Mitchell Repair Information Company License Agreement

Please 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, P.O. Box 509044, San Diego, California 92150-9044 ("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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. General Provisions.

12.1. Entire Agreement. 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.

12.2. Export Laws. 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.

12.3. Arbitration. 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.

12.4. Assignment. End 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.

12.5. 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 such courts.

12.6. Waiver. Failure 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.

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