End-user License and Subscription Agreement for DeskManager Software
Last Updated: February 28, 2014
This End-User License And Subscription Agreement (Agreement) is between AutoManager, Inc. (AutoManager), a California corporation with its principal place of business at 7301 Topanga Canyon Blvd, Suite 200, Canoga Park, California 91303 and you (either an individual or a single entity) (Licensee) for the DeskManager software that accompanies this Agreement, which includes associated media and AutoManager Internet-based services (Software). By installing such Software, Licensee agrees that the Software License for such Software shall incorporate the terms and conditions set forth below. AutoManager may amend these terms and conditions upon notice to Licensee. The latest version of these terms and conditions will be posted on the AutoManager Web Site (www.AutoManager.com), and Licensee agrees to review them prior to using the Software.
1. Grant of License
(a) Single-User License.
If the license granted is for a single user, then, subject to the terms and conditions of this Agreement, AutoManager hereby grants to Licensee a non-exclusive, non- transferable license to install and use the Software, in machine-readable object code form only, on a single computer for use by a single individual.
(b) Multi-User License.
If the license granted is for multiple users, then, subject to the terms and conditions of this Agreement, AutoManager hereby grants to Licensee a non-exclusive, non- transferable license to install and use the Software, in machine-readable object code form only, on the number of computers for use by the number of users for which the Licensee has paid for. Licensee may only use the Software only on the authorized number of computers and only by the authorized number of users. Licensee agrees not to attempt, or permit any third party, to modify or tamper with the normal function of any license manager or similar function in the Software that regulates usage or copying of the Software.
(c) Subscription Service.
If the license granted is for a subscription term, then, subject to the terms and conditions of this Agreement, AutoManager hereby grants to Licensee a non-exclusive, non- transferable license to install and use the Software, in machine-readable object code form only, on the number of computers limited by the number of Subscription Users for which the Licensee has paid for. Licensee may only use the Software only on the authorized number of computers and only by the authorized number of users. Licensee agrees not to attempt, or permit any third party, to modify or tamper with the normal function of any license manager or similar function in the Software that regulates usage or copying of the Software.
(d) General License Terms.
Licensee may make one copy of the Software for backup and/or archival purposes, provided that Licensee reproduces on such copy all copyright and other proprietary rights notices set forth on or in the original Software. For each user of the Software authorized by your license agreement, Licensee may print one paper copy of the documentation for internal use by such user.
LICENSEE AGREES THAT IT SHALL NOT, IN WHOLE OR IN PART, AT ANY TIME DURING THE TERM OF OR AFTER ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT: (a) SELL, ASSIGN, SUBLICENSE, LEASE, RENT, TIMESHARE, GRANT A SECURITY INTEREST IN, DISTRIBUTE OR OTHERWISE TRANSFER THE SOFTWARE; (b) COPY OR REPRODUCE THE SOFTWARE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT; (c) DISCLOSE THE SOFTWARE TO ANY OTHER INDIVIDUAL OR ENTITY WITHOUT THE PRIOR WRITTEN CONSENT OF AUTOMANAGER; (d) MODIFY, TRANSLATE, ADAPT, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE FOR, OR CREATE DERIVATIVE WORKS BASED ON, THE SOFTWARE OR MERGE THE SOFTWARE INTO ANY OTHER SOFTWARE; or (e) ALLOW ANY THIRD PARTY TO DO ANY OF THE ACTS DESCRIBED IN SECTIONS 2(a) THROUGH 2(d) ABOVE.
3. Ownership and Proprietary Rights.
The Software, its structure, organization and code, and all documentation relating to the Software, are the confidential and proprietary property of AutoManager and/or its licensors, and all right, title and interest in and to such property and any and all copies of the Software (in whole or in part, and in any form) shall remain with AutoManager and/or its licensors, both during the term of and after any expiration or termination of this Agreement. Licensee acknowledges that AutoManager and/or its licensors have patent, copyright, trademark, trade secret and other intellectual property rights in the Software under United States and other foreign patent, copyright, trademark, trade secret and other intellectual property laws and international treaties, and that all such patent, copyright, trademark, trade secret and other intellectual property rights remain the exclusive property of AutoManager and/or its licensors at all times.
Licensee shall not alter or remove any copyright or other proprietary notices on the Software or any other materials provided pursuant to this Agreement.
A portion of the initial license fees will be applied to the fee for technical support and maintenance for the Software for the initial period which AutoManager will provide in accordance with its standard technical support and maintenance policies in effect as of such time. Thereafter, AutoManager will provide technical support and maintenance for the Software only upon Licensee's payment of AutoManager's then-current standard fee schedules for technical support and maintenance posted on the AutoManager Web Site from time to time during the term of this Agreement.
5. Limited Warranty
For a period of ninety (90) days from the Effective Date, AutoManager warrants that: (a) the media on which the Software is distributed, if any, will be free from defects in material and workmanship under normal use; and (b) when run on supported hardware in accordance with the AutoManager documentation, the Software will operate substantially in accordance with and conform to the AutoManager documentation for the Software. In the case of defective media, AutoManager's entire liability and Licensee's exclusive remedy will be the replacement of the media. In the case of nonconforming Software, AutoManager's entire liability and Licensee's exclusive remedy will be that AutoManager will, at its sole discretion, provide Licensee with either corrections to the nonconforming Software or a refund of Licensee's license fee for such Software.
6. Disclaimer of Warranties
LICENSEE EXPRESSLY UNDERSTANDS AND AGREES AS FOLLOWS:
(a) EXCEPT FOR THE LIMITED WARRANTIES PROVIDED IN SECTION 5 ABOVE, THE SOFTWARE AND ANY OTHER MATERIALS PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED TO LICENSEE ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OF ANY NATURE. AUTOMANAGER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF AUTOMANAGER HAS BEEN INFORMED OF SUCH PURPOSE, AS WELL AS ALL WARRANTIES ARISING FROM A COURSE OF DEALING OR CUSTOM OF TRADE WITH RESPECT TO THE SOFTWARE. LICENSEE'S USE OF THE SOFTWARE IS AT LICENSEE'S SOLE RISK. NO AGENT OF AUTOMANAGER IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF AUTOMANAGER AS EXPRESSLY SET FORTH HEREIN.
(b) AUTOMANAGER MAKES NO WARRANTY THAT (i) THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, (ii) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) NO ACCOUNTING, FINANCIAL, LEGAL OR TAX ADVICE OR COUNSEL IS GIVEN, OR SHALL BE DEEMED TO HAVE BEEN GIVEN, BY THE SOFTWARE.
7. Limitation of Liability
IN NO EVENT SHALL AUTOMANAGER OR ITS LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, GOODWILL, DATA, OR USE, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION), OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES INCURRED BY CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE, OR THE PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF AUTOMANAGER HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL AUTOMANAGER OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AGGREGATE AMOUNT OF FEES PAID BY LICENSEE TO AUTOMANAGER DURING THE PRECEDING TWELVE (12) MONTHS HEREUNDER. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND INDEPENDENT OF ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED WARRANTY AND REMEDIES PROVIDED HEREUNDER.
8. Terms of Sale and Refund Policy
All sales are final and no refunds will be given.
This rule incorporates by reference the entirety of the AutoManager Terms of Sale and Refund Policy (located at http://www.automanager.com/legal/refund-policy.aspx. If you do not agree to and accept these policies, do not purchase this software.
9. Term or Termination
The term of this Agreement shall commence upon the Effective Date and will continue until terminated in accordance with its terms. During the term of any technical support and maintenance services initially purchased by Licensee or any renewal term thereof, Licensee has the right to renew such services for additional time periods by paying to AutoManager its then-current standard technical support and maintenance renewal fees for the number of software products, computers and users then covered by this Agreement. Any such technical support and maintenance services will terminate if Licensee does not renew them prior to any expiration date.
AutoManager may terminate this Agreement effective upon written notice if Licensee fails to comply with any of the terms and conditions of this Agreement. This Agreement shall terminate immediately without notice from AutoManager if the license fee is refunded for any reason, including without limitation pursuant to the Limited Warranty in Section 5.
(c) Effect of Termination.
Upon any expiration or termination of this Agreement, Licensee shall: (i) cease using the Software and any other materials provided pursuant to this Agreement, (ii) cause its employees and agents to destroy and to certify to the destruction of all copies of the Software and any other materials provided pursuant to this Agreement, (iii) return all original copies of the Software and any other materials provided pursuant to this Agreement to AutoManager, and (iv) make no further use of any of the Software and any other materials provided pursuant to this Agreement for any purpose. Notwithstanding the foregoing, the terms of Sections 2, 3, 5, 6, 7, 8, 10, 11, 12, 14, and 15 shall survive any expiration or termination of this Agreement.
10. Subscription and Cancellation
The subscription shall commence upon the Effective Date and will continue for the Subscription Term specified in the order form.
Fees will be fixed during the Subscription Term set forth in your order form; quoted and payable in United States dollars; based upon the number of Subscription User licenses purchased, even if actual usage is lower; non-cancelable and non-refundable.
The Subscription Term shall automatically renew for additional equal-length terms, unless Licensee gives AutoManager notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. All fees will be due on the applicable anniversary date, and any pricing or Subscription User changes for such renewal term will be reflected on such invoice. AutoManager reserves the right to modify the fees set forth in a specific order form in connection with Subscription Term renewal of such order form.
AutoManager may change the service at any time and for any reason without notice. We may cancel or suspend your service or a portion of your service at any time and for any reason without notice, including if you violate the terms of this contract. If we do, your right to use the service will stop right away. Cancellation of the service will not change your obligation to pay any charges due on your billing account. If we cancel the service without cause, we will refund the unused portion of your service charge for that period on a pro rata basis. You may cancel your service at any time for any reason. Cancellation of the service by you will not alter your obligation to pay all charges made to your billing account. All subscription fees are non-cancelable and non-refundable.
11. Incorporation of Online Service Agreement
During your use of this Software, you may interact with various online AutoManager services. Your interaction with these services is governed by the AutoManager Service Agreement.
This rule incorporates by reference the entirety of the AutoManager Service Agreement (located at http://www.automanager.com/legal/service-agreement.aspx. You may only use these services if you agree to these terms. If you do not agree, do not use these services.
12. U.S. Government Restricted Rights.
The Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government and parties acting on its behalf is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 and in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR §52.227-19, as applicable.
13. Export Restrictions
Licensee understands that the Software, all documentation and technical data relating to such Software, and any direct product thereof, are subject to U.S. export control laws and regulations, including without limitation the U.S. Export Administration Regulations (15 C.F.R. Parts 730-774). Licensee represents and warrants that it: (a) understands that the AutoManager Software, and such documentation and technical data are subject to export controls under the EAR, (b) is not located in a prohibited destination country under the EAR or U.S. sanctions regulations, (c) is not a Denied Party, Specially Designated National, or other person or entity prohibited from receiving exports/re-exports by U.S. law; and (d) will not export, re-export, or transfer the Software, documentation, technical data or direct products thereof in violation of U.S. export control laws or regulations.
Unless otherwise stated by Licensee in writing, Licensee agrees that AutoManager may use Licensee's name, including Licensee's trademark(s) or trade name(s), and comments about the Software in connection with publicity and marketing of the Software.
15. Usage of Colleced Data
During the process of using the Software, certain information may be uploaded to AutoManager servers. Such information may include but not be limited to Your inventory and Your deals. AutoManager will use this information for statistical purposes. The source from which this information was collected and the individual private information will not be shared with any outside organizations and/or agencies.
(a) Entire Agreement; Amendment.
This Agreement, including any Exhibits, Schedules or Appendices referred to in and attached hereto or thereto, sets forth the entire understanding and supersedes all prior and contemporaneous agreements between the parties relating to the subject matter contained herein and merges all prior and contemporaneous discussions, agreements and understandings, both verbal and written, between them regarding such subject matter. No modifications, additions, or amendments to this Agreement shall be effective unless set forth in a writing referencing this Agreement and signed by a duly authorized representative of the party to be bound thereby. All provisions of this Agreement shall take precedence over any conflicting terms and conditions of any purchase orders, invoices or other instruments which may be issued by either party, unless otherwise agreed by both parties in writing.
(b) Governing Law.
This Agreement shall be governed in all respects by the laws of California applicable to agreements negotiated, executed and performed in California between California corporations without regard to its conflicts of laws rules, whether one or more of the parties shall now be or hereafter become a resident of another state or country.
(c) Dispute Resolution.
Any and all disputes relating to or arising in connection with this Agreement shall be resolved by exclusive, binding arbitration. In such case, both parties agree to the appointment of three (3) arbitrators, with one arbitrator selected by each party, and the third selected by the American Arbitration Association ("AAA"). The arbitration shall be conducted in Los Angeles County, California in accordance with the commercial arbitration rules, regulations and procedures of the AAA then in effect, and the decision of the arbitration panel shall be final and binding on both parties. Judgment on the arbitrators' award may be entered by any court having jurisdiction. Each party to this Agreement hereby consents to the jurisdiction and venue of the U.S. federal and California state courts located in Los Angeles, California for such purposes.
(d) Attorneys' Fees.
If any action or proceeding shall be commenced to enforce or interpret this Agreement or any right arising in connection with this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party, all reasonable attorneys' fees, costs and expenses incurred by such prevailing party in connection with such action or proceeding and any negotiations to avoid such action or proceeding.
Every notice or other communication required or contemplated by this Agreement shall be in writing and shall be deemed received and effective (i) on the date of personal delivery, (ii) on the date it is officially recorded as delivered to the intended recipient when sent by postage prepaid, return receipt requested, registered or certified mail (airmail if available), or the equivalent of registered or certified mail under the laws of the country where mailed, or in the absence of such record of delivery, the effective date shall be presumed to have been the fifth (5th) business day after it was deposited in the mail, (iii) on the date it is officially recorded as delivered to the intended recipient when sent by internationally recognized overnight courier, such as Federal Express, DHL or UPS, or in the absence of such record of delivery, the effective date shall be presumed to have been the third (3) business day after delivery to such courier, or (iv) the date transmitted by facsimile with a confirmation copy sent simultaneously by one of the other methods permitted under this Section 13(e), in each case addressed to the addresses identified in the introduction to this Agreement. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given. In the event Licensee otherwise needs to contact AutoManager, it may contact AutoManager as follows:AutoManager, Inc.
7301 Topanga Canyon Blvd., Suite 200
Canoga Park, California 91303
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is determined by a court of applicable jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be modified or deleted in such a manner so as to make the Agreement as modified valid, legal and enforceable, and the remainder of this Agreement shall not be affected thereby.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute only one and the same instrument. Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile signature of a party hereto shall constitute a valid and binding execution and delivery of this Agreement by such party. Such facsimile copies shall constitute enforceable original documents.