OEConnection LLC

RepairLink Customer Subscription Agreement

            This Subscription Agreement (“Agreement”) is entered into by and between OEConnection LLC (“OEConnection”), 4205 Highlander Parkway, Richfield, OH 44286, and the Customer listed above. 

I.          GENERAL PROVISIONS.

1.   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inconsistent or contradictory terms or conditions proposed by Customer are hereby objected to, and such terms shall be superseded and controlled by the Terms and Conditions of this Agreement.

2.   Consideration/Termination.  Customer is not paying money to OEConnection for the right to use the Product.  In consideration of executing this Agreement and the use of the Product, OEConnection hereby grants Customer a nonexclusive limited right to access and use the Product subject to Customer’s compliance with the Terms and Conditions set forth below.  Customer’s right to utilize the 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 the 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 II 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 the 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.

3.   Parties to Transaction. The 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.

II.        TERMS AND CONDITIONS.

     The Customer’s use of the 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 Product, 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 the Product.   Customer further acknowledges that Customer’s use of the Product under this Agreement shall not operate to modify or abridge such rights in the Product or create in Customer any right in the Product or the related Software and Database.  Further, Customer acknowledges that the data provided by Customer and/or produced by Customer’s use of the 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 the Product. Customer agrees not to use any device, software, or routine to interfere or attempt to interfere with the proper working of the 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 the 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 the 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 the Product except as expressly permitted by these terms and conditions.

5.   Updates, Modifications and Amendments.   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.

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

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 the 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 the 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 THE 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.

8.1   Warranties. Upon execution and acceptance, OEConnection and Customer 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.

8.2 Limitation of Warranty.  The parties acknowledge that the operation of the 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, purchased, or otherwise made available or obtained by use of the Product or the software or database.

9.   Circumvention of Product.  Customer agrees not to use the Product to assist in the purchase of automotive parts or services in any manner that: (i) are not original equipment manufactured parts,  (ii) prevents OEConnection from participating as a compensated facilitator of such purchase or (iii) otherwise in any manner inconsistent with this Agreement. The 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 the 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 (D2DLink^SM, DMS Link, CollisionLink^SM, Link IQ, FleetLink 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 the 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 the Product.  This obligation shall survive termination of the Agreement.

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 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 II 6.2. 

17.   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 OEConection 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. Customer agrees not to use the Product to assist in the purchase of automotive parts or services in any manner that are not original equipment manufactured parts.

18.   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 notice may be sent, and clearly indicating the dealership’s consent to receive the facsimile from Customer.

19.   RepairLink.  Customer acknowledges and agrees that OEConnection has no obligation to validate or scrub any information that is part of RepairLink Database or the Portal/Exchange.

20.    Survivability.  The provisions of Sections I 2, I 3, II 3, II 4, II 5, II 6.1, II 6.2, II 7, II 8.1, II 8.2, II 9, II 10, II 11, II 12, II 13, II 14, II 15, II 16, II 17, II 18, II 19, II 20 and II 21 shall survive any expiration or termination of this Agreement.

21.   Definitions.

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

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

c.       Portal/Exchange means the electronic commerce platform and portal offering fleet owners, dealers and others a source for original equipment parts, service information and parts procurement needs through original equipment Manufacturers’ dealers.

d.        RepairLink means a business to business application for repair parts ordering by fleet owners or installers.  The RepairLink service is composed of the Software and the Database.

e.       Software means the software provided by OEConnection as part of the Product.  “Software” may include third-party programs selected and provided by OEConnection in connection with the Product, but does not include any third-party software or programs not provided by OEConnection.