End User License Agreement
THIS REAL-TIME LABOR GUIDE® AND / OR AUTOMOTIVE EXPERT® END USER LICENSE AGREEMENT (the "Agreement") is by and between DOWELL SYSTEMS, INC., P.O. Box 21728, Tampa, Florida 33622-1728 ("DSI") and the company and/or individual identified during the DSI Sign-up Process or payment authorization that references this Agreement ("End User").
- Sign-up Process. The "Sign-up Process" consists of the information provided and selected by End User during the DSI Sign-up Process that references this Agreement and the terms and conditions contained and agreed to during such Sign-up Process. Sign-up Process may be supplemented or modified by a written agreement between DSI and End User that specifically references or otherwise is incorporated into the Sign-up Process. DSI may modify Sign-up Process if modifications do not affect Product, Subscription Period, or Payment.
- Products. The products being offered by DSI for licensing are listed and selected during the Sign-up Process. The products selected by End User for licensing to End User, as indicated during the Sign-up Process, are referred to in this Agreement as the "Products."
- The Products are licensed, and not sold, on a subscription-basis only. End User may select during the Sign-up Process the type of subscription to be purchased by End User (each a "Subscription"). Each Subscription may be subject to different terms and conditions as described below. The term of a Subscription will commence on the date an Account is created and accepted by DSI as described in Section 4 below ("Commencement Date"), and unless terminated earlier in accordance with this Agreement, will continue for the term described in the applicable Subscription below (each a "Subscription Period"). Each renewal of a Subscription will be considered a new Subscription Period. During the applicable Subscription Period, End User will receive any updates to the Product that DSI makes available generally to its customers as part of the applicable Subscription ("Updates").
- The Subscription Periods for this Subscription are either monthly (30 days), quarterly (91 days), or yearly (365 days) as selected by End User during the Sign-up Process. A Subscription under these options will be automatically renewed for successive monthly (30 days), quarterly (91 days), or yearly (365 days) periods at the end of the then-current Subscription Period on the day corresponding with the Commencement Date thereafter, unless either End User or DSI agrees to renew for a different Subscription Period or if End User has unsubscribed.
- For the purposes of billing, a monthly Subscription Period shall be defined as 30 days and automatic recurring payments will be processed on the 30th day from the date of subscription commencement. A quarterly Subscription Period shall be defined as 91 days and automatic recurring payments will be processed on the 91st day from the date of commencement. A yearly Subscription Period shall be defined as 365 days and automatic recurring payments will be processed on the 365th day from the date of subscription commencement.
- The End User may unsubscribe at any time without restriction. Subscription will continue to be active for the duration of the Subscription Period for which payment in full has been processed. Refunds or partial credits are not available for partially used periods. DSI reserves the right to end the Subscription of any End User at any time, with or without cause, at its will.
- Account. End User represents and warrants that the person completing the Sign-up Process is an authorized representative of End User and is authorized to commit End User to the Subscription Period, terms and conditions as well as any and all agreements required to utilize products and/or services offered by DSI as described during the Sign-up Process. End User acknowledges and agrees that the Sign-up Process and the registration, payment and other information submitted by End User during the Sign-up Process ("Registration Information") constitutes an "Account" for the End User and is complete and accurate. End User further acknowledges and agrees that, upon the signing or other authorization during the Sign-up Process by End User and acceptance by DSI, this Account shall become a part of this Agreement, all of which shall be binding on End User. For Products delivered electronically, DSI's acceptance will be deemed to have occurred when DSI sends End User an electronic message confirming the Account. For all other Orders of Product, DSI's acceptance will be deemed to have occurred upon DSI's shipment of the Product to End User. Each Subscription and Order shall be subject to the terms and conditions of this Agreement.
- Term. Each Subscription may be ordered for a certain term selected by End User when submitting End User's Account as further described in this Agreement. This Agreement shall be effective from the Commencement Date and shall continue for as long as End User is authorized to use the applicable Product in accordance with this Agreement (the "Term").
- Subject to the terms and conditions of this Agreement, DSI grants to End User an individual, nonexclusive, nontransferable, limited license to access and use the executable version of the applicable Product during the applicable Subscription Period purchased by End User solely for the purpose of: (i) providing vehicle mechanical services; (ii) estimating vehicle mechanical parts and labor cost estimates; and (iii) conducting vehicle shop management. Unless the Sign-up Process specifies otherwise, the license shall be for a single user. If during the Sign-up Process DSI authorizes more than one user, then the number of users shall be limited to the number set forth during the Sign-up Process.
- Regardless of the Subscription Period, End User may not (i) copy or reproduce the Product except as permitted in this Agreement; (ii) allow the Product or data from the Product to be made available to any person other than End User; (iii) assign, sell, transfer or pass along the data, the Product or access to the Product; (iv) translate, reverse engineer, decompile, disassemble or otherwise access the source code; and (v) provide services for a fee or otherwise use the Product without prior written agreement from DSI. DSI and its third party licensors shall retain title at all times to the Product, and End User shall have no rights therein except to use the Product as permitted by this Agreement during the applicable Subscription Period.
- The Products may be comprised of third party products licensed by a third party to DSI and will be subject to all of the terms and conditions of this Agreement. End User's license to use such third party products will be limited to End User's applicable Subscription for such third party products and may be used only in connection with the DSI Products.
- End User shall not remove, alter or destroy any form of copyright notice, proprietary markings or confidential legends placed upon or contained with the Product.
- License territory includes the United States of America (including its territories and possessions), Puerto Rico and Canada. End User shall not access nor attempt to access an account from outside these licensed territories. Licensed territories are subject to change without notice.
Price and Payment Terms.
- End User agrees to pay DSI (i) the applicable fees set forth during the Sign-up Process or otherwise authorized by End User, (ii) the then-current renewal fees applicable to a Subscription for a Product ordered by End User, and (iii) any sales, use, excise and other similar taxes, and shipping costs applicable to an Order (collectively, the "End User Fees"). Unless otherwise specified in this Agreement, DSI reserves the right to change End User Fees at any time.
- As applicable, End User hereby authorizes DSI to charge the End User Fees to the payment card or checking account number provided by End User. By submitting a payment card or checking account number as the form of payment, End User represents and warrants that End User's use of the particular card or checking account is authorized and that all information submitted is true and accurate (including, without limitation, payment card number and expiration date). In doing so, End User also authorizes DSI to charge to the payment card or checking account tendered all amounts payable by End User to DSI based on the Subscription plan selected (including all renewals thereof), including, but not limited to, all fees and any applicable taxes DSI is required to collect. End User agrees to update its account registration and payment card or checking account information immediately with any change in the payment card information including, but not limited to, any change in expiration date. If DSI is unable to process the payment card or checking account at any time, End User's account may be immediately suspended or terminated and End User will remain responsible for all amounts payable by End User to DSI. The payment card or checking account issuer agreement governs use of your payment card or checking account and End User must refer to that agreement with respect to End User's rights and liabilities as an account holder. If DSI does not receive payment from its payment card or checking account issuer or its agent, End User agrees to pay DSI all amounts due upon demand by DSI. DSI reserves the right to not renew End User's account at any time for any reason.
- If any payment due by End User is late, the End User will be deemed to be in default. Late payments will earn interest charged to the End User at the lower of a monthly rate of 1.5 percent per month, or the maximum interest amount allowed by local law.
- If End User is in default, DSI may suspend the use of Product licensed under this Agreement and cease delivery of any Updates. In the event of an End User default, the End User is responsible for all collection costs, including costs incurred by DSI in taking possession of software, plus attorney's fees.
- Maintenance of Equipment and Software. End User, and not DSI, shall bear sole responsibility to obtain, maintain and operate, or cause to be obtained, maintained and operated at End User's own expense, all equipment and software that may be necessary for End User to access and use the Product. The minimum requirements may be updated from time to time by DSI. End User is responsible solely for ensuring compatibility with the Product and for any new hardware or software required by End User to maintain compatibility with the Product.
- Confidentiality. End User acknowledges that the Product comprises software, equipment and Data that constitutes a trade secret of DSI and in which DSI has a proprietary interest. End User agrees that such software, equipment and Data and any of those portions of the Product not available to the general public may not be disclosed to others, copied, reproduced, disseminated, broadcast, displayed, reverse engineered, disassembled, compiled or used for any purpose other than as specifically permitted in Section 6 above. End User shall exercise its best efforts to protect the Product and to prevent dissemination or use of the Product to or by unauthorized persons. Furthermore, End User shall not assign, pledge, sublicense or permit any other use of the Product without obtaining the prior written consent of DSI, which consent may be withheld at the sole discretion of DSI.
- Product Modifications. DSI reserves the right to make changes to the Product at any time without prior notice to End User including, but not limited to, changes in rules of operation, security measures, accessibility policies and procedures, types of terminal equipment, types of Product equipment and Product programming languages.
If Customer activates an Account with DSI for a product which requires storage and use of saved data by the End User, DSI agrees to provide the following:
- Periodic web based electronic copying and storage of files, including, and limited to, shop management database files.
- DSI customer service personnel to provide web based support for electronically stored files, including, and limited to, shop management database files.
Rights and Restrictions
- DSI reserves the right to use third parties to provide any services related to Data Protection under this Agreement ("Third Party Provider").
- DSI reserves the right to modify or discontinue, temporarily or permanently, all or a part of the Data Protection services to the extent such services are modified or discontinued for substantially all of its End Users.
- DSI agrees not to disclose or use any specific company or end customer data entered by the End User with DSI except to the extent necessary to carry out its obligations under this Agreement, which may include sharing such specific company or end customer data entered by the End User with Third Party Providers. DSI reserves the right to aggregate and market general data collected from an End User for the purposes of benchmarking, research and data analysis.
- DSI's Third Party Providers are direct beneficiaries of this Agreement and shall have the right to enforce this Agreement against End User with respect to any violation by End User affecting the products of Third Party Providers licensed to End User under this Agreement.
- Data Protection
- THE PRODUCT IS DELIVERED "AS IS" AND DSI AND ITS THIRD PARTY LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE PRODUCT OR ANY SERVICES PERFORMED BY ANY THIRD PARTY. NEITHER DSI NOR ITS THIRD PARTY LICENSORS WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE.
END USER ACKNOWLEDGES AND AGREES THAT:
- DSI IS NOT THE MANUFACTURER OR DISTRIBUTOR OF ANY AUTOMOTIVE REPAIR PARTS REFERENCED IN THE PRODUCT;
- NEITHER DSI NOR ITS THIRD PARTY LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE QUALITY OR AVAILABILITY OF SUCH PARTS OR THE ACCURACY OF THE PRICES OF SUCH PARTS;
- THE DATA MADE AVAILABLE TO END USER ON OR THROUGH THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, AND INFORMATIONAL CONTENT;
- END USER USES SUCH DATA SOLELY AT END USER'S OWN RISK.
- END USER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS MADE BY END USER IN RELIANCE UPON SUCH DATA;
- IN ENTERING INTO THIS AGREEMENT AND/OR PURCHASING A SUBSCRIPTION, END USER IS NOT RELYING UPON ANY REPRESENTATIONS (ORAL, WRITTEN OR OTHERWISE) MADE BY DSI, ITS THIRD PARTY LICENSORS, AUTHORIZED RETAILERS OR ANY OTHER PERSON.
- IF END USER UTILIZES ANY NON-DSI-SUPPLIED INTERFACE PROGRAM TO INTERFACE WITH THE PRODUCT, END USER SHALL LOOK SOLELY TO THE VENDOR OF SUCH INTERFACE PROGRAM WITH RESPECT TO ANY LOSSES OR DAMAGES CAUSED BY SUCH INTERFACE PROGRAM; AND
- NEITHER DSI NOR ITS THIRD PARTY LICENSORS IS RESPONSIBLE FOR OBSOLESCENCE OF THE PRODUCT, NOR SHALL HAVE RESPONSIBILITY FOR SUSPENDED, OUTDATED OR UNCORRECTED VERSIONS OF THE PRODUCT OR ANY PART THEREOF.
Limitation of Liability; Indemnification.
- END USER AGREES THAT NEITHER DSI NOR ITS THIRD PARTY LICENSORS SHALL BE LIABLE TO END USER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF PROFITS, DATA OR GOODWILL IN CONNECTION WITH OR ARISING OUT OF THE USE OF THE PRODUCT, EVEN IF DSI AND ITS THIRD PARTY LICENSORS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
- END USER FURTHER AGREES THAT IN NO EVENT SHALL DSI'S OR ITS THIRD PARTY LICENSORS' LIABILITY FOR DIRECT DAMAGES EXCEED THE AMOUNT ACTUALLY PAID BY END USER FOR THE MONTH IN WHICH THE CLAIM FOR DIRECT DAMAGES FIRST AROSE (WHICH AMOUNT MAY BE DETERMINED BY PRORATING ON A STRAIGHT-LINE BASIS THE END USER FEES PAID FOR THE APPLICABLE SUBSCRIPTION PERIOD IN WHICH THE CLAIM FOR DIRECT DAMAGES FIRST AROSE ("Direct Damages Cap"). IN THE EVENT DSI REFUNDS TO END USER THE UNEARNED PORTION OF ANY END USER FEE, THE DIRECT DAMAGES CAP SHALL BE REDUCED BY SUCH REFUNDED AMOUNT.
- END USER AGREES TO INDEMNIFY AND HOLD DSI AND ITS AFFILIATES HARMLESS AGAINST ALL CLAIMS AND DAMAGES, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES ARISING OUT OF END USER'S USE OF THE PRODUCT, EXCEPT TO THE EXTENT SUCH CLAIMS OR DAMAGES ARE FOUND BY A COURT OF COMPETENT JURISDICTION TO BE CAUSED DIRECTLY BY THE ACTS OR OMISSIONS OF DSI.
Either party may terminate this Agreement upon a material breach of the Agreement by the other party if such
breach is not cured within thirty (30) calendar days following the date on which the alleged breaching party
receives written notice from the non-breaching party specifying the basis for such breach with sufficient detail
to permit the alleged breaching party to cure such breach. End User acknowledges that certain third party
products licensed by DSI to End User under this Agreement may be terminated by DSI upon a violation of this
Agreement by End User without any opportunity to cure. Notwithstanding the foregoing, the following actions by
End User shall constitute a material breach of the Agreement and shall allow DSI to terminate the Agreement
immediately upon notice to End User with no opportunity to cure:
- any use or dissemination of the Product that is not expressly permitted in this Agreement,
- any unauthorized access to, or use of, the Product by or through End User; or
- failure to make timely payment of any End User Fee
Immediately upon the effective date of termination of this Agreement, End User shall cease using the Product. Upon termination of this Agreement by End User or by DSI for a breach of this contract, DSI shall not be required to refund to End User any unearned portion of the End User Fees. The terms and conditions of Sections 7, 9, 12, 13, 14 and 15 shall survive the termination of this Agreement for any reason.
- Entire Agreement. This Agreement, together with information contained in the Sign-up Process, sets forth the entire agreement and understanding between the Parties as to the subject matter hereof and supersedes all prior discussions between them.
- Export Laws. End User shall not export, re-export, disclose, or distribute the Product in violation of any applicable laws or regulations, including the export laws and regulations of the United States, and shall comply with all such laws and regulations.
- Any dispute, claim or controversy arising out of or relating to this Agreement or breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Tampa, Florida, before a sole arbitrator, in accordance with the laws of the State of Florida for agreements made in and to be performed in that State.
- The arbitrator shall have no authority to amend or modify the terms of this Agreement or to award punitive or consequential, indirect, special or exemplary damages, and the award may be enforced by judgment.
- Before, during, or after arbitration each party shall have the right, without awaiting the outcome of the arbitration, to seek provisional remedies from an appropriate court including but not limited to temporary restraining orders or preliminary injunctions. Seeking any such remedies shall not be deemed a waiver of either party's right to compel arbitration.
- Limitation on Right to Pursue Claims. ANY CLAIM SHALL BE MADE BY FILING A DEMAND FOR ARBITRATION WITHIN ONE (1) YEAR FOLLOWING THE OCCURRENCE FIRST GIVING RISE TO THE CLAIM.
- Assignment. End User may not assign its rights or delegate its duties hereunder without first securing the permission to do so from DSI, which will not be unreasonably withheld. Any such attempted conveyance shall be void and shall constitute a default entitling DSI to terminate this Agreement. DSI may freely assign its rights hereunder without securing End User's permission to do so.
- Choice of Law and Forum. This Agreement has been entered into in Tampa, Florida under the laws of the State of Florida and End User and DSI agree that it shall be interpreted, and all disputes arising hereunder shall be resolved, in accordance with Florida law. To the extent recourse to a court is allowed hereunder, both End User and DSI agree that jurisdiction of any claim or suit hereunder shall be limited to the courts located within the County of Hillsborough, State of Florida. Both parties hereby submit to the exclusive personal jurisdiction of such courts. Both parties hereby disclaim the applicability of the Uniform Commercial Code and the United Nations Convention of Contracts for the International Sale of Goods.
- Failure of either party hereto to enforce at any time any term of this Agreement shall not be a waiver of that End User and DSI right thereafter to enforce each and every term of this Agreement.
- Should any of the terms and conditions of this Agreement be held invalid, that invalid provision shall be construed to be consistent with the applicable law, and in a manner so as to remain consistent with the original intent of DSI. Provisions not otherwise held invalid shall remain in force.
- Notices. All notices to End User will be sent to the address provided by End User in submitting its Account. All notices to DSI must be sent to the address set forth on the Sign-up Process to the attention of Customer Service. Any required or desired notice may be delivered by sending notice via first class U.S. postal mail or overnight mail.
- Benefits of Agreement. DSI's third party licensors are direct beneficiaries of this Agreement and shall have the right to enforce this Agreement against End User with respect to any violation by End User affecting the products of third party licensor licensed to End User under this Agreement.