End User License Agreement
Nexpart E-commerce Service for Auto Parts
This is a legal agreement
("Agreement") between you, the end user (on behalf of yourself and on behalf of
your company or organization (collectively "You" "Your" or "Customer"), and WHI
Solutions, a Delaware
York corporation (collectively "We," "Us" or "WHI"). Before You may use the WHI Solutions
Nexpart web-based auto parts transaction service or the WHI Solutions
Electronic Parts Catalog and other vehicle related databases (collectively, the
"Product") on this website ("website" or "Site"), You must carefully read the
terms and conditions of this Agreement and accept them as provided below.
By clicking on the "I accept" button below, You are confirming that You have read this Agreement and are agreeing to be bound by, and are becoming a party to, this Agreement. Selecting "I accept" will be the legal equivalent of Your signature on a written contract, and equally binding.
1. LICENSE TO USE PRODUCT. Subject to Your performance of all of the provisions of this Agreement, WHI hereby grants You a limited, terminable, personal, non-exclusive license to use and access the Product only on a web browser or through an authorized integration to your business system and only over the Internet, solely as provided herein. Notwithstanding anything to the contrary herein, all rights not specifically granted in the license set forth above shall be reserved and remain always with WHI. Your right to use the Product is not transferable.
2. RESTRICTIONS. You are permitted to use the Product strictly for your own ordinary internal use in the normal course of Your automotive service, installation and/or parts selling business. This license is not a sale. None of the material relative to the Product may be downloaded, distributed, reproduced, republished, incorporated into any information retrieval system, posted, transmitted or copied in any form or by any means, without the prior written permission of WHI. Title and copyrights to the Product remain with WHI at all times. This license does not include any resale or commercial use of the Product or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Product or its contents; or any use of data mining, robots, or similar data gathering and extraction tools. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout or form) of WHI without our express written consent. You may not use any meta tags or any other "hidden text" utilizing WHI name or trademarks without the express written consent of WHI. Any unauthorized use terminates the permission or license granted by WHI.
3. PRODUCT WARRANTIES. WHI represents and warrants to You that (i) We have the power and authority to enter into this Agreement; and (ii) to WHI's knowledge, the Product does not violate or infringe any United States patent, trademark, trade secret, copyright or similar right of any third party. In the event the Product is held to infringe the rights of a third party, WHI shall have the option either to procure the right for You to continue using the Product or at WHI's expense, to replace or modify the Product so that it becomes non-infringing.
4. DISCLAIMER OF OTHER WARRANTIES. EXCEPT FOR THE WARRANTIES THAT ARE EXPRESSLY SET FORTH ABOVE, WHI MAKES NO OTHER REPRESENTATION OR WARRANTY WITH REGARD TO THE PRODUCT OR ANY OTHER MATTER OR THING. THE WARRANTIES EXPRESSLY SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. WHI SPECIFICALLY DISCLAIMS ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TRUTH, ACCURACY, COMPLETENESS, SUITABILITY OF INFORMATION, FUNCTIONALITY, QUALITY, OR PERFORMANCE. WHI DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT WILL ACHIEVE ANY SPECIFIC RESULT, OPERATE WITHOUT INTERRUPTION, OR BE ERROR-FREE. YOU AGREE THAT USE OF THE PRODUCT IS ENTIRELY AT YOUR OWN RISK, AND THE PRODUCT IS BEING PROVIDED BY WHI "AS IS/WHERE IS" WITHOUT ANY WARRANTY.
5. ACKNOWLEDGMENT. You understand and acknowledge that the Product may be subject to limitations, delays, and other problems, including, but not limited to, problems inherent in the use of hardware, software, the Internet, and electronic communications. You understand and acknowledge that WHI is not involved in any of the transactions that occur between any warehouse distributor ("Distributor") and You, or between any other person or entity or Part Seller, in connection with the Product; that WHI does not act as a buyer, broker or seller of any item that is offered, accepted, sold, or transferred by or between any Distributor and You, or any person or entity, in connection with the Product; that WHI posts information, including from third parties (e.g., parts manufacturers, suppliers, and other sources of information) which may or may not be accurate or reliable, and may or may not enable Distributors and You to enter into sales, contracts, or other transactions to Your or their satisfaction; that WHI is not responsible to verify for You or anyone else, and does not represent or warrant, that any of the information in the Product is accurate or reliable or that any communication or exchange of information between any Distributor and You will be confidential or result in any sale, contract, or other transaction that will provide any benefit to any such parties; that WHI assumes no liability for damages caused by incorrect parts usage and has no responsibility to verify that the parts are correct for a customer's vehicle in accordance with the manufacturers' specifications; that WHI is merely an editor and/or re-publisher of preexisting information with no responsibility for its accuracy or reliability or for editing or republishing it accurately; and that WHI will not be responsible for any matter of any kind relating to or arising out of any transaction or communication between any Distributor and You, or any other person or entity, in connection with the Product or otherwise. The data and information contained in the Product (the "Databases") are based upon information supplied by manufacturers and from a variety of other sources. Although WHI will make reasonable commercial efforts to ensure the accuracy of the Databases, neither WHI nor its suppliers make any representations or warranties whatsoever with respect to the condition, quality, completeness, accuracy, performance, correctness, degree of currency, design or suitability of the Databases, which are provided solely on an "AS IS/WHERE IS" basis.
A. CUSTOMER INDEMNIFICATION. You shall indemnify, defend and hold harmless WHI, its officers, directors, employees, suppliers, agents, subsidiaries, affiliates, successors and assigns (each an "Indemnitee") from all liabilities, losses, damages, claims and expenses, including reasonable attorneys' fees and costs, whether or not a lawsuit or other proceeding is filed, that in any way arises out of or relates to (a) Your breach or violation of this Agreement or any agreement between You and Distributor (b) Your access and/or use of the Product and any transaction or other activity that arises from or is otherwise related to the Product; (c) any claim, action, or dispute between any Distributor and You; (d) any claim alleging that access to or use of any item related to the Product violates the rights of a third party or otherwise is unlawful; (e) any information supplied by, or obtained by WHI from, a Distributor; and (f) Your negligence or willful misconduct. In the event You fail to indemnify, as provided above, such Indemnitee shall have the right to defend itself, and in that case, You shall reimburse such Indemnitee for all of its reasonable attorney's fees, costs and damages incurred in settling or defending such claims.
B. WHI SOLUTIONS INDEMNIFICATION. Subject to Section 4, WHI will indemnify, defend and hold harmless You, Your members, managers, representatives, consultants, customers, affiliates, successors, assigns and agents (each a "Customer Indemnitee") from any action brought against Customer by a third party to the extent it is based on a claim that the Product infringes the United States intellectual property rights of the third party (unless Customer used the Product subsequent to WHI giving it notice that it should use an alternate form of the Product and unless the claim of infringement is based on or arises out of any modification to the Product that was not made by WHI or any use or combination of the Product with any data, hardware, other software, or any other thing not originating with WHI) on condition that Customer notify WHI, in writing, immediately upon Customer learning of the action that has been brought against it, that Customer permit WHI (if WHI so decides, in its sole discretion, at its option) to take on and to control Customer's defense using legal counsel of WHI's own choosing, and that Customer fully cooperate in any defense. The provisions of this section state WHI Solutions's sole obligation and constitutes the total limit of WHI's liability for any third party infringement claim(s).
7. LIMITATION OF LIABILITY. Except for the warranties referenced in paragraph 3 above, neither WHI nor its suppliers have any liability or obligation to You or any other person for any claim, loss, damage or expense caused in whole or in part, directly or indirectly, by the Product, information contained within the Product, by the inadequacy of the Product for any purpose, by any deficiency or defect in the Product whether or not covered by any warranty, by the use or performance of the Product or by any delay in WHI's performance or for any special, direct, indirect, incidental, consequential, exemplary or punitive damages, however caused, including without limitation, property damage, personal injury or loss of business or profit, whether or not You informed WHI of the possibility or likelihood of any such damages. Additionally, WHI shall not be liable for any direct, indirect, special, incidental, consequential or exemplary damages, whether foreseeable or not, that are in any way related to this Agreement, the breach thereof, the use or inability to use the Product, the results generated from the use of the Product, loss of goodwill or profits, lost business however characterized and/or from any other cause whatsoever. You agree that if there ever is any liability on the part of WHI for any damages of any kind, including direct or compensatory damages, then the total aggregate liability of WHI for any and all claims that arise out of or relate in any way to the Agreement or to the Product will be capped and limited to the total dollar amount of money which the Distributor that has provided You with access to the Product has paid to WHI for processing your transactions during the twelve (12) month period immediately preceding the first event that has given rise to such claim(s). This limitation on WHI's liability is cumulative; all payments made for all claims and damages shall be aggregated, to determine if the limit has been reached. All claims of any kind which You may have against WHI, whether in contract, tort, or otherwise, that arise out of or relate in any way to this Agreement, shall be brought by You within one (1) year after arising.
8. COMMUNICATIONS ON INTERNET; EVENTS BEYOND OUR CONTROL. Use of the Internet is solely at Your own risk and is subject to all applicable local, state, national, and international laws and regulations. While WHI has endeavored to create a secure and reliable Product, WHI and its affiliates are not responsible for the security of information transmitted via the Internet, the accuracy of the information contained in the Product, or for the consequences of any reliance on such information. You must make your own determination as to these matters. WHI cannot guarantee your ability to access the Product at all times or that the Product will be secure, uninterrupted, or error-free. WHI and its affiliates shall not be liable for damages as a result of any delay or other failure of performance due to causes beyond its reasonable control including, without limitation, acts of God, acts of Distributor or any of its representatives, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather, epidemic, war, riot, terrorism, telecommunications interruptions or computer viruses.
9. INTELLECTUAL PROPERTY. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Product, WHI's domain name, WHI's logo, the name "WHI Solutions," any data in any database, and all ideas, know-how, information, and programs used by WHI or communicated to you by WHI, directly or through a Distributor, are protected under applicable U.S. and international copyright, trademark and other proprietary (including but not limited to intellectual property) rights. "WHI Solutions", "WHI" and "Nexpart" are registered trademarks of WHI Solutions. Other data contained within the Product may comprise the intellectual property rights of third parties, including but not limited to Distributors and manufacturers. Nothing contained herein shall be construed by implication, estoppel or otherwise as granting to You an ownership interest in any copyright, trademark, patent or other intellectual property right of WHI or any third party. You understand and acknowledge that the Product has been developed by WHI by the investment of significant time, effort and expense and provides WHI with a significant competitive advantage in its business. As such, if You breach the terms of this paragraph or this Agreement, WHI will suffer immediate, irreparable harm for which monetary damages will provide inadequate compensation. Accordingly, You agree that WHI will be entitled, in addition to any other remedies available to it, at law or in equity, to injunctive relief to specifically enforce the terms of this paragraph and this Agreement and in order to protect and preserve its proprietary rights.
10. CONFIDENTIALITY. You acknowledge that the Product comprises information which constitutes a trade secret of WHI in the Product, which embodies WHI's substantial creative efforts and confidential information in which WHI has a proprietary interest. You therefore agree that no non-negligible portion of the information constituting the Product shall be directly or indirectly disclosed to others, copied, reproduced, modified, compiled, used as an edit source to compile or correct any other database other than a Manufacturer's own catalog data which WHI has included in it's database, or interfaced with any systems in a manner not approved in writing by WHI or used for any purpose or purposes other than as specifically contemplated by this Agreement. You shall exercise all reasonable precautions to protect the Product and to prevent its dissemination to unauthorized persons. Furthermore, You shall not assign, pledge, sub-license or permit any other use of the Product without obtaining the prior written consent of WHI, which consent may be withheld at the sole discretion of WHI. You shall not disassemble, decompile, re-engineer, reverse engineer or otherwise create or attempt to create or permit, allow or assist others to discover the source code of the Product or its structural framework. WHI will be entitled, in addition to any other remedies available to it, at law or in equity, to injunctive relief to specifically enforce the terms of this paragraph and this Agreement and in order to protect and preserve its proprietary rights.
11. DATABASE ERRORS REPORTING. Any database or catalog errors reported by You to WHI must be reported in accordance with WHI's current error reporting procedures, which can be accessed through the following link: Error Reporting Form. WHI, in its sole judgment and discretion, shall make all decisions concerning the correction of errors and the implementation of corrections and/or work-around solutions, including without limitation, the timing thereof.
13. TERMINATION BY WHI SOLUTIONS. WHI may terminate this Agreement at any time, for any reason, with or without notice to You. You agree that immediately upon termination of this Agreement, whether or not You receive notice of such termination, the license herein shall be immediately terminated and You shall not have any further rights to use the Product. Upon termination of the license granted hereunder, WHI's obligations to You shall cease.
14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of New York for agreements to be performed entirely within the State of New York, without regard to choice of law provisions.
15. ARBITRATION/VENUE. Except for any claims WHI may bring seeking injunctive relief (which claims may be brought in court notwithstanding any other provision of this Agreement), it is agreed that any and all claims, controversies, or disputes that arise out of or relate in any way to this Agreement or to its interpretation, validity, breach, or termination, including any statutory claims, shall be decided exclusively by final and binding arbitration with no right of appeal. The venue for any such arbitration shall be in White Plains, New York. Any such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") before one arbitrator selected by the AAA and specifically include the applicable rules of evidence. The rules of discovery then pertaining to the United States District Court for the Southern District of New York in White Plains, New York shall apply to any such arbitration, with each party having the right to obtain discovery using interrogatories, document requests, admission requests, subpoenas, and depositions, as regulated by the arbitrator. The party prevailing in any such arbitration proceeding shall be entitled to receive from the other party its reasonable attorneys' fees and expert fees, in addition to its share of the arbitration costs. Judgment on any award may be entered in any court having jurisdiction. The parties consent to personal jurisdiction in the State of New York and exclusive venue in White Plains, New York, for all purposes.
16. NO WAIVER. The failure of any party to enforce any of its rights hereunder or at law or equity will not be deemed a waiver or continuing waiver of any of its rights or remedies, unless such waiver is in writing and signed by the party to be charged.
17. RELATIONSHIP OF PARTIES. No agency, partnership, joint venture, or employee relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
18. SUCCESSORS AND ASSIGNS. WHI Solutions is free to assign this Agreement. You, however, shall not have the right to assign, transfer, pledge, subrogate, or sub-license any of Your rights, titles, interests, benefits, duties, or obligations under this Agreement, without WHI's prior written consent, and any attempt to do so shall be null and void and without effect; except You may assign this Agreement to a party who succeeds to substantially all of Your business or assets. In the case of any assignment or succession that is permitted under this Agreement or otherwise, each of the terms and conditions of this Agreement shall be binding upon, and also shall inure to the benefit of, the successor or assign of the party in question.
19. SEVERABILITY. If any provision of this Agreement is held illegal or unenforceable that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
If you have any questions about this Agreement, please contact in writing:
5 International Drive, Suite 10
Ryebrook, New York 10573
Click "I ACCEPT" below to acknowledge you have read and accept the terms of this Agreement. Click "I DECLINE/DO NOT ACCEPT" if you do not accept the terms of this Agreement.