OEConnection
LLC
Collision Repair Facility
Subscription Agreement
This Agreement is entered into by and between OEConnection
LLC (“OEConnection”), 4150 Highlander Parkway, Richfield, OH 44286, and the
party listed above.
A. Acceptance. This
Agreement is subject to acceptance by OEConnection at its administrative
office. Upon OEConnection’s acceptance, this will become a binding Agreement.
Any additional, inconsistent or contradictory terms or conditions proposed by
Customer are hereby objected to, and such terms shall be superseded and
controlled by the Terms and Conditions of this Agreement.
B. Consideration.
Customer is not paying money to OEConnection for the right to use CollisionLink
Shop (“Product”). In consideration of executing this Agreement and the use of
Product, OEConnection hereby grants Customer a nonexclusive limited right to
access and use Product subject to Customer’s compliance with the attached Terms
and Conditions. Customer’s right to utilize Product shall not be assigned,
licensed, or transferred without the prior written consent of OEConnection.
This Agreement and all nonexclusive rights granted above can be terminated by
either party at any time for any reason or no reason, in its sole and absolute
discretion upon written notice to the other party. Customer acknowledges that
OEConnection may suspend use of all or any part of Product’s services at any
time without notice or cause. Service shall be automatically suspended in cases
where improper activities are pursued on the OEConnection website. OEConnection
shall not be liable for any damage arising from any such suspension;
interruption or termination of the OEConnection website. Further, Customer
agrees that it will not interfere or attempt to interfere with the proper
working of the OEConnection website. Certain obligations shall survive
termination as set forth in Section 6.1.
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY BEFORE USING OR ACCESSING ANY
PAGE IN THE OECONNECTION WEBSITE. By using or accessing the OEConnection
website, Customer signifies its acknowledgement and assent to the Terms and
Conditions set forth below. If Customer does not agree with the Terms and
Conditions, Customer should not use the OEConnection website. The Terms and
Conditions may be changed from time to time and at any time by OEConnection.
Customer’s use of Product after the changes are posted on the OEConnection
website shall signify Customer’s acceptance of the changed terms. Customer
should check the posted Terms and Conditions periodically for changes.
C. Parties to
Transaction. Product serves as a portal for Customers and
Automobile Manufacturers’ dealers (hereinafter “Dealers”) to come together to
buy and sell automotive parts and services. OEConnection is not involved in the
actual transaction between Customer and Dealer. As a result, OEConnection
exercises no control over the quality, safety, or legality of products.
OEConnection does not control whether or not Dealers will complete the sale of
items they offer. OEConnection makes no warranties with respect to these
products and is not responsible for breach of contract or any intentional or
negligent action on the part of Customer or Dealer that results in any loss,
damage, delay, or injury. Because OEConnection is not involved in the sales
transaction, in the event there is a dispute between Customer and Dealer,
OEConnection is hereby released from the claims, demands, and damages (actual
or consequential) of every kind and nature, known and unknown, suspected and
unsuspected, arising out of or in any way connected to such disputes.
TERMS AND
CONDITIONS
The Customer’s use of Product shall be subject to the following terms and
conditions:
1. Customer Service.
Customer telephone support and services are available from 8:00 a.m. to 8:00
p.m. Eastern Time Monday through Friday and 8:00 a.m. to 5:00 p.m. Eastern Time
on Saturday. OEConnection may change its service hours without prior notice.
2. Equipment.
OEConnection shall not be obligated to provide any computer equipment or
hardware as part of this Agreement. The Customer acknowledges that it will be
responsible for all necessary computer equipment.
3. Ownership.
Customer acknowledges that the OEConnection website and the related Software,
Database, servicemark, know-how relating to the Software and Database, and the
programs, processes, and information contained or embodied therein constitute
valuable, confidential and proprietary property rights of OEConnection or other
parties from whom OEConnection has obtained marketing or licensing rights.
Customer will take no action in deprivation of such property rights. Customer
agrees not to tamper with or damage Product. Customer further acknowledges that
Customer’s use of Product under this Agreement shall not operate to modify or
abridge such rights in Product or create in Customer any right in Product or
the related Software and Database. Further, Customer acknowledges that the data
provided by Customer and/or produced by Customer’s use of Product shall be
owned by OEConnection and Customer shall have no rights in such data. Further,
Customer agrees not to use any robot, spider, other automatic device, or manual
process to monitor or copy the Database, Software or any part of Product.
Customer agrees not to use any device, software, or routine to interfere or
attempt to interfere with the proper working of Product. Customer agrees that
it will not take any action that imposes an unreasonable or disproportionately
large load on OEConnection’s infrastructure.
OEConnection is authorized by Manufacturers to republish certain image and text
information for sale and/or license to authorized users. OEConnection’s ability
and obligation to provide this information to Customer is subject to and
dependent upon OEConnection’s continued access to this information supplied by
the Manufacturers. OEConnection shall not be obligated to provide Customer with
the Database or any updates in the event that a Manufacturer supplying the
Database fails to provide the necessary information, properly formatted in a
timely manner, or determines that the Customer has ceased to be an eligible
user authorized to use the Database or any updates thereto.
4. Restriction on Use.
Customer shall use the Software only in object code format in conjunction with
the Database. Use of Product shall be limited solely to the generation of a
selected list of information and selected images from the Database in the
Customer’s ordinary day-to-day business of ordering new original equipment
replacement parts from franchised dealers. Customer shall not generate or
attempt to generate a listing of all or any substantial portion of the
information or images in the Database or otherwise use Product for any purpose
other than as set forth above.
Customer has no
rights in source code and agrees that it will not, nor will it permit anyone
else to modify, copy, disclose, disseminate or translate any version of the
Software or any portion of the Database utilized by the Customer or permit
others to create or attempt to create by reverse engineering or otherwise a
source code or any part thereof. Further, Customer agrees that it may not copy,
modify, upload, download, transmit, publish, or otherwise distribute any
content from Product except as expressly permitted by these terms and
conditions.
5. Updates and Modifications.
OEConnection will supply Customer access to any enhancements and
modifications to the Software made by OEConnection for which OEConnection does
not charge a separate fee.
Customer acknowledges that enhancements and/or modifications may at times
require changes to the Customer’s computer system. Customer agrees to make such
changes or expansion at its expense. Customer will be solely responsible for
obtaining hardware and related equipment that meets minimum hardware
requirements provided by OEConnection.
6.1 Effect Upon Termination.
As set forth above, this Agreement may be terminated. Upon termination of this
Agreement, all rights of Customer under this Agreement shall terminate,
provided Customer’s obligations regarding the restrictions on use of Product
shall continue. Upon expiration or termination of this Agreement, Customer
shall discontinue all use of Software and Database and shall deliver to
OEConnection all tangible media bearing any portion of the Software and/or
Database. Customer will certify in writing that all electronic forms of
Software and/or Database have been deleted from computers which are owned by or
subject to the control of Customer.
6.2 Injunctive Relief.
If Customer attempts to copy, disclose, translate or otherwise use Product, the
Software, Database or a substantial portion thereof, in a manner contrary to
this Agreement, OEConnection shall have, and Customer agrees, in addition to
any other remedy, the right to injunctive relief. The Customer hereby
acknowledges that other remedies are inadequate.
7. Limitation of Liability.
In addition to
any of the limitations of the remedies described in this Agreement,
OEConnection’s entire liability to Customer for any claim whatsoever,
regardless of form, shall be limited to actual damages, not to exceed the
amount paid, if any, to OEConnection by Customer for accessing the OECONNECTION
website. In no event will OEConnection be liable to Customer or any third
party for any other damages whatsoever arising from the use or performance of Product
or otherwise in connection with this Agreement including but not limited to
consequential damages of any kind, including loss of use, data or profits,
whether in contract, warranty, tort including negligence, or otherwise, or for
any damages caused by Dealer’s failure to perform its responsibilities, or for
any claim against Customer by any third party, except as otherwise expressly
provided in this Agreement.
8. Limitation of Warranty.
The parties acknowledge that the operation of Product will not be uninterrupted
or error-free or that all defects can be corrected. The Database may contain
technical inaccuracies, outdated information, and typographical errors.
Notwithstanding any provision of this Agreement to the contrary, OEConnection
shall have no obligation or liability to Customer or any other person if
OEConnection fails to produce the Database or Database updates or any such
Database are produced by OEConnection in an inaccurate, incomplete or untimely
manner as a result of Manufacturer’s failure to furnish OEConnection with the
required information or the Manufacturer furnishes information in an
inaccurate, incomplete or untimely manner. Further, OEConnection makes no
representations or warranties that the Product is free of defects, viruses, or
other harmful components. OEConnection shall not be responsible for any damages
or loss that may result from the hacking or infiltration of the OEConnection
website or OEConnection’s computer systems. CUSTOMER HAS THE SOLE
RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND EQUIPMENT USED IN
CONNECTION WITH PRODUCT, AND CUSTOMER AGREES TO HOLD OECONNECTION HARMLESS FROM
AND COVENANT NOT TO SUE FOR ANY CLAIMS BASED ON USE OF PRODUCT INCLUDING CLAIMS
FOR LOST DATA, WORK DELAYS, OR LOST PROFITS RESULTING FROM USE OF MATERIALS OR
CONTENT TO THE EXTENT PERMITTED BY APPLICABLE LAW, PRODUCT IS PROVIDED “AS IS.”
OECONNECTION HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF NONINFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OEConnection does not in
any way guarantee the quality, data, content, artistic worth, or legality of
information, content, goods or services that are transferred, received,
purchase, or otherwise made available or obtained by use of Product or the
software or database.
9. Circumvention of Product. Customer agrees
not to use Product to assist in the purchase of automotive parts or services in
any manner that: (i) are not original equipment manufactured parts, or (ii)
prevents OEConnection from participating as a compensated facilitator of such
purchase. Product may include links to other sites on the Internet that are
owned or operated by third parties. Customer agrees that OEConnection shall not
be responsible for the availability of the content located on or through any
such external linked sites.
10. Customer’s Terms and
Conditions. Customer acknowledges that any order transmitted
by Customer utilizing Product shall be subject to separate terms and conditions
governing the transaction between Customer and the Dealer.
11. Privacy Statement.
Customer acknowledges and agrees to the Privacy Statement established by
OEConnection and posted on the OEConnection website. Customer acknowledges that
the Privacy Statement may be changed by OEConnection from time to time by
posting the new Privacy Statement on the OEConnection website.
12. Third-Party Mark.
Customer shall not use in any way the trademarks or service marks of the
automobile manufacturers or OEConnection (D2DLinkSM, CollisionLinkSM
, or any marks that appear on OEConnection’s website) without a license from
the owner of the mark to be used.
13. Indemnity.
Customer shall indemnify, defend and hold harmless OEConnection, its directors,
officers, and members against and in respect of any and all claims, demands,
losses, and liabilities, including interest, arbitration, or litigation
expenses and reasonable attorney’s fees (collectively “Losses”), that
OEConnection shall incur, sustain, or suffer, which result from, relate to, or
arise out of (i) Customer’s breach of this Agreement; or (ii) this Agreement,
other than Losses caused by OEConnection’s gross negligence or willful
misconduct.
14. Taxes.
If any taxes are due or ultimately assessed to OEConnection by reason of
Customer’s use of Product, such taxes, and any interest or penalties will be a
charge due and payable by Customer as additional consideration for the
nonexclusive rights to utilize Product. This obligation shall survive
termination of the Agreement.
15. Arbitration and Governing
Law. This Agreement shall be governed by the laws of the state of
Ohio without regard to conflicts of law provisions. The Customer hereby submits
to personal jurisdiction and venue in Cleveland, Ohio. Subject to the
qualifications set forth later in this paragraph, any controversy or claim
arising out of or related to Customer’s use of any Product(s) or this Agreement
shall be resolved exclusively by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. Any such
controversy or claim shall be arbitrated on an individual basis, and shall not
be consolidated in any arbitration or litigation with any claim or controversy
of any other party. The arbitration shall be conducted in Cleveland, Ohio, and
judgment on the arbitration award may be entered into any court having
jurisdiction thereof. Either party may seek any interim or preliminary relief
from a court of competent jurisdiction in Cleveland, Ohio necessary to protect
the rights or property of the Customer or OEConnection pending the completion
of arbitration. Should either party file an action contrary to this provision,
the other party may recover attorney’s fees and costs up to $10,000.
Notwithstanding any other provision of this paragraph, OEConnection shall have
the right to petition a court of competent jurisdiction for the entry of orders
for specific performance or injunctive relief as set forth in Section 6.2.
16. Miscellaneous.
The descriptive headings of the various paragraphs of the Agreement are for
convenience only and shall not be used to construe or interpret the meaning of
any of the provisions hereof. This Agreement is made and entered into for the
sole protection and benefit of the parties hereto, and no other person,
persons, entity or entities shall have the right of action hereon, right to
claim any right or benefit from the terms contained herein, or be deemed a
third party beneficiary hereunder. This Agreement shall be interpreted to give
it fair meaning, and any ambiguity shall not be construed against either party
as the primary drafter hereof. Should any clause, portion or section of this
Agreement be unenforceable or invalid for any reason, such unenforceability or
invalidity shall not affect the enforceability or validity of the remainder of
this Agreement. Notice may be delivered personally or by mail at the address
shown on the first page of this Agreement. Notices that have delayed effective
dates shall be deemed delivered as of the date of mailing or the date of
personal delivery. No waiver of any provision of this Agreement will be deemed
to constitute a waiver of any other provision. No waiver will constitute a
continuing waiver. No waiver will be binding unless executed in writing by the
party making the waiver. These Terms and Conditions can be revised from time to
time without prior notice to Customer. Terms and Conditions shall be effective
upon posting on the OEConnection website. This Agreement constitutes the entire
agreement between the Parties. OEConnection shall not be liable for delays in
performance cause by fire, flood, explosion, accident, unavailability of parts
or materials, energy shortage, labor, trouble, war, inclement weather,
telecommunication or power failure, sabotage, law or government regulation or
any other cause reasonably beyond its control. This Agreement shall not be
construed to create a partnership, joint venture or agency relationship between
the parties.
17. Faxes. Customer
agrees to comply with the Telephone Consumer Protection Act of 1991, and will
obtain appropriate prior express consent from the dealership receiving the
facsimile transmission, evidenced by a signed, written statement including the
facsimile number to which the tax may be sent, and clearly indicating the
dealership’s consent to receive the facsimile from Customer.
18. Applicability
of Export and Other Laws and Regulations. Customer acknowledges and
agrees that the provisions of this Agreement, as well as the Database and
Software, are subject to the laws of the United States including export laws
and regulations. Customer further acknowledges and agrees that unauthorized use
and disclosure of the Database or the Software is prohibited by Chapter 12 of
Title 17 of the United States Code, as well as Sections 1831, 1832, 2314, 2318
and 2319 of Title 18 of the United States Code, as well as other laws and
regulations. Customer agrees to abide by all laws and regulations which are
applicable to the use of the Database and the Software.
19. Survivability. The
provisions of Sections B, C, 3, 4, 5, 6.1, 6.2, 7, 8, 9, 10, 11, 12, 13, 14,
15, 16, 17, 18, 19 and 20 shall survive any expiration or termination of this
Agreement.
20. Definitions.
a. CollisionLink
Shop means a business to business application for wholesale collision
repair parts ordering. Parts orders are automatically generated via the repair
facilities EMS or BMS system and submitted to a corresponding dealership.
b. Database
means the database(s) of a selected set of image, graphic and text information.
c. Manufacturer
means any original equipment manufacturer or other supplier of the technical
information included in the Database.
d. Software means the
software provided by OEConnection as part of CollisionLink. “Software” may
include third-party programs selected and provided by OEConnection in
connection with Product, but does not include any third-party software or
programs not provided by OEConnection.