Mitchell Repair Information
Company License Agreement
read the Online End User License Agreement below.
MITCHELL® COMPUTERIZED REPAIR INFORMATION
ONLINE END USER LICENSE AGREEMENT
THIS ONLINE END USER LICENSE AGREEMENT
(the "Agreement") is by and between MITCHELL REPAIR
INFORMATION COMPANY, LLC, 14145 Danielson Street, Poway, CA 92064-6886
("MRIC") and the individual and/or entity placing an order
("Order") for a subscription to ("Subscription”) one
or more Mitchell® Computerized Repair Information Systems (the "Systems")
on MRIC’s Internet web site ("End User").
NOW THEREFORE, for valuable consideration the parties
agree as follows:
- System Ordered. The Order placed by the End
User is incorporated by reference herein. Each System contained in
the End User’s Order is subject to the terms of this Agreement. In
placing an Order for a System Subscription, the End User has selected
a term ("Term”) to use the System.
- Term. This Agreement is effective
for the Term selected by the End User on the Order and begins on the
date the Order is accepted by MRIC (the "Effective Date").
This Agreement is renewable by End User for successive terms beginning
at the end of the current Term, unless MRIC notifies End User. End
User’s obligations under Sections 1, 4, 5, 6, 8, 9, 10 and 11 survive
termination of this Agreement.
- License. Subject to the terms and conditions
of this Agreement, MRIC grants to End User a nonexclusive and nontransferable
license to use the System solely (i) for the purpose of accessing
data on the System. End User may not (a) copy the System; (b) download
the System except for an End User’s authorized use; (c) allow data
from the System to be made available to non-End Users except in print
form only as incidental samples used for illustrative or demonstration
purposes; (d) assign, sell, or pass along the System data; or (e)
provide services for a fee using the System without prior written
agreement from MRIC. This Version may be used solely by the End User.
The End User is solely responsible for all security and all use of
the System, including unauthorized use and shall make reasonable efforts
to monitor compliance and correct misuse. MRIC shall retain title
at all times to the System and End User shall have no rights therein
except to use the System as set forth herein. End User may be able
to use the System for a period of time upon expiration of a Subscription,
except as a result of an Agreement breach by End User, however, End User will not be entitled to technical
or content support.
- Price and Payment Terms. In consideration of MRIC’s System
license to End User, End User shall pay to MRIC or Retail Merchandiser,
the license fees, or prices, sales taxes, and shipping set forth in
the Order (collectively, the "End User Fees") and, if applicable,
hereby authorizes MRIC to (i) charge the End User Fees to the most-current
credit card number provided by End User; and (ii) obtain credit reports,
consumer reports, and investigative consumer reports. MRIC may change
End User Fees at any time during the term of this Agreement or thereafter,
the license fees set forth in the Order will not change during the
Term of the System Subscription. End User is responsible for any additional
sales, use, excise or other similar taxes on the System.
- Maintenance of Equipment and Software.
End User, and not MRIC, shall bear sole responsibility to obtain,
maintain and operate, or cause to be obtained, maintained and operated
at its own expense, all equipment and non-MRIC software that may be
used in conjunction with the System.
- Confidentiality. (Proprietary Rights). End User
acknowledges that the System comprises information which constitutes
a trade secret of MRIC in which MRIC has a proprietary interest. End
User therefore agrees that no portion of the information constituting
the System may be disclosed to others, copied, reproduced, disseminated,
broadcast, displayed, reverse engineered, disassembled, compiled or
used for any purpose or purposes other than as specifically contemplated
by this Agreement in paragraph above. End User shall exercise its
best efforts to protect the System and to prevent its dissemination
to unauthorized persons. Furthermore, End User shall not assign, pledge,
sublicense or permit any other use of the System without obtaining
the prior written consent of MRIC, which consent may be withheld at
the sole discretion of MRIC
- System Modification. MRIC may make changes in rules
of operation, security measures, accessibility, procedures, types
of terminal equipment, types of System equipment, System programming
languages and any other matters relating to the System and its use
without prior notice.
- Updates. MRIC may update the System data
("Data Updates") from time to time during the course of
this Agreement and shall deliver any such Data Updates to End User
during the term of the license as determined by MRIC.
- Warranty. THE SYSTEM IS DELIVERED "AS
IS" AND MRIC MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SYSTEM OR
THE DATA UPDATES, THE COMPUTER PROGRAM ALLOWING USE OF THE SYSTEM
OR ANY SERVICES PERFORMED BY ANY THIRD PARTY. IN PARTICULAR, MRIC
DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED
OR ERROR-FREE. End User acknowledges and agrees that (i) MRIC is not
the manufacturer or distributor of any automotive repair parts referenced
in the System, (ii) MRIC makes no representations or warranties with
respect to the quality or availability of such parts or the accuracy
of the prices of such parts and (iii) if End User utilizes any non-MRIC-supplied
interface program to interface with the System, End User shall look
solely to the vendor of such interface program with respect to any
losses or damages caused by such interface program. MRIC is not responsible
for obsolescence of the System and Data Updates and shall have no
responsibility for suspended, outdated or uncorrected versions of
the System and Data Updates.
- Limitation of Liability. End User agrees that MRIC shall
not be liable to End User for any direct, indirect, special, incidental
or consequential damages, including but not limited to loss of anticipated
profits in connection with or arising out of the use of the System
and Data Updates. End User’s sole remedy upon breach of this Agreement
by MRIC that MRIC is unable to cure after a reasonable notice period
shall be termination of the Agreement and refund of unearned portions
of the End User Fee. End User agrees to indemnify MRIC and hold it
harmless against all claims and damages, including without limitation,
reasonable attorney’s fees arising out of End User’s use of the System
and the Data Updates, unless such claims or damages result from, or
unless End User’s authorized use of the System has given rise to claims
or damages based on the infringement of any copyright or other proprietary
right of any Third Party.
- Termination. The following actions by the
End User shall constitute a breach of the Agreement and shall allow
MRIC to terminate the Agreement immediately upon notice: any use or
dissemination of the System or Data Updates which is not expressly
permitted herein, the appointment of a receiver to take possession
of End User’s assets or the institution of bankruptcy by or against
End User, dissolution or discontinuance of business operations of
End User or failure to make timely payment to MRIC of the End User
Fee, including any renewal fee. Immediately upon the effective date
of termination of this Agreement, End User shall cease using the System.
Upon termination of this Agreement by MRIC for any such cause, End
User shall not be entitled to any refund of the End User Fees.
- General Provisions.
This Agreement sets forth the entire agreement and understanding between
the parties as to the subject matter hereof and supercedes all prior
discussions between them.
End User shall not export, disclose, or distribute the System 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 controversy or dispute between the parties under this Agreement
shall be submitted to final and binding arbitration as the sole and
exclusive remedy for such controversy or dispute. Any claim shall be
made by filing a demand for arbitration within one (1) year following
the occurrence first giving rise to the claim. The right and duty of
the parties to this Agreement to resolve disputes by arbitration shall
be governed exclusively by the Federal Arbitration Act, and arbitration
shall take place according to the Commercial Rules of the American Arbitration
Association. The arbitrator shall have no authority to amend or modify
the terms of this Agreement or to award punitive 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. The prevailing party
shall be entitled to its attorney’s fees and other costs and expenses
incurred in the arbitration and any related action or proceeding.
User may not assign its rights or delegate its duties hereunder without
first securing the permission to do so from MRIC, which will not be
reasonably be withheld. For purposes of this
section, the End User shall be deemed to have assigned this Agreement
if there is, in the aggregate, a change of ownership of 25% or more
of End User or a merger or combination of End User with another entity
of business, whether End User is the surviving entity or not. Any such
attempted conveyance shall be void and shall constitute a default entitling
MRIC to terminate this Agreement. MRIC 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 San Diego, California under the laws
of the State of California and the parties hereto agree that
it shall be interpreted, and all disputes arising hereunder shall be
resolved, in accordance with California law. To the extent recourse
to a court is allowed hereunder, both parties agree that jurisdiction
of any claim or suit hereunder shall be limited to the courts located
within the County of San Diego, State of California.
Both parties hereby submit to the exclusive personal jurisdiction of
of either party hereto to enforce at any time any term of this Agreement
shall not be a waiver of that party’s right thereafter to enforce each
and every term of this Agreement.