Mitchell International, Inc.
RepairCenter Application Developer License Agreement
This Agreement (“Agreement”) is entered into as of the date of your acceptance, as identified below, (the “Effective Date”) by and between you, the entity on behalf of which you agree (as identified below), and any employees, agents, or subcontractors of such entities who access or use the developer materials described below (“You” or “Your”), and Mitchell International, Inc. (“Mitchell” or “Our”). In order to access the SDK (as defined below), you must acknowledge your agreement to these terms and conditions by signing below and returning to Mitchell.
Whereas, Mitchell has developed an application called RepairCenter which is marketed to and used by auto collision repair facilities; and
Whereas, Mitchell has developed an application developer platform and associated documentation (the “SDK”) which allows 3rd parties to build applications for use by RepairCenter end-users which extract data from RepairCenter; and
Whereas, You desire to license the SDK in order to develop such an application;
Now, therefore, in consideration of the foregoing promises and the mutual covenants herein contained, the parties hereby agree as follows:
1. SDK License. Subject to your compliance with this Agreement, Mitchell hereby grants You a non-exclusive, non-transferable, royalty free license to copy and use the SDK solely for the purpose of designing Your products and/or services (“Developer Application”) to share data with RepairCenter via an interface (“Interface”), exclusively by using the SDK (as so used, the Developer Application, together with the Interface, are hereafter the “Application(s)”).
3. Restrictions. You may not: (1) use the SDK to design or develop anything other than Applications; (2) make any more copies of the SDK than are reasonably necessary for the authorized use and backup and archival purposes; (3) create any Application using the SDK in conjunction with any other unauthorized specification, unauthorized software code, unauthorized data access, or any other unauthorized mechanism designed to interface or operate with RepairCenter; (4) modify, create derivative works of, reverse engineer, reverse compile, or disassemble the SDK; (5) distribute, sell, lease, rent, lend, or sublicense any part of the SDK to any third party except as included within and necessary to distribute the Application(s); (6) redistribute any component of the SDK to a 3rd party. If your application causes undue technical stress to the RepairCenter platform, Mitchell reserves the right to remove your Application from RepairCenter (or deactivate the Interface, as applicable) indefinitely or until such stresses are remedied to Mitchell’s satisfaction.
4. Notices. You must include all copyright and other proprietary rights notices accompanying the SDK in any copies that you produce. The following copyright notice must be conspicuously present in the Application(s): “RepairCenter © 2010, Mitchell International, Inc. All rights reserved. RepairCenter™ is a trademark of Mitchell International, Inc.”
5. Prohibited Conduct. You shall not use the SDK to: (a) upload or otherwise transmit any data, text, software, music, sound, photographs, graphics, video, messages or other materials (hereinafter, “Content”) or domain name that is unlawful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, including, without limitation, any Mitchell representative, or misrepresent your affiliation with any person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through RepairCenter; (e) upload or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload or otherwise transmit any Content or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (g) upload or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas of the Mitchell RepairCenter ToolStore that may be designated for such purpose; (h) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (i) interfere with or disrupt the RepairCenter application or servers or networks connected to the RepairCenter application; (j) violate any applicable law or regulation, including, without limitation, regulations promulgated by the U.S. Securities and Exchange Commission and any rules of any securities exchange, and laws regarding the export of technical data; (k) incite or provide instructional information about illegal activities; (l) conduct raffles, contests, lotteries, or sweepstakes, except in those areas of the Mitchell RepairCenter ToolStore that may be designed for such purpose; (m) create any Application or Developer Application which may cause end-users to view Mitchell or its products in a negative light.
6. Help and Support. Mitchell may use a variety of methods to provide technical support and customer service in connection with the SDK. The terms and conditions of this support, some of which require the payment of fees, are subject to change as announced by Mitchell from time to time.
7. Naming Restrictions/Logo Use/Advertising.
7.2 Logo Use. Your use of the Mitchell logo(s), as available through the Mitchell RepairCenter ToolStore , is subject to the following restrictions: All usage of Mitchell logos must be pre-approved by Mitchell’s marketing department prior to use. All logo usage must conform to Mitchell’s Style Guide, which is available upon request.
7.3 Advertising. If you want to include references to RepairCenter or Mitchell in the advertising or promotion of the Application(s), you must comply with the following restrictions: All advertising which references Mitchell or any Mitchell product or trademark must be approved by Mitchell’s marketing department prior to publication or distribution. Mitchell reserves the right to reject any proposed advertising for any reason.
8. Pre-Release Code. You may have access to certain materials contained in the SDK that contain pre-release code that is not at the level of performance and compatibility of the final, generally available versions of the same (“Pre-Release Code”). The Pre-Release Code may not operate correctly and may be substantially modified by Mitchell prior to first commercial shipment.
9. No Use by Competitors. You agree that the SDK, including the existence of any Pre-Release Code contained therein, performance, features, capabilities, related materials or documentation, and any other information designated by Mitchell is the valuable, proprietary information of Mitchell (“Mitchell Confidential Information”). You agree not to disclose to or allow any third party to access or use the Mitchell Confidential Information. The SDK is not licensed for use to any of the following entities or their subsidiaries or affiliates: CCC Information Systems, Inc., Solera, Inc. (including Audatex, Inc.), Summit Software Solutions, Inc., or Rome Technologies. Any use of the SDK by such entities is strictly prohibited.
10. Feedback. Any feedback, suggestions and ideas (“Feedback”) that You provide to Mitchell specifically regarding the SDK or Pre-Release Code will be treated by Mitchell as non-confidential, and Mitchell may, in its sole discretion, use the Feedback you provide to Mitchell in any way, including in future modifications of the SDK, Mitchell products, multimedia works and/or advertising and promotional materials relating thereto. You hereby grant Mitchell a perpetual, worldwide, fully transferable, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute and display the Feedback in any manner and for any purpose. Nothing in this Agreement shall prohibit Mitchell from developing any application, including applications which may incorporate similar functionality to a Developer Application.
11. Proprietary Rights. The copyright and all other rights in and to the SDK and any Mitchell product shall remain with Mitchell or its suppliers, as applicable. All rights to the SDK not explicitly granted in this Agreement are reserved to Mitchell.
12. Confidentiality. You agree that the SDK, all data obtained via the Interface, and all materials provided hereunder by Mitchell are confidential and proprietary information of Mitchell (“Confidential Information”). Confidential Information does not include information (i) that is or becomes public knowledge or is received by You without any breach of any confidentiality obligation; (ii) that You can document was independently developed by You without use or access to the Confidential Information; or (iii) that You can document was previously known to You prior to receipt of the Confidential Information. You agree to (i) use the Confidential Information only in connection with fulfilling your rights and obligations under this Agreement; (ii) hold the Confidential Information in strict confidence and exercise due care with respect to its handling and protection, consistent with your protection of your own confidential information but not less than reasonable care, (iii) not publish or disclose the Confidential Information except for disclosures to employees and subcontractors who have a bona fide need to know the Confidential Information. You agree that any unauthorized disclosures of the Confidential Information would cause irreparable harm to Mitchell, and that in the event of any breach or threatened breach of the above confidentiality obligations, Mitchell shall be entitled to obtain equitable relief in addition to any other remedy available at law or in equity. You further acknowledge that the term of your confidentiality obligations shall be the longer of: (i) the term set forth in this Agreement; or (ii) three (3) years following termination of this Agreement.
13.1 Term. The term of this Agreement shall commence on the Effective Date and continue until terminated as specified herein.
13.2 Termination. Either party may terminate this Agreement at any time with or without cause. Upon any termination, Your license to the SDK will terminate immediately and You must immediately cease using such, and destroy all complete and partial copies of the SDK within your possession or control. The following Sections of this Agreement shall survive any termination or expiration of this Agreement: Sections 2, 3, 7, 9, 10, 11, 12, 14.2, 15, and 16.
14.1 By Mitchell. Mitchell hereby agrees to indemnify, defend and hold You harmless from and against any and all loss, cost, damage, or liability, including reasonable attorney fees, directly resulting from any claim or cause of action alleging that the SDK or any component thereof infringes a U.S. patent, trademark, or copyright (“Infringement Claim”) which is asserted against You, provided that You promptly notify Mitchell of such claim and allow Mitchell to have sole control over the defense and settlement thereof. Should the SDK as used by You become, or in Mitchell’s opinion be likely to become, the subject of an Infringement Claim, Mitchell shall at its option and sole expense either: (a) procure for You the right to continue to use the SDK as contemplated hereunder, (b) modify the SDK to eliminate any Infringement Claim which might result from its use hereunder, (c) replace the SDK with an equally suitable and functionally equivalent non-infringing SDK, or (d) terminate this Agreement. This indemnity shall NOT apply to any Infringement Claim to the extent that it arises from: (a) Your failure to use the SDK in accordance with the terms of this Agreement, or (b) Your modification of the SDK, or (c) combination of the SDK with products and/or information not provided by Mitchell.
14.2 By You. You hereby agree to indemnify, defend and hold Mitchell harmless from and against any and all loss, cost, damage, or liability, including reasonable attorney fees, resulting from any claim or cause of action based on (i) Your use of the SDK, or (ii) any Application or Developer Application.
15. Disclaimers, Limitation of Liability
15.1 Disclaimers. THE SDK IS PROVIDED BY MITCHELL ON AN “AS IS” BASIS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MITCHELL BE LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MITCHELL DOES NOT WARRANT THAT THE DEVELOPER APPLICATION(S) OR THAT THE SDK WILL BE COMPATIBLE WITH ANY MITCHELL PRODUCTS OR SERVICES, OR THAT YOU WILL RECEIVE ANY ORDER, SUBSCRIPTIONS, OR REVENUE DUE TO YOUR USE OF THE DEVELOPER MATERIALS. SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILTY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND SO PARTS OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE LIMIATATIONS OF LIABILITY ABOVE SHALL NOT APPLY TO: (I) YOUR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (II) A BREACH OF YOUR CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR (III) YOUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
15.2 Limitation of Liability. MITCHELL’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING PRODUCT LIABILTY AND NEGLIGENCE, SHALL BE LIMITED TO TEN THOUSAND DOLLARS ($10,000.00).
16.1 Notices. Any notice, demand, or other communication required or permitted to be given under this Agreement shall be in writing and delivered to Mitchell via overnight courier service at the address below (or such other address as Mitchell may from time to time specify):
Mitchell International, Inc.
Attn: Legal Dept.
6220 Greenwich Drive
San Diego, CA 92122
` 16.2 Assignment. You may not assign this Agreement or any rights or obligations hereunder without the prior written consent of Mitchell. Any attempted assignment without such prior written consent shall be void.
16.3 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and shall supersede all prior and/or concurrent oral or written agreements, representations, and/or warranties between You and Mitchell.
16.4 Amendments. Mitchell may amend this Agreement from time to time by providing You with written or electronic notice of such amendment, provided, however, that any such amendment shall not require You to pay money to Mitchell or any third party, or materially alter the limits or allocations of liability hereunder. No attempt by You to amend this Agreement shall be operative until and unless such amendment is signed by an officer of Mitchell.
16.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.
16.6 Jurisdiction and Venue. The parties hereby submit and consent to the exclusive jurisdiction of the state or federal courts located in the County of San Diego, California, and agree that all actions or proceedings related to this Agreement shall be litigated in such courts, and each of the parties waives any objection which it may have based on improper venue or forum non conveniens to the conduct of any such action or proceeding in such court.
16.7 Independent Contractors. Nothing herein shall be deemed to constitute Mitchell and You as partners, joint venturers, or principal and agent. Neither party has any authority to represent the other party as to any matters, except as expressly authorized in this Agreement. Further, You shall not mention Mitchell’s brands or trade names in any way that implies formal endorsement or partnership between the parties and shall instruct any third party it engages in any marketing endeavor of such restriction.
16.8 Waiver. Failure of either party hereto to enforce at any time any term of this Agreement shall not be a waiver of that party’s right thereafter to enforce each and every term of this Agreement. All remedies, rights, undertakings, obligations and agreements, contained in this Agreement shall be cumulative, and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of any party. Mitchell and You specifically agree that this Agreement shall not be subject to modification, supplementation, qualification, or waiver as a result of course of dealing, usage of trade, course of performance, or proposed consistent additional terms, except as otherwise expressly authorized herein.
16.9 Severability. In the event that one or more provisions of this Agreement is found to be invalid, void, or unenforceable, such provision shall be removed from the Agreement and the remaining provisions shall be unaffected thereby.
16.10 Export Restrictions. You acknowledge that the SDK may be subject to U.S. Export Administration Regulations and that you will comply with any applicable laws or regulations. You will not export or re-export the SDK, directly or indirectly, to: (1) any countries that are subject to U.S. export restrictions; (2) any end-user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (3) any end user who you know or have reason to know will utilize it in the design, development or production of nuclear, chemical, or biological weapons. You further acknowledge that the SDK may include technical data subject to export and re-export restrictions imposed by U.S. law.