OEConnection LLC Collision Repair Facility Subscription Agreement
This Subscription Agreement (“Agreement”) is entered into by and between OEConnection LLC (“OEConnection”), 4205 Highlander Parkway, Richfield, OH 44286, and the subscriber (“Subscriber”) listed in the Subscription Agreement Signature Page, with reference to the following facts:
1. Subscriber acknowledges and agrees that this Agreement and any written addendum, if any, referencing this Agreement entered into by the parties (“Addendum”) sets forth the terms and conditions with respect to all of the Products(s) listed on the Subscription Agreement Signature Page. In the event of any conflict or inconsistency between the terms of the Agreement and the Addendum, the Addendum shall control.
The nonexclusive right to use the Product(s) granted to Subscriber shall be subject to the following terms and conditions:
A. AcceptanceThis 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or contradictory terms or conditions proposed by Subscriber are hereby objected to, and such terms shall be superseded and controlled by the Terms and Conditions of this Agreement.
B. ConsiderationSubscriber 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 Subscriber a nonexclusive limited right to access and use Product subject to Subscriber’s compliance with the attached Terms and Conditions. Subscriber’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. Subscriber 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, Subscriber 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, Subscriber signifies its acknowledgement and assent to the Terms and Conditions set forth below. If Subscriber does not agree with the Terms and Conditions, Subscriber should not use the OEConnection website. The Terms and Conditions may be changed from time to time and at any time by OEConnection. Subscriber’s use of Product after the changes are posted on the OEConnection website shall signify Subscriber’s acceptance of the changed terms. Subscriber should check the posted Terms and Conditions periodically for changes.
C. Parties to TransactionProduct serves as a portal for Subscribers 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 Subscriber 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 Subscriber 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 Subscriber 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 Subscriber’s use of Product shall be subject to the following terms and conditions:
1.Customer Service. Subscriber telephone support and services are available from 8:00 a.m. to 8:00 p.m. Eastern Time Monday through Friday. 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 Subscriber acknowledges that it will be responsible for all necessary computer equipment.
3. Ownership. Subscriber acknowledges that the Product(s) and the related Software, Database, know-how relating to the Software and Database, and the programs, processes, methods, and information contained or embodied therein: (i) constitute valuable, confidential and proprietary property rights of OEConnection or other parties from whom OEConnection has obtained marketing or licensing rights, and (ii) may be protected by patents owned or licensed by OEConnection. Subscriber will take no action in deprivation of any such property rights. Subscriber further acknowledges that Subscriber’s use of the Product(s) under this Agreement shall not operate to modify or abridge such rights in the Product(s), the related Software, or the Database or create in Subscriber any right in the Product(s).
OEConnection is authorized by Manufacturers to republish certain image and text information for sale, use, and/or license to authorized users. OEConnection’s ability and obligation to provide this information to Subscriber is subject to and dependent and conditioned upon OEConnection’s continued access to this information supplied by the Manufacturers. OEConnection shall not be obligated to provide Subscriber with the Product(s) or Database 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 Subscriber has ceased to be an eligible user authorized to use the Product(s) or Database or any updates thereto. In no event shall OEConnection have any liability to Subscriber for failure to provide the Product(s) or Database or any updates.
4.Restriction on Use. Use of the Product(s) shall be limited to the generation of a selected list of information and selected images from the Database in the Subscriber’s ordinary day-to-day business. Subscriber 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. Subscriber agrees not to tamper with or damage the Product(s). Further, Subscriber 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(s). Subscriber agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Product. Subscriber agrees that it will not take any action that imposes an unreasonable or disproportionately large load on OEConnection’s infrastructure.
Subscriber has no rights in or to the source code of the Software. The Subscriber 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 or available to Subscriber. Further, Subscriber 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(s) except as expressly permitted by this Agreement. Subscriber agrees not to use the Product(s) to violate any applicable local, state, federal, or international law or regulation.
Subscriber agrees not to use the Product(s) to assist in the purchase of parts or services that:
(i) are not original equipment manufactured parts; or in any manner that (ii) prevents OEConnection from participating as a compensated facilitator of such purchase.
5. Updates and Modifications. OEConnection will supply Subscriber access to any enhancements and modifications to the Software made by OEConnection for which OEConnection does not charge a separate fee.
Subscriber acknowledges that enhancements and/or modifications may at times require changes to the Subscriber’s computer system. Subscriber agrees to make such changes or expansion at its expense. Subscriber will be solely responsible for obtaining hardware and related equipment that meets minimum hardware requirements provided by OEConnection.
6.1 Effect of Termination. As set forth above, this Agreement may be terminated. Upon termination of this Agreement, all rights of Subscriber under this Agreement shall terminate, provided Subscriber’s obligations regarding the restrictions on use of Product shall continue. Upon expiration or termination of this Agreement, Subscriber 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. Subscriber 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 Subscriber.
6.2 Injunctive Relief. If Subscriber 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 Subscriber agrees, in addition to any other remedy, the right to injunctive relief. The Subscriber 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 Subscriber for any claim whatsoever, regardless of form, shall be limited to actual damages, not to exceed the amount paid, if any, to OEConnection by Subscriber for accessing the OECONNECTION website. In no event will OEConnection be liable to Subscriber 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 Subscriber 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 Subscriber 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. SUBSCRIBER HAS THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND EQUIPMENT USED IN CONNECTION WITH PRODUCT, AND SUBSCRIBER 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. Subscriber 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. Subscriber agrees that OEConnection shall not be responsible for the availability of the content located on or through any such external linked sites.
10. Subscriber’s Terms and Conditions.Subscriber acknowledges that any order transmitted by Subscriber utilizing Product shall be subject to separate terms and conditions governing the transaction between Subscriber and the Dealer.
11. Privacy Statement. Subscriber acknowledges and agrees to the Privacy Statement established by OEConnection and posted on the OEConnection website. Subscriber 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. Subscriber shall not use in any way the trademarks or service marks of the automobile manufacturers or OEConnection (D2DLink®, CollisionLink® , or any marks that appear on OEConnection’s website) without a license from the owner of the mark to be used.
13. Indemnity. Subscriber 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) Subscriber’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 Subscriber’s use of Product, such taxes, and any interest or penalties will be a charge due and payable by Subscriber 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 Subscriber 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 Subscriber’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 Subscriber 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. Subscriber shall not assign this Agreement without OEConnection’s prior written approval. If Subscriber sells its business, OEConnection will not unreasonably withhold consent for assignment to the purchasing entity provided the purchasing entity agrees to be bound by the terms and conditions of this Agreement. 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 for OEConnection and on the Subscription Agreement Signature Page for Subscriber. 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 caused by fire, flood, explosion, accident, unavailability of parts or materials, or unavailability of data from manufacturers or others, energy shortage, labor trouble, war, terrorist acts, 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. This Agreement constitutes the entire contract between the parties. Except as otherwise agreed to in a writing signed by authorized representatives of both parties, the terms of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter 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 or arbitral proceeding, if any, involving this Agreement. In the event OEConnection is a party with Subscriber’s Manufacturer to an agreement regarding Subscriber’s Product(s) subscription, any inconsistencies or conflicts between the terms of such agreement and this Agreement shall be governed by such agreement.
17. Faxes. Subscriber 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 Subscriber.
18. Applicability of Export and Other Laws and Regulations. Subscriber acknowledges and agrees that the provisions of this Agreement, as well as the Database and the Software, are subject to the laws of the United States including export laws and regulations. Subscriber 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, and other laws and regulations. Subscriber agrees to abide by all laws and regulations which are applicable to the use of the Software and the Database.
19. E-Signature. Subscriber acknowledges that it and its representative are authorized parties and are acting in good faith. Subscriber agrees that an electronic signature shall constitute acceptance of this Agreement and shall create a legally binding contract. Subscriber further agrees that such electronic signature shall not be denied legal effect, validity, or enforceability solely because it is in electronic form as stipulated by the Electronic Signatures in Global and National Commerce Act, codified at 15 U.S.C. § 7001 et seq.
20. 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.
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.
e. Portal/Exchange means the electronic commerce platform and portal that offers collision shops, dealers, fleets, installers, insurance companies, consumers, authorized distributors and others a single source for original equipment parts, service information and parts procurement needs through original equipment manufacturers’ dealers and authorized distributors and includes all Products.
f. Product(s) means the product(s) or suite(s) of products subscribed to by Customer as set forth on the Subscription Agreement Signature Page.
g. Subscription Agreement Signature Page means the signature page of Subscriber or any enrollment form or any other data submission required to subscribe to a product.
h. Technology and/or Data Processing System(s) means dealer management system, inventory management system, business management system, collision estimating system or any comparable computer system.