END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”) is a legally binding contract between CarAdvise, LLC, a Delaware limited liability company (“CarAdvise”) and you (“you” or “Licensee” “) and governs the use by you of the proprietary CarAdvise software (the “Software”). BY CLICKING “I ACCEPT” OR BY ACCESSING AND/OR USING ANY PORTION OF THE SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must select the “I Decline” button and you may not use or access any part of the Software.
1.1. Grant. CarAdvise agrees to grant you a non-exclusive, non-transferable, non-sublicensable license to access and use the Software.
1.2. License Restrictions. Except as and only to the extent expressly permitted in this Agreement, Licensee shall not: (i) use, sublicense, sell, assign, convey, transfer, disclose, publish, display, copy, duplicate, modify, adapt, merge, embed, decompile, disassemble, reverse engineer or otherwise deal with any of the Software, (ii) permit others to use or access the Software for any purpose, (iii) use or allow third parties access to the Software to provide information processing, outsourcing, computer service bureau, application service provider or computer time-sharing or similar services to any other person or entity or use the Software for any purpose other than for the internal information processing needs of Licensee in connection with its business, and Licensee shall protect the Software from any of the same.
1.3. Passwords. Licensee will choose password/s to use in connection with the Software. Licensee, and each user, is entirely responsible for maintaining the confidentiality and security of Licensee’s passwords (including, if applicable, the passwords of each user accessing the Software by means of an account established by Licensee), and is solely responsible for any and all activities that occur under its account(s). Passwords may not be used by more than one individual and Licensee is prohibited from transferring or sharing passwords with any other person. Any violation of the foregoing shall result in an immediate termination of Licensee’s access rights to the Software as well as liability to CarAdvise for all damages resulting from such breach.
1.4.1. Updates. CarAdvise may, in its reasonable discretion, provide from time to time updates to the Software. Any such update(s) made available to Licensee will be available to Licensee on the terms set forth in this Agreement and only after payment by Licensee of the Fees for the time period in question.
1.5. Licensee Responsibilities. Licensee, at its cost, shall be responsible for procuring, installing, operating and maintaining the equipment, software (including, without limitation, up-to-date browser software), facilities, and telecommunications links and network connectivity to access and use the Software. Licensee shall be responsible for paying all third-party access charges (e.g. telecommunications) while using the Software.
2. WARRANTY; LIMITATION OF LIABILITY
2.1. THE SOFTWARE IS LICENSED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY. CARADVISE DOES NOT WARRANT THAT LICENSEE’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR THAT THE OPERATION OF OR ACCESS TO THE SOFTWARE WILL BE ERROR OR BUG FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS CODE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.
2.2. IN NO EVENT SHALL CARADVISE BE LIABLE FOR INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT ARISING OUT OF OR RELATING TO LICENSEE’S USE OF THE SOFTWARE, EVEN IF CARADVISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CARADVISE’S AGGREGATE LIABILITY FOR ACTUAL DIRECT DAMAGES ARISING OUT OF OR BASED UPON THIS AGREEMENT REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, INCLUDING WITHOUT LIMITATION, ANY ACTION IN TORT OR CONTRACT, EXCEED THE FEES PAID BY CARADVISE TO LICENSEE PURSUANT TO THIS AGREEMENT DURING THE QUARTER IMMEDIATELY BEFORE THE CLAIM AROSE.NOTWITHSTANDING THE FOREGOING, THIS LIMITATION ON LIABILITY SHALL NOT APPLY TO INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS BROUGH BY THIRD PARTIES.
2.3. Licensee represents and warrants that it will use the Software in compliance with all applicable federal, state and local statutes, laws and regulations.
3. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
3.1. Licensee acknowledges that CarAdvise is the sole and exclusive owner of all right, title and interest in and to the Software and all modifications thereto or derivative works based thereon, including, without limitation, all copyrights, trademarks, patents, trade secrets and other intellectual property rights (collectively, “IP Rights”) related thereto. Nothing contained herein shall create, nor shall be construed as, an assignment to Licensee of any right, title or interest in or to the Software; it being acknowledged that all right, title and interest in and to the Software is expressly reserved by CarAdvise. Licensee agrees that it will do nothing inconsistent with CarAdvise’s ownership of, or rights in, the Software, and that all use of the Software by Licensee shall enure to the benefit of, and be on behalf of, CarAdvise.
3.2. Licensee shall promptly notify CarAdvise of any activities or threatened activities of any third party which Licensee becomes aware that infringe or will infringe any IP Rights subsisting in or related to the Software. CarAdvise shall have the sole right, but not the obligation, to enforce its rights in the Software against such third party. Should CarAdvise decide to enforce its rights, (i) it shall do so at its expense, and in Licensee’s name, if necessary, (ii) Licensee shall cooperate with CarAdvise at CarAdvise’s reasonable request and at CarAdvise’s expense, and (iii) Licensee shall have the right, but not the obligation, to participate in such enforcement with counsel of its choice and at its expense. CarAdvise shall be entitled to any damages awarded in any such suit or action.
4. CONFIDENTIALITY AND NONDISCLOSURE. Licensee shall maintain the Software in confidence by using at least the same physical and other security measures as Licensee uses for its own confidential technical information and documentation, but in no event shall it exercise less than due diligence and care. Licensee shall not disclose the Software, or any aspect thereof, to anyone other than employees of Licensee who have a need to know and are bound to protect such information against any other use or disclosure.
To the extent that, in connection with this Agreement, Licensor comes into possession from Licensee or a third-party engaged by Licensee of any non-public, proprietary or confidential information or data developed by Licensee prior to or independent of the Agreement, Licensor will not use or disclose such information at any time, during or after the termination or expiration hereof, to any third party without Licensee’s consent, except (a) as may be required by law, regulation, judicial or administrative process, or in connection with litigation pertaining hereto, or (b) to the extent such information shall have become publicly available other than as the result of a disclosure by Licensor in breach hereof.
5.1. By CarAdvise. CarAdvise agrees to indemnify, defend and hold Licensee, its officers, directors, employees, shareholders, successors, representatives, and assigns harmless against any and all claims, causes of actions, demands, damages, losses, costs and expenses (including attorneys’ fees) arising out of or related to any claim (a) that Licensee’s use or possession of the Software, or the license granted hereunder, infringes or violates the U.S. copyright, trade secret, trademark, or patent (issued prior to the date of this Agreement) of any third party; and (b) related to Licensor’s omission, gross negligence or breach of the terms and conditions of this Agreement. If a final injunction is obtained against Licensee’s use of the Software by reason of such infringement, or if in CarAdvise’s opinion the Software is likely to become the subject of a claim for such infringement, CarAdvise shall, at its sole option and expense: (i) procure for Licensee the right to continue using the Software in the manner permitted hereunder; (ii) replace or modify the Software so that it becomes noninfringing (while substantially preserving its utility or functionality and provided such replacement software functions in substantial conformance with the Documentation), or (iii), if (i) and (ii) are not feasible, terminate this Agreement. CarAdvise shall have no liability to Licensee under this Section if any infringement is based upon Licensee’s use of the Software in combination with any other product, service, or device not furnished by CarAdvise, if the Software is used in a manner for which it is not designed or permitted, or if the infringement is based upon modifications of the Software by Licensee. The remedies provided in this paragraph shall be Licensee’s sole and exclusive remedies in the event of a successful claim of infringement.
5.2. By Licensee. Subject to CarAdvise’s indemnification in paragraph 5.1. above, Licensee agrees to indemnify, defend and hold CarAdvise, its officers, directors, members, employees, shareholders, successors, representatives, and assigns harmless against any and all claims, causes of actions, demands, damages, losses, costs and expenses (including attorneys’ fees) arising out of or related to: (i) operation or use of the Software and related output by Licensee; (ii) third party access to the Software allowed by Licensee, as permitted under this Agreement; or (iii) Licensee’s use of the Software in an unlawful manner or in any manner inconsistent with the terms and conditions of this Agreement.
5.3. Conditions on Indemnity. The foregoing indemnity obligations are conditioned on the party seeking indemnification (the “Indemnified Party”): (a) giving the proposed indemnifier (the “Indemnifying Party”) notice of the relevant claim, (b) cooperating with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense of such claim, and (c) giving the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval. The Indemnified Party shall have the right to participate in the defense at its expense.
6.1. Either party may terminate this Agreement:
6.1.1. Upon 60 days’ notice to the other party if the other party is in breach or default of any term or condition of this Agreement, provided that such breach or default is not cured within said 60-day period; or
6.1.2. Immediately if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise.
6.2. Upon the effective date of any termination of this Agreement:
6.2.1. All rights and licenses granted Licensee hereunder shall immediately cease and all rights in the Software shall revert to CarAdvise; and,
6.2.2. Licensee’s right to access and use the Software shall immediately cease, Licensee shall immediately stop access to and use of the Software, and CarAdvise will have the right to deny access to the Software by Licensee.
7.1. Successors and Assigns. None of the rights granted hereunder may be assigned, sold, or otherwise transferred by Licensee without the prior written consent of CarAdvise. CarAdvise may assign, sell or otherwise transfer its rights or obligations to any CarAdvise subsidiary, affiliate or controlled entity without Licensee’s prior approval. Any attempt to assign or transfer any of the rights, duties or obligations under this Agreement in contravention of this Paragraph is void.
7.2. Partial Invalidity. If any term or provision of this Agreement shall be found to be illegal or unenforceable, then notwithstanding such illegality or unenforceability, this Agreement shall remain in full force and effect and such term or provision shall be deemed to be deleted.
7.3. Governing Law; Venue. This Agreement will be governed by the internal laws of the State of Illinois, without giving regard to its principles of conflicts of laws. The parties agree that the state or federal courts located in Cook County, Illinois will be the exclusive jurisdiction for any litigation regarding this Agreement or an alleged breach hereof.
7.4. Headings. The headings in this Agreement are for reference only and will not affect the interpretation of this Agreement.
7.5. Entire Agreement; Amendments. This Agreement, together with the other documents referred to herein, constitutes the entire agreement between the parties with reference to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, regarding the subject matter hereof, and may only be changed or modified by a writing signed by all of the parties.
7.6. No Waiver of Rights. All waivers hereunder must be made in writing, and failure at any time to require the other party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such agreement or a waiver or modification of the provision.
7.7. Severability. The invalidity or unenforceability of any of the provisions hereof will not affect the validity or enforceability of the remainder hereof.
7.8. Subject Headings. The subject headings of the Sections of this Agreement are included for the purpose of convenience only, and shall not affect the construction or interpretation of any of its provisions.
Relationship of Parties. Nothing contained in this Agreement shall be construed to imply a joint venture, partnership, or principal-agent relationship between the parties; and, except as provided otherwise herein, neither party by virtue of this Agreement shall have any right, power or authority, express or implied, to act on behalf of or enter into any undertaking binding the other party. This Agreement shall not be construed to create rights, expressed or implied, on behalf of, or for the use of, any parties, aside from Licensee and CarAdvise, and, Licensee and CarAdvise shall not be obligated, separately or jointly, to any third parties or any third-party beneficiaries by virtue of this Agreement.