END USER LICENSE AGREEMENT
This End User License Agreement (“EULA” or “Agreement”), together with applicable Quote, Sales Order Form or other comparable ordering document (“SOF”) is a legal contract between ROW (as defined below) and the customer named on the signature page as an individual or an entity (“you” or “Licensee”). This EULA is incorporated by reference into each SOF for ROW’s suite of software applications that comprises, without limitation, the R.O. Writer® Shop Management System, the R.O. Writer® Tray module, the Midas Parts Manager Module (for Midas Franchisee Users only), and any associated software or software services, whether such software is hosted on the Licensee’s premises (“Software” or “Licensed Software”) or provided to Customer through an on-demand, subscription-based solution that is hosted, supported, and operated by ROW (“Cloud Services”) all as specifically set forth on the SOF. It also covers any user documentation, whether provided online, in an electronic format or otherwise, you may have purchased, downloaded or subscribed to for the Software or Cloud Services (collectively “Documentation”). For purposes of this Agreement, Documentation, Software and/or Cloud Services, and the operations and support thereof, as well as any related services that are provided in connection with the Software or Cloud Services (including any third-party services) is collectively referred to as the “Services.”
ROW may update this Agreement at any time, and will make the updated Agreement available by posting the updated version on its website at https://info.rowriter.com/EULA, which you should regularly check for updates and/or changes. ROW will use reasonable efforts to inform you of any such updates via the email you provide on the signature page. However, your continued use of the Software and the Services shall be conclusive evidence that you have read and consented to this Agreement as amended or modified and further agree on a going forward basis to comply with, and be bound by, all the terms and conditions contained in the Agreement as amended or modified at that time. If at any point you do not agree to any portion of the EULA then in effect, you must immediately stop using the Software and Services.
- License; Maintenance:
- Rights Granted; Permitted Use: Subject to your payment of the Fees and full compliance with the terms and conditions hereof, Constellation R.O. Writer Inc. (Customers outside of Canada) or Perseus Group Software Corp. dba R.O. Writer (Canada customers) (as applicable, “ROW”) grants to Licensee, and Licensee accepts from ROW, in accordance with the terms of this End User License Agreement (this “EULA”), a non-exclusive, non-sub-licensable, non-transferable, revocable, and limited license to access and/or use the Software and/or Cloud Services (as applicable), which is proprietary to ROW, solely for the internal business purpose of operating a single facility located at a single postal address as set forth on the applicable SOF and/or subject to any other usage metrics or limitations set forth on the applicable SOF (collectively, the “Permitted Use”) for the Term (defined below) of this Agreement (the “License”). Licensee may only provide authorized users access to the Software or Cloud Services including without limitation, access to user IDs, passwords or electronic authentication keys. Licensee is responsible for compliance with this Agreement by all persons and entities that obtain access to the Software or Cloud Services through or on behalf of Licensee. Licensee acknowledges that internal controls in the Cloud Services do not necessarily restrict usage of the Cloud Services to comply with the applicable usage metrics. Licensee is permitted to install the Software on each computer at such location for which Licensee has (i) purchased or subscribed to use a license, as set forth on the applicable SOF and (ii) accepted this EULA as described herein. Licensee may allow its employees, agents and contractors to use the Software for purposes permitted pursuant to this Agreement and Licensee will be responsible for their compliance in accordance with the terms of this Agreement. All rights not expressly granted to Licensee hereunder are reserved by ROW. Licensee acknowledges that the Software may require activation by way of an activation key on initial installation and from time to time based on certain events, including, without limitation, updates and changes to hardware on which the Software is installed. Licensee acknowledges that the activation keys and internal controls in the Software do not necessarily restrict usage to the Permitted Use and do not necessarily ensure compliance with this Agreement. All other use of the Software or Cloud Services is strictly prohibited.
- Maintenance and Support: During the Term, in consideration of and contingent on the Fees being paid by Licensee in accordance with the terms of this Agreement, subject to these terms and conditions, ROW will provide minor version updates to the Software and Cloud Services that ROW makes generally available to its licensees, and Documentation as reasonably necessary for the proper function and continued material conformity of the Software with the applicable Documentation. For purposes of clarification, minor version updates may include fixes, minor improvements, and minor releases noted by a change to the secondary version numbers, such as an update from version 2.0 to version 2.1. Maintenance does not include major version updates, which may include modules and major releases noted by a change in the primary version number, such as an update from version 2.0 to version 3.0. ROW shall determine, in its sole discretion, whether an update is a minor version update or a major version update, and reserves the right to charge an additional license fee for major version updates. Licensee agrees to install all minor updates to the Software made available by ROW within 180 days following such availability. If Licensee fails to install any such minor update, ROW reserves the right to stop all implementation, training and support services until Licensee installs such minor update. In addition, subject to Licensee timely installing all updates to the Software, ROW will provide support services for the Software and Cloud Services as set forth in the applicable Documentation, subject to any other terms and conditions indicated in the applicable SOF. Licensee acknowledges and agrees that support services provided by ROW are intended to address specific problems experienced by Licensee relating to the Software or Cloud Services, and are not intended to train Licensee’s employees or to support third party products, which will be provided on an as-requested basis at ROW’s then-current rates. For clarity, the following items are not covered under maintenance or support services: (i) repair of damage or increase in service time caused by accident, disaster (which includes, but is not limited to, fire, flood, wind or lightning, collision with vehicles, etc.), transportation, neglect, misuse, or alteration; (ii) telephone support, repair of damage, technical support, or increase in service time caused by the use of parts, service, accessories or software not supplied by ROW; (iii) deterioration due to environmental conditions (including improper electrical supply to equipment); (iv) web browser support and/or training; (v) Internet connectivity support; (vi) major version updates, as described above; (vii) support for hardware, operating systems, networking, spyware, adware, and similar unsupported software, (viii) support or maintenance for, or resolution of any other issues relating to or arising in connection with the use of, third party components to the Software, including without limitation third party components that write to the database (“Third Party Components”), except as may otherwise be expressly agreed to in writing by ROW. Licensee may elect whether to install any major version update. If Licensee elects not to install a major update, ROW shall use commercially reasonable efforts to continue to provide support and maintenance services to Licensee as set forth in the applicable Documentation and SOF.
ROW’s obligation to provide maintenance and support services is subject to the following conditions: (i) Licensee uses the Services only in accordance with the terms and conditions of the Agreement; (ii) Software implementation, training, re-implementation, and system audit services must be provided by or at and in accordance with the direction of ROW’s employees or ROW’s authorized representatives; (iii) Licensee has not modified or altered the Services; (iv) the Software, and the equipment on which it operates, is operated in accordance with the Documentation; (v) the equipment on which the Software operates is in good operating condition; (vi) Licensee implements all updates to Software on a timely basis and no later than 180 days subsequent to the availability of the updates (provided, however, if Licensee elects not to install a major update, ROW shall continue to use commercially reasonable efforts to provide maintenance as set forth above); (vii) Licensee obtains, maintains, and updates, as required, third party programs and such other software as is necessary for the proper operation of the Software or Cloud Services; and (viii) Licensee provides reasonable access to its systems (and, if applicable, such access is to be provided in accordance with the specifications set forth in the Documentation and the applicable exhibits) so as to enable ROW to provide the technical support services, including, but not limited to, by way of telecommunications, Internet or other remote access to the environment in which the Software resides or such other method reasonably acceptable to ROW. All time and materials expended by ROW resulting from Licensee’s breach of such conditions shall be billed to Licensee at ROW’s standard time and materials rates. Unless, and only to the extent that, ROW and Licensee have expressly agreed for ROW to provide hardware support pursuant to the SOF, should the problems that arise be the result of hardware malfunction, Licensee shall be solely responsible for the repair of the hardware/network. If ROW agrees, in its sole discretion, to provide support or maintenance services for hardware/network problems, such support will be billed to Licensee at ROW’s then-current hourly rates.
- Texting Service Subscription: Subject to the terms and conditions of this Agreement, ROW hereby grants Licensee a limited, non-exclusive, non-sub-licensable, non-transferable, revocable, and limited right to send and receive messages via the Software (the “Texting Services”, which are part of the Services for purposes of this EULA) for the limited purpose of communicating with Licensee’s customers in connection with Licensee’s provision of services to such customers.
- The Texting Services are provided by ROW through a third party integration with Twilio Inc. (“Twilio”), and by sending or receiving messages using the Texting Services, you agree to use such Texting Services in accordance with the Twilio Acceptable Use Policy, which is available at https://www.twilio.com/legal/aupand the Twilio Messaging Policy, which is available at https://www.twilio.com/legal/messaging-policy (each of which may be updated from time to time by Twilio in its sole discretion, and which are referred to herein collectively as the “AUP”) and all applicable industry guidelines and federal, state and local laws and regulations including, without limitation any communications and telemarketing laws, including without limitation the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227, and its implementing regulations, 47 C.F.R. § 64.1200 et seq., the Telemarketing Sales Rule, and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 (collectively, “Applicable Law”). You further agree and understand that ROW shall not be responsible for ensuring your use of the Texting Services complies with the AUP or Applicable Law, and you are solely responsible for configuring and using the Texting Services provided in connection with the Software to send messages in compliance with the AUP and all Applicable Law.
- ROW HIGHLY encourages you to SEEK YOUR OWN LEGAL COUNSEL to ensure you are using the Texting Services in compliance with the AUP and all Applicable Law. You represent and warrant that: (a) to the extent the Software or the Texting Services provide any consent and/or messaging templates, you understand that such templates are provided as suggestions only, are not designed, intended, or represented to be compliant with any Applicable Laws or guidelines, and are intended for review and customization by Licensee; (b) you, and not ROW, shall be the “maker,”, “initiator” and “sender” of all messages ultimately sent using the Software and the Texting Services; (c) ROW does not control the content of your messages, the timing or sending of the message, the recipient list, or the design of your messaging campaign; (d) the owners of the phone numbers you initiate messages to through the Software and the Texting Services have “opted-in”, or have provided you with prior express written consent to receive such messages, or may otherwise be sent such messages pursuant to Applicable Law; (e) you will include an opt-out mechanism in your messages when required to do so by any Applicable Law; (f) you will promptly honor any individuals exercising a right to opt-out and/or requesting do-not-call status; (g) you will not use the Software or Texting Services to transmit any material that (i) may infringe upon or violate the rights of any third party (including, without limitation, trademarks, copyrights, and right of publicity), (ii) is harmful, unlawful, racist, harassing, defamatory, abusive, threatening, obscene, or pornographic, or (iii) misleads others as to the identity of the sender of your messages, or (iv) contains viruses, Trojan horses, worms, time bombs, cancel-bots, or any other harmful or deleterious program; and (h) your use of the Software and the Texting Services will, at all times, be in strict compliance with all Applicable Law, and with the AUP.
- Downtime of Cloud Services. ROW will use commercially reasonable efforts to make Cloud Services available during normal business hours (9am – 5pm Eastern Time); restrict maintenance to occur during non-business hours; and provide Licensee with notification of scheduled downtime. Licensee agrees that occasional downtime, updates and maintenance are sometimes required during business hours, which may impair responsiveness and accessibility. Licensee further agrees that Cloud Services may also be unavailable due to emergency downtime to protect the system, back-up data, or because of events beyond ROW’s reasonable control. Availability of Cloud Services is also subject to Licensee’s maintenance of its interface and connectivity to Cloud Services. Licensee acknowledges that loss of Licensee data is possible and Licensee should provide for additional back-up storage of any and all of its data stored on the Cloud Services. ROW shall not be liable for any lost or corrupted data.
- Obsolescence; Modifications. Notwithstanding anything herein to the contrary, on at least ninety (90) days’ prior written notice to Licensee, ROW may (i) declare any Software or Cloud Services, or any particular version or component thereof, discontinued or obsolete; or (ii) modify or alter any Software or Cloud Services in any manner (including without limitation moving any on premise functionality to a cloud-based service); provided, however, that if such modification or alteration does not result in any material degradation to the functionality or operation of such Software or Cloud Services, then no prior notice shall be required. Upon any declaration that any Services will be discontinued or obsolete, ROW may in its sole discretion decline to offer support or maintenance services for such Services or continue offering such support or maintenance services on a limited basis, which support or maintenance services may be subject to additional Fees. Notwithstanding anything herein to the contrary, ROW shall not be required to provide any prior notice regarding any change or modification to any Software or Cloud Services relating to or arising from any change or modification to (including without limitation the obsolescence of) any Third Party Components or any other third party products or services, irrespective of whether such change has any material effect on the Software or Cloud Services.
- Fees; Payment Terms: Licensee shall pay to ROW all license or subscription fees, implementation and training fees, maintenance fees, and other fees (the “Fees”) listed on the SOF by the payment date also listed on the SOF (or, if not stated on the SOF, then the Fees and the payment terms set forth on the invoices issued by ROW shall apply). All Fees are payable in accordance with the terms set out in the applicable SOF in U.S. Dollars (unless a different currency is specified on the SOF). Fees stated in the SOF are exclusive of all taxes. Licensee shall pay the fee by credit card or ACH, pursuant to the charge authorization attached to the SOF within five (5) business days after the payment date set forth in the SOF (the “Grace Period”). ROW reserves the right to charge, and Licensee agrees to pay, a late payment fee on any balance that is not paid within the applicable Grace Period from the payment date until paid (whether before or after judgment) equal to the lesser of one and one half percent (1.5%) per month, or the maximum amount allowable by law. Except as otherwise set forth on the SOF, ROW may adjust the Fees from time to time, in its sole discretion. If Licensee is a Midas Franchisee User, Licensee acknowledges and agrees that if Licensee’s status as a Midas franchisee terminates, effective as of such termination date, the Fees due with respect to such Licensee shall automatically adjust to ROW’s then-current retail rates and any price caps or other limitations shall no longer apply.
If Licensee wishes to decrease its Permitted Use of the Software, Licensee must notify ROW in writing ninety (90) days in advance of the conclusion of the Initial Term or the then-current Renewal Term. In such case, such reduction in Permitted Use of the Software will take effect upon the next Renewal Term. If Licensee wishes to increase its Permitted Use of the Software, Licensee must notify ROW of such request in writing in advance and pay any applicable Fees.
Licensee acknowledges that ROW reserves the right to suspend or interrupt Licensee’s use of the Services, cease providing updates and/or suspend maintenance support to Licensee for any period during which any Fees due in accordance with the terms of this Agreement remain unpaid after the applicable Grace Period. ROW and its parents, subsidiaries and/or affiliates are not liable for any damages that such interruption or termination may cause, and Licensee shall pay ROW its then-current commercially reasonable fees for any subsequent restoration of access. In such event, ROW shall not be precluded from exercising any additional remedies that might be available to it under the terms of this Agreement or otherwise.
- Proprietary Rights; Confidentiality: ROW retains all right, title and interest to the Services, and this Agreement conveys no interest to Licensee, except as expressly stated in this Agreement. Licensee acknowledges that the techniques, algorithms and processes contained in the Software and Cloud Services constitute trade secrets and/or confidential information of ROW, and Licensee agrees to maintain the confidentiality of the Services and, in particular, to restrict access to and use of the Software and/or Cloud Services to Licensee and Licensee’s employees who agree in writing not to disclose any such confidential information and to use the Software and/or Cloud Services in accordance with the terms hereof. Licensee agrees not to remove any product identification or labeling from any element of the Software or related materials supplied to Licensee by ROW. Licensee acknowledges that the Software, Cloud Services and any third-party software that may be included therein are protected by United States copyright laws and international treaty provisions.
- Further Restrictions: Licensee further agrees and acknowledges that: (1) the Software and/or Cloud Services is provided to Licensee solely for the internal use of Licensee and Licensee’s employees; (2) Licensee will not copy or duplicate, or permit anyone else to copy or duplicate, the Software, except as necessary to install the Software on a number of workstations not to exceed the number of licenses specified on the applicable SOF located at Licensee’s business location identified by a single postal address; (3) Licensee will not re-create or attempt to re-create, by reverse engineering or otherwise, the source code for the Software, or any part thereof, from the executable version and other information provided under this License and shall not create a derivative work of the Software or Cloud Services; (4) the Software and Cloud Services provided hereunder is copyrighted and licensed (not sold); (5) Licensee may not sell, license, sublicense, or otherwise transfer or make available the Software, Cloud Services, manuals, and/or Documentation to any third party; (6) Licensee may not remove any product identification, copyright notices, or other notices or proprietary restrictions from the Software, Cloud Services, Documentation or any permitted copies; (7) Licensee may not ship or transmit any portion of the Software, Cloud Services, or accompanying Documentation to a country prohibited by the United States Government; (8) use of the Software and Cloud Services requires Internet connectivity; (9) Licensee will not prevent or otherwise circumvent (including, without limitation, by using firewalls or any other electronic methods) the Software from connecting to the Internet as necessary; (10) no other right or license, either express or implied, under any patent, trademark, copyright, trade secret or intellectual property right of any kind is granted hereunder, (11) except as expressly set forth in this EULA or an applicable SOF, Licensee is not entitled to receive support or maintenance from ROW, and (12) Licensee shall at all times use the Software and/or Cloud Services in strict compliance with all applicable laws. Licensee shall not be entitled to receive and ROW shall not be obligated to provide to Licensee, among other things, phone support, access to certain sections of the ROW support website, updates or issues and unlock codes. Additionally, although employees or agents of ROW may assist Licensee in the installation of the Software, Licensee acknowledges and agrees: (1) ROW is not providing tax advice or providing you guidance on the taxability of a service or fee, (2) ROW is not responsible for any tax related settings in the Software or Cloud Services, (3) ROW is expressly advising Licensee to seek legal counsel to determine the proper tax rates and tax ability of services/fees, and (4) Licensee agrees to waive and release ROW and its affiliates, subsidiaries, parents, and related entities and it and their successors, employees, and agents from any and all liabilities and/or damages related to any improper tax related settings.
- Notice of Certain Occurrences: Licensee agrees to notify ROW immediately if Licensee becomes aware of use or transfer of the Software and/or Cloud Services or any part thereof or information relating thereto in a manner inconsistent with this Agreement. Licensee will furnish full details of any such occurrence to ROW, will assist in preventing the recurrence of such occurrence, and will cooperate with ROW in any litigation against third parties deemed necessary by ROW to protect its proprietary rights. Licensee’s compliance with this paragraph shall not be construed as a waiver of any right that ROW may have to recover damages or obtain other relief from Licensee relating to any such occurrence.
- Inspection: ROW and its representatives shall have the right, at all reasonable times, to inspect any location at which Software is being used or kept. In addition, Licensee acknowledges that ROW may include within the Software logic or computer code designed to restrict reproduction or usage of the Software to that permitted under this Agreement (“Protection Code”). Licensee shall not take any action designed to disable or circumvent a reproduction or use restriction or other software protection system implemented by ROW, and will permit ROW to make reasonable inquiries concerning Licensee’s compliance with this Agreement. In the event of any malfunction of the Protection Code, ROW will, as its sole liability and Licensee’s sole remedy, provide services to correct such Protection Code so that Licensee may use the Software as licensed hereunder.
- Licensee Responsibilities; Licensee Data Collection and Disclosure: Unless expressly agreed otherwise in the applicable SOF, Licensee shall be responsible for entering all data required for installation and operation of the Software and shall be responsible for the integrity of such data. ROW shall not have any liability for any Licensee data, including for data that ROW personnel may enter in an effort to assist Licensee or any errors made in such efforts to assist Licensee. ROW reserves the right to refuse to do data entry and Licensee agrees that Licensee is solely responsible for providing sufficient staff to perform any data entry required for the installation of the Software. Licensee shall assume full responsibility for (a) the content of any database, (b) the selection and implementation of controls on its access and use of the Software, (c) the security of stored data and (d) configuration data associated with the implementation of the Software. Licensee shall not include any Licensee data that infringes a third party right, is obscene, defamatory or otherwise unlawful. Licensee is responsible for compliance with this Agreement by all persons and entities that obtain access to the Cloud Services or Software through or on behalf of Licensee. If Licensor determines, in its sole discretion, that any Licensee data stored within the Software or Cloud Services is illegal, infringing, or could create liability for Licensor and/or its current and/or future subsidiaries, parents or affiliate(s), Licensee shall immediately upon written notice, at its sole expense, destroy or delete it from the Cloud Services or Software.
The Software and Cloud Services may collect general statistical information about Licensee’s operating environment, including, without limitation, information regarding the Licensee’s network, processor, computer memory, installed Software and configurations and other miscellaneous hardware, as well as information about your network, operating system, processor, computer memory, hard drive capacity, the legal name and address of your business, and the installed Software applications, configurations, and versions that you are using. Licensee hereby represents and warrants that it has all legal right and authority to transfer all Licensee data included in the Software or Services to ROW and hereby authorizes ROW and its affiliates to collect such data and use it as set forth herein. ROW and its affiliates may use, transmit, and disclose such data, and Licensee hereby consents to such use and disclosure, to third parties in aggregated form with no information that could be used to identify Licensee. ROW and its affiliates may also use Licensee data for purposes of enforcing this EULA, as directed by Licensee, for improving the Software or Cloud Services, and solely with respect to aggregated data, for marketing and other related purposes. In the event Licensee submits any personally identifiable information to ROW pursuant to this Agreement or in connection with the use of the Software, including, without limitation, Licensee’s email address, Licensee consents to ROW’s collection, processing, transmission and disclosure of such information and related data within its parent and subsidiary and affiliate companies and third party partners, in accordance with ROW policies, if any, and applicable law.
Licensee is responsible for the security and integrity of its network, hardware, data and any other information contained within their network systems and/or individual CPU(s) or other storage devices. This includes personally identifiable information (“PII”) of Licensee’s customers and employees and any other PII, e.g., name address, contact information, zip code, VIN#, etc. ROW is not responsible for any breaches, virus outbreaks or attacks in/on Licensee’s network or hardware. Thus, Licensee agrees that ROW is not liable for any loss of customer data, PII information, or integrity of data issues because of a network breach, virus outbreak or network attack and ROW is not liable for any damages, financial penalties, and/or costs associated with a breach. Licensee acknowledges and agrees that ROW shall have no obligation to assist in any investigations or provide any consultative services because of a network breach. Licensee is solely responsible for understanding breach notification laws governing the state or jurisdiction in which Licensee operates.
If you are also a franchisee (a “Midas Franchisee User”) of Midas International, LLC, you, as a Midas Franchisee User, acknowledge that Central Service and/or the Midas Parts Manager Module (which includes Midas Link, Midas Meteor, and the Midas M2 report) provide functionalities that are available only to Midas Franchisee Users and that share a broad range of your information with Midas International, LLC and its current and future subsidiaries, and its parents and affiliates (collectively, “Midas”) to use both on your behalf and as necessary for other purposes, including without limitation royalty reporting, warranty registration, marketing, and compliance verification. You acknowledge and agree that by using Central Service or the Midas Parts Manager Module, you are solely responsible for verifying that all data and other information that you enter in the Software can be so gathered, generated, and transmitted, and you further agree that ROW shall not have any responsibility to monitor such information that is so gathered, generated, or transmitted, and you agree to indemnify and hold harmless ROW from and against any liability related to the foregoing. If you are not a Midas franchisee, this paragraph does not pertain to you. If your franchisee status changes while this Agreement is in effect, you shall provide ROW with prompt written notice of your change of status. Notwithstanding anything to the contrary contained in this EULA, upon a Midas Franchisee User’s termination of franchisee status with Midas, such user’s access to the Midas Parts Manager Module and any other functionalities or services (including any data sharing arrangements) provided exclusively to Midas franchisees by ROW shall be terminated.
- No Transfer without Consent: Licensee shall not transfer the Software to another location without the prior written consent of ROW. Licensee shall not assign or otherwise transfer the Services, the License or this Agreement to a successor, affiliate or any other person or entity, voluntarily, by operation of law or in any other manner, without the prior written consent of ROW. Any attempt by Licensee to assign any of its rights, duties or obligations under this Agreement without such consent is void. Subject to the foregoing, this Agreement shall be binding on, and inure to the benefit of, the heirs, successors and assigns of the parties.
- Remedies: If Licensee attempts to use, copy, license, convey or allow access to the Software or Cloud Services in a manner contrary to the terms of this Agreement or in derogation of ROW’s proprietary rights, whether as explicitly herein stated, determined by law, or otherwise, ROW shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining such action, Licensee hereby acknowledging that other remedies are inadequate.
- Term; Termination:
- Term; Renewal: The initial term of this Agreement will commence on the effective date of the applicable SOF and will continue thereafter for the period as set out in the SOF (the “Initial Term”) unless terminated earlier in accordance with the terms of this Agreement. If the applicable SOF does not specify an Initial Term, the Initial Term shall be one (1) year, unless otherwise agreed to by ROW in writing. This Agreement will automatically renew for additional one (1) year periods (or for successive periods of the length specified in the applicable SOF or, if not specified in the SOF, as otherwise agreed to by ROW in writing) (each being a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides the other party with ninety (90) days (or, in the case of a month-to-month term, thirty (30) days) written notice prior to the conclusion of the Initial Term or Renewal Term, as applicable. All terms and conditions hereof shall remain in effect during any Renewal Term, except as the parties otherwise expressly agree to in writing.
- Termination; Effect of Termination: If any of the terms and conditions of this Agreement are breached by Licensee, including without limitation by Licensee’s failure to timely pay the Fees, in addition to any other rights and remedies of ROW, ROW may terminate this Agreement including the license granted herein, and/or may deny access to the Software, Services, and/or maintenance. In addition, Licensee shall be deemed to have breached the terms of this agreement if Licensee makes or seeks an assignment for the benefit of creditors. In addition, an event of default occurs if either party makes any arrangement or composition with its creditors, becomes insolvent, commits any act of bankruptcy, or is the subject of a petition or proceeding under any bankruptcy, reorganization, arrangement of debts, insolvency, or receivership law (a “Licensee Bankruptcy Event”). In the event of a breach or deemed breach hereunder, ROW may also proceed by court action to enforce performance by Licensee of this Agreement and/or to recover all damages and expenses (including attorney’s fees) it suffers because of any event of default or exercise any other right or remedy available at law or in equity. Licensee shall reimburse ROW for all expenses (including legal fees and disbursements and costs and fees of collection agencies) ROW incurs in enforcing this Agreement. ROW, its parents, subsidiaries, and/or affiliates are not liable for any damages related to enforcing its default remedies or because of any interruption or termination that results from Licensee’s breach of this Agreement.
Licensee understands that that ROW has undertaken significant implementation and investment costs which are intended to be amortized over the Term of this Agreement. In consideration of the costs and the pricing structure acknowledged and accepted in the SOF, if Licensee cancels prior to the end of the Initial Term or any Renewal Term, Licensee agrees to pay as an early termination fee an amount equal to (1) the Fees for the remainder of such Initial Term or Renewal Term (the “Remaining Term”), as applicable, if canceled or terminated within one year of the effective date of this Agreement, or (2) 50% of the Fees for Remaining Term, if canceled or terminated effective on or after the first anniversary of the effective date of this Agreement. This early termination fee shall be due and payable in a lump sum on the date of termination of the Agreement. Licensee acknowledges that the actual damages likely to result from a breach of the Term by Licensee are difficult to ascertain and that the foregoing early termination fee is intended to represent estimated actual damages and are not intended as a penalty. Notwithstanding the foregoing, ROW agrees to waive any applicable termination fee if Licensee is able to demonstrate that such termination occurred in connection with the permanent closure of at least one of Licensee’s automotive repair shop locations; provided, however, that if Licensee opens another automotive repair shop location following such waiver, Licensee shall enter into a new agreement with ROW for the Software that shall include a term at least equal to the length of the Remaining Term. Licensee shall be required to enter into such an agreement for each new location opened by Licensee, up to the number of locations that were permanently closed in connection with the termination fee waiver. The foregoing obligation shall survive termination of this Agreement.
Upon any termination of this Agreement, Licensee shall immediately cease using the Software, and shall return to ROW the Software, as well as any copies or partial copies thereof (including copies or partial copies that have been modified, merged, or included with other software programs), and shall certify in writing that the Licensee has not retained any such programs, or copies thereof. Paragraphs C, D, F, G, H, I, J, K, L, M, N, O, P, and Q of this Agreement, shall survive any termination of this Agreement and remain in effect in accordance with their respective terms.
- Exclusion of Warranty: Except as stated in Paragraph L of this Agreement, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. The entire risk as to the quality and performance of the Services is with Licensee. Should any of the application suites that comprise the Software or Cloud Services prove defective, Licensee (and not ROW, any ROW representative, or any owner or licensor of ROW of such program) assumes the entire cost of all necessary servicing, repair and correction. Neither ROW nor any other person makes any warranty that the functions contained in any of the Software or Cloud Services will meet Licensee’s requirements or that the operation of the applications suite will be uninterrupted or error free. Licensee assumes all responsibility for Licensee’s use of the Software and/or Cloud Services and the results obtained from such use.
- Limited Warranty: ROW warrants both the media on which the Software are reproduced and the reproduction of the programs on the media to be free from defects in materials and workmanship under normal use for a period of thirty (30) days from the date of delivery to Licensee as evidenced by a copy of Licensee’s invoice. The entire liability of ROW, and Licensee’s exclusive remedy for any breach of this warranty shall be the repair or replacement of any media not meeting the warranty that is returned to ROW or an authorized ROW representative within the 30-day period, with a copy of Licensee’s invoice.
- LIMITATION OF LIABILITY. IN NO EVENT WILL ROW, ITS AFFILIATES OR ANY OTHER PARTY OR PERSON BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS OR OTHER DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR CLOUD SERVICES OR ANY BREACH OF THE FOREGOING WARRANTY EVEN IF ROW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE ACKNOWLEDGES THAT ROW HAS ESTABLISHED THE LICENSE FEES FOR THE SOFTWARE AND/OR CLOUD SERVICES AND IS ENTERING INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. IN NO EVENT SHALL ROW’S, ITS AFFILIATES’, OR ANY OTHER PARTY’S LIABILITY TO LICENSEE OR ANY OTHER PERSON, FOR ANY DAMAGES OR LOSSES OF ANY KIND, IN CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF THE FEES LICENSEE PAID FOR THE LICENSE IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LOSS.
- Indemnification: Licensee agrees to indemnify, defend, and hold ROW and its affiliates harmless for any losses, claims, liabilities, judgments, awards, costs, expenses, or damages (including without limitation, reasonable attorneys’ fees), related to or arising out of the use or misuse of the Services regardless of the legal theory (e.g., negligence, contract, tort, etc.).
- Taxes and Duties: Licensee is responsible for all taxes imposed in connection with the license to Licensee of Software or services or which ROW may incur in respect of the License (except taxes imposed on ROW’s income) including all import duties, customs fees, levies or imposts, and all sales, use, excise, value added, gross receipts or other taxes of any nature and any penalties, interest and collection or withholding costs associated with any of the foregoing items. All such amounts are in addition to other amounts payable hereunder, and this obligation shall survive termination or expiration of the License. Licensee is further responsible for obtaining import licenses and preparing and submitting all required documentation in connection with importing Software, including obtaining and providing to ROW, International Import Certificates and other supporting documentation required by ROW.
- Export Law Regulations: Licensee will not export or re-export the Software or Cloud Services licensed hereunder or their accompanying documentation (or any copies thereof) in violation of any applicable laws or regulations of the United States or in the country in which Licensee does business. Licensee agrees that it shall be subject to all pertinent laws, rules and regulations of the United States as well as laws of the countries in which Licensee transacts business, specifically including U.S. Export Administration Regulations and other export control laws. In no event shall ROW or its affiliates be bound by any terms and conditions that contravene such laws. At the request of ROW, Licensee shall fill out and execute certain export control documents.
- Miscellaneous: Licensee hereby acknowledges and agrees that this Agreement may be amended or modified by ROW at any time, including without limitation at such time as ROW may make available updates or upgrades to the Software, which amendments or modifications may be presented to Licensee electronically during the installation of any such updates or upgrades, or by posting the updated version at on its website at https://info.rowriter.com/EULA, which Licensee should regularly check for updates and/or changes. ROW will use reasonable efforts to provide prior notice to you of any such updates via the email you provide on the signature page. However, for the avoidance of doubt, the SOF may only be amended or modified by a writing signed by both Licensee and ROW. Licensee further acknowledges and agrees that it is Licensee’s sole responsibility to read this Agreement, as may be modified from time to time, and that Licensee shall be deemed to have accepted any amendments or modifications to this Agreement if Licensee installs or has installed any updates or upgrades to the Software. Licensee further agrees that its continued use of the updated or upgraded Software or Cloud Services shall also constitute acceptance of any amendments or modifications to this Agreement. This Agreement will be governed by the laws applicable to agreements made entirely in the State of Maryland, without reference to any laws with respect to the conflict of laws. Any legal action relating to this Agreement shall be instituted in a state court located in Baltimore County, Maryland, U.S.A., or a federal court located in Baltimore County, Maryland. ROW and Licensee agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action. This Agreement together with the SOF is the complete and exclusive statement of the agreement between Licensee and ROW with respect to the subject matter of this Agreement. This Agreement, together with the SOF, supersedes any proposal or prior agreement, oral or written, and any other communication between Licensee and ROW or any ROW representative relating to the subject matter of this Agreement, including without limitation any Software Maintenance Agreement, Software Maintenance Program Agreement, or Terms and Conditions by and between Licensee and Progressive Automotive Systems, LLC d/b/a R.O. Writer, a predecessor in interest to ROW. Should any part of this Agreement be declared invalid for any reason, such decision shall not affect the validity of the remaining provisions of this Agreement, which shall continue in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated.