or settle the matter, although PAS has no right or ability to admit liability or wrongdoing on the behalf of Customer or its affiliates. Customer shall promptly notify PAS if it is aware of or becomes aware of a third party claim for copyright, patent or trade secret infringement and, at the cost of PAS, cooperate in its defense of any such claim. Any delay does not relieve PAS of its indemnification obligations unless the delay directly prohibits PAS from defending the action. PAS, at its sole discretion, option, and expense, may obtain for Customer the right to use the allegedly infringing material. PAS shall not indemnify Customer for any infringement claim arising from Customer's improper/unauthorized use of the software. PAS shall also not indemnify Customer for any infringement claim arising from Customer's use of the software in a manner for which PAS did not design. PAS shall further not indemnify Customer for any infringement claim arising from an unauthorized Customer modification of the software.
7.0 Damage Limitations. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND AS OTHERWISE STATED WITHIN THIS AGREEMENT, (A) THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, IF ANY, ARE THE ONLY WARRANTIES GIVEN BY PAS WITH RESPECT TO THE SUBJECT MATTER HEREIN; (B) PAS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, AND OR FITNESS FOR A PARTICULAR PURPOSE; AND (C) PAS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY THIRD PARTY SOFTWARE, OPERATING SYSTEMS, COMMUNICATIONS SOFTWARE, DATABASES, DATABASE SOFTWARE, OR EQUIPMENT. IN NO EVENT SHALL PAS BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, LOSS OR INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTORY CLAIM OR ANY OTHER THEORY OF LIABILITY. THE FOREGOING LIMITATION SHALL APPLY WHETHER OR NOT PAS KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PAS BE LIABLE FOR (A) ANY REPRESENTATION OR WARRANTY MADE TO ANY CUSTOMER OR OTHER PARTY BY AN AGENT OF PAS THAT DID NOT HAVE PAS' PRIOR WRITTEN APPROVAL, OR (B) THE UNAVAILABILITY OF THE SOFTWARE, MAINTENANCE, OR EQUIPMENT SERVICES. PAS' ENTIRE AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES CONCERNING PERFORMANCE OR NONPERFORMANCE OR IN ANY WAY RELATED TO THE SUBJECT MATTER HEREOF, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INFRINGEMENT, STRICT LIABILITY, STATUTORY OR OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE HIGHEST AMOUNT OF PAYMENTS OF MONTHLY FEES MADE HEREUNDER BY CUSTOMER WITHIN ANY CONSECUTIVE ONE (1) YEAR PERIOD. CUSTOMER ACKNOWLEDGES THAT DAMAGES ARE GENERALLY NEITHER BACKWARD NOR FORWARD LOOKING.
CUSTOMER UNDERSTANDS AND ACCEPTS THE EQUIPMENT, INCLUDING THE SOFT COST ITEMS AS-IS, WHERE-IS, AND ON A NONRECOURSE BASIS. PAS AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, AND LESSORS, DISCLAIM ANY OTHER REPRESENTATION OR WARRANTY, INCLUDING WITH RESPECT TO THE DESIGN, COMPLIANCE WITH SPECIFICATIONS, DURABILITY, QUALITY, OPERATION, OR CONDITION (WHETHER DISCOVERABLE OR NOT) OF THE EQUIPMENT OR SOFT COST ITEMS, TITLE, THE MERCHANTABILITY OF THE EQUIPMENT OR SOFT COST ITEMS, THE FITNESS OF THEEQUIPMENT OR SOFT COST ITEMS FOR PARTICULAR PURPOSES, STATUS OF THE LEASING OF THE EQUIPMENT FOR TAX OR ACCOUNTING CLASSIFICATION PURPOSES, OR ISSUES REGARDING THE DESIGN OR OPERATION OF THE EQUIPMENT OR INFRINGEMENT OF INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ANY PATENT, TRADEMARK, OR COPYRIGHT INFRINGEMENT OR THE LIKE. PAS IS NOT LIABLE IF THE EQUIPMENT DOES NOT OPERATE AS WARRANTED BY THE MANUFACTURER, BECOMES OBSOLETE OR IS UNSATISFACTORY FOR ANY REASON AND PAS WILL NOT BE CONSIDERED TO HAVE MADE ANY STATEMENT, REPRESENTATION, WARRANTY, OR PROMISE MADE BY ANY INDIVIDUAL OR ENTITY NOT EMPLOYED BY IT OR A SUBSIDIARY OR AFFILIATED ENTITY OF PAS.
8.0 Confidential Information Non-Use/Non-Disclosure Obligations. The Parties to this Agreement will not disclose to any unauthorized third party or use for any purpose other than the furtherance of this Agreement the other Party's Confidential Information (defined below) during the term of this Agreement or thereafter. Confidential Information means all non-public business information or non-public information regarding the Party's business operations, regardless of form (e.g., visual, verbal, tangible, etc.) or marked confidential. If a court or other legally binding authority compels receiving party to produce all or a portion of disclosing party's Confidential Information, the receiving party shall immediately notify the disclosing party. Receiving party shall also use its best efforts to have the Confidential Information filed under seal and assist disclosing party in its efforts, at the cost of the disclosing party, in protecting the Confidential Information from public disclosure.
9.0 Relationship of Parties. PAS and Customer are separate entities and shall not be considered an agent of the other. Both are separate entities entering into a business arrangement.
10.0 Other Agreements. If applicable, this Agreement supersedes the terms of any PAS Software or Software Maintenance and Support Agreement Customer may have executed with which there is a direct conflict. All other agreements (including franchise related documents), terms, and conditions not modified herein remain unchanged.
11.0 Force Majeure. A party unable to perform an obligation because of a Force Majeure Event ("FME") shall have fifteen (15) additional days to perform the obligation. Thereafter, the other party may terminate this Agreement. A FME is an act of God, war, injunction, civil disorder, or authoritative government act or requirement beyond the reasonable control of the party.
12.0 Notices. A party shall provide a written notice. The party may hand deliver the notice, deliver it by overnight carrier (e.g., Federal Express) or by certified mail, return receipt requested. Acceptance occurs when sent. The Customer shall send PAS notice to 823 Donald Ross Road, Juno Beach Florida 33408, Attn: Sales Department. Customer shall send a copy to the office of General Counsel, TBC Corporation, 4300 TBC Way, Palm Beach Gardens, Florida 33410. PAS shall send notice to the Customer's Office of President at the address on the SOF.
13.0 Waiver. A party's waiver of a breach of any provision of this Agreement is not a continuing waiver or a waiver of a breach of any other provision of this Agreement. The failure of either party to require performance of a provision of this Agreement does not affect the party's right to enforce the provision later.
14.0 Non-Assignment. Customer shall not assign its rights or delegate its duties, in whole or part, without the prior written consent of PAS. PAS may assign this Agreement to a successor-in- interest and all benefits and obligations therein shall inure to the successor-in-interest.
15.0 Severability. In the event a proper authority rules a provision of this Agreement is invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force.
16.0 Modification. The parties may amend this Agreement in a written agreement both parties duly execute. Any other form of modification is invalid.
17.0 Entire Agreement. This Agreement, the Sales Order Form, and the End User License Agreement (Part 1 and Part 2) ("EULA"), electronically incorporated into the Software, are the complete and exclusive statement of the agreement between Customer and PAS with respect to the purchase and/or lease for hardware, software, and/or maintenance. If any term conflicts between the Terms and Conditions and the EULA, the term that is most favorable and/or better protects PAS' rights/interests shall control.
18.0 Personally Identifiable Information ("PII"). Customer is responsible for the security and integrity of their network, hardware, data and any other information contained within their network systems and/or individual CPU(s) or other storage devices. This includes PII of customers or any other PII, e.g., name address, contact information, zip code, VIN#, etc. PAS is not responsible for any breeches, virus outbreaks or attacks in/on Customer's network or hardware. Thus, Customer agrees PAS is not liable for any loss of customer data, PII information, or integrity of data issues because of a network breech, virus outbreak or network attack and PAS is not liable for any legal ramifications, financial penalty, and/or costs associated with a breech. PAS will not assist in any investigations or provide any consultative services because of a network breech. Customer is responsible for understanding breech notification laws governing the state or jurisdiction in which Customer operates.
ARTICLE II. GENERAL TERMS FOR SOFTWARE
1.0 Software License. Subject to the payment of the applicable fees and the terms and conditions of this Agreement, PAS grants Customer a revocable, non-exclusive, limited, non-transferable right and license to use the software and any services indicated on the SOF, solely for the purpose of supporting Customer's business. All terminals on which the software is loaded must be in shops Customer owns and only employees of Customer can access the services. Customer understands and agrees Customer must agree to the terms of PAS' standard terms set forth on the click through screen connected to the software. PAS retains the right to terminate all services to any user who violates the terms of this Agreement or SOF.
1.1 Restrictions. Except as expressly authorized and/or permitted in this Agreement, Customer shall not permit any third party to access the PAS services. Customer shall not copy, frame or mirror any part of the PAS software. Customer shall not, and shall not allow any user to modify, adapt, alter, translate, or create derivative works of the software, decompile, disassemble, reverse engineer, or attempt to infringe or violate any state or federal law as it relates to the software.
1.2 Non-Transfer of Rights. All rights, including without limitation, title, ownership and intellectual property rights throughout the world, in and to the PAS software and/or subscription service, software, code, forms, text, graphics, items, or materials used, developed or furnished and any associated documentation or services offerings, are the sole and exclusive property of PAS. Customer does not acquire any ownership interest in the software. ARTICLE III. GENERAL TERMS FOR HARDWARE
ARTICLE IV. TERMS FOR SOFTWARE PAID OVER TIME
1.0 Cost. The total cost of the transaction is the monthly fee times the number of months.
1.1 Term. If a Customer had decided to pay PAS directly (not a third party) over time for software, equipment, or services, the term of the Agreement is the time-period of the payments (e.g., 36 months, 60, months,etc.). ThetermissetforthontheSOF.Ifatermisapplicabletoatransactionanditisnotonthe SOF, the term begins on the date the Customer takes delivery of the product, uses the product, the product is available for use, remits payment, and/or signs any delivery receipt. The term ends when Customer fulfills its obligations to PAS or a party terminates the Agreement.
1.2 Renewal. As to the R.O. Writer point of sale software, this Agreement shall automatically renew for the same successive terms at the end of term unless Customer notifies PAS, in writing, ninety (90) calendar days before termination of a term of its desire to terminate the Agreement. If Customer does not renew this Agreement, PAS shall no longer provide services, subscription services, support, maintenance, or upgrades for the Software AND CUSTOMER SHALL NOT OWN THE SOFTWARE. PAS SHALL GRANT A NON-RENEWING CUSTOMER A NON-TRANSFERABLE, LIMITED, NON-EXCLUSIVE, SINGLE USE LICENSE TO USE THE SOFTWARE ON THE COMPUTER ON WHICH IT WAS ORIGINALLY INSTALLED. During the Term, PAS may adjust the fee effective annually by January 15 of each year, by providing written notice to Customer ninety (90) calendar days before the effective date of any such adjustment. Such adjustment shall not exceed the change in the Consumer Price Index – All Urban Consumers, as published by the Bureau of Labor Statistics of the United States Department of Labor.
1.3 Cancelation. For those Customers who agree to purchase PAS software products over a period of time (e.g., 36 months or 60 months, etc.) who cancel prior to the first twenty-four (24) months of the term, Customer shall pay PAS the full amount remaining for the software product in a lump sum payment within thirty (30) calendar days of cancelation. If Customer cancels after the first twenty-four (24) months, Customer shall pay PAS, within thirty (30) calendar days of cancelation, a lump sum payment equal to fifty percent (50%) of the amount remaining on the Agreement. If Customer cancels the Agreement/SOF, PAS shall no longer provide embedded subscription based services (e.g., Smart eCat), support, maintenance, or upgrades for the software AND CUSTOMER SHALL NOT OWN THE SOFTWARE AND SHALL DELETE THE SOFTWARE FROM ITS COMPUTERS PROVIDING PAS SWORN PROOF OF THE DELETION WITHIN FOURTEEN (14) DAYS OF CANCELATION. IF A CUSTOMER CANCELS AND PAYS IN FULL AS REQUIRED-ABOVE, PAS GRANTS A NON-TRANSFERABLE, LIMITED, NON-EXCLUSIVE, SINGLE USE LICENSE TO USE THE SOFTWARE (EXCLUDING ANY SUBSCRIPTION BASED THIRD PARTY SERVICES) ON THE COMPUTER ON WHICH PAS OR ITS AGENT ORIGINALLY INSTALLED THE SOFTWARE.
ARTICLE V. TERMS FOR HARDWARE PAID OVER TIME
1.0 Cost. The total cost of the transaction is the monthly fee times the number of months.
1.1 Return of Hardware. At the conclusion of the term, PAS requires Customers who agreed to pay for the equipment products over time directly to PAS (e.g., 36 months or 60 months, etc.), to return the equipment within five (5) calendar days after the term of this Agreement expires. The Customer must engage a party acceptable to PAS, at Customer's expense, to de-install, inspect, and properly pack the equipment. PAS shall provide Customer with instructions explaining the de-installation/return protocol. PAS is not required to accept any return of equipment more than one month before the end of the applicable term. Any return of equipment accepted by PAS releases Customer of its rights and possessory interest in the equipment. It does not otherwise constitute a termination of the term, this Agreement or Customer's related obligations. Customer must return the equipment in good working order, reasonably clean and cosmetically good, in the same condition when PAS shipped it to Customer, reasonable wear and tear excepted. If applicable to the operation of the equipment, is must be free of consumables and of fuel, chemicals, or wastes and free of all toxic, hazardous, or dangerous materials not originally a part of the equipment. Customer is liable to PAS for all expenses PAS incurs in placing the equipment in the condition this Agreement requires, up to the Fair Market Value of the equipment. (Fair Market Value is the price or rent, as applicable, that would be obtained at arm's length between informed and willing parties, neither under compulsion to contract, for the sale or lease of equipment assuming the equipment is in the condition required by this Agreement.) Any additions to the equipment Customer does not remove before returning it shall become PAS exclusive property (lien free), if allowable by law. However, PAS, at Customer's expense, require Customer to remove and restore the equipment to its original condition. Before returning any equipment, Customer shall remove all password protection(s), and, unless PAS has expressly agreed in writing to remove programs and data for an agreed-upon fee, Customer will remove all applications, programs, and data not on the equipment when received. Customer assumes all responsibility for the proper removal of any such information and holds PAS, its parents, affiliates, and subsidiaries, Lessor, and the equipment's manufacturer harmless from any claims relating to data removal or identity theft if such data is obtained as a result of the improper removal of such data from the equipment. If Customer fails to return equipment as required, Customer shall pay PAS rent for the period after the end of the term through the date PAS receives the equipment. The rent shall equal the monthly fee set forth on the SOF, plus five (5) percent. If at this time, the parties agree to continue their relationship, PAS shall provide Customer with new equipment (after the return of the old equipment) and the parties shall execute a new SOF.
2.0 Rights. The equipment is the personal property of PAS, its parents, affiliates, subsidiaries, or lessor, even if physically attached to real property. Customer will keep the equipment free of all encumbrances, liens, etc. (other than this Agreement). If PAS requests, Customer shall provide a written waiver of any claim to the equipment by any person having an interest in the real property where the equipment is located and/or any security interest in the goods/collateral of Customer. Customer shall provide the written waiver within twenty (20) calendar days. Customer has no right, title, ownership, or interest in the equipment. As to the equipment, this Agreement is intended to be a net lease and a "finance lease" as defined in the Uniform Commercial Code—Leases (Article 2A) and to be governed solely by its terms.
3.0 Quite Enjoyment. Absent an Event of Default, PAS, its parents, affiliates, subsidiaries, or lessor shall not interfere with Customer's quiet enjoyment of the equipment. If PAS, its parents, affiliates, subsidiaries, or its lessor fails to observe materially the foregoing warranty of quiet enjoyment for more than ten (10) days, Customer may, by written notice, terminate this Agreement or proceed in a separate action at law to recover all direct damages resulting from such failure. This is Customer's exclusive remedies for such failure.
4.0 Obligations. Customer will during the term: (a) maintain the equipment in good working order and condition, (For purposes of this Agreement, "condition" includes required updates, patches and other items recommended by the manufacturer to the CPU and its component parts and/or its operating system. PAS is not responsible for performing or notifying Customer of any required manufacturer updates and/or recommendations.) in accordance with the manufacturer's recommended engineering, operation, and maintenance standards and maintain comprehensive books and records regarding the operation, maintenance, and repair of the equipment; (b) use the equipment only in connection with its business operations and for the purposes for which it was designed; (c) keep the equipment at the equipment location listed on the SOF, except Customer may move the equipment to another of its business locations within the continental United States of America if (and only if) it receives written permission from PAS thirty (30) days prior to relocating the equipment; (d) make all alterations or additions to the equipment that may be required by the manufacturer or other maintenance provider or which are otherwise required to comply with subsection (b) above or subsection (f) below; (e) impair the value or performance of the equipment and take no action that results in an encumbrance on the equipment; (f) comply with all laws and regulations applicable to or affecting this Agreement, the equipment, or Customer, including maintaining all required insurance and obtaining all governmental permissions necessary for it to operate or that may be required of PAS; (g) not permit the equipment to become an accession, a fixture, or real or immoveable property; (h) permit PAS or its agent to inspect the equipment and Customer's applicable maintenance agreements and records related to the equipment at any reasonable time (subject to Customer's usual, reasonable security procedures); (i) promptly notify PAS of any change in Customer's name, any change in the location of Customer's chief executive or registered office, any transfer by Customer, authorized or not, of any interest in or benefit from the equipment, and any change, authorized or not, in the location of any equipment; (j) ensure that neither Customer nor its successors or assigns is a tax-exempt entity (as described in the Internal Revenue Code) at any time during the term or the five years preceding the term; and (k) understand and acknowledge that any warranty that covers the equipment is soley the warranty provided by the manufacturer and that PAS does not provide any additonal warranty. For illustration purposes only, if Customer shall spills liquid on the equipment and such an act is not covered under the manufacturer's warranty then Customer has no warranty related recourse against the manufacturer, PAS, its parents, affiliates, subsidaries, lessor or owner of the equipment.
4.1 Risk. From delivery of the equipment by PAS or its agent to a carrier for shipment to Customer until the equipment is returned to and received by PAS or its agent (known as the "Possession Period"), Customer bears the entire risk of whole or partial loss, theft, destruction or damage to the equipment from any cause whatsoever, or requisition of the equipment by any governmental entity, or expropriation or the taking of the equipment by eminent domain or otherwise (collectively, "Loss"). Customer will give PAS notice within ten (10) days of any Loss ("Loss Notice"). No Loss will condition, reduce, or relieve Customer's obligations including its monthly fee obligations. If any equipment is damaged but can be economically repaired, Customer will immediately place the equipment in good working order and condition. Upon the occurrence of any other kind of Loss, or if Customer does not place the equipment in good working order and condition within thirty (30) days of any economically repairable damage, Customer will upon PAS' written demand pay PAS' and/or its parents, affiliates, or subsidiaries the full cost of the equipment, plus all other amounts that are or become due under this Agreement. Upon the aforementioned payment, the portions of this Agreement relating to Customer and equipment shall no longer be applicable and Customer will be entitled to PAS' interest in the equipment.
4.2 Insurance. Customer will at its expense during the Possession Period (the period Lease Customer has possession of the Product) maintain: (a) insurance against the loss, theft, or damage to the equipment for its full replacement value, naming PAS as sole loss payee; and (b) public liability and third party property damage insurance in the amount of $1,000,000, or such other amount as expressly stated in writing by PAS, per occurrence, naming PAS as an additional insured. Such insurance shall be reasonably satisfactory to PAS; shall contain the insurer's agreement to give PAS thirty (30) days' written notice before any cancellation or material change; shall be payable to PAS regardless of any act, omission or breach by Lease Customer; and shall provide for commercially reasonable deductibles satisfactory to PAS. Upon PAS' request, Lease Customer will provide PAS with certificates of insurance effective for the entire term. Lease Customer has no right to the benefit of any insurance maintained by PAS, its parents, affiliates, subsidiaries, lessor, or the owner of the equipment.
4.3 Default. In addition to the non-payment of fees covered in Article I, Section 5.0, it is an event of default under this Agreement if Customer purports to or does assign or sublet any interest in the equipment or this Agreement and if the equipment is levied against, seized, or attached. Similarly, it is an event of default if Customer seeks to effectuate a bulk sale of its inventory, equipment, or assets, or any action is taken with a view to the termination of Customer's business, and, if any of the foregoing events is not voluntary. In the event of default, PAS, without notice to Customer and in its absolute discretion may render the equipment unusable, take possession (but without breaching the peace and subject to any applicable law) and/or demand return of the equipment. PAS, its parents, subsidiaries, and/or affiliates are not liable for any damages related to enforcing its default remedies or because of any interruption or termination. PAS' sole obligation to mitigate its damages, if it repossesses any equipment, is to lease, sell, or otherwise dispose of the equipment in a commercially reasonable manner, with or without notice, and at public or private sale, and apply the net proceeds (after deducting all expenses of disposition), if any, to the amounts owed to PAS. Customer shall remain liable to PAS for any deficiency remaining after any such disposition. With respect to any notice of sale required by law, ten (10) days' notice is reasonable notice
ARTICLE VI. SOFTWARE SUPPORT AND MAINTENANCE TERMS AND CONDITIONS
This Agreement regarding Terms and Conditions for Software support and maintenance services (the "Agreement") as incorporated in the Sales Order Form is entered into by Progressive Automotive Systems, Inc. d/b/a R.O. Writer ("R.O. Writer") and the client identified on the Order Form(s) which are governed hereby (the "Customer"). R.O. Writer and Customer agree as follows: TERMS AND CONDITIONS.
1. The software maintenance program described herein (the "Program Agreement") shall apply only to the suite of software applications, including Central Services, that comprise the R.O. Writer Shop Management System (the "Software") selected in the main document and installed at a vehicle repair facility located at the single United States postal address for the Customer Shop Address, as listed above, and at no other location. If the person or company who R.O. Writer is licensing the use of the Software to ("Customer") operates more than one vehicle repair facility using the Software, Customer will need a separate Program Agreement for each such facility. Subject to Customer's full compliance with the terms hereof, R.O. Writer shall provide the Program according to the terms and conditions set forth herein.
2. The initial term of the Program shall commence as of the start date set forth on the Customer's Order Form and shall continue for a the period ("Term") indicated on the Order Form. The Program shall automatically renew for an additional Term period unless Customer provides R.O. Writer written notice of Customer's intention to terminate the Program no less than ninety (90) calendar days prior to the expiration of the term. If Customer does not renew the Program, R.O. Writer shall no longer provide support, maintenance, or upgrades for the Software. If Customer cancels the Program for any reason, Customer must provide R.O. Writer a ninety (90) calendar day written notice. Further, if the cancellation is prior to the first twenty-four (24) months of the Program Term (or a renewed term), Customer must pay R.O. Writer the full amount remaining on the Program in a lump sum payment within thirty (30) calendar days of cancelation. If the cancelation is after the first twenty-four (24) months, Customer must pay R.O. Writer, within thirty (30) calendar days of cancelation, a lump sum payment equal to fifty percent (50%) of the amount remaining on the Program. In the event Customer does not renew the Program or ceases paying applicable support fees to R.O. Writer and at a later time wishes to obtain support from R.O. Writer, Customer shall be required to pay the fees Customer would have had to pay if Customer had decided to renew the term from the start date to the current date or had never stopped paying for support. During any term, R.O. Writer may adjust the fee effective annually by January 15 of each year, by providing written notice to Customer ninety (90) calendar days before the effective date of any such adjustment. Such adjustment shall not exceed the change in the Consumer Price Index – All Urban Consumers, as published by the Bureau of Labor Statistics of the United States Department of Labor. Failure to make any payment on time and when due will result in the immediate termination of any maintenance and/or support for the Software and will relieve R.O. Writer of all obligations hereunder.
- For the duration of the Program Agreement, provided Customer is in full compliance with all R.O. Writer agreements related to the Software, Customer is entitled to:
- Software support from R.O. Writer technical support with no restriction upon the number of qualified calls or emails.
- All minor version updates of the Software. For purposes of clarification only, minor version updates may include fixes, minor improvements and minor releases noted by a change to the secondary version numbers such as an update from version 1.19 to version 1.20. The Program also includes major version updates. For purposes of clarification only, major version updates may include modules and major releases noted by a change to the primary version number such as an update from version 1.0 to version 2.0. R.O. Writer shall determine, in its sole and absolute discretion, whether an update is a minor version update or a major version update.
- Full access to the website http://support.rowriter.com/ which includes training video's.
- Unlock codes.
- The following items are NOT covered under this Agreement:
- Repair of damage or increase in service time caused by accident, disaster (which includes, but is not limited to, fire, flood, wind or lightning, collision with vehicles), transportation, neglect, misuse, or alteration.
- Telephone support, repair of damage, technical support or increase in service time caused by the use of hardware, service, accessories, or software not supplied by R.O. Writer.
- Deterioration due to environmental conditions (including improper electrical supply to the equipment).
- Microsoft Windows support and/or training.
- Microsoft Internet Explorer support and Internet connectivity support.
- Support for operating systems, networking, antivirus, spyware, adware and similar unsupported software.
- Customer may not transfer or assign this Agreement without the written consent of R.O. Writer, which shall not be unreasonably withheld. This notwithstanding, Customer may transfer and/or assign this Agreement to a successor-in-interest.
- Program fees are non-refundable.
- Customer location must have Internet access. Customer will not prevent or otherwise circumvent (including, without limitation, by using firewalls or any other electronic methods) the Software from connecting to the Internet as necessary.
- It may be necessary for R.O. Writer support staff to access Customer's system directly to diagnose and repair issues. Customer agrees to provide a secure remote access to its servers and/or workstations running R.O. Writer software to allow R.O. Writer to provide maintenance remotely. To facilitate this, Customer must have Internet access.
- Customer shall report any issues with the Software as soon as possible. If it is a product suggestion or a non-critical operational issue, Customer shall report the issue via e-mail at the address firstname.lastname@example.org.
- R.O. Writer shall not be liable to Customer for any alleged loss or damages resulting from Customer's acts or omissions, acts of civil or military authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy crisis, strike, labor trouble, war, riot, accident, shortage, delay in transportation, or any other causes beyond the reasonable control of R.O. Writer.
- This Program 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 Agreement shall be instituted in a state or federal court located in Palm Beach County, Florida. R.O. Writer and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action.
- Customer agrees to indemnify, defend, and hold R.O. Writer harmless for any losses, claims, lawsuits, or damages, brought by third parties or otherwise, including without limitation, reasonable attorneys fees, arising out of or in connection with this Agreement.
- In the event the Customer fails to pay its obligations hereunder on time and in accordance with the terms hereof and/or if Customer is not otherwise in compliance with this Agreement, R.O. Writer may refuse to provide support to Customer and/or R.O. Writer may charge you its then-current support fee for any requests.
- Customer hereby acknowledges and agrees that the Program Agreement may be amended or modified by R.O. Writer at such time as it may make available updates or upgrades to the Software, which amendments or modifications may be presented to Customer electronically during the installation of any such updates or upgrades. Customer further acknowledges and agrees that it is its sole responsibility to read this Program Agreement, as may be modified from time to time, and that Customer shall be deemed to have accepted any amendments or modifications to this Agreement if Customer installs or has installed any updates or upgrades to the Software. Customer further agrees that its continued use of the updated or upgraded Software shall also constitute acceptance of any amendments or modifications to this Program Agreement.
- This Agreement is the complete and exclusive statement of the agreement between Customer and R.O. Writer with respect to the subject matter of this Agreement. This Agreement supersedes any proposal or prior agreement, oral or written, and any other communication between the Parties or any R.O. Writer distributor relating to the subject matter of this Agreement.
- Should any part of this Agreement be declared invalid for any reason, such decision shall not affect the validity of the remaining provisions of this Agreement, which shall continue in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated.
- Customer is responsible for all taxes imposed in connection with this Program Agreement (except taxes imposed on R.O. Writer's income). All such amounts are in addition to other amounts payable hereunder, and this obligation shall survive termination or expiration of this Agreement.
DISCLAIMER OF LIMITATION AND LIABILITY.
THERE ARE NO EXPRESS OR IMPLIED WARRANTIES. THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED. Neither R.O. Writer nor any other person makes any warranty that the functions contained in any of the Software will meet Customer's requirements or that the operation of the applications suite will be uninterrupted or error free. Customer assumes all responsibility for its use of the Software and the results obtained from such use.
IN NO EVENT SHALL R.O. WRITER , ITS PARENTS, SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR ANY KIND, OR FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, USE, PERFORMANCE, FAILURE, INTERRUPTION OF THE SOFTWARE LICENSED FROM R.O. WRITER , INCLUDING, WITHOUT LIMITATION, THE R.O. WRITER PRODUCT OR FOR R.O. WRITER'S PERFORMANCE OF SERVICES HEREUNDER, EVEN IF R.O. WRITER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PARTY. IN NO EVENT SHALL R.O. WRITER'S LIABILITY TO CUSTOMER OR ANY OTHER PERSON, FOR ANY DAMAGES OR LOSSES OF ANY KIND, IN CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF THE SUPPORT FEES PAID TO R.O. WRITER HEREUNDER FOR THE CALENDAR YEAR IN WHICH SAID DAMAGES OR LOSSES OCCURRED.
CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS PROGRAM AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, CUSTOMER AGREES THAT THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL HOTLINE SUPPORT AND SOFTWARE UPDATE PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN.
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