By using the RPMWare Database ("RPMWare Database") and RPMWare Service ("RPMWare Service") or any other service of RPMWare Inc. ("Licensor"), you ("Licensee") agree to be bound by the following License Agreement ("License Agreement").

Recitals

WHEREAS, Licensor has developed and is the owner of the entire right, title and interest in and to a continuously updated compilation of specific automobile parts and related data, which information is a machine-readable database hereinafter referred to as the "RPMWare Database" recorded inter alia, on machine-readable form(s) agreed to by the parties;

WHEREAS, Licensor has developed and is the owner of the entire right, title and interest in and to the RPMWare Service, "RPMWare Service", a subscription based website enabling ecommerce specifically for those in the automotive parts business utilizing the RPMWare Database;

WHEREAS, Licensee desires to utilize the RPMWare Database and RPMWare Service;

WHEREAS, Licensee wishes to acquire and Licensor is willing to grant to Licensee a limited, non-exclusive license to utilize the RPMWare Database and RPMWare Service upon the terms and conditions set forth hereinafter.

NOW, THEREFORE, the parties herein agree and covenant as follows:

I. Definitions

  1. "RPMWare Database" shall mean the automobile parts database proprietary to the Licensor and protected by trademark and copyright and as more fully described as standardized product and application data involving a continuously updated compilation of specific aftermarket automobile parts which information is provided on a machine-readable database.
  2. "RPMWare Service" shall mean the automobile parts ecommerce website proprietary to the Licensor and protected by trademark and copyright and as more fully described as a web-based software application used to consume the RPMWare Database and present web browsers with easily accessible product information.

II. License

  1. Licensor hereby grants to Licensee the non-exclusive right to utilize the RPMWare Database and RPMWare Service for Licensee’s customers and prospective customers and is nonexclusive and nontransferable and extends only to Licensee’s own use of the RPMWare Database and RPMWare Service. Licensee may not assign or transfer this License or Licensee’s other rights under this Agreement, whether by operation of law or otherwise, except with Licensor’s prior written consent. THE RPMWARE DATABASE AND RPMWARE SERVICE CONSTITUTES HIGHLY SENSITIVE AND PROPRIETARY TRADE SECRETS AND CONFIDENTIAL INFORMATION OF LICENSOR. LICENSEE MUST STRICTLY OBSERVE ALL RESTRICTIONS IMPOSED BY LICENSOR WITH RESPECT TO PROPRIETARY PROTECTION OF THE RPMWARE DATABASE AND RPMWARE SERVICE.

III. Limitations and Restrictions

  1. Licensee covenants that it will limit its use of the RPMWare Database and RPMWare Service to its personal use for the marketing of its products to customers and prospective customers of Licensee and will not sell, assign, license or otherwise convey or transfer the RPMWare Database and RPMWare Service to any third party, corporation or other entity without the prior written consent of Licensor.
  2. Licensee covenants that it will not make, devise or create any changes in the RPMWare Database and RPMWare Service or combine data from RPMWare Database and RPMWare Service with other data without the prior written consent of Licensor. Additions to and/or modifications of the RPMWare Database and RPMWare Service shall neither create nor convey right, title or interest in any entity other than Licensor.
  3. Licensee covenants that no access to the RPMWare Database or RPMWare Service shall be provided to any third party unless or until specific prior notice is given that RPMWare Database and RPMWare Service is protected by copyright and that all rights to any reproduction of RPMWare Database and RPMWare Service are reserved by Licensor.
  4. Licensor reserves to itself and to its authorized representatives the sole right to select and determine the content and format of the RPMWare Database and RPMWare Service.
  5. Licensor warrants that all reasonable efforts shall be made by Licensor to compile and transmit data in form suitable for intended users; it does not warrant or assume responsibility for the accuracy of data obtained by or through third parties used within the RPMWare Database and RPMWare Service.

IV. Access

  1. Licensor authorizes Licensee to access and use the RPMWare Database and RPMWare Service for the purpose of providing online to its customers timely and accurate data related to the products that it has available for purchase in its ordinary course of business. Except as specifically set forth within this Agreement, Licensor reserves all rights related to the RPMWare Database and RPMWare Service and the Licensee shall have only such rights as is specifically set forth herein.

V. Payments

  1. A valid credit card is required for all accounts.
  2. RPMWare Service is billed in advance on a monthly basis or annual basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. NO EXCEPTIONS WILL BE MADE.
  3. Licensor reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently RPMWare Service (or any part thereof) with or without notice.
  4. Licensor reserves the right at any time from time to time to modify pricing of the RPMWare Service with 30 days notice. Licensee will be notified via e-mail of any pricing changes thirty (30) days prior to the effective date.

VI. Expiration and Termination

  1. You are solely responsible for properly canceling your account. DO NOT consider your account cancelled until you receive written confirmation from Licensor.
  2. Except as otherwise provided herein, either party may terminate this Agreement by giving written notice to the other party. Upon receipt of cancellation service will be discontinued immediately and no further charges will be made. NO REFUNDS WILL BE GIVEN FOR UNUSED SERVICE.
  3. In the event of failure of the Licensee to make a license payment within thirty (30) days of the due date shall terminate this Agreement. Licensee shall, upon termination, refrain from any further use of the RPMWare Database and RPMWare Service.

VII. General Provisions

  1. Your use of the RPMWare Database and RPMWare Service is at your sole risk. The RPMWare Database and RPMWare Service is provided on an "as is" and "as available" basis.
  2. You must not modify, adapt or hack the RPMWare Database or RPMWare Service or modify another website so as to falsely imply that it is associated with the RPMWare Database or RPMWare Service, RPMWare, or any other RPMWare service.
  3. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the RPMWare Database and RPMWare Service, use of the RPMWare Database and RPMWare Service, or access to the RPMWare Database and RPMWare Service without the express written permission by RPMWare.
  4. All notices pursuant to this Agreement shall be given in writing by personal messenger or by deposit thereof in the mails, registered or certified, return receipt requested, to the addresses initially set forth in this Agreement. Either party may change the address to which notices are to be delivered by giving written notice to the other party. All notices and other written communications shall be deemed delivered on the day they are personally delivered to the other party by messenger or, for all notices and communications sent by mail, at the time reflected in the return receipt.
  5. Each of the parties is and shall act as an independent contractor and not as agent, partner, or joint venturer with the other party for any purpose, and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. Except as otherwise provided herein or as may hereafter be established by an agreement in writing executed by authorized representatives of the parties, all expenses incurred by each party shall be borne by the party incurring the expense.
  6. Notwithstanding any provision herein to the contrary, neither party shall be liable nor deemed to be in default for any delays or failure in performance or nonperformance under this Agreement resulting directly or indirectly from causes beyond its reasonable control, including but not limited to earthquakes, strikes, riots, epidemics, wars, governmental regulations, fire, transportation or equipment failures, communication delays, or acts of God.
  7. Should either party be declared bankrupt or insolvent, be placed under the protection of any law for the relief of debtors (whether or not accompanied by the appointment of a trustee, receiver, or other legal representative), or otherwise enter into any judicial or administrative procedure which is designed to or has or can have the effect of relieving debtors or satisfying debts of debtors, the other party may, without depriving itself of any other relief accorded it by statute or at common law, terminate this Agreement without prior written notice, or may elect to continue this Agreement or make any other election provided by law.
  8. Licensor shall defend at its own expense all suits alleging that the RPMWare Database and RPMWare Service under this Agreement infringes any other copyrighted material and claims of any patent. In the event any such action is commenced against the Licensee, Licensor shall, on request of Licensee, defend such action at Licensor’s expense and shall take such other steps as may be necessary to protect Licensee. Licensee shall, in any event, promptly notify Licensor, in writing, of any such claim of infringement or threat of legal action based upon an alleged infringement. In the defense of any such action, negotiation for settlement thereof or compromise of any claim, Licensor, shall conduct the proceedings through its own counsel, but the Licensee shall have the right at its own expense to participate in such defense through counsel of its choice. In the event Licensee is enjoined from using the RPMWare Database and RPMWare Service or any part thereof, or if Licensor does not secure for Licensee the right to continue using the RPMWare Database and RPMWare Service, or replace or modify the part of the RPMWare Database and RPMWare Service so as to cure alleged infringement, Licensee shall return the RPMWare Database and RPMWare Service to Licensor and Licensor shall refund any amounts paid by Licensee for the remaining term of the Agreement. It is further agreed that Licensor shall have no liability for any claim which arises solely out of use in connection with other programs or data not licensed hereunder.
  9. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER LICENSOR OR LICENSEE BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING), INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, LOSS OF USE, LOSS OF REVENUES OR DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY ASPECT OF THIS AGREEMENT OR ANY PURCHASE ORDERS HEREUNDER WHETHER OR NOT LIVETV OR BUYER SHALL HAVE BEEN MADE AWARE OF THE POSSIBILITY OF SUCH LOSS.
  10. No warranty is expressed or implied by Licensor with respect to the RPMWare Database and RPMWare Service except as provided in this Agreement.
  11. The headings contained herein are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope or intent of this Agreement nor in any way affect the terms and provisions hereof.
  12. If any provision of this Agreement is determined to be invalid or unenforceable, the remaining provision of this Agreement shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision were not contained herein.
  13. No delay or failure of either party to exercise any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such rights or any other rights hereunder unless expressly stated in writing.
  14. Neither party may assign its rights or obligations without the prior written consent of the other party, and any attempt to do so renders such proposed assignment null and void. Nonetheless, either party may assign its rights and obligations to any of its affiliates or subsidiaries upon notice, and any such assignment shall not relieve either party of its primary obligations under this Agreement.
  15. Licensee recognizes Licensor’s right and title to the RPMWare Database and RPMWare Service and agrees to take reasonable measures to prevent unauthorized disclosure of this data. Nothing contained in this Agreement shall be construed to transfer to Licensee any right, title or interest in, or to the RPMWare Database and RPMWare Service, upgrades, enhancements or any machine-readable copy thereof.
  16. Any action against Licensor for breach of contract or for neglect or otherwise, must be commenced within twelve (12) months, after such cause of action occurs.
  17. It is agreed by Licensor and Licensee that the consideration set forth in this Agreement is exclusive of any tariffs, duties, or taxes imposed or levied by any government or governmental agency, including tariffs, duties, or taxes which may be retroactively imposed or levied on the license, sale or distribution of the RPMWare Database and RPMWare Service. Licensee shall be liable for payment of any and all such taxes, however designated, levied, or based on the RPMWare Database and RPMWare Service, its charges, or its use, of on this Agreement, including without limitation, state or local sales, use, and personal property taxes. However, Licensee shall not be liable for payment of:
    1. state and local privilege or excise taxes based on gross revenue or income of Licensor;
    2. taxes levied or assessed on the net income of Licensor; and
    3. license or franchise taxes imposed on Licensor for the privilege of doing business in any state.
  18. This Agreement, which includes all Attachments hereto, contains the entire agreement and understanding between the parties and supersedes all prior agreements or understandings, whether written or verbal, relating to all or any part of the undertakings set forth in this Agreement. Amendments to this Agreement must be in writing, dated and signed by the parties, and the parties agree that this requirement cannot be dispensed with by an oral or implied waiver or modification.