These Shop-Ware Master Terms and Conditions (this "Terms") contains the terms and conditions upon which Shop-Ware grants to you ("Licensee") a limited license to use the Shop-Ware Services (as defined below). Any capitalized terms not defined herein shall have the respective meaning set forth in the Order to which these Terms are attached. 

1. Limited License:

1.1 License Grant. Subject to the terms and conditions of the Agreement, following completion of any Data Migration services selected in the Order, Shop-Ware grants to Licensee a personal, non-transferable, non-sublicensable, limited and non-exclusive right to access and use the Shop-Ware Services during the Term of the Agreement solely for Licensee's internal use in documenting repairs, invoicing customers, and managing their repair business (“License”).

1.2 Limitations. Licensee acknowledges that use of the Shop-Ware Services is provided hereunder solely for Licensee’s benefit, and agrees not to use the Shop-Ware Services for the benefit of any other third parties except for the benefit of its customers in accordance with the foregoing license.  Licensee agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Shop-Ware Services, make the Shop-Ware Services available to any third party or use the Shop-Ware Services on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Shop-Ware Services or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Shop-Ware Services, (iii) create derivative works based on the Shop-Ware Services; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Shop-Ware Services or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Shop-Ware Services; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Shop-Ware Services; (vii) scrape, export, store, or otherwise retain any copies of raw data (except Licensee Data) which Licensee may access through Shop-Ware Services; (viii) use the Shop-Ware Services to develop a competitive product offering; or (ix) use the Shop-Ware Services in a manner which violates or infringes any laws, rules, regulations, third party Intellectual Property Rights, or third party privacy rights.  Licensee may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Shop-Ware Services, except solely to the extent as may be specifically enabled and authorized by Shop-Ware in writing.  “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.

1.3 License Fees. In consideration for the rights granted herein, Licensee shall pay to Shop-Ware the fees set forth on the Order with respect to the selected service plan (“License Fees”). Licensee shall pay to Shop-Ware a fee equal to $8.00 per month and per User (the "User Fee"), according to the number of active Users above those included in the desired service plan (a User is determined to be active if they logged into the application in the last 30 days). License Fees and User Fees shall be paid in accordance with Section 5. Shop-Ware reserves the right to increase the License Fees and the User Fee from time to time and shall provide thirty (30) days' prior notice to any License Fee or User Fee change. Licensee may change Licensee's desired service plan at any time by emailing support@shop-ware.com, provided that such changes will take effect within fourteen (14) days.

2. Shop-Ware Services:

2.1 Shop-Ware Services. Licensee’s rights under Section 1.1 shall be limited to Licensee’s access and use of the Shop-Ware Services solely in the manner enabled by Shop-Ware and in accordance with all applicable usage limitations (such limitations, such as the number of maximum Users under the applicable service plan, as specified in the Order or in these Terms, the “Usage Limitations”) and documentation.  Shop-Ware reserves the right to modify and update the features and functionality of the Shop-Ware Services from time to time.  Except for as expressly set forth herein, Licensee is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Licensee’s use of the Shop-Ware Services.  Licensee agrees to use the Shop-Ware Services in compliance with all applicable laws, rules and regulations, and Licensee agrees that it is solely responsible for its compliance with all such applicable laws, rules, and regulations.
“Shop-Ware Services” means Shop-Ware’s proprietary platform for shop management and analytics hosted and made available by Shop-Ware as a software-as-a-service.  References to the “Shop-Ware Services” in these Terms shall be deemed to refer to the specific version of the Shop-Ware Services subscribed to by Licensee pursuant to an Order. “Users” means Licensee’s individual employees who use the Shop-Ware Services in accordance with the Agreement and any applicable Usage Limitations.  

2.2 Suspension/Termination.  Shop-Ware may terminate Licensee’s access to or use of the Shop-Ware Services and/or terminate the Agreement at any time if: (i) in the sole discretion of Shop-Ware, such action is necessary to prevent material errors or harm to any system or network, or to limit Shop-Ware’s liability; or (ii) Licensee or any User attempts to access or use the Shop-Ware Services in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to other Shop-Ware Services customers or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.

2.4 Accounts.  Licensee is solely responsible for the activities of any and all persons accessing and using the Shop-Ware Services using any Shop-Ware Services username and password or account credentials, as applicable (“Credentials”).  Licensee shall, and shall instruct its Users to, use all reasonable means to secure Credentials, and shall promptly notify Shop-Ware if it suspects that any Credentials have been compromised.  Each Shop-Ware Services account may only be accessed and used by the Licensee’s Users in accordance with all applicable Usage Limitations.  Licensee acknowledges that use of a Shop-Ware Services account by any person other than permitted Users shall constitute a material breach of this Agreement. 

2.5 Third Party Services and Modifications.  The Shop-Ware Services may include features or functionality that interoperate with online services operated by third parties, including, without limitation, by The Back Office (such services, “Third Party Services”), pursuant to agreements between Shop-Ware and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Shop-Ware does not control.  Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time.  Any such modification, suspension or termination shall not affect any payment obligations under the Agreement and Shop-Ware shall have no liability with respect thereto.  Without limiting the foregoing, Licensee is responsible for ensuring that Licensee’s use of the Shop-Ware Services in connection with Third Party Services complies with all policies, terms and rules applicable thereto.  

2.6 Availability.  Shop-Ware shall be responsible for operating the servers that make the Shop-Ware Services available, and shall use commercially reasonable efforts to maintain availability of the Shop-Ware Services of at least 99.9%, calculated monthly on a per-minute basis. The Shop-Ware Services will be considered unavailable only if it is substantially inaccessible. Licensee acknowledges and agrees that the Shop-Ware Services may be unavailable (in whole or in part) from time to time due to: (i) equipment, software or service malfunctions; (ii) maintenance, update or upgrade procedures or repairs; or (iii) causes beyond the control of Shop-Ware, including, without limitation, interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, external factors, network congestion or other failures, and that Shop-Ware shall not be liable for any unavailability caused by any of the foregoing nor will such unavailability be counted against the uptime percentage, above.  

2.7 Support.  Provided that Licensee timely makes all payments due under the Agreement, Shop-Ware shall provide reasonable technical support to Licensee regarding use of the Shop-Ware Services.  Such technical support shall consist of answering questions from Users regarding use of the Shop-Ware Services and using commercially reasonable efforts to repair any errors within the Shop-Ware Services during Licensee’s normal business hours.  Licensee may submit requests for technical support through e-mail.  Company will use commercially reasonable efforts to respond to each case within one (1) business day and will use commercially reasonable efforts to promptly resolve each case.  Actual resolution time will depend on the nature of the case and the resolution.  A resolution may consist of a fix, workaround or other solution in Shop-Ware’s reasonable determination. Technical support does not include providing assistance or advice regarding anything other than use of (or errors within) the Shop-Ware Services.  

2.8 Changes.  The parties may execute additional Orders to, for example, change the version of the Shop-Ware Services applicable hereunder and change Usage Limitations.  Such additional Orders shall be subject to applicable fees based on Shop-Ware’s then-current price sheet. Licensee acknowledges that such modifications may require a lead time of five (5) business days for Shop-Ware to implement.  No Order shall be valid unless mutually executed by authorized representatives of the parties.

3. Data:

3.1 Licensee Data. In order for Shop-Ware to provide the Shop-Ware Services, Licensee and/or its Users may upload or import into the Shop-Ware Services, or may have uploaded or imported into the Shop-Ware Services on its behalf, its customers' names, mailing addresses, email addresses, phone numbers, vehicle identification numbers, license plates, repair history, and other relevant customer information ("Customer Information") and other data owned by Licensee or its Users (collectively, with the Customer Information, the "Licensee Data"). Involuntary gathering of Customer Information and unauthorized use of Customer Information, including email addresses and emails sent without customers' consent, and including phone numbers and text messages sent without customers’ consent, will constitute a material breach of the Agreement and in such event Shop-Ware may terminate Licensee's Shop-Ware account and the Agreement. Licensee acknowledges and agrees that Shop-Ware will not, and has no obligation to, monitor or edit the Licensee Data, and that as between the parties Licensee is solely responsible for the Licensee Data, including without limitation, its format, integrity, accuracy, maintenance, and its compliance with all applicable laws, rules, and regulations. Shop-Ware reserves the right to remove any Licensee Data which Shop-Ware becomes aware may violate the terms of the Agreement, any applicable law, rule, or regulation, or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right.

3.2 Licensee Data Representations and Warranties. Licensee also represents and warrants that: (i) Licensee owns or controls all of the rights to all Licensee Data and have obtained all necessary rights, licenses, waivers, consents, covenants, and other permissions necessary to post the Licensee Data to the Shop-Ware Services and to permit Shop-Ware to perform its rights and obligations under these Terms; (ii) the Licensee Data is true and accurate in all material respects, and (iii) the Licensee Data does not and will not infringe or otherwise violate any rights of or cause injury to any person or entity, including without limitation the privacy rights, publicity rights, Intellectual Property Rights, contract rights or any other rights of any third party. Shop-ware takes no responsibility and will not be liable for any claim, cost or expense relating to the Licensee Data or any other information or content posted by Licensee or Licensee's customers.

3.3 Shop-Ware’s Rights to Use Licensee Data.  As between the parties, Licensee shall own all right, title and interest in and to the Licensee Data.  Licensee hereby grants Shop-Ware a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Licensee Data in connection with: (i) Licensee’s use of the Shop-Ware Services and for otherwise performing its obligations hereunder; (ii) improving the Shop-Ware Services and Shop-Ware’s products and services; (iii) in an aggregated manner in connection with industry reports and other Shop-Ware business uses, provided that Shop-Ware shall not use any Customer Information which is personally identifiable information in connection therewith and (iii) as may be required by law or legal process. Except as expressly provided for in the foregoing sentence, Shop-Ware will not, share or transmit any Licensee Data in any form or format to any third party without the prior written consent of Licensee, except that Shop-Ware may provide Licensee Data to its third party contractors and service providers for use on behalf of Shop-Ware as contemplated hereunder. Shop-Ware will use commercially reasonable security measures to prevent unauthorized access to the Licensee Data, however, Licensee  acknowledges that: (i) no security measures are 100% effective and (ii) the Shop-Ware Services use the Internet for data transfer, and Internet communications have inherent insecurities. 

4. Privacy; Information Collection; Communications:

4.1 Maintenance of Licensee Data. During the Term, Shop-Ware may collect (including via Licensee’s upload or input into the Shop-Ware Services), store and use Licensee Data, including the following information, in connection with providing the Shop-Ware Services to Licensee: (i) general Customer Information; (ii) vehicle decode information, odometer readings and license plates; (iii) repair shop information; and (iv) user content (repair orders (labor, parts, hazmat and fees, sublet, and inspection items); notes and their attachments of any kind, including (but not limited to) photos, videos and PDFs; recommendations; canned jobs).

4.2 Privacy Policy. Licensee agrees that Licensee will adopt and abide by a privacy policy that clearly and completely discloses to Licensee’s customers the Licensee Data collected and the ways in which Licensee and Shop-Ware may use and share such Licensee Data, and Licensee will comply with all applicable laws, rules and regulations relating to data privacy and consumer rights and Licensee’s and its Users’ access and use of the Shop-Ware Services. Shop-Ware will collect, store and use information subject to its then current Privacy Policy, currently located at https://app.shop-ware.com/privacy.html

4.4. Mobile Services; SMS; Emails.  Use of the Shop-Ware Services requires usage of data and messaging services provided by your wireless service carrier.  In particular, the Shop-Ware Services use SMS messaging and emails to send notifications to Licensee and its Users in connection with the functionality of the Shop-Ware Services.  Licensee, on behalf of itself and its Users, hereby consents to receiving such messages, and Licensee hereby agrees and covenants to Shop-Ware that it shall cause each User to agree to receiving such SMS messages and email to the extent required under applicable laws, including, without limitation, under the Telephone Consumer Protection Act of 1991. Licensee acknowledges and agrees that Licensee and its Users are solely responsible for data usage fees, messaging fees and any other fees that their wireless service carrier may charge in connection with their use of the Shop-Ware Services.

5. Payment:

5.1 Fees.  Licensee shall pay Shop-Ware the fees as set forth in each Order.  All fees under an Order shall be due and payable in advance of the applicable billing period.  

5.2 Default Payment Terms.  Except as forth in Section 5.3, payment processing for the Shop-Ware Services is provided by such third-party payment processor as we may utilize from time to time (“Payment Processor”). Shop-Ware does not collect or store your credit card information. You can find out more about both our privacy practices in our Privacy Policy. By providing a credit card or other payment method accepted by Shop-Ware, Licensee represents and warrants that Licensee is authorized to use the designated payment method. If the payment method Licensee provides cannot be verified, is invalid or is otherwise not acceptable, Licensee’s account may be suspended or cancelled. Licensee must resolve any problem Shop-Ware or its Payment Processor encounters in order to proceed with Licensee’s use of its account.

By signing up for any paid Shop-Ware Services and providing your payment information, Licensee agrees to pay Shop-Ware (and authorizes Shop-Ware’s Payment Processor to charge Licensee) the recurring and/or nonrecurring fees as agreed by Licensee at in the applicable Order and as may be modified from time to time as described in this Agreement, as well as any other fees Licensee expressly chooses to incur in connection with its use of the Shop-Ware Services.  Unless otherwise specified in an Order, for subscription services, Licensee’s payment method will be authorized for up to a month for the applicable Shop-Ware Services and on a monthly basis thereafter until Licensee cancels the subscription. Licensee acknowledges and agrees that the payment method provided by Licensee will be automatically charged the fees Licensee incurs in connection with its use of the Shop-Ware Services, and represents and warrants that it has all necessary rights relating to such payment instrument to authorize Shop-Ware to make such charges.  Licensee’s use of the Shop-Ware Services may be suspended if Shop-Ware is unable to charge such payment instrument for any reason or if Licensee’s account is otherwise past due. The fees applicable to Licensee’s account may be subject to modification from time to time pursuant to notice (which may be given via e-mail) provided by Shop-Ware at least thirty (30) days in advance of the payment date for which the modification would be effective.  Licensee may at any time cancel its account as set forth below if Licensee does not agree to any modified fees.  All fees must be paid in U.S. dollars (or such other currency(ies) which may be accepted by Shop-Ware from time to time, as indicated at the time of payment) and are non-refundable.  

5.3 Invoice Payment Terms. If the parties expressly agree (in an Order or otherwise) to use invoicing rather than credit card payment, unless otherwise set forth in the Order, Shop-Ware shall invoice Licensee on a monthly basis in advance for all recurring fees.  Licensee agrees to pay each invoice within thirty (30) days of the invoice date, provided that recurring monthly fees under an Order must be received by Shop-Ware prior to the first day of the applicable month regardless of the invoice date.  All payments will be made in U.S. dollars.  Any amounts due Shop-Ware under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less.  Licensee shall pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments.  Licensee is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to the Agreement, other than taxes based on Shop-Ware’s income.

5.4 Cancellation. LICENSEE MAY CANCEL ITS SUBSCRIPTION AT ANY TIME BY CONTACTING SHOP-WARE AT SUPPORT@SHOP-WARE.COM.  IF LICENSEE CANCELS ITS SUBSCRIPTION, LICENSEE MAY STILL USE ITS SUBSCRIPTION UNTIL THE END OF ITS THEN-CURRENT SUBSCRIPTION TERM.  TO NOT BE CHARGED FOR LICENSEE’S SUBSCRIPTION FOR THE FOLLOWING SUBSCRIPTION TERM, LICENSEE MUST CANCEL ITS SUBSCRIPTION AT LEAST THIRTY (30) DAYS PRIOR TO THAT MONTH, OR LICENSEE WILL OTHERWISE BE CHARGED FOR THAT SUBSCRIPTION TERM.  ALL CANCELLATION REQUESTS RECEIVED LESS THAN THIRTY (30) DAYS BEFORE THE FOLLOWING SUBSCRIPTION TERM WILL APPLY TO THE FOLLOWING CYCLE.

6. Confidentiality:

Each party shall keep confidential the terms of this Agreement, all information and materials provided or made available by the other party, whether or not marked as confidential or proprietary, (for orally disclosed information) that the receiving party knows or should have reasonably known is confidential or proprietary at the time of disclosure (“Confidential Information”).  For clarity, the features, functionality and content of the Shop-Ware Services (including all data and information made available by Shop-Ware via the Shop-Ware Services), any Shop-Ware Services documentation, the fees charged hereunder and any information regarding planned modifications or updates to the Shop-Ware Services or other Shop-Ware products and services constitutes Confidential Information of Shop-Ware. The Confidential Information of Licensee includes the Licensee Data.  Each party shall keep and instruct its employees and agents, and in the case of Shop-Ware, its third party contractors, to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care.  Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing party.  Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, (iv) developed by the receiving party without reference to Confidential Information or (v) required to be disclosed by law or legal process, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders.  If any party, its employees or agents breaches or threatens to breach the obligations of this Section 6, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.

7. Representation and Warranties:

7.1 Mutual.  Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into the Agreement; (ii) the execution of the Agreement and performance of its obligations under the Agreement does not violate any other agreement to which it is a party; and (iii) the Agreement constitutes a legal, valid and binding obligation when executed and delivered.

7.2 Licensee.  Licensee represents and warrants to Shop-Ware that: (i) it has all right, title, and interest in and to the Licensee Data necessary for its use in connection with the Shop-Ware Services; (ii) it will not use the Shop-Ware Services or any outputs or insights generated from use thereof in a manner or in connection with any activity that would violate any law, rule or regulation; (iii) it has obtained all necessary consents and permissions required for its collection of the Licensee Data and use of the Licensee Data as contemplated under the Agreement (including without limitation Licensee Data provided to Shop-Ware or otherwise imported or inputted into the Shop-Ware Services in connection the Migration Services (as defined in the Data Migration Agreement); (v) the Customer Information has been provided voluntarily and with each customer's consent and each customer has consented to receiving emails from the Shop-Ware and the use by Shop-Ware of such Customer Information in accordance with the Agreement, including without limitation Section 3.3 of these Terms; and (vi) the Licensee Data (including the storage, reproduction, transfer, and use thereof as contemplated hereunder) does not and will not (x) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third party, (y) slander, defame, or libel any person, or (z) violate any applicable laws, rules, or regulations.

8. Warranty Disclaimer; Limitation of Liability; Indemnification:

8.1 Warranty and Disclaimer. SHOP-WARE LICENSES THE SHOP-WARE SERVICES, INCLUDING ANY RELATED DOCUMENTATION, TO LICENSEE ON AN "AS IS" BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SHOP-WARE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OR ARISING FROM COURSE OF DEALING OR TRADE USAGE. SHOP-WARE DOES NOT WARRANT THAT THE SHOP-WARE SERVICES WILL OPERATE IN COMBINATIONS OTHER THAN AS SPECIFIED IN ANY ACCOMPANYING DOCUMENTATION OR THAT THE OPERATION OF THE SHOP-WARE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE ACKNOWLEDGES THAT NOTHING IN THE AGREEMENT NOR ANY COMMUNICATION OF ANY KIND BY ANY SHOP-WARE PERSONNEL SHALL BE CONSTRUED TO BE A REPRESENTATION OR WARRANTY THAT THE RESULTS PROVIDED BY THE SHOP-WARE SERVICES SHALL BE ACCURATE. SHOP-WARE DOES NOT WARRANT THAT THE USE OF SHOP-WARE SERVICES ARE IN, OR WILL RESULT IN, THE COMPLIANCE WITH ANY RULES OR REQUIREMENTS IMPOSED ON AUTO-REPAIR OR SIMILAR BUSINESSES BY ANY LOCAL, STATE OR FEDERAL LAWS OR REGULATIONS. USE OF THE SHOP-WARE SERVICES IS AT LICENSEE'S SOLE RISK.

8.2 Limitation of Liability. IN NO EVENT WILL SHOP-WARE'S LIABILITY FOR DIRECT DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SHOP-WARE SERVICES EXCEED THE TOTAL AMOUNT OF FEES PAID BY LICENSEE OR $100, WHICHEVER IS GREATER. IN NO EVENT WILL SHOP-WARE BE LIABLE TO LICENSEE OR ANY OTHER INDIVIDUAL OR ENTITY CONNECTED WITH LICENSEE FOR ANY LOST PROFITS, SALES, BUSINESS, DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE SHOP-WARE SERVICES AND DOCUMENTATION OR OTHERWISE ARISING FROM THIS AGREEMENT, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The parties agree that this Section 8 represents a reasonable allocation of risk.

9. Ownership:

9.1 Company. As between the parties, Shop-Ware owns all right, title and interest (including all Intellectual Property Rights) in and to the Shop-Ware Services and any software, technology, materials and information (i) owned by Shop-Ware prior to the Effective Date or (ii) created, authored, developed, made, conceived, or reduced to practice by Shop-Ware after the Effective Date (collectively, the “Shop-Ware Materials”). Except for the license granted under Section 1.1, nothing herein shall be construed to transfer any rights, title or ownership of the Shop-Ware Materials or any Shop-Ware software, technology, materials, information or Intellectual Property Rights to Licensee.  Licensee is not required to provide any ideas, feedback or suggestions regarding any of Shop-Ware’s products or services (“Feedback”) to Shop-Ware.  To the extent Licensee does provide any Feedback to Shop-Ware, Licensee agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Shop-Ware and acknowledges that Shop-Ware may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Licensee.

9.2 Licensee.  As between the parties, Licensee owns all right, title and interest (including all Intellectual Property Rights) in and to the Licensee Data, and any software, technology, materials and information owned by Licensee prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice solely by Licensee and without Shop-Ware’s assistance after the Effective Date (collectively, “Licensee Materials”).  Nothing herein shall be construed to transfer any rights, title or ownership of the Licensee Materials or Intellectual Property Rights therein to Company. 

9.3 Licensee Indemnity.  Licensee agrees to, at its own expense, indemnify, hold harmless, defend and/or settle any claim, action or suit brought by a third party (including Licensee’s customers) against Shop-Ware or its directors, officers or employees (“Shop-Ware Indemnitees”) arising out of or relating to Licensee’s gross negligence, willful misconduct, breach of its obligations, representations and warranties hereunder, or alleging that Licensee Data or Licensee’s use of the Shop-Ware Services in breach of this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights or violates applicable laws, rules, or regulations (a “Claim”). 

9.4 Shop-Ware Indemnity.  Shop-Ware agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against Licensee or its affiliates, or their directors, officers and employees (“Licensee Indemnitees”), alleging that the Shop-Ware technology underlying the Shop-Ware Services infringes such third party’s Intellectual Property Rights, except to the extent such claim, action or suit arises from or relates to Licensee Data (an “IP Claim”), and Shop-Ware will pay those amounts finally awarded by a court of competent jurisdiction against the Licensee Indemnitees or (subject to the terms of Section 9.5) payable pursuant to a settlement agreement with respect to the IP Claim.  If Shop-Ware, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Shop-Ware may, at its option, (a) obtain a license from such third party claimant that allows Licensee to continue the use of the Shop-Ware Services, (b) modify the Shop-Ware Services so as to be non-infringing, or (c) if neither (a) nor (b) is available to Shop-Ware on commercially reasonable terms, terminate the Agreement upon written notice to Licensee.  Shop-Ware will have no obligation or liability relating to any IP Claim that: (x) is based on modification or customization of the Shop-Ware Services at the direction of Licensee or any third party; (y) is based on the combination or use of the Shop-Ware Services (or any component thereof) with any software, hardware, system, method, device or materials not provided or required by Shop-Ware; or (z) results from Licensee’s use of the Shop-Ware Services in a manner that is inconsistent with its intended use or is in breach of the Agreement.  This Section 9.4 sets forth the entire liability of Shop-Ware and the sole and exclusive remedy of Licensee in the event of any claim that the Shop-Ware Services infringes any third party Intellectual Property Right.

9.5 Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 9.3 or Section 9.4, as applicable. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Claim or IP Claim and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 9.5 will not relieve the Indemnitor of its obligations under Section 9.4 or Section 9.5, as applicable, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.  The Indemnitor may settle a Claim or IP Claim so long as any settlement (i) does not, without Indemnitee’s prior written approval, (x) involve the admission of any wrongdoing by any Indemnitee, (y) restrict any Indemnitee’s future actions, or (z) require any Indemnitee to take any action, including the payment of money, and (ii) includes a full release of the Indemnitees.

10. MOTOR Information Systems:

Shop-Ware’s license to Licensee under Section 1.1 allows Licensee access to information Shop-Ware has licensed from MOTOR Information Systems (the "MOTOR Information") and by accessing such information, Licensee agree to comply with the following terms and conditions:

10.1 License Limitations. With respect to the MOTOR Information contained within the Shop-Ware Services, MOTOR Information is solely to be used by Licensee and its Users on on a vehicle-by-vehicle look-up basis.

10.2 Restrictions on the Use of MOTOR Information. Licensee agrees that it shall not, and shall not permit its Users or any third party, to directly or indirectly (i) alter or copy in any form or medium all or any part of the MOTOR Information (except for data located on an individual, vehicle by vehicle, lookup basis), nor make any MOTOR Information part of any electronic retrieval system; (ii) create any derivative work from, or adaptation of, the MOTOR Information; (iii) lease, license, sell, or otherwise publish, communicate, distribute or display to any third party in any form or medium all or any part of the MOTOR Information; (iv) create any publications, in electronic, printed or other format, based in whole or in part on data from the MOTOR Information, alone or in combination with any other data; (v) download the MOTOR Information (other than the data obtained on a vehicle-by-vehicle look-up basis) or transmit the MOTOR Information electronically by any means; (vi) remove any product identification, copyright, trademark or other notice from the MOTOR Information or documentation; or (vii) reverse engineer, reverse assemble, or reverse compile the MOTOR Information.

10.3 Ownership/Confidentiality. Licensee agrees that the MOTOR Information is the confidential information of MOTOR, and that MOTOR owns or is the licensee of all rights in the MOTOR Information, including without limitation all Intellectual Property Rights and other proprietary rights. Licensee agrees to keep confidential and use its best efforts to prevent and protect the MOTOR Information from unauthorized disclosure or use.

10.4 Copyrights. When using the MOTOR Information, Licensee expressly acknowledges that the following copyrights apply:

Chrysler Copyright. Portions of the Shop-Ware Services are sourced by Chrysler Group, LLC.

        1. FORD Copyright. The Shop-Ware Services contain copyrighted and other protected material owned by FORD Motor Company. Unauthorized use or reproduction, in whole or in part, is prohibited.

        2. General Motors. Portions of materials contained in the Shop-Ware Services have been reprinted under license from General Motors, LLC, License Agreement #1110717.

        3. Honda Copyright. Portions of the Shop-Ware Services have been reprinted under license from American Honda Corporation, License Agreement 11203AH.

        4. Hyundai Copyright. Portions of the Shop-Ware Services have been reprinted under license from Hyundai Motor America, License Agreement HMA13004.

        5. Land Rover Copyright. The Shop-Ware Services contain material that is reproduced and distributed under a license from Land Rover. No further reproduction or distribution of the Land Rover material is allowed without the express written permission of Land Rover.

        6. Jaguar Copyright. The Shop-Ware Services contains material that is reproduced and distributed under a license from Jaguar Cards Limited. No further reproduction or distribution of the Jaguar material is allowed without the express written permission of Jaguar Cars Limited.

        7. Toyota Copyright. Portions of the Shop-Ware Services have been reprinted under license from Toyota Motor Sales, U.S.A., Inc., License Agreement TMS1008.

        8. Volkswagen Copyright. Portions the Shop-Ware Services have been reprinted under license from Volkswagen Group of America, Inc., License Agreement 12500VWA.

        9. Volvo Copyright. The Shop-Ware Services contain material that is reproduced and distributed under a license from Volvo Car Corporation. No further reproduction or distribution of the Volvo material is allowed without the express written permission of Volvo Car Corporation.

11. Term and Termination:

11.1 Term. This Agreement shall commence on the Effective Date and continue for the Term (as defined in the Order). Subject to Section 5.3, either party may terminate this Agreement for any reason or no reason whatsoever upon provision of notice to the non-terminating party; effective at the conclusion of the month in which termination occurs.

11.2 Effect of Termination or Expiration. Upon the expiration or termination of this Agreement for any reason: (1) all licenses granted hereunder automatically terminate and revert to Shop-Ware and Licensee will no longer have access to the Shop-Ware Services; and (2) Licensee shall (i) return to Shop-Ware all Shop-Ware Confidential Information, and all other material received from Shop-Ware in Licensee's possession or control, or, at Shop-Ware's sole discretion, Shop-Ware may request that Licensee destroy all such materials in Licensee's possession or control, (b) erase any and all of the foregoing from all computer memories and storage devices within Licensee's possession or control, and (c) at Shop-Ware's request, provide Shop-Ware with a written statement by an officer of Licensee certifying that Licensee has complied with the foregoing obligations.

12. Miscellaneous:

12.1 Assignment. Licensee shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Shop-Ware. Any purported assignment in contravention of the foregoing shall be null and void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.2 Counterparts. The Agreement may be executed in counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument.

12.3 Governing Law. The Agreement and any dispute arising from or relating to the performance or breach hereof shall be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflicts of laws principles, and excluding the United Nations Convention on Contracts for the International Sale of Goods.

12.4 Jurisdiction. Any legal action or proceeding relating to the Agreement shall be instituted in a state or federal court in San Francisco County, California. Shop-Ware and Licensee agree to submit to the exclusive jurisdiction of, and agree that venue is proper in, these courts for any legal action or proceeding.

12.5 Notice. All notices due or to be given to Shop-Ware hereunder shall be in writing and sent by first class U.S. mail or commercial delivery service such as Federal Express and delivered to Shop-Ware Inc. at the following address:

Shop-Ware Inc.
475 9th St
San Francisco, CA, 94103

All notices shall be deemed to have been given when mailed in accordance with this section.

12.6 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force.

12.7 Waiver. The waiver by either party of a breach of any provision of the Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.

12.8 Export Administration. Licensee agrees to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that neither the Services nor any direct product thereof are (1) exported, directly or indirectly, in violation of Export Laws; or (2) are used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.

12.9 Entire Agreement. The Agreement shall constitute the complete agreement between the parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of the Agreement. The Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify the Agreement.

12.10 Survival. Sections 1.2, 1.3, 3.2, 3.3, 5, 6, 7, 8, 9, 10.2, 10.3, 10.4, 11.2 and 12 of these Terms shall survive termination or expiration of the Agreement and remain binding upon the parties in perpetuity.

 

Data Migration Agreement 

1. Data Migration Process and Disclosures:

1.1 Description of Process. Shop-Ware works with a third-party data extraction partner to facilitate the migration. The first step is to extract Licensee’s existing data to prepare it for entry into the Shop-Ware Services. Shop-Ware's partner will contact Licensee during a 30-minute window and perform the final extraction. For the “first pass” training migration (if applicable), the contact window may be an entire morning or day.

The migration process will take up to 48 hours from extraction to completion, after which Shop-Ware validates the data against Licensee’s provided RO examples, and offer it to Licensee for review. For Advanced Accounting Migrations, Shop-Ware will schedule a second migration to coincide with licensee’s go-live date. Before work can begin on any data migration, the Agreement must be executed and payment received for the on-boarding and training package that includes the data migration option.

1.2 Licensee Commitments. 

      1. Agree to contact window(s) to support data extraction with Shop-Ware’s partner.

      2. Provide at least 5 sample ROs to Shop-Ware for data validation during the migration process.

      3. If Licensee cannot keep Licensee’s extraction appointment, provide a minimum of 48 hours’ notice to Shop-Ware representative in advance to re-schedule.

      4. Review the results and raise any concerns within 48 hours of delivery; no changes will be considered after 48 hours.

1.3 Disclosures. All data migrations are performed using commercially reasonable efforts. Due to the complexity and unpredictability of the underlying data in individual management systems, and each Licensee’s use of that system, Shop-Ware cannot guarantee data integrity. Success of data migration depends entirely on the quality of the original data.  Estimates, recommendations, and accounts receivable are not preserved in any migration from any system. 

Upon data migration event Licensee’s Shop-Ware trial account will be overwritten, including (but not limited to) all Customer Records, Vehicle Records, Invoice History, Parts Inventory, and Parts Vendors that Licensee may have entered prior to data migration.

Canned jobs and parts created as part of those canned jobs will remain and Shop-Ware encourages Licensee to begin creating canned jobs as soon as Licensee’s account is provisioned. 

The migration can take up to 48 hours from extraction to completion; any information that is entered in Licensee’s  legacy SMS after the extract will need to be manually reproduced in the Shop-Ware Services. Structural problems that exist in the legacy SMS data will not be addressed as a part of this data migration. 

By signing this form, Licensee confirms that Licensee has read and understood the data migration process, disclosures, and the Data Migration Service Agreement stated herein, and that the migration work will begin when payment is received by Shop-Ware.  

2. Data Migration General Terms and Conditions:

2.1 Subject to all terms and conditions of the Agreement, Shop-Ware shall (itself and/or through its subcontractors and service providers) use its commercially reasonable efforts to perform the data migration services described above (the "Migration Services"). Due to the complexity and unpredictability of the underlying data in individual management systems and Licensee’s use of that system, we cannot guarantee data integrity or usefulness post migration. Estimates and recommendations are not preserved in any migration from any system. Because the migrations can take from 24 to 48 hours from extraction time, Licensee may need to replicate repair orders from Licensee's legacy system into Shop-Ware for a period not captured by the migration. There may be structural problems in the legacy SMS data that Shop-Ware cannot address.

2.2 Licensee shall pay Shop-Ware the amount specified for the Migration Services in full on the Effective Date, and Licensee acknowledges that no Migration Services will be performed until payment is received. The payment is non-refundable except as expressly set forth herein.

2.3 Licensee shall provide at Shop-Ware's request the cooperation of qualified Licensee personnel, access to Licensee's premises and systems and other reasonably necessary assistance and information.

2.4 This Data Migration Agreement is effective as of the Effective Date and shall continue in full force and effect thereafter until the completion of the Migration Services and Shop-Ware's receipt of all payments due in respect of the Migration Services, unless earlier terminated as set forth in the Terms. If Shop-Ware notifies Licensee in writing that it is unable to perform the Migration Services, Shop-Ware shall provide a refund of the fees for the Migration Services paid by Licensee hereunder). 

2.5 All right, title and interest in and to any and all inventions, works of authorship, data, information, technology and materials arising out of the performance of the Migration Services shall remain with Shop-Ware. This Section 2.5 shall survive expiration or termination of this Data Migration Agreement.

2.6 Shop-Ware warrants that the Migration Services shall be performed in a professional and workmanlike manner. The exclusive remedy for any breach of the foregoing warranty or non-performance of the Migration Services shall be that Shop-Ware, at its own expense, and in response to written notice of a claim by Licensee within five (5) days after performance of the Migration Services at issue, shall, at its own option, either (1) re-perform the Migration Services to conform to this standard; or (2) shall refund to Licensee amounts paid for non-conforming Migration Services.

2.7 Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Data Migration Agreement due to causes beyond its reasonable control, including without limitation Internet failures, shortages of labor, war, terrorism, riot, acts of God or governmental action.

 

 

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