IMPORTANT — THIS SOFTWARE IS LICENSED, NOT SOLD, AND AVAILABLE FOR USE ONLY UNDER THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”).
TERMS AND CONDITIONS
For purposes of this EULA, the following terms shall have the following meanings:
Code shall mean computer programming logic or instructions, including objects, object code, source code, and/or embedded code, whether in human or machine-readable format, compiled or uncompiled, whether created, enhanced, or otherwise modified by AUTOACTION.
Documentation shall mean the user’s manuals and/or other documentation provided to END USER along with the Software, whether in tangible or electronic form.
Intellectual Property Rights shall mean all worldwide copyrights, trademarks, service marks, trade secrets, patents, moral rights, contract rights, and other proprietary rights.
Invoice shall mean the most recent invoice issued by AUTOACTION to END USER.
License Scope shall mean the scope of the licenses granted to each of the different types of the Software pursuant the Invoice, including any limitations regarding number of servers, number of users, etc. The scopes of the licenses to these different types of the Software may differ, and the term License Scope shall be used to collectively refer to the different scopes of all the licenses to the Software.
Service Bureau includes but is not limited to application service providers, hosting companies and Internet portals that would use the software for the benefit of third party to third party transactions.
Software shall mean the software products that are owned by Wise Information Technology, Inc. d/b/a AutoAction (“AUTOACTION”) that are identified in the Invoice and the Documentation for the Software.
- LICENSE GRANT
Subject to the terms and conditions of this EULA and the payment of all applicable license fees, AUTOACTION grants to END USER, and only END USER, a personal, revocable, non-exclusive, non-transferable, non-sublicensable, object Code-only license to use the Software and Documentation according to the License Scope, as identified in this EULA and the Invoice, solely for END USER’s own internal operations (including for operations performed on behalf of END USER’s customers), utilizing END USER’s (or its customers’) data. Fees are based on licenses purchased and not on actual usage. The licenses purchased are not cancelable, the fees paid are not refundable, and END USER cannot decrease the quantity of licenses during the term of END USER’s subscription, as listed on the Invoice. Further, AUTOACTION reserves the right, without any advance notice to END USER, to increase the amount of required license fees not more than twice per calendar year. END USER acknowledges and understands that only certain file types are supported by the Software and are, in AUTOACTION’s sole discretion, subject to change at any time and without notice to END USER.
3. RESTRICTIONS OF USE
END USER acknowledges that the Software and the Software’s code sequence, structure, organization, and Code constitute valuable trade secrets of AUTOACTION. Accordingly, END USER agrees not to:
- modify, adapt, alter, translate, or create a derivative work of the Software unless END USER has requested, in writing, permission from AUTOACTION and such permission has been granted to END USER in writing from AUTOACTION;
- sell, distribute, transfer, sublicense, lease, rent, or loan the Software to any third party;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the Software’s Code;
- use the Software in connection with the operations of a Service Bureau, in a time-sharing environment, as a subscription service, as part of a Software as a Service (SAAS) model, or for the benefit of any third party; or
- use the Software except as expressly allowed under Section 2 (License Grant).
These restrictions are not intended to restrict END USER’s ability to implement the Software but rather intended solely to prohibit improper uses, alterations or modifications, or other changes of the Software.
END USER shall be permitted to make a reasonable number of copies of the Documentation and distribute such copies to END USER’s internal user community. If a serial number, password, license key or other security device is provided to END USER for use with the Software, END USER may not share or transfer such security device with any other third party. Any other use of the Software by any third party, except as provided in this EULA, is strictly forbidden and is a breach of this EULA.
5. DELIVERY, ACCEPTANCE, AND INSTALLATION
The Software and Documentation will be shipped or otherwise made available to END USER within a reasonable time following acceptance of this EULA and the terms and conditions associated herewith, and the submission to AUTOACTION by END USER of any other necessary information. The Software shall be deemed accepted upon the date of delivery, or the date upon which the Software is made available to END USER (“Delivery Date”). AUTOACTION reserves the right, in its sole discretion, to determine on which operating system types and versions it will allow installation and support of the Software and may also, in its sole discretion, determine minimum acceptable levels of hardware and software protection, including, but not limited to, uninterruptible battery backup power, surge protection, anti-virus protection, and Internet firewall protection. AUTOACTION may, in its sole discretion, change these criteria at any time.
At this time, the following procedures, which may be changed, in AUTOACTION’s sole discretion, at any time and without notice to END USER, must be implemented and maintained at all times to provide an acceptable environment for installation and operation of the Software for all END USERs whose Software is installed directly on END USER’s computers:
- provide Internet access and an e-mail provider connection to the computer;
- back up the Software data after the close of each business day and retain each of the resulting daily backup files for at least one month because backup files are essential for recovery from hardware and software failures that can corrupt the Software;
- provide reliable cabled, not wireless, Ethernet local area network (“LAN”) connections between computer workstations and servers used by AUTOACTION for installations on desktop workstations;
- provide clean and reliable electrical power using uninterruptible power supply battery backups with surge protection for all computers, printers, and network equipment, including, but not limited to, Ethernet hubs, routers and switches, used by AUTOACTION for installations on desktop workstations;
- provide up-to-date anti-virus software protection for all computers running AUTOACTION and connected directly or indirectly to the Internet;
- provide genuine Microsoft Windows® operating system components that are currently supported by Microsoft®, purchased through Microsoft® authorized sales channels, and that comply with the most current AUTOACTION operating system requirements. This means that the Software cannot be installed on or supported by computers that have bootleg, counterfeit, grey-market, beta-test, or obsolete operating system components; and
- keep END USER’s computers current with all Microsoft® updates for all Microsoft® software installed on END USER’s computers, as well as any and all operating system updates and upgrades required by AUTOACTION to continue use of the Software.
Provided that the criteria listed above are satisfied, AUTOACTIONwill install the software with an installation CD or remotely via the Internet. AUTOACTIONwill provide up to six (6) total hours of initial training via Internet and telephone conferencing at no additional charge. By mutual agreement of END USER and AUTOACTION, the training may also be conducted at the AUTOACTION headquarters in Houston, Texas. Training will be provided for up to five (5) employees of END USER.
END USER must provide AUTOACTIONpersonnel with timely access to the computers and other resources reasonably required to perform their installation and training tasks. AUTOACTIONwill make reasonable attempts to accommodate END USER’s scheduling preferences for a training seminar.
6. MAINTENANCE AND SUPPORT
Maintenance of the Software, including, but not limited to technical support and updates will be deemed to constitute an integral part of the Software and will be subject to the terms and conditions of this EULA.
After the initial installation, AUTOACTIONmay, at its sole discretion, provide ongoing training via scheduled customer training classes for END USER’s employees. The cost of such classes for END USER will be agreed upon in writing by AUTOACTIO and END USER. AUTOACTION will use commercially reasonable efforts to provide assistance concerning the proper use of the Softwareand the correction ofproblems via telephone and the Internet at no charge during normal business hours, provided all monthly license fee payments are current and fully paid. In addition, on-siteservice, support, or training may, in AUTOACTION’s sole discretion, also be provided for an additional cost. The cost of such on-siteservice, support, or training for END USER will be agreed upon in writing by AUTOACTION and END USER. Examples of on-siteservice, support, or training that may incur additional costs or fees for the END USER include, but are not limited to:
- providing additional on-site training or consultation to the customer and/or customer’s staff;
- adding optional Softwarecomponents and/or additional desktop installations of the Software;
- updating the currently installed version of the Software to correct specific user problems;
- upgrading the Softwareto a more recent version; and
- providing office and clerical services.
END USER is aware that AUTOACTION staff have access to use an Admin account to provide setup and support services. All support and service resulting from END USER’s failure to comply with any of the obligations set forth in Section 5 of this EULA will be billed to END USER at the rates set forth in this Section 6. If END USER’s failure to comply with any of the obligations contained in Section 5 of this EULA necessitates reinstallation of the Software, or END USER requests reinstallation of the Software, END USER agrees to payAUTOACTION for each company database that must be re-installed plus additional cost for each desktop installation of the Software that must be re-installed to correct the problem (plus tax and any on-site trip charges). Furthermore, END USER understands that failures to meet these responsibilities may result in unrecoverable data corruption and loss.
AUTOACTION’s service and support staff, whether operating remote or on-site, are not responsible for the following exclusions:
- diagnosis or repair of END USER’s computer hardware, printer hardware, or peripheral device problems;
- diagnosis or repair of virus corruption, operating system problems, or software or configuration problems not directly related to or caused by the use of the Software, including, but not limited to problems with Microsoft® Excel;
- Local Area Network (LAN) creation, configuration, and troubleshooting;
- Any items required to be provided by the END USER pursuant to Section 5(a)-(g) of this EULA.
- Change of user permissions or passwords for users at the request of staff who are not the END USER or an approved manager.
It is the Licensee’s responsibility to find and obtain the services of an information technology professional to create, configure, diagnose and repair exclusions (a)-(c) above.
If END USER desires to upgrade their plan or gain access to any new, updated, or improved software platforms that AUTOACTION currently offers or may offer in the future, END USER understands that such upgrades and improvements may require additional cost. AUTOACTION has no obligation to provide any updates or to continue to provide or enable any particular features and/or functionalities of the Software. Further, AUTOACTION reserves the right to, in its sole discretion, determine that any particular version of the Software is no longer supportable and must be upgraded at additional cost to the consumer, as specified in that certain AUTOACTION pricing schedule, provided in connection with the Invoice. END USER acknowledges that it is solely responsible for any and all data uploaded, loaded, or imported to the Software and AUTOACTION shall have no responsibility for the accuracy, completeness, maintenance, or correctness of such data. The sole obligation of AUTOACTION is to reasonably assist, as described in this Section 6, with technical issues relating to the Software. AUTOACTION reserves the right to modify, suspend, or discontinue, temporarily or permanently, the Software or any service to which it connects, with or without notice and without any liability to END USER. The Software may display, include, use, or make available third-party content, including, but not limited to data, information, applications, and other product services, or provide links to third-party websites or services, such as applications that provide remote access to END USER’s computer systems for support and service (“Third-Party Services”). END USER acknowledges and agrees that AUTOACTION shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. AUTOACTION does not assume, and shall not have, any liability or responsibility for any Third-Party Services, which are provided solely as a convenience, which access and use are entirely at END USER’s own risk and subject to the third-party’s terms and conditions.
- AUTOACTION does not warrant that END USER’s use of the Software will be error-free, uninterrupted OR FREE FROM ERRORS IN CODE. AUTOACTION will, at its own expense and as its sole obligation and END USER’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts, which may include advising END USER electronically or telephonically how to make corrections, to correct any reproducible errors in the Software that END USER reports to AUTOACTION in writing. IF THE ERROR CANNOT BE CORRECTED, AUTOACTION’s entire liability and END USER’s exclusive further remedy shall be, at AUTOACTION’s option, either (i) repair of the Software or (ii) replacement of the Software.
- END USER’s FAILURE TO IMPLEMENT OR TO ALLOW AUTOACTION TO IMPLEMENT UPDATES AND IMPROVEMENTS IN A TIMELY MANNER, OR FAILURE TO UPGRADE END USER’S OPERATING SYSTEM AS REQUIRED FROM TIME TO TIME WITHIN A TIMELY MANNER, WITHOUT AUTOACTION’S PRIOR WRITTEN CONSENT, WILL VOID SUCH WARRANTY.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS EULA, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND AUTOACTION MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, INTERRUPTIONS AND ERRORS IN CODE, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR noninfringement. AUTOACTION DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END USER’s REQUIREMENTS, WILL SATISFACTORILY MEET ANY LOCAL, STATE, OR FEDERAL COMPLIANCE REQUIREMENTS, OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM ERRORS IN CODE. END USER SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, CORRECTNESS, COMPLETENESS, AND MAINTENANCE OF THE INFORMATION FURNISHED FOR PROCESSING, ANY USE MADE BY END USER OF THE DATA OUTPUT BY THE SOFTWARE, AND ANY RELIANCE THEREON.
8. TERM AND TERMINATION
(a) Term. The term of this EULA will begin upon the Delivery Date and shall be perpetual. This EULA will govern regardless of whether END USER upgrades or downgrades their subscription level or subscribes to any future platforms or software by AUTOACTION, unless the future platforms or software are governed by separate end user license agreements.
(b) Termination. Either party may terminate this EULA upon the occurrence of a material breach by the other, which material breach has not been cured within thirty (30) days after receipt of written notice thereof. END USER may terminate this EULA for any reason by requesting termination and providing thirty (30) days prior written notice. Such notice must be sent to firstname.lastname@example.org and must include an explanation of the reason for cancellation. The cancellation date shall be one (1) month after receipt of the written notice of termination (the “Cancellation Date”). AUTOACTION reserves the right to terminate the license key related to the instance of the Software licensed by END USER after the Cancellation Date, in AUTOACTION’S sole discretion and with no liability to END USER. If END USER breaches this EULA by failing to pay any amount due and owing to AUTOACTION, or fails to comply with any provision of this EULA, AUTOACTION may, without any advance notice, immediately cease providing any and all services to END USER and may revoke all licenses without AUTOACTION incurring any liability to END USER for any consequences arising therefrom. Upon termination of this EULA for any reason, END USER shall pay AUTOACTION the pro rata amount currently owed to AUTOACTION as of the date of termination and shall immediately cease all use of the Software, delete all copies of the Software and Documentation from all electronic devices, and shall destroy any physical copies of the Software and Documentation. Termination of this EULA shall neither limit any of AUTOACTION’s rights or remedies at law or in equity in case of breach by END USER nor relieve END USER of any duties, obligations, or liabilities under this EULA.
(c) Effects of Termination. Upon termination or expiration of this EULA for any reason, any amounts owed to AUTOACTION before such termination or expiration will be immediately due and payable. No refunds will be made for any payments made against sums owed to AUTOACTION prior to the Cancellation Date. All licensed rights granted in this EULA will immediately cease to exist. AUTOACTION’s obligation, if any, to provide maintenance and support shall immediately cease. END USER must promptly discontinue all use of the Software, erase all copies of the Software from END USER’s computers, and return to AUTOACTION or destroy all copies of the Software and Documentation in END USER’s possession or control, and certify in writing to AUTOACTION that END USER has fully complied with these requirements.
Section 1 (Definitions), Section 3 (Restrictions of Use), Section 7 (Warranties), Section 8 (Term and Termination), Section 9 (Survival), Section 10 (Confidentiality), Section 11 (Proprietary Rights), Section 12 (Infringement Claims), Section 13 (Limitation of Liability), and Section 14 (General – with the exception of the “Inspections” paragraph) will survive expiration or termination of this EULA for any reason.
(a) Except as expressly allowed under this EULA, END USER will not use or disclose any Software, Documentation, or any idea, algorithm, Code, or trade secrets of AUTOACTION in the Software or Documentation, except to the extent that END USER can document that any such item:
(i) becomes generally available for use and disclosure by the public without any license or charge;
(ii) has been otherwise disclosed by AUTOACTION or a third party without breach of a confidentiality obligation;
(iii) was independently developed by END USER without reference to the Software or Documentation; or
(iv) is required to be disclosed by END USER by law or any governmental authority, provided that END USER shall notify AUTOACTION as soon as reasonably possible of any such compelled disclosure and give AUTOACTION the opportunity to defend against such disclosure or obtain a protective order in connection therewith.
(b) END USER shall use commercially reasonable efforts, which shall be no less stringent than those efforts that END USER uses to protect END USER’s own software or other similar proprietary property, to prevent the Software or Documentation from being used by any employee, agent, consultant or other person in any manner that would violate this EULA.
(c) END USER further agrees to use commercially reasonable efforts to assist AUTOACTION in identifying and preventing any use or disclosure of any Code of the Software, any Documentation, or any of the ideas, algorithms, or trade secrets contained therein, which are not expressly authorized by this EULA.
(d) Without limiting the foregoing obligation, END USER shall advise AUTOACTION immediately in the event that END USER learns or has reason to believe that any person who has had access to the Software or Documentation or any portion thereof, as a result of this EULA, has violated or intends to violate the terms of this EULA.
(e) END USER acknowledges and agrees that there is no adequate remedy at law for a breach of this section, that such a breach would irreparably harm AUTOACTION, and that AUTOACTION shall, in the event of such a breach, be entitled to equitable relief, including, without limitation, injunctions, without the posting of any bond, in addition to any other remedies.
11. PROPRIETARY RIGHTS
END USER has no ownership rights in the Software, Documentation, or any reports or other output from or generated by the Software. The Software and Documentation, and all Intellectual Property Rights associated therewith, are and will remain at all times the sole and exclusive property of AUTOACTION. END USER has no right, title, or interest in or to the Software or Document, or any Intellectual Property Rights associated therewith, except as expressly set forth in this EULA. Any feedback, comments, ideas, improvements, or suggestions provided by END USER with respect to the Software or Documentation shall remain the sole and exclusive property of AUTOACTION, who shall be free to use, copy, modify, publish, or redistribute the feedback, comments, ideas, improvements, or suggestions for any purpose and in any way without any credit or compensation to END USER. Further, all designs, artwork, and other digital media provided within the Software, Documentation, or any reports or other output from or generated by the Software shall remain the sole property of AUTOACTION and END USER may not display, reproduce, alter, sell, or use any of the designs, artwork, and other digital media except through the Software, subject to the terms set forth in this EULA. Upon AUTOACTION’s request, END USER agrees, at AUTOACTION’s expense, to take such actions as AUTOACTION may reasonably request to perfect AUTOACTION’s ownership in the Software and Documentation.
This EULA does not grant END USER any rights in the trademarks or service marks of AUTOACTION, all of which remain the exclusive property of AUTOACTION. END USER may not alter or remove trademarks, service marks, or other markings from the Software or Documentation, their associated packaging, or any reports or other output from or generated by the Software.
The Software and Documentation contain material that is protected by patent laws, copyright laws, and international treaty provisions. Accordingly, END USER may not make copies of the same, except as expressly allowed under this EULA. END USER shall maintain at all times all patent and/or copyright notices provided on the Software and Documentation, and their associated packaging. END USER shall ensure that any permitted copy of the Software and Documentation is produced only for END USER’s own benefit and that it is clearly marked on the copy that such copy is subject to copyright and confidentiality. END USER shall further ensure that a written list is maintained of the number of copies of the Software and the place of storage of each copy. Copies of the Software and Documentation constitute AUTOACTION’s property. All terms and conditions of this EULA shall also apply to such copies.
12. THIRD PARTY INFRINGEMENT CLAIMS
(a) AUTOACTION shall pay those costs and direct damages finally awarded against END USER in connection with any claim by a third party that the Software directly infringes any copyright or misappropriates any trade secret recognized as such under applicable law (or those costs and damages agreed to by AUTOACTION in a written monetary settlement) and the reasonable costs of defense incurred by END USER in connection therewith, including reasonable attorneys’ fees and court costs, provided that:
(i) END USER provides AUTOACTION with prompt written notice of any such action or claim;
(ii) END USER will permit AUTOACTION to assume and control the defense and settlement of any such action or claim, at AUTOACTION’s expense;
(iii) END USER will not prejudice the defense of the action or claim nor will END USER make any admission as to liability nor compromise or agree to any settlement of any such action or claim without the prior written consent of AUTOACTION; and
(iv) END USER will provide AUTOACTION with such assistance, documents, authority, and information as AUTOACTION may reasonably require in relation to the action or claim and defense or settlement thereof.
(b) Notwithstanding the foregoing, AUTOACTION will have no obligation under this Section 12 or otherwise with respect to any infringement claim based upon:
(i) any use of the Software not in accordance with this EULA or for purposes not intended by AUTOACTION;
(ii) any use of the Software in combination with other products, equipment, software, or data which END USER is not authorized in writing to use in conjunction with the Software;
(iii) any use of any release of the Software other than the most current release made available to END USER;
(iv) any modification of the Software by any person other than AUTOACTION;
(v) END USER’s continued alleged infringing activity after being informed of modifications that would have avoided the alleged infringement; or
(vi) any combination of END USER’s use of the Software with any other activities of END USER or others.
(c) If the Software becomes, or in AUTOACTION’s opinion is likely to become, the subject of an infringement claim, AUTOACTION may, at its option and expense, either:
(i) procure for END USER the right to continue using the Software;
(ii) replace or modify the Software so that it becomes non-infringing; or
(iii) accept return of the Software and give END USER a pro rata refund of license fees paid by END USER less a reasonable allowance for the period of time END USER used the Software.
(d) END USER shall defend, indemnify and hold AUTOACTION harmless from and against all claims arising from the activities described in any of the foregoing clauses (b)(i)-(b)(vi). THIS SECTION 12 STATES AUTOACTION’S ENTIRE LIABILITY AND END USER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
13. LIMITATION OF LIABILITY
IN NO EVENT WILL AUTOACTION BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST profits or ANY DAMAGES ARISING FROM any data LOSS or corruption OF any kind, ARISING FROM OR RELATING TO THIS EULA including the use of the software provided hereunder OR THE FAILURE OF END USER TO BACK UP END USER’S DATA. AUTOACTION’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS EULA AND THE SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF THE license FEE PAID BY END USER FOR THE LICENSE TO WHICH A SPECIFIC CLAIM APPLIES. END USER ACKNOWLEDGES THAT THE LICENSE FEE REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS EULA AND THAT AUTOACTION WOULD NOT ENTER INTO THIS EULA WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
Notwithstanding anything to the contrary contained herein, END USER agrees to indemnify and hold AUTOACTION and its parents, subsidiaries, affiliates, agents, suppliers, partners, and licensors (if any) and their respective officers and employees harmless from and against any expenses and related costs, including, but not limited to, court costs and reasonable attorneys’ fees, in connection with any threatened or actual lawsuits, actions, investigations, damages, judgments, or claims by any third party, arising out of or relating to END USER’s use of the Software and/or Documentation.
(a) Assignments. END USER may not assign or transfer, by operation of law or otherwise, any of END USER’s rights under this EULA to any third party without AUTOACTION’s prior written consent, such consent not to be unreasonably withheld. Any attempted assignment or transfer in violation of the foregoing will be void. AUTOACTION may, in its sole discretion and without notice to or consent of END USER, assign or transfer its rights and obligations under this EULA.
(b) Export. END USER agrees not to export the Software outside the United States without AUTOACTION’s prior written consent, which consent will not be unreasonably withheld. END USER further agrees to comply in all respects with the applicable export laws and regulations of the United States and not distribute or transfer the Software in contravention of those laws and regulations, including, but not limited to, exporting or re-exporting into or to a nation or a resident of any U.S. embargoed countries or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. END USER will defend, indemnify and hold harmless AUTOACTION from and against any violation of such laws or regulations by END USER or any of END USER’s agents, officers, directors, or employees.
(c) Taxes. END USER will be responsible for payment of, and shall not withhold from fees owed to AUTOACTION (including but not limited to license fees and maintenance fees, if applicable), all applicable sales, use, ad valorem, and excise taxes; duties; and assessments based on END USER’s use or possession of the Software. END USER shall hold AUTOACTION harmless from all claims and liability arising from END USER’s failure to pay such taxes.
(d) Inspections. END USER will for three (3) years maintain records sufficient to verify the amounts owing to AUTOACTION hereunder. END USER will permit AUTOACTION or its representatives to review END USER’s relevant records and inspect END USER’s facilities to ensure compliance with this EULA. AUTOACTION will give END USER at least two (2) business days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with END USER’s normal operations.
(e) Notices. All notices or other communications to AUTOACTION shall be addressed to: Wise Information Technology, Inc. d/b/a AutoAction, 10810 Katy Freeway, Suite 103, Houston, TX 77043, Attn: Chief Executive Officer. All notices, consents and approvals under this EULA must be delivered in writing by courier, by fax, or by certified or registered mail, (postage prepaid and return receipt requested), and will be effective upon the earlier of receipt or when delivery is refused.
(f) Governing Law. This EULA will be governed by the laws of the State of Texas without regard to conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
(g) Arbitration. Subject to the provisions of Section 15(h) of this Agreement, any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Claims under $1,000,000.00 shall be heard by a single arbitrator. Within fifteen (15) days after the commencement of arbitration requiring a single arbitrator, AUTOACTION shall send to END USER, in writing via certified mail to the address listed on END USER’s most recent invoice, a list of three (3) potential arbitrators from which END USER shall select the final arbitrator. If the claim amount exceeds 1,000,000.00, the dispute shall be heard by a panel of three arbitrators. Within fifteen (15) days after the commencement of arbitration requiring a panel of three arbitrators, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association. The place of arbitration shall be Houston, Texas. The arbitration shall be governed by the laws of the State of Texas. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The prevailing party shall be entitled to an award of reasonable attorney fees. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that they will evenly split the cost of arbitrator compensation and administrative charges and that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
(h) Remedies. Notwithstanding the provisions of Section 15(g) of this Agreement, END USER acknowledges that the Software contains valuable trade secrets and proprietary information of AUTOACTION, that any actual or threatened breach of Section 3 (Restrictions of Use) or Section 10 (Confidentiality) will constitute immediate, irreparable harm to AUTOACTION for which monetary damages would be an inadequate remedy, that AUTOACTION shall, in the event of such a breach, be entitled to equitable relief, including injunctive relief, without the posting of any bond, in addition to any other remedies. Notwithstanding the provisions contained in Section 15(g) of this EULA, if any legal action is brought to enforce this EULA, the prevailing party, as determined by a final, non-appealable judgment or order, will be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive. The decision whether to arbitrate or pursue other relief under the limited scope of this Section 15(h) shall be in the company’s sole discretion; otherwise, the Company is bound to arbitrate all other claims pursuant to Section 15(g) of this EULA.
(i) Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(j) Severability. If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, END USER agrees that Section 13 (Limitation of Liability) and Section 14 (Indemnification) will remain in effect notwithstanding the unenforceability of any provision in Section 7 (Warranties).
(k) Confidentiality of EULA; Announcements. Neither party shall disclose any terms of this EULA to anyone other than its attorneys, accountants and other professional advisors except as required by law. AUTOACTION shall be allowed to use END USER’s name on its customer lists, so long as such lists are not available to the general public and AUTOACTION discloses the same to its present and potential customers after execution of this EULA. “Potential customer” in this section represents a specific customer that is contemplating AUTOACTION’s products and services. For any other use of END USER’s name, AUTOACTION shall obtain written permission from END USER.
(l) Construction. The headings of Sections of the EULA are for convenience and are not to be used in interpreting the EULA. As used in the EULA the word “including” means “including but not limited to.”
(m) Counterparts. This EULA may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
(n) Force Majeure. Neither party shall be liable for any delay in delivery or nonperformance in whole of its obligations under this EULA if prevented from doing so by a cause or causes beyond its control, including, but not limited to, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, and restraints of government. The suspension of performance shall be of no greater scope and no longer duration than is reasonably required and the non-performing party shall use reasonable efforts to remedy its inability to perform.
(o) Data Storage. AUTOACTION will use industry standard data storage systems and procedures to protect data belonging to END USER. Such data will also be compartmentalized from other users’ data.
(p) Malware. AUTOACTION and END USER agree that neither party will negligently, knowingly, intentionally, or otherwise upload, load, or import data containing malware to the Software or otherwise damage the Software.
(q) Privacy. AUTOACTION collects, stores, maintains, and shares information about END USER with AUTOACTION’s integration partners. If END USER chooses to utilize one of AUTOACTION’s integration partners, END USER may receive a fee or other form of monetary compensation associated therewith. By accepting this EULA, END USER agrees and consents to the collection, storage, maintenance, and sharing of END USER’s data by AUTOACTION, who makes no representations or warranties regarding the privacy of END USER’s information. AUTOACTION will use commercially reasonable efforts to maintain the privacy of END USER’s customers’ information. END USER understands and acknowledges that END USER is responsible for any of END USER’s customer data inputted into the Software, including, but not limited to, payment information, credit reporting information, and information provided in connection with credit checks. AUTOACTION will not be liable for any claims or damages arising from or out of such customer data, including, but not limited to, issues regarding data privacy, accuracy, and credit reporting and disclosures.
(r) For U.S. Government End Users. The Software and Documentation are “Commercial Items” as defined under 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used under 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. In accordance with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions provided herein.
(s) No Further Obligations. END USER understands and acknowledges that AUTOACTION has no further obligations other than those contained in this agreement. END USER is solely responsible for maintenance of END USER’s business, including, but not limited to, payment of all governmental fees and taxes, proper credit reporting disclosures, and compliance with all laws, rules, and regulations.
(t) Entire Agreement. This EULA constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral; provided that any non-disclosure agreement or confidentiality agreement between AUTOACTION and END USER shall survive the execution of this EULA. This EULA may be amended only by a written document signed by duly authorized representatives of both parties. A duly authorized representative of AUTOACTION consists solely of either the chief executive officer, president, or chief financial officer thereof. If END USER issues or responds to a purchase order, or similar document, in connection with this EULA, any preprinted terms and conditions appearing thereon shall not apply to or become part of this EULA regardless of any statement to the contrary contained therein.