RAPID RECON INC. SOFTWARE LICENSE AGREEMENT
ATTENTION: I ACKNOWLEDGE THAT I AM LEGALLY BOUND BY THE TERMS OF THIS LICENSE AGREEMENT AND MUST SCROLL DOWN TO AGREE.
This software license agreement is a legal agreement between the dealership or dealer group and Rapid Recon. By clicking “accept” you are agreeing to the terms of this software license for all users, whether employed by your dealership or group, acting as a subcontractor or otherwise given access to the software by you. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND your Dealership of Dealer Group to these terms, do not “Accept” or use the Rapid Recon software.
As used in this Agreement, the following terms shall have the following meanings when used in initial capital letters: “Affiliate” means a person or entity (“Person”) that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, Licensee. For the purposes of this definition, control shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. “Licensee Data” means data and information that is uploaded by Client and stored on Rapid Recon’s servers for use in connection with Licensee’s use of the Software. “Documentation” means any instruction manual or other accompanying written materials for the Software. “Permitted User” means one employee or vendor of Licensee that has been designated by Licensee and provided with a unique login identification and password to access the Software, which is confidential and may not be shared with anyone.
Rapid Recon hereby grants to Licensee during the term a personal, non-exclusive, non-sublicenseable, non-transferable license to use the Software and any Documentation, subject to the terms and conditions of this Agreement. Only those Permitted Users will have access to or use of the Software. As used herein, references to Licensee include any applicable Permitted Users with respect to the Software. Any of Licensee’s Permitted Users are bound by the terms and conditions of this Agreement. Licensee shall be liable for any Permitted User’s failure to comply with the terms and conditions of this Agreement and shall indemnify Rapid Recon, its affiliates, their officers, employees, agents and subcontractors from and against all claims, liabilities, losses, damages and costs (including reasonable attorney fees) suffered by them arising from a breach or any violation by its Permitted Users of the terms and conditions of this Agreement.
LICENSE FEE; PAYMENT; TAXES
The License Fee will be billed in advance beginning on the License Commencement Date. All fees are due and payable thirty (30) days from the date of billing. Licensee shall be liable for all costs relating to or arising out of the collection of any delinquent payment, including, but not limited to, any and all collection fees, reasonable attorneys’ fees, court costs and expenses. Should Licensee choose to make any payment to Rapid Recon by wire transfer or other electronic means, Licensee shall be solely responsible for ensuring sufficient funds are included with such payment to cover any charge(s) imposed by Licensee’s bank or other financial institution or by any other bank or other financial institution in connection with such transfer. Failure to make payment may result in suspension of services, and Rapid Recon shall have no liability with respect to such a suspension. Licensee shall be solely responsible for identification and payment of any duties, tariffs, assessments, and taxes (other than U.S. federal income tax and/or state income tax payable by Rapid Recon on its revenue) which may accrue or be assessed relating to this Agreement or the provision of services hereunder. Under no circumstance shall fees billed by Rapid Recon and payable to Rapid Recon by Licensee be reduced owing to any such duties, tariffs, assessments, or taxes unless otherwise required by applicable law.
TERM AND TERMINATION
This Agreement shall automatically renew on a month-to-month basis unless either party notifies the other party of termination prior to thirty (30) days before the end of the then current term. Additionally, after the first 90 days and provided the licensee is current licensee may cancel with 30 days written notice. licensee may cancel In the event of any breach of any material term or provision by either party of this Agreement, the other party may terminate this Agreement by giving thirty (30) days’ prior written notice thereof; provided, however, that such termination shall not take effect if the party in breach cures or corrects the breach within such notice period. Either party may terminate this Agreement upon written notice to the other in the event (i) any injunction, order, judgment, decree or regulatory restriction imposed upon the other party by any government, state or other entity exercising executive, legislative, judicial, regulatory or administrative functions, materially and adversely affects the other party’s ability to perform its obligations under this Agreement, or (ii) the other party is adjudicated as bankrupt or if a petition in bankruptcy is filed by or against the other party or if the other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy act or insolvency laws.
Upon any termination of this Agreement, Licensee shall cease use all use of the Software, and shall expunge the Software and any portion thereof, including any hard copies thereof, from all of Licensee’s electronic media. At Rapid Recon’s request, Licensee shall certify to Rapid Recon in writing that it has fully complied with this requirement.
The Software will reside on a Rapid Recon owned server (the “Hosting Server”) and Licensee will be provided with access to the Software via the Internet (the “Hosted Service”). Licensee shall be solely responsible for the maintenance of a capability to initiate connection with the Hosting Server, and Licensee shall be solely responsible for resolving all issues relating to Licensee’s computer systems and/or computer firewall in conjunction therewith.
Licensee understands and agrees that connections to the Internet are subject to unexpected downtime. Because of the foregoing, and also because the Software is accessed by Licensee via the Internet, Licensee agrees and understands that neither Rapid Recon nor any of the Data Vendors shall have responsibility for downtime due to hardware problems or technical problems relating to the Internet, or downtime experienced by Licensee’s Internet service provider.
Rapid Recon may conduct scheduled maintenance on the Software, resulting in unavailability of the Hosting Service and the Software for periods of time. Rapid Recon will endeavor to (i) conduct such maintenance during off-peak use hours and (ii) advise users of such maintenance in advance.
USER RESTRICTIONS; OWNERSHIP OF MATERIALS
All proprietary rights (including, but not limited to, copyrights, database rights and trademark rights) in the Software, including all data, software, intellectual property and documentation included therein, are and shall remain the sole and exclusive property of Rapid Recon (and any of Rapid Recon’s licensors). Rapid Recon retains all title and ownership of the Software. This Agreement is not a sale of the original Software or any copy.
Except as otherwise expressly permitted under this Agreement, Licensee shall not (i) publish, reproduce, and/or otherwise distribute the Software or any components thereof in any manner (including, but not limited to, via or as part of any Internet site), or (ii) rent, lease, transfer or otherwise provide access to the Software or any portion thereof to any third party without Rapid Recon’s prior express written consent. Unless otherwise agreed to in writing by Rapid Recon, the Software shall be used exclusively for Licensee’s own internal business. For the avoidance of doubt, a Permitted User may publish, reproduce and/or otherwise distribute reports generated using the Software or any components thereof to other Permitted Users and other employees of Licensee who have a need to receive such reports and components thereof in the course of their employment, and the receipt and distribution of such a report shall not result in any additional user fee(s). Licensee shall take all precautions that are reasonably necessary and within its control to (i) prevent access to the Software or any component thereof by third party using Licensee’s access credentials, and (ii) prevent any unauthorized distribution or redistribution of the Software using Licensee’s access credentials. Licensee shall not modify, translate, reverse engineer, decompile disassemble, or create derivative works based on the Software, Data, Vendor Data or Documentation, without Rapid Recon’s or the Data Vendor’s (as applicable) prior express written consent. Licensee shall not create, or attempt to create, archival or derivative works based on the Software or any portion thereof.
Upon termination of this Agreement, Licensee shall immediately return to Rapid Recon any and all Software and Documentation and all portions and copies thereof, including, without limitation, all data in Licensee’s computer environment (i.e., data on its network, desktops, disks, cds or other memory devices excluding backup tapes not accessible by end users via the network or desktop computer). Licensee also agrees to certify in writing as to the return of the Software, Documentation and all copies thereof, that was delivered to or derived by Licensee pursuant to, or otherwise in connection with this Agreement.
Licensee warrants that it either owns or has the right to use the Licensee Data. Rapid Recon agrees that all Licensee Data shall remain confidential, and shall not be voluntarily disclosed by Rapid Recon without the prior written consent of Licensee except in accordance with the terms of the Agreement or as may be required by law, regulatory body, governmental agency or court order. Any costs and expenses incurred by Rapid Recon in connection with third party document requests or subpoenas for production of information relating to the Licensee Data shall be borne by Licensee.
At all times Rapid Recon shall: (a) use the same standard of care to protect the Licensee Data as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care; (b) not use the Licensee Data other than as necessary to perform its obligations under this Agreement; and (c) disclose the Licensee Data to its employees or agents on a “need to know” basis only, provided that each employee or agent is bound by obligations of confidentiality and restrictions against disclosure at least as restrictive as those contained herein.
Upon the written request of the Licensee, Rapid Recon shall return or destroy (and certify such destruction in a signed writing) all Licensee Data, whether in physical or electronic form. However, Rapid Recon may retain a copy of the Licensee Data for archival or compliance purposes. The confidentiality obligations set forth in this section shall survive the termination of this Agreement. Rapid Recon shall not have any obligations under this Agreement with respect to any Licensee Data that is: (i) already known to Rapid Recon at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of Rapid Recon; (iii) subsequently disclosed to Rapid Recon or its affiliates on a non-confidential basis by a third party not having a confidential relationship with Licensee which rightfully acquired such information; or (iv) communicated to a third party by Rapid Recon with the express written consent of Licensee.
Rapid Recon warrants only that it has the right to provide Licensee with access to the Software in accordance with this Agreement If the Software fails to perform in accordance therewith, then the sole warranty obligation of Rapid Recon and Licensee’s exclusive remedy shall be for Rapid Recon to use its reasonable efforts to remedy such failure and to conform to the express covenants and conditions set forth in this Agreement. Rapid Recon contracts with third parties for the provision of information and data used in the Software. This includes, for example, information relating to safety recalls received from AutoAp, Inc. (AutoAp). Rapid Recon has no role in the generation or verification of the information received from AutoAp. Neither Rapid Recon nor AutoAp are responsible for vehicle recall status, accuracy, timeliness, completeness, or anything else relating to information obtained from third parties or websites such as automobile original equipment manufacturers (OEMs), safercar.gov, National Highway Traffic Safety Administration (NHTSA) or any other entity that compiles and reports safety recall information. RAPID RECON DISCLAIMS ANY AND ALL LIABILITY FOR ANY CLAIM BASED ON, OR RELATED TO, INFORMATION CONCERNING SAFETY RECALLS, WHETHER RECEIVED FROM THIRD PARTIES, OR GENERATED BY RAPID RECON, INCLUDING, BUT NOT LIMITED TO, ANY CLAIM OF LIABILITY BASED ON INACCURACIES, TIMELINESS, OR INCOMPLETENESS OF SAFETY RECALL INFORMATION.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. RAPID RECON MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING THE QUALITY, COMPLETENESS, TIMELINESS, CURRENTNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE OF THE SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RAPID RECON OR ITS EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
Notwithstanding anything to the contrary in this Agreement, in no event whatsoever shall Rapid Recon and its licensors or any of their officers, directors, shareholders, employees or agents (the “Rapid Recon Parties”) be liable to Licensee or any third party for any loss or damage, direct, indirect, special, incidental, punitive or consequential damages (including but not limited to loss of business profits), whether in contract, tort or otherwise, and even if they have been advised of the possibility of such damages, arising out of the use of or inability to the Software, including, without limitation, any inaccuracy or incompleteness in, or delays, interruptions, errors, or omissions in the Software or any other information supplied to Licensee by Rapid Recon. IN NO EVENT SHALL RAPID RECON’S LIABILITY WITH RESPECT TO THIS AGREEMENT EXCEED THE AMOUNTS RECEIVED BY RAPID RECON IN LICENSE FEES FROM LICENSEE IN THE TWELVE MONTHS PRECEDING THE ACT GIVING RISE TO THE CLAIM.
The parties hereto understand and agree that computer equipment is subject to mechanical and other failures and that computer software at times can contain errors. Because of the foregoing, Licensee agrees and understands that Rapid Recon shall have no responsibility for said failures or errors, except as expressly provided herein.
The parties are authorized to communicate with each other through the Internet, and each party acknowledges that use of electronic mail systems or other communication services that use the Internet involve the transmission of information through computer systems that are not controlled or maintained by either Licensee or Rapid Recon. Because of the nature of Internet communications, each party acknowledges that the privacy, confidentiality, timeliness and integrity of information transmitted over the Internet in connection with this Agreement cannot be assured. Nevertheless, Licensee hereby authorizes Rapid Recon to provide Licensee information relating to the Agreement through electronic mail systems or other communication services that use the Internet. Licensee authorizes Rapid Recon to accept and rely on communications received from Licensee through Internet communications services, although Rapid Recon or Licensee reserves the right to require that specific communications be provided in writing. Each party agrees that the other party shall not be liable for any damages resulting from the use of Internet communications, provided that the party’s use of electronic communications was reasonable under the circumstances and any such damages resulted from acts beyond the party’s control.
ASSIGNMENT; SUCCESSORS AND ASSIGNS
This Agreement may not be assigned by any party without the prior written consent of the other party; provided, however, that a sale of all or substantially all of Rapid Recon’s assets or equity interests shall not constitute an assignment. This Agreement shall be binding upon the parties, their successors, legal representatives, and permitted assignees.
CHANGE IN CONTROL OF LICENSEE
If at any time during the term of this Agreement, a Change in Control (as defined below) occurs with respect to Licensee, Licensee shall as soon as it is permitted to do so under applicable law, inform Rapid Recon in writing of any such Change in Control. Rapid Recon shall have the right to terminate this Agreement upon sixty (60) days prior written notice to Licensee in the event of a Change in Control of Licensee. A “Change in Control” shall mean (i) the consummation of a merger, consolidation or sale or other disposition of substantially all the assets of Licensee; or (ii) the acquisition by any individual, entity or group of beneficial ownership of 50% or more of either (A) the then outstanding ordinary shares of Licensee or its direct or indirect parent company or (B) the combined voting power of the then outstanding voting securities of Licensee or its direct or indirect parent company entitled to vote generally in the election of directors.
GOVERNING LAW; JURISDICTION AND VENUE
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California applicable to contracts made and performed in California. Licensee hereby agrees and consents to the personal and exclusive jurisdiction and venue of the California state courts and the United States District Court for the Northern District of California.
In the event of a material breach by Licensee of the provisions of Section 7 (“User Restrictions; Ownership of Materials”) of this Agreement, Licensee acknowledges and agrees that damages would be an inadequate remedy and that Rapid Recon, shall be entitled to preliminary and permanent injunctive relief, but nothing herein shall preclude Rapid Recon or the Data Vendor, as applicable, from pursuing any other action or remedy for any breach or threatened breach of this Agreement. All remedies under this Section 14 shall be cumulative.
Each party acknowledges that it has read this Agreement and that together with all written amendments, appendices, and Exhibits, this Agreement constitutes the entire and exclusive agreement between Licensee and Rapid Recon with respect to the subject matter hereof, and supersedes any previous or contemporaneous agreement or understanding between the parties and no statement, agreement, or understanding not contained herein shall be enforced or recognized. THIS AGREEMENT CANNOT BE MODIFIED OR SUPPLEMENTED BY ORAL STATEMENTS MADE EITHER BEFORE OR AFTER EXECUTION OF THIS AGREEMENT AND ANY SUCH STATEMENTS DO NOT CONSTITUTE WARRANTIES. NO COLLATERAL OR PRIOR STATEMENTS, REPRESENTATIONS, UNDERSTANDINGS, AGREEMENTS, OR WARRANTIES (EXPRESS OR IMPLIED) ARE A PART OF THIS AGREEMENT.
No term or provision hereof shall be deemed waived and no breach consented to or excused, unless such waiver, consent or excuse shall be in writing and signed by the waiving party. Should either party consent, waive or excuse a breach by the other party, such shall not constitute a consent to, waiver of, or excuse of any other different or subsequent breach, whether or not of the same kind as the original breach. No amendment of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties.
The headings in this Agreement are intended for convenience only and shall not be deemed to constitute a part hereof or to limit, characterize, or in any way affect the interpretation of the provisions of this Agreement.
Each party’s performance hereunder shall be excused without liability and neither party shall be liable to the other party for any loss, injury, delay or damages suffered by the other in the event of any event or contingency beyond such party’s control, including but not limited to: foreign or domestic embargoes; acts of God; terrorist acts; the adoption or enactment of any law, ordinance, regulation, ruling, or order directly or indirectly interfering with performance hereunder; lack of the usual means of transportation; technological failure; fires; floods; explosions or strikes; earthquakes.
All notices and other communications under this Agreement shall be: (i) in writing; (ii) delivered by hand (with receipt confirmed in writing), by registered or certified mail (return receipt requested), or by facsimile transmission (with receipt confirmed in writing), to the address or facsimile number set forth below the parties’ signatures herein or to such other address or facsimile number as either party shall specify by a written notice to the other; and (iii) deemed given upon receipt.
Rapid Recon and Licensee intend this Agreement to be a valid legal instrument, and if any court having competent jurisdiction shall determine that one or more of the provisions contained in this Agreement shall be unenforceable in any respect, then such provision shall be deemed limited and restricted to the extent that such court shall deem it to be enforceable, and as so limited or restricted shall remain in full force and effect. If any such provision or provisions shall be deemed wholly unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and shall in no way invalidate any other provision of this Agreement, all of which remain in full force and effect.
This Section and Sections 3 (“License Fee; Payment; Taxes”), 10 (“Defense and Indemnification”) and 13 (“Governing Law; Jurisdiction and Venue”) and those other sections that by their nature are intended to survive, shall survive termination of this Agreement.