OEConnection LLC
Order Management Subscription Agreement

This Order Management Subscription Agreement is entered into by and between OEConnection LLC ("OEConnection"), 4205 Highlander Parkway, Richfield, OH 44286, and the party listed above ("Dealership").

I. General Provisions.

1. Monthly Subscription Fees. For each Product the Dealership agrees to pay the Subscription Fees in accordance with the terms set forth herein.

 

2. Term.  The term of this Agreement shall be twelve months, commencing from the date this Agreement is accepted by OEConnection (“Initial Term”). After the Initial Term, the term shall be extended automatically and renewed for subsequent consecutive renewal terms of twelve months each, unless either party gives written notice to the other of its intent not to renew this Agreement not less than 90 days prior to the end of the term.  The Dealership may not cancel this Agreement during its term.  OEConnection reserves the right to terminate this Agreement upon 30 days written notice to the Dealership.

 

3. Cooperation.  Dealership shall cooperate fully with OEConnection in the activation of a Product and the collection of information as permitted herein. OEConnection may cancel this Agreement upon 5 days notice if Manufacturer or others fail to provide OEConnection necessary data or information.

 

4. Software and Database Product Usage. OEConnection hereby authorizes and grants Dealership a nonexclusive, non-sublicenseable, limited right to access and use the Product at the Location(s) and for the franchise(s) listed above. In the event a Product requires a password, Dealership agrees to keep its password and user name confidential (distributed within Dealership on a need-to-know basis only). Dealership agrees that it shall use the Product(s) exclusively in the ordinary conduct of the Dealership’s ordinary day to day operation and business.

II. Terms and Conditions.

The nonexclusive right to use a Product granted to Dealership shall be subject to the following Terms and Conditions:

1. Payment. Dealership agrees that all Subscription Fees shall be billed monthly to Dealership from OEConnection. Any amounts which are not paid when due shall be subject to a late payment charge equal to 18% per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until the date when the payment is actually received by OEConnection.

 

2. 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.

 

3. Equipment. OEConnection shall not be obligated to provide any computer equipment or hardware as part of this Agreement. Dealership acknowledges that it will be responsible for all necessary computer equipment. Further, Dealership agrees to provide OEConnection or its agents or subcontractors with access to, and any and all information necessary to access, the Dealership's DMS.

 

4. Ownership. Dealership acknowledges that the Product and the related Software, Database, 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. Dealership will take no action in deprivation of such property rights. Dealership further acknowledges that Dealership’s use of the Product under this Agreement shall not operate to modify or abridge such rights in the Product or create in Dealership any right in the Product. Further, Dealership acknowledges that the data provided by Dealership and/or produced by Dealership’s use of the Product shall be owned by OEConnection and may be used by OEConnection for other commercial purposes and uses and Dealership shall have no rights on such data. Dealership agrees not to tamper with or damage the Product. Further, Dealership agrees not to use any robot, spider, other automatic device, or manual process to monitor or copy the Database, Software or any part of the Product or its content without OEConnection’s prior written permission. Dealership agrees not to use any device, software or routine to interfere with or attempt to interfere with the proper working of the Product. Dealership 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 Dealership is subject to and dependent upon OEConnection’s continued access to this information supplied by the Manufacturers. OEConnection shall not be obligated to provide Dealership with the Product or any updates in the event that a Manufacturer supplying the Database fails to provide the necessary information or data, properly formatted in a timely manner, or OEConnection determines that the Dealership has ceased to be an eligible user authorized to use the Product or the Database or any updates thereto. In no event shall OEConnection have any liability to Dealership for failure to provide the Product or any updates.

OEConnection’s ability and obligation to provide access to the Product may be subject to and dependent and conditioned upon DMS connectivity. OEConnection shall not be obligated to provide the Product if DMS connectivity is lost or is otherwise unavailable as compared to the date this Agreement is executed. Further, Dealer acknowledges and agrees that if it changes or alters DMS providers, computer platforms or systems that such change or alteration may negatively impact the Product’s functionality and operation.

5. Restriction on Use. Dealership shall use the Software only in object code format in conjunction with the Database at only the Location(s) and only for the franchise listed above. Use of the Product shall be limited to the generation of a selected list of information and selected images from the Database in the Dealership’s ordinary day-to-day business. Dealership shall not generate or attempt to generate a listing of all or any substantial portion of the information or images in the Database for any purpose.

Dealership has no rights in the source code of the Software. The Dealership agrees that it will not, nor will it permit anyone else to modify, copy, disclose, disseminate, translate, reverse assemble, decompile, or otherwise reverse engineer the Software and/or Database or any version of the Software or any portion of the Database utilized by the Dealership. Further, Dealership agrees that it will not, nor will it permit anyone else to copy, modify, upload and download, transmit, publish or otherwise distribute any content from the Product to any other party except as expressly permitted by this Agreement.

6. Updates, Modifications and Amendments. OEConnection may furnish the Database and Database updates as directed by Manufacturers and subject to and conditioned upon the Manufacturers providing correct and properly formatted information to OEConnection. OEConnection will supply Dealership access to any enhancements and modifications to the Software made by OEConnection for which OEConnection does not charge a separate fee.

Dealership acknowledges that enhancements and/or modifications may at times require changes to the Dealership's computer system. Dealership agrees to make such changes or expansion at its expense. Dealership will be solely responsible for obtaining hardware and related equipment that meets minimum hardware requirements provided by OEConnection.

This Agreement may be modified by OEConnection from time to time by posting any amendments on the OEConnection web site. Dealership agrees to be bound by the amendments posted on such web site. Use of Product after an amendment has been posted on the web site shall be deemed an express acceptance of the amendment.

7. No Assignment. Dealership agrees that Dealership will not assign, sublicense, or transfer any right or interest Dealership has in the Product or this Agreement, or give up possession of the Product or any content from the Product, to any other person or entity without OEConnection's prior written consent. If Dealership sells its business, OEConnection will not unreasonably withhold consent for assignment to the purchasing entity provided the purchasing entity agrees to accept the terms and conditions of this Agreement. Any purported assignment or transfer made without OEConnection's consent is null and void.

8. 8.1 Default. The following shall constitute a default under this Agreement:
• Failure by Dealership to pay its monthly bill, within 30 days after receipt as submitted by OEConnection.
• A breach by Dealership of this Agreement and Dealership's failure to cure such breach within 15 days after written notice identifying such breach.
• Dealership's insolvency or inability to pay debts as they become due or assignment for the benefit of creditors or commencement of proceedings in bankruptcy or receivership.
• Any default by Dealership under any other agreement it may have with OEConnection.

8.2 Remedies. If default occurs as set forth above, OEConnection may terminate this Agreement and the Dealership's right to use Product. Thereafter, all amounts previously due plus the Subscription Fee for the month in which the termination occurs shall be immediately due and payable without further notice or demand. The remedies set forth herein and below are cumulative and shall not limit rights and remedies otherwise available to OEConnection.

8.3 Effective Upon Termination. Upon termination of this Agreement, all rights of Dealership under this Agreement shall terminate, provided Dealership's obligations to make payment and its obligations regarding the restrictions on use of Product shall continue. Upon expiration or termination of this Agreement, Dealership shall discontinue all use of Software and/or Database. Dealership will certify in writing that all electronic forms of Software and/or Database have been deleted from computers or other equipment which is owned by or subject to the control of Dealership.

8.4 Injunctive Relief. Notwithstanding any term to the contrary, if Dealership violates Article II, Section 4 or 5 of this Agreement, OEConnection shall have, in addition to any other remedy, the right to injunctive relief, as well as the right to terminate this Agreement immediately. The Dealership hereby acknowledges that other remedies are inadequate.

8.5 Limitation of Liability. IN THE UNLIKELY EVENT THAT THE PRODUCT CAUSES ANY UNEXPECTED INTERFERENCE WITH DAY-TO-DAY OPERATIONS, OECONNECTION WILL, AT ITS DISCRETION AND IN A TIMELY MANNER, USE ITS REASONABLE EFFORTS TO CORRECT THE PROBLEM OR REMOVE THE PRODUCT FROM ITS LOCATION. OECONNECTION’S ENTIRE LIABILITY TO DEALERSHIP FOR ANY CLAIM WHATSOEVER, REGARDLESS OF FORM, SHALL BE LIMITED TO ACTUAL DAMAGES, NOT TO EXCEED THE MONTHLY SUBSCRIPTION FEE ACTUALLY PAID DURING THE PREVIOUS 12 MONTH TERM OF THIS AGREEMENT. IN NO EVENT WILL OECONNECTION BE LIABLE TO DEALERSHIP OR ANY THIRD PARTY FOR ANY OTHER DAMAGES WHATSOEVER ARISING FROM THE USE OR PERFORMANCE OF THE PRODUCT, THE SOFTWARE AND/OR DATABASE AND/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 DEALERSHIP’S OR OECONNECTION’S FAILURE TO PERFORM ITS RESPONSIBILITIES, OR FOR ANY CLAIM AGAINST DEALERSHIP BY ANY THIRD PARTY, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT.

9. 9.1 Warranties. Upon execution and acceptance, OEConnection and Dealership each represent and warrant to the other that the execution and performance of this Agreement are within their respective corporate or organizational powers, have been duly authorized by all necessary requisite actions, do not contravene any governmental or contractual restrictions binding upon such party, and that this Agreement is valid, binding, and legally enforceable in accordance with its terms.

9.2 Limitation of Warranty. The parties acknowledge that the operation of the Product will not be uninterrupted or error-free, and defects may not be able to be corrected. Further, OEConnection does not represent or warrant that the information in the Database is correct or that there will be connectivity to the Dealership’s DMS. The Database may contain technical inaccuracies, outdated information, typographical errors or pricing errors. Notwithstanding any provision of this Agreement to the contrary, OEConnection shall have no obligation or liability to Dealership or any other person if: (i) OEConnection fails to produce the Database or Database updates, (ii) any Databases are produced by OEConnection in an inaccurate, incomplete or untimely manner for any reason, including but not limited to Manufacturer’s failure to furnish OEConnection with the required information or the Manufacturer furnishes information in an inaccurate, incomplete or untimely manner, or (iii) the DMS connectivity is lost or is otherwise unavailable as compared to the date the Agreement is executed.

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. Dealership has the sole responsibility for adequate protection and backup of data and equipment use in connection with the Product. Dealership agrees to indemnify, defend, and hold OEConnection harmless from any claims based on use of the Product including claims for lost data, work delays, or lost profits resulting from use of materials or content from the Product. To the extent permitted by applicable law, the Product is provided “AS IS”.

OECONNECTION HEREBY EXPRESSLY DISCLAIMS ALL OTHER 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, purchased or otherwise made available or obtained by use of the Product or Software or Database.

10. Indemnity. Dealership 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) Dealership’s breach of this Agreement, or (ii) this Agreement, other than Losses caused by OEConnection’s gross negligence or willful misconduct.

 

11. Dealership's Terms and Conditions. Dealership acknowledges that any order filled by Dealership utilizing the Product shall be subject to separate terms and conditions governing the transaction between Dealership and the collision shop.

 

12. Privacy Statement. Dealership acknowledges and agrees to the Privacy Statement established by OEConnection and posted on the OEConnection website. Dealership acknowledges that the Privacy Statement may be changed by OEConnection from time to time by posting the new Privacy Statement on the OEConnection website.

 

13. Third-Party Trademark. Dealership shall not use in any way the trademarks or servicemarks of the automobile manufacturers or OEConnection (D2DlinkSM, CollisionLink®, or any marks that appear on any OEConnection web site) without a license from the owner of the mark to be used.

 

14. Taxes. The Subscription Fees do not include taxes. If any taxes are due or ultimately assessed because of services provided pursuant to this Agreement, such taxes, and any interest or penalties, will be an additional charge due and payable by Dealership.

 

15. Applicability of Export and Other Laws and Regulations. Dealership 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. Dealership 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. Dealership agrees to abide by all laws and regulations which are applicable to the use of the Database and the Software.

 

16. 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 Dealership 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 Dealership’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 Dealership 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 8.4.

 

17. Miscellaneous. The descriptive headings of the various sections and 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 entered by Dealership above. 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. OEConnection shall not be liable for delays in performance cause by fire, flood, explosion, accident, unavailability of parts or materials, acts of terrorism, 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. The Product may include links to other sites on the Internet that are owned or operated by third parties. Dealership agrees that OEConnection shall not be responsible for the availability of the content located on or through any such external linked sites. Dealership consents to receive, at the facsimile number set forth above, any facsimile transmissions sent via the Product by its authorized users, and will notify OEConnection immediately if it receives unlawful transmissions or transmissions in violation of this Agreement.

 

18. Survival. The provisions of Sections I.1, II.1, II.4, II.5, II.6, II.8.2, II.8.3, II.8.4, II.8.5, II.9.1, II.9.2, II.10, II.12, II.13, II.14, II.15, II.16, II.17, II.18, and II. 21 shall survive any expiration or termination of this Agreement.

 

19. Acceptance and Integration. This Agreement is subject to acceptance by OEConnection at its administrative office. Upon OEConnection’s acceptance, this will become a binding Agreement and will supersede and replace any and all other CollisionLink Subscription Agreements between the parties so that all product offerings checked above shall be governed by this Agreement. This Agreement constitutes the entire contract between the parties. Except as modified pursuant to the terms hereof, the terms of this Agreement are intended by the parties as a final expression of their agreement with respect to such terms as are included herein and may not be contradicted by evidence of any prior or contemporaneous written or oral representations, agreements or understandings, whether express or implied. The parties further intend that this Agreement constitutes the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial proceeding, if any, involving this Agreement.

 

20. Telephone Consumer Protection. Dealership agrees to execute any consent to receive facsimile transmissions from Product users, as required by the Telephone Consumer Protection of 1991. Dealership also consents to receive, at the facsimile number set forth above, any facsimile transmissions sent via OEConnection by its authorized users, and will notify OEConnection immediately if it receives unlawful transmissions or transmissions in violation of this Agreement.

 

21. Definitions.

Any additional, inconsistent or contradictory terms or conditions of Dealership's purchase order shall be superseded and controlled by the Terms and Conditions of this Agreement.

 

a.   CollisionLink® 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. The CollisionLink® service is composed of the Software and the Database.

b.  DMS means dealer management system.

c.  Database means the database(s) of a selected set of image, graphic and text

     information. Certain Products will not utilize the Database. Any reference in this Agreement to the Database should be disregarded with regard to such Product(s).

d.  Location means a single site where Dealership conducts business.

e.  Manufacturer means any original equipment manufacturer or other supplier of the technical information included in the Database.

f.   Product(s) means the product(s) checked on the Subscription Agreement Signature Page.

g.  Software means the software provided by OEConnection as part of the Product(s). "Software" may include third-party programs selected and provided by OEConnection in connection with the system, but does not include any third-party software or programs not provided by OEConnection.

h.  Subscription Fee means the amounts payable to OEConnection by Dealership pursuant to Article I, Section 1 herein.