AConneX Legal Agreement

Terms and Conditions.


AConneX Gateway Member Agreement version 1.6 IF YOU ARE A RESIDENT OF NORTH AMERICA -- BY ACCEPTING THIS AGREEMENT YOU AGREE TO THE TERMS AS STATED IN SECTION 1 – AConneX GATEWAY MEMBER AGREEMENT – LAWS OF NORTH AMERICA IF YOU ARE A RESIDENT OF EUROPE -- BY ACCEPTING THIS AGREEMENT YOU AGREE TO THE TERMS AS STATED IN SECTION 2 – AConneX GATEWAY MEMBER AGREEMENT – LAWS OF ENGLAND SECTION 1 - AConneX Gateway Member Agreement - LAWS OF NORTH AMERICA PLEASE READ THIS ACONNEX GATEWAY MEMBER AGREEMENT (THIS “AGREEMENT”) CAREFULLY. IT IS IMPORTANT TO UNDERSTAND THAT THIS IS A LEGALLY BINDING CONTRACT BETWEEN THE OPERATOR OF THIS AFTERMARKET CONNEX GATEWAY AND YOU GOVERNING YOUR USE OF AND ACCESS TO THE AFTERMARKET CONNEX GATEWAY. BY CONCLUDING THIS CONTRACT AS SET FORTH IN SECTION 12(J) BELOW, YOU ARE INDICATING YOUR INTENT TO BE BOUND, AND ARE AGREEING ON BEHALF OF YOUR EMPLOYER TO BE BOUND, BY EACH OF THESE LEGAL TERMS AND CONDITIONS OF USE AND CONSENTING TO ENTER THIS AGREEMENT OF USE IN ELECTRONIC FORM: 1. DEFINITIONS A. Activant Solutions Inc., ("ACTIVANT") is a leading designer and provider of management and information systems, data, and services to the automotive aftermarket. All references to ACTIVANT herein include, if applicable, its parent corporation, as well as any and all subsidiaries, affiliates, successors, and assigns. B. The "Aftermarket ConneX gateway" is an interactive B2B Internet partner network, which contains a portal, and which is operated by ACTIVANT for automotive aftermarket wishing to engage in e-commerce transactions. The Aftermarket ConneX gateway does not include any software or any applications that can not be directly accessed by a Member from the portal. C. "Member" means each business entity engaged in the automotive aftermarket who completes an online registration form in order to engage in e-commerce transactions on the Aftermarket ConneX gateway and has been approved for membership by ACTIVANT, including any individual representative of Member. ACTIVANT reserves the right to refuse or revoke membership to any online applicant for any reason. 2. INTELLECTUAL PROPERTY A. Copyright. Unless otherwise indicated, all materials on the Aftermarket ConneX gateway are copyright protected by United States law and international treaties. "Content" includes the entire content accessible through the Aftermarket ConneX gateway, including: wallpaper, icons, characters, artwork, graphics, music information, materials, images, text, and software and code. ACTIVANT also claims copyright in the look and feel attributes of the site, as well as the selection, coordination, and arrangement of the Content. Except for the limited license contained herein, Members have no right to copy Content from the Aftermarket ConneX gateway, including downloading or printing or to distribute the materials in any way, including transmitting them in electronic form, etc. Permission to use the materials other than as authorized in the limited license must be granted in writing prior to the use. B. Trademarks and Service Marks. Unless otherwise indicated as belonging to a third party, all marks associated with products or services on the Aftermarket ConneX gateway are the property of ACTIVANT. These marks may not be used or reproduced in whole or in part in any way without the express permission of ACTIVANT. C. Other Intellectual Property Rights. The Aftermarket ConneX gateway and its Content may have additional protection in the form of patent and trade secret law. ACTIVANT reserves all rights and will protect its intellectual property to the fullest extent of the law. D. Reporting Claims of Infringement. If a Member believes that a copyright, or any other intellectual property right such as trademark, service mark, trade dress, trade secret, or patent, is being infringed in any manner associated with the Aftermarket ConneX gateway, the Member may notify the designated agent by using the contact information below: Activant Solutions Inc. Attn: General Counsel 804 Las Cimas Parkway, Suite 200 Austin, Texas 78746 512-278-5000 (phone) 3. LIMITED LICENSE In order to engage in e-commerce transactions via the Aftermarket ConneX gateway, Members may be required to download an application programming interface ("API") or other software from ACTIVANT. In such event, ACTIVANT grants Member a limited, revocable, non- exclusive, non-transferable, license to use the Aftermarket ConneX gateway for the sole purpose of engaging in e-commerce transactions on the Aftermarket ConneX gateway. All other uses are forbidden. Software provided hereunder is the proprietary information of ACTIVANT, and licensee has no right to provide the licensed software to third parties not subject to the terms and conditions hereunder. Licensee has no right to reverse engineer the software, the source and object code of the licensed software being the confidential information of ACTIVANT. 4. MEMBER SUBMISSIONS A. Fees and Charges. During the term of this Agreement, Member shall pay to ACTIVANT all fees, charges and other amounts as set out in the pricing as set forth in the applicable work order or other agreement and as amended from time to time by ACTIVANT upon thirty (30) days prior written notice to Member. Member shall submit to ACTIVANT full payment for all monthly invoices setting forth all fees and charges to be paid by Member based on the current published pricing, which charges are due and payable within thirty (30) days following the invoice date. All amounts not paid when due under this Agreement will be subject to a late charge of the lesser of one and one-half percent (1.5%) per month or the highest late charge permitted by law on the unpaid balance until paid in full. B. Offers to Buy or Sell. Members who post offers to buy or sell on the Aftermarket ConneX gateway ("Offers") hereby grant ACTIVANT an irrevocable, non-exclusive, fully paid-up, royalty-free license to use the contents of the inquiries and the Offers for any purposes associated with the Aftermarket ConneX gateway (other than participating in the actual e-commerce transactions). MEMBER HEREBY WARRANTS TO ACTIVANT THAT THE CONTENT OF OFFERS IT MAKES VIA THE SITE DOES NOT INFRINGE ANY THIRD PARTY RIGHTS. MEMBER AGREES TO INDEMNIFY, DEFEND, AND HOLD ACTIVANT HARMLESS AGAINST ANY THIRD PARTY CAUSES OF ACTION CLAIMING INFRINGEMENT OF INTELLECTUAL PROPERTY, CONTRACT, OR OTHER RIGHTS. ACTIVANT DISCLAIMS ALL RESPONSIBILITY ASSOCIATED WITH OFFERS AND MAKES NO WARRANTIES AS TO THE TRUSTWORTHINESS OR RELIABILITY OF OFFERS OR MEMBERS MAKING THE OFFERS. C. Member Communications with ACTIVANT. Members may be provided opportunities to share their comments or questions, which may include but are not limited to information, content, images, and/or materials of any kind, with ACTIVANT via the Aftermarket ConneX gateway, e-mail, telephone, or conventional mail. Such communications will be considered unsolicited submissions to ACTIVANT and deemed to become the exclusive property of ACTIVANT upon submission. Unsolicited submissions should not be made to ACTIVANT, unless the Member agrees to assign all rights to ACTIVANT. MEMBER HEREBY ASSIGNS ALL RIGHTS TO ACTIVANT IN UNSOLICITED SUBMISSIONS TO USE THE SUBMISSIONS IN ANY WAY AND FOR ANY PURPOSE. D. Member Conduct. Member warrants to ACTIVANT that it shall use the Aftermarket ConneX gateway for lawful purposes only and that it shall not post or transmit through the Aftermarket ConneX gateway any information or materials which violate or infringe in any way the rights of third parties or which are unlawful, vulgar, obscene, defamatory, racist, profane, hateful, or objectionable in any manner as determined solely by ACTIVANT. Member agrees to use accurate business information when registering on the AConneX Web Site and to use only professionally appropriate names and other registration information. E. Use of ID and Password. Member hereby assumes sole responsibility and liability for the accuracy and adequacy of information entered on the Aftermarket ConneX gateway using both an ID and a Password assigned to such Member, and for all actions taken on ACTIVANT. If ACTIVANT is notified by Member of an unauthorized use of Member's ID and Password, ACTIVANT will make reasonable efforts to assist Member to try to cancel or correct the results of any such unauthorized actions; provided, however, that Member agrees that ACTIVANT shall have no liability for any failure to cancel or correct the results of any such unauthorized actions. F. Affect of System Malfunction on Transactions. ACTIVANT will use reasonable efforts to correct any system malfunction as soon as it detects one or is notified, but Member agrees and understands that if a system malfunction or system error, regardless of the cause thereof, affects a transaction or purported transaction involving Member and any other party using the Aftermarket ConneX gateway, ACTIVANT may take any corrective action deemed reasonable by ACTIVANT under the circumstances, including without limitation withdrawal of any confirmation issued for any such transaction, and such withdrawal or other action may have the effect of canceling such transaction. Member confirms that it assumes all risks relating thereto. G. Referrals or Internet Links to Other Information or Service Providers. From time to time, ACTIVANT may provide Member with information ("Information") from third party information content providers ("Information Providers"), either on the Aftermarket ConneX gateway portal or via Internet links to such Information Providers. ACTIVANT may also provide Internet links ("Referrals") to service providers ("Service Providers"). Such Information Providers and Service Providers are collectively referred to as "Third Party Providers". With respect to any such Information and Referrals to Third Party Providers, Member agrees as follows: (i) Such Information and Referrals are provided only for Member's information and convenience, and Member acknowledges that ACTIVANT is not responsible for the content of the Information or the services being provided by such Third Party Providers. Accordingly, as between Activant and Member, Member shall be solely responsible for determining whether and how to use the Information, and whether the Third Party Providers are qualified and capable of meeting Member's needs for the Information and/or the services being offered. A link to another website does not constitute an endorsement of that site, or of any product or service on such site, by Activant. (ii) ACTIVANT makes no representation and disclaims any warranty that the Information or the descriptions of the services being offered by any Third Party Providers are true, complete or accurate. All such Information and the descriptions of the services are provided on an "AS-IS" basis without any warranty of any kind. H. Approved Counterparties. An "Approved Counterparty" of a Member means any other member of the Aftermarket ConneX gateway who as a member has selected through its online registration to act as a trading counterparty through the use of the trading criteria available on the Aftermarket ConneX gateway. Member acknowledges that it will pre-approve Approved Counterparties and takes full responsibility for any credit or other risks for any transactions with a particular Approved Counterparty. Member further acknowledges that ACTIVANT makes no representation or warranty regarding the creditworthiness or any other matter regarding any other member on the Aftermarket ConneX gateway, nor does ACTIVANT represent or warrant that any of the representations and warranties made by Member in this Agreement have been made, or if made, are accurate by any other party who may from time to time be admitted as a member on the Aftermarket ConneX gateway. Member acknowledges that Member may reject any transaction in its discretion through the Aftermarket ConneX gateway, and thus Member takes full and final responsibility for any transaction that it enters into via the Aftermarket ConneX gateway. 5. DATA COLLECTION AND MEMBER PRIVACY A. Member Data and Consent. ACTIVANT may collect general statistical information about Members accessing or viewing the Aftermarket ConneX gateway such as, but not limited to, the total number of visitors, most-accessed services or areas on the Aftermarket ConneX gateway, Member business types, etc. ACTIVANT may use such data to better serve Members of the Aftermarket ConneX gateway and to improve Aftermarket ConneX gateway features and de- identified information may be used for marketing and other services. B. ACTIVANT may disclose Member data, and you hereby consent to such disclosure, to third parties in aggregated form with no information identifiable to a specific Member. By submitting any personally identifiable information to ACTIVANT pursuant to this Agreement or in connection with the operation of the Aftermarket ConneX gateway (specifically, email addresses), you consent to the collection, processing, transmission and disclosure of such information and related data by ACTIVANT within its group of companies and service providers pursuant to this Agreement both within and outside the United States of America in accordance with ACTIVANT’s policies, if any, and applicable law. You will at all times use commercially reasonable efforts to comply with all applicable data protection laws in using the Aftermarket ConneX gateway and will obtain the express consent of all individuals to collect and so use such personally identifiable information with the Aftermarket ConneX gateway. 6. LINKS TO THIRD PARTY Links may be provided on the Aftermarket ConneX gateway to third party sites. ACTIVANT is not responsible for, nor can it guarantee the goods or services of the operators to whose sites it provides links. A link to another site does not constitute an endorsement of that site, nor any product, service, or other material offered on that site by ACTIVANT. ACTIVANT shall not be responsible or liable for any damages or loss caused by or in connection with use of third party sites. 7. EQUIPMENT Members shall be responsible for obtaining and maintaining all telephone, computer hardware, and other equipment needed for access to and use of the Aftermarket ConneX gateway and all charges related thereto, including, if applicable long distance and service provider charges associated with Internet connection. 8. DISCLAIMER OF WARRANTY THIS SITE, ITS CONTENT, AND THE SERVICES PROVIDED HEREIN, INCLUDING THE AFTERMARKET CONNEX GATEWAY, ARE PROVIDED "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE." ACTIVANT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CONTENT, INCLUDING THE CONTENT OF OFFERS TO BUY OR SELL POSTED BY MEMBERS, OR OPERATION OF THIS SITE. THIS DISCLAIMER OF WARRANTIES INCLUDES, BUT IS NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES OF ACCURACY, COMPLETENESS, OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR HAVE LEGISLATION THAT IMPOSES CERTAIN STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO MEMBER. ACTIVANT EXPRESSLY DISCLAIMS ALL LIABILITY ASSOCIATED WITH TRANSACTIONS BETWEEN MEMBERS. 9. AUTHENTICATION A. ID and Password. ACTIVANT shall provide Member with a unique identification code ("ID") and a unique password ("Password"). ACTIVANT shall have no responsibility for controlling or monitoring the use of such Passwords and no liability for any use of such Passwords. Member shall take such actions as are necessary to maintain the confidentiality of, and in order to prevent the unauthorized use of, each ID and Password. Member also agrees to notify ACTIVANT immediately if Member determines, or has reason to believe, that an unauthorized party has gained access to an ID or a Password, or that a person previously authorized as a Member is no longer authorized for any reason, including termination of employment. B. Reliance on Information Using Password / ID. Member hereby authorizes ACTIVANT and any party claiming through ACTIVANT, including other Members, to rely upon any information and/or instructions set forth in any data transmission using the assigned ID and Password, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of the Aftermarket ConneX gateway. Use of the assigned ID or Password, whether or not authorized by Member, shall be solely the responsibility of and the risk of Member. C. INDEMNIFICATION. MEMBER AGREES TO INDEMNIFY, DEFEND, AND HOLD ACTIVANT HARMLESS FOR ANY LOSSES, CLAIMS, OR DAMAGES, HOWEVER ARISING, INCLUDING THROUGH NEGLIGENCE, ARISING OUT OF OR IN CONNECTION WITH THE USE OR MISUSE OF MEMBER'S ID AND PASSWORD. 10. LIMITATION OF LIABILITY IN NO EVENT SHALL ACTIVANT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA, LOSS OF COMPUTER HARDWARE, DOWNTIME, LOSS OF GOODWILL, LOSS OF BUSINESS, LOST PROFITS, COMPUTER MALFUNCTION, OR OTHERWISE, NOR SHALL ACTIVANT BE LIABLE FOR ANY DAMAGES INCLUDING DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES BASED UPON STRICT PRODUCTS LIABILITY OR UPON THE NEGLIGENCE OF ACTIVANT, ITS EMPLOYEES, OFFICERS, DIRECTORS OR CONSULTANTS, NOR WILL ACTIVANT BE LIABLE FOR ANY CLAIM OR DEMAND RELATED TO THE SITE AND THE PROPRIETARY MATERIALS HEREIN MADE AGAINST A MEMBER BY ANY OTHER PARTY. ANY LIABILITY OF ACTIVANT TO A MEMBER FOR ANY DAMAGES OR LOSSES OF ANY KIND IN NO EVENT SHALL EXCEED THE AMOUNT PAID BY THE MEMBER IN THE PRIOR 12 MONTHS, IF ANY, FOR THE USE OF THIS SITE. NOT ALL JURISDICTIONS PERMIT THE LIMITATION OF LIABILITY AS SET FORTH HEREIN. THEREFORE, THE FOREGOING LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH EVENT, THE PARTIES EXPRESSLY AGREE THAT THIS SECTION 10 SHALL BE AMENDED TO PERMIT THE LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 11. STATUTORY COMPLIANCE AND DISPUTE RESOLUTION A. Compliance. Content made accessible to Member under this Agreement may be subject to United States export control laws and regulations of the United States and elsewhere. Member will not transfer or otherwise export any of the Content, licensed to Members, to third parties who are residents or nationals of countries subject to United States embargo. Member will comply with all relevant export laws and regulations of the United States to assure that the Content or anything related to the Aftermarket ConneX gateway is not exported, directly or indirectly, in violation of any applicable law or regulation, including all U.S. export control laws and regulations. Further, Member hereby warrants that it shall comply with all applicable law and regulations, including laws and regulations applicable to conducting electronic transactions. B. Arbitration. Except as otherwise agreed herein, Member hereby agrees that all disputes and causes of action arising from this Agreement or the use of the Aftermarket ConneX gateway shall be resolved by expedited arbitration using a single arbitrator under the rules of the American Arbitration Association, including summary judgment procedures under the Texas Rules of Civil Procedure. The seat of arbitration shall be in Dallas, Texas. The judgment of the arbitrator shall be confidential, as well as binding and executable in any civil court. Member and AConneX expressly agree that this Agreement is a commercial agreement that constitutes a writing for the purposes of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958. C. Governing Law. Except as otherwise provided herein, this Agreement shall be governed by, and construed in accordance with, the laws of Texas, without regard to conflict of laws principles. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. D. Venue for Emergency Relief. Notwithstanding Section 11(B) and subject to Section 11(C), except as otherwise agreed, Member and AConneX agree that each party shall submit to personal jurisdiction, and either party may seek emergency relief hereunder, in any court located in Austin, Travis County, Texas. Notwithstanding Section 11 (B). 12. MISCELLANEOUS A. Integration. The terms and conditions set forth in this Agreement, as well as terms and conditions set forth in the Activant System Agreement and related work orders executed thereunder, comprise the entire agreement between ACTIVANT and Member with respect to the Aftermarket ConneX gateway. There are no agreements, understandings, promises or conditions oral or written, express or implied, concerning the subject matter of this Agreement or in consideration hereof that are not merged herein or superseded hereby. B. Modification of Terms. ACTIVANT hereby expressly reserves the right to modify this Agreement at any time, and such modification shall be effective immediately upon posting of a modified Agreement on the Aftermarket ConneX gateway, with a notice to Members of the modification. Member is responsible for reading this Agreement, as modified, from time to time, and shall be deemed to have received notice of any changes seven days after the modified Agreement is posted, regardless of whether actual notice is received by Member. Member agrees that continued use of the Aftermarket ConneX Gateway after notice of modified terms shall constitute acceptance of the modified terms. Member may terminate this Agreement at any time by contacting the location specified below. C. No Waiver. The failure by ACTIVANT to insist upon strict performance of any of the terms and conditions herein, or to exercise any rights or remedies, shall not be construed as a waiver of its rights to assert any of the same or to rely on any such terms or conditions at any time thereafter. D. Severability and Survival. The unenforceability in whole or in part of any term or condition herein shall not affect the enforceability of any other parts of this Agreement. Sections 2, 4, 5,6, 8, 9, 10, and 12 shall survive termination of this Agreement, a Member's registration, or operation of the Aftermarket ConneX gateway. E. Termination. ACTIVANT reserves the right to terminate a Member's registration or the operation of the Aftermarket ConneX gateway at any time, for any or no reason, and without notice. F. Reference. Member hereby grants ACTIVANT a license to use Member's name on ACTIVANT's Aftermarket ConneX gateway, websites, and in promotional materials, as a customer of the ACTIVANT Aftermarket ConneX gateway. G. Headings; Construction. The headings contained in this Agreement are for reference purposes only and shall not modify or affect this Agreement in any manner whatsoever. Wherever required by this context, any gender shall include any other gender, the singular shall include the plural, and the plural shall include the singular. H. Geographic Location. ACTIVANT has offices, and may be readily contacted, at the following locations. Activant Solutions Inc. 804 Las Cimas Parkway, Suite 200 Austin, Texas 78746 512-278-5000 (phone) 800-678-5266 (support) 512-330-9273 (fax) Activant Solutions Inc. Europe Unit C1 Brandon Court, Progress Way Binley Industrial Estate, Coventry CV3 2TE United Kingdom 024 7663 6000 (phone) 800-678-5266 (support) 024 7644 0049 (fax) Activant Solutions Inc. France 2, rue des Commères 78310 COIGNIERES 33 (01) 30.49.06.07 (phone) 800-678-5266 (support) 33 (01) 30.49.02.09 (fax) I. Agreement. THIS IS A LEGALLY BINDING CONTRACT. YOU MUST READ AND UNDERSTAND THIS AGREEMENT. YOU MUST AGREE TO BE BOUND BY THIS AGREMEENT, AS MODIFIED FROM TIME TO TIME. AS A MEMBER OR OTHERWISE, YOU HEREBY AGREE TO ACCESS, VIEW, OR USE THIS SITE AND THE AFTERMARKET CONNEX GATEWAY IN ACCORDANCE WITH THIS AGREEMENT. TO CONCLUDE THIS CONTRACT, GO TO THE SIGNATURE PAGE AND: (1) CHECK THE "YES" BOX UNDER THE STATEMENT “I confirm I have read, and agree to, the terms and conditions set forth in this Agreement.”; AND (2) SIGN THE AGREEMENT ELECTRONICALLY BY CLICKING THE "I ACCEPT" BUTTON UNDER THE STATEMENTS “By clicking the "I Accept" button below, I intend to sign, and am signing, this Agreement. By signing this Agreement, I represent that I am a duly authorized representative of Member and that Member and I intend to be legally bound to the terms and conditions set forth herein.” J. Following conclusion of this Agreement, ACTIVANT shall send this Agreement to you by email, or in some other manner and format as determined solely by ACTIVANT but that will permit you to store and reproduce this Agreement. In the event that ACTIVANT maintains any records regarding this Agreement in paper form, ACTIVANT shall provide you with reasonable access to such paper records at a mutually agreed upon time and in a mutually agreed upon manner. Member hereby acknowledges that ACTIVANT shall not file a copy of this Agreement with, and such Agreement shall not be accessible through, any third party, including any governmental or regulatory office or body. K. While Member is providing its consent to use an electronic agreement to govern the Member’s use of the Aftermarket ConneX gateway, Member is not required to enter future agreements solely in electronic form. The terms and conditions set forth in this Agreement may only be amended by Member in a writing manually executed by an authorized representative of ACTIVANT. Other information retained by ACTIVANT about Member may be reviewed, corrected or edited by Member by contacting ACTIVANT at the location specified above (though, in some situations, deleting certain information may not be technically feasible and termination of Member’s account may be required to comply with a request from Member to delete such information). Member expressly consents to receiving all notices hereunder in electronic form, though this consent may be withdrawn at any time by contacting ACTIVANT at the address set forth in this Section. L. The parties expressly agree that this Agreement shall only be concluded between the parties, and all performance hereunder and the resolution of disputes shall be conducted, in the English language. If Member is located in Canada, it is the express wish of the parties that this Agreement and/or any related documents be drawn up in a language other than French. Si Membre est situé au Canada, il est de la volonté expresse des parties que le présent contrat et/ou tous les documents qui s’y rattachent soient rédigés dans une langue autre que le français. If this Agreement is provided to Member in a language other than English, ACTIVANT does so solely as a convenience for Member. SECTION 2 - AConneX Gateway Member Agreement - LAWS OF ENGLAND PLEASE READ THIS ACONNEX GATEWAY MEMBER AGREEMENT (THIS “AGREEMENT”) CAREFULLY. IT IS IMPORTANT TO UNDERSTAND THAT THIS IS A LEGALLY BINDING CONTRACT BETWEEN THE OPERATOR OF THIS AFTERMARKET CONNEX GATEWAY AND YOU GOVERNING YOUR USE OF AND ACCESS TO THE AFTERMARKET CONNEX GATEWAY. BY CONCLUDING THIS CONTRACT AS SET FORTH IN SECTION 12(J) BELOW, YOU ARE INDICATING YOUR INTENT TO BE BOUND, AND ARE AGREEING ON BEHALF OF YOUR EMPLOYER TO BE BOUND, BY EACH OF THESE LEGAL TERMS AND CONDITIONS OF USE AND CONSENTING TO ENTER THIS AGREEMENT OF USE IN ELECTRONIC FORM: 1. RECITALS AND DEFINITIONS A. Activant Solutions Inc., ("ACTIVANT") is a leading designer and provider of management and information systems, data, and services to the automotive aftermarket. All references to ACTIVANT herein include, if applicable, its parent corporation, as well as any and all subsidiaries, affiliates, successors, and assigns. B. The "Aftermarket ConneX gateway" is an interactive Business2Business Internet partner network, which contains a portal, and which is operated by ACTIVANT for automotive aftermarket companies wishing to engage in e-commerce transactions. The Aftermarket ConneX gateway does not include any software or any applications that can not be directly accessed by a Member from the portal. C. "Member" means each business entity engaged in the automotive aftermarket who completes an online registration form in order to engage in e-commerce transactions on the Aftermarket ConneX gateway and has been approved for membership by ACTIVANT, including any individual representative of Member. ACTIVANT reserves the right to refuse or revoke membership to any online applicant for any reason. 2. INTELLECTUAL PROPERTY A. Copyright. Unless otherwise indicated, all materials on the Aftermarket ConneX gateway are copyright protected by United States law and international treaties or such similar intellectual property rights (whether registered or unregistered) anywhere in the world. "Content" includes the entire content accessible through the Aftermarket ConneX gateway, including: wallpaper, icons, characters, artwork, graphics, music information, materials, images, text, and software and code. ACTIVANT also claims copyright in the look and feel attributes of the site, as well as the selection, coordination, and arrangement of the Content. Except for the limited license contained herein, Members have no right to copy Content from the Aftermarket ConneX gateway, including downloading or printing or to distribute the materials in any way, including transmitting them in electronic form, etc. Permission to use the materials other than as authorised in the limited license must be granted in writing prior to the use. B. Trademarks and Service Marks. Unless otherwise indicated as belonging to a third party, all marks associated with products or services on the Aftermarket ConneX gateway are the property of ACTIVANT. These marks may not be used or reproduced in whole or in part in any way without the express permission of ACTIVANT. C. Other Intellectual Property Rights. ACTIVANT reserves all intellectual property rights in the Aftermarket ConneX gateway and its Content including without limitation all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the naure of intellectual property rights (whether registered or unregistered) and all applications for the same anywhere in the world (“Intellectaul Property Right”) and will protect its Intellectual Property Rights to the fullest extent of the law. D. Reporting Claims of Infringement. If a Member believes that Activant’s Intellectual Property Rights are being infringed in any manner associated with the Aftermarket ConneX gateway, the Member may notify the designated agent by using the contact information below: Activant Solutions Inc. Attn: General Counsel 804 Las Cimas Parkway, Suite 200 Austin, Texas 78746 512-278-5000 (phone) 3. LIMITED LICENSE In order to engage in e-commerce transactions via the Aftermarket ConneX gateway, Members may be required to download an application programming interface ("API") or other software from ACTIVANT. In such event, ACTIVANT grants Member a limited, revocable, non- exclusive, non-transferable, license to use the Aftermarket ConneX gateway for the sole purpose of engaging in e-commerce transactions on the Aftermarket ConneX gateway. All other uses are forbidden. Software provided hereunder is the proprietary information of ACTIVANT, and licensee has no right to provide the licensed software to third parties not subject to the terms and conditions hereunder. Licensee has no right to reverse engineer the software, the source and object code of the licensed software being the confidential information of ACTIVANT. 4. MEMBER SUBMISSIONS A. Fees and Charges. During the term of this Agreement, Member shall pay to ACTIVANT all fees, charges and other amounts as set out in the pricing as set forth in the applicable work order or other agreement and as amended from time to time by ACTIVANT upon thirty (30) days prior written notice to Member. Member shall submit to ACTIVANT full payment for all monthly invoices setting forth all fees and charges to be paid by Member based on the current published pricing, which charges are due and payable within thirty (30) days following the invoice date. Activant shall be entitled to charge the Member interest on any overdue amounts from the due date up to the date of actual payment, after as well as before judgement, at the rate of 3% per annum above the base rate from time to time of the Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly. Activant reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. B. Offers to Buy or Sell. Members who post offers to buy or sell on the Aftermarket ConneX gateway ("Offers") hereby grant ACTIVANT an irrevocable, non-exclusive, fully paid-up, royalty-free license to use the contents of the inquiries and the Offers for any purposes associated with the Aftermarket ConneX gateway (other than participating in the actual e-commerce transactions). MEMBER HEREBY WARRANTS TO ACTIVANT THAT THE CONTENT OF OFFERS IT MAKES VIA THE SITE DOES NOT INFRINGE ANY THIRD PARTY RIGHTS. THE MEMBER AGREES TO INDEMNIFY, DEFEND, AND HOLD ACTIVANT HARMLESS AGAINST ANY THIRD PARTY CAUSES OF ACTION CLAIMING INFRINGEMENT OF INTELLECTUAL PROPERTY, CONTRACT, OR OTHER RIGHTS. ACTIVANT DISCLAIMS ALL RESPONSIBILITY ASSOCIATED WITH OFFERS AND MAKES NO WARRANTIES AS TO THE TRUSTWORTHINESS OR RELIABILITY OF OFFERS OR MEMBERS MAKING THE OFFERS. C. Member Communications with ACTIVANT. Members may be provided opportunities to share their comments or questions, which may include but are not limited to information, content, images, and/or materials of any kind, with ACTIVANT via the Aftermarket ConneX gateway, e-mail, telephone, or conventional mail. Such communications will be considered unsolicited submissions to ACTIVANT and deemed to become the exclusive property of ACTIVANT upon submission. Unsolicited submissions should not be made to ACTIVANT, unless the Member agrees to assign all rights to ACTIVANT. MEMBER HEREBY ASSIGNS ALL RIGHTS TO ACTIVANT IN UNSOLICITED SUBMISSIONS TO USE THE SUBMISSIONS IN ANY WAY AND FOR ANY PURPOSE. D. Member Conduct. Member warrants to ACTIVANT that it shall use the Aftermarket ConneX gateway for lawful purposes only and that it shall not post or transmit through the Aftermarket ConneX gateway any information or materials which violate or infringe in any way the rights of third parties or which are unlawful, vulgar, obscene, defamatory, racist, profane, hateful, or objectionable in any manner as determined solely by ACTIVANT. Member agrees to use accurate business information when registering on the AConneX Web Site and to use only professionally appropriate names and other registration information. E. Use of ID and Password. Member hereby assumes sole responsibility and liability for the accuracy and adequacy of information entered on the Aftermarket ConneX gateway using both an ID and a Password assigned to such Member, and for all actions taken on ACTIVANT. If ACTIVANT is notified by Member of an unauthorized use of Member's ID and Password, ACTIVANT will make reasonable efforts to assist Member to try to cancel or correct the results of any such unauthorized actions; provided, however, that Member agrees that ACTIVANT shall have no liability for any failure to cancel or correct the results of any such unauthorized actions. F. Affect of System Malfunction on Transactions. ACTIVANT will use reasonable commercial efforts to correct any system malfunction as soon as it detects one or is notified, but Member agrees and understands that if a system malfunction or system error, regardless of the cause thereof, affects a transaction or purported transaction involving Member and any other party using the Aftermarket ConneX gateway, ACTIVANT may take any corrective action deemed commercially reasonable by ACTIVANT under the circumstances, including without limitation withdrawal of any confirmation issued for any such transaction, and such withdrawal or other action may have the effect of canceling such transaction. Member confirms that it assumes all risks relating thereto. G. Referrals or Internet Links to Other Information or Service Providers. From time to time, ACTIVANT may provide Member with information ("Information") from third party information content providers ("Information Providers"), either on the Aftermarket ConneX gateway portal or via Internet links to such Information Providers. ACTIVANT may also provide Internet links ("Referrals") to service providers ("Service Providers"). Such Information Providers and Service Providers are collectively referred to as "Third Party Providers". With respect to any such Information and Referrals to Third Party Providers, Member agrees as follows: (i) Such Information and Referrals are provided only for Member's information and convenience, and Member acknowledges that ACTIVANT is not responsible for the content of the Information or the services being provided by such Third Party Providers. Accordingly, as between Activant and Member, Member shall be solely responsible for determining whether and how to use the Information, and whether the Third Party Providers are qualified and capable of meeting Member's needs for the Information and/or the services being offered. A link to another website does not constitute an endorsement of that site, or of any product or service on such site, by Activant. (ii) ACTIVANT makes no representation and disclaims any warranty that the Information or the descriptions of the services being offered by any Third Party Providers are true, complete or accurate. All such Information and the descriptions of the services are provided on an "AS-IS" basis without any warranty of any kind. H. Approved Counterparties. An "Approved Counterparty" of a Member means any other member of the Aftermarket ConneX gateway who as a member has selected through its online registration to act as a trading counterparty through the use of the trading criteria available on the Aftermarket ConneX gateway. Member acknowledges that it will pre-approve Approved Counterparties and takes full responsibility for any credit or other risks for any transactions with a particular Approved Counterparty. Member further acknowledges that ACTIVANT makes no representation or warranty regarding the creditworthiness or any other matter regarding any other member on the Aftermarket ConneX gateway, nor does ACTIVANT represent or warrant that any of the representations and warranties made by Member in this Agreement have been made, or if made, are accurate by any other party who may from time to time be admitted as a member on the Aftermarket ConneX gateway. Member acknowledges that Member may reject any transaction in its discretion through the Aftermarket ConneX gateway, and thus Member takes full and final responsibility for any transaction that it enters into via the Aftermarket ConneX gateway. 5. DATA COLLECTION AND MEMBER PRIVACY A. Member Data and Consent. ACTIVANT may collect general statistical information about Members accessing or viewing the Aftermarket ConneX gateway such as, but not limited to, the total number of visitors, most-accessed services or areas on the Aftermarket ConneX gateway, Member business types, etc. ACTIVANT may use such data to better serve Members of the Aftermarket ConneX gateway and to improve Aftermarket ConneX gateway features and de- identified information may be used for marketing and other services. B. ACTIVANT may disclose Member data, and you hereby consent to such disclosure, to third parties in aggregated form with no information identifiable to a specific Member. By submitting any personally identifiable information to ACTIVANT pursuant to this Agreement or in connection with the operation of the Aftermarket ConneX gateway (specifically, email addresses), you consent to the collection, processing, transmission and disclosure of such information and related data by ACTIVANT within its group of companies and service providers pursuant to this Agreement both within and outside the United States of America in accordance with ACTIVANT’s policies, if any, and applicable law. You will at all times use commercially reasonable efforts to comply with all applicable data protection laws in using the Aftermarket ConneX gateway and will obtain the express consent of all individuals to collect and so use such personally identifiable information with the Aftermarket ConneX gateway. 6. LINKS TO THIRD PARTY Links may be provided on the Aftermarket ConneX gateway to third party sites. ACTIVANT is not responsible for, nor can it guarantee the goods or services of the operators to whose sites it provides links. A link to another site does not constitute an endorsement of that site, nor any product, service, or other material offered on that site by ACTIVANT. ACTIVANT shall not be responsible or liable for any damages or loss caused by or in connection with use of third party sites. 7. EQUIPMENT Members shall be responsible for obtaining and maintaining all telephone, computer hardware, and other equipment needed for access to and use of the Aftermarket ConneX gateway and all charges related thereto, including, if applicable long distance and service provider charges associated with Internet connection. 8. DISCLAIMER OF WARRANTY THIS SITE, ITS CONTENT, AND THE SERVICES PROVIDED HEREIN, INCLUDING THE AFTERMARKET CONNEX GATEWAY, ARE PROVIDED "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE." ACTIVANT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CONTENT, INCLUDING THE CONTENT OF OFFERS TO BUY OR SELL POSTED BY MEMBERS, OR OPERATION OF THIS SITE. SAVE AS EXPRESSLY STATED IN THIS AGREEMENT ALL OTHER CONDITIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTEIS OR BE IMPLIED OR INCORPORATED INTO THIS AGREEMENT WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, ARE HEREBY EXCLUDED, INCLUDING WITHOUT LIMITATION, THE IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE. 9. AUTHENTICATION A. ID and Password. ACTIVANT shall provide Member with a unique identification code ("ID") and a unique password ("Password"). ACTIVANT shall have no responsibility for controlling or monitoring the use of such Passwords and no liability for any use of such Passwords. Member shall take such actions as are necessary to maintain the confidentiality of, and in order to prevent the unauthorized use of, each ID and Password. Member also agrees to notify ACTIVANT immediately if Member determines, or has reason to believe, that an unauthorized party has gained access to an ID or a Password, or that a person previously authorized as a Member is no longer authorized for any reason, including termination of employment. B. Reliance on Information Using Password / ID. Member hereby authorizes ACTIVANT and any party claiming through ACTIVANT, including other Members, to rely upon any information and/or instructions set forth in any data transmission using the assigned ID and Password, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of the Aftermarket ConneX gateway. Use of the assigned ID or Password, whether or not authorized by Member, shall be solely the responsibility of and the risk of Member. C. INDEMNIFICATION. MEMBER AGREES TO INDEMNIFY, DEFEND, AND HOLD ACTIVANT HARMLESS FOR ANY LOSSES, CLAIMS, OR DAMAGES, HOWEVER ARISING, INCLUDING THROUGH NEGLIGENCE, ARISING OUT OF OR IN CONNECTION WITH THE USE OR MISUSE OF MEMBER'S ID AND PASSWORD. 10. LIMITATION OF LIABILITY A. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT ACTIVANT SHALL HAVE NO LIABILITY FOR ANY LOSSES OR DAMAGES WHICH ARE SUFFERED BY A MEMBER (OR ANY PERSON CLAIMING UNDER OR THROUGH THE MEMBER) WHETHER SUFFERED DIRECTLY OR INDIRECTLY OR ARE IMMEDIATE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA, LOSS OF COMPUTER HARDWARE, DOWNTIME, LOSS OF GOODWILL, LOSS OF BUSINESS, LOST PROFITS, COMPUTER MALFUNCTION, WHETHER BASED UPON STRICT PRODUCT LIABILITY OR UPON THE NEGLIGENCE OF ACTIVANT, ITS EMPLOYEES, OFFICERS, DIRECTORS OR CONSULTANTS, NOR WILL ACTIVANT BE LIABLE FOR ANY CLAIM OR DEMAND RELATED TO THE SITE AND THE PROPRIETARY MATERIALS HEREIN MADE AGAINST A MEMBER BY ANY OTHER PARTY. B. ANY LIABILITY OF ACTIVANT TO A MEMBER WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY DAMAGES OR LOSSES OF ANY KIND IN NO EVENT SHALL EXCEED THE AMOUNT PAID BY THE MEMBER FOR THE USE OF THIS SITE, IF ANY, IN THE 12 MONTHS PRIOR TO THE DATE THE LIABILITY AROSE. C. THE EXCLUSIONS IN THIS CLAUSE 10 SHALL APPLY TO THE FULLEST EXTENT PERMISSABLE AT LAW BUT ACTIVANT DOES NOT EXCLUDE LIABILITY FOR: (i) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF ACTIVANT , ITS OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS; (ii) FRAUD; (iii) BREACH OF THE OBLIGATION IMPLIED BY SECTION 12 OF THE SALE OF GOODS ACT 1979 OR SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982; OR (iv) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED BY LAW. 11. STATUTORY COMPLIANCE AND DISPUTE RESOLUTION A. Compliance. Content made accessible to Member under this Agreement may be subject to United States export control laws and regulations of the United States and elsewhere. Member will not transfer or otherwise export any of the Content, licensed to Members, to third parties who are residents or nationals of countries subject to United States embargo. Member will comply with all relevant export laws and regulations of the United States to assure that the Content or anything related to the Aftermarket ConneX gateway is not exported, directly or indirectly, in violation of any applicable law or regulation, including all U.S. export control laws and regulations. Further, Member hereby warrants that it shall comply with all applicable law and regulations, including laws and regulations applicable to conducting electronic transactions. B. Arbitration. (i) The parties to this agreement agree that any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination, or the legal relationship established by this agreement, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration, which Rules are deemed to be incorporated by reference to this clause. (ii) It is agreed that the place of the arbitration shall be London and the language of the arbitration shall be English. C. Governing Law. This agreement shall be governed by and construed in accordance with the laws of England and Wales. 12. MISCELLANEOUS A. Integration. The terms and conditions set forth in this Agreement, as well as terms and conditions set forth in the Activant System Agreement and related work orders executed thereunder, comprise the entire agreement between ACTIVANT and Member with respect to the Aftermarket ConneX gateway. There are no agreements, understandings, promises or conditions oral or written, express or implied, concerning the subject matter of this Agreement or in consideration hereof that are not merged herein or superseded hereby. B. Modification of Terms. ACTIVANT hereby expressly reserves the right to modify this Agreement at any time, and such modification shall be effective immediately upon posting of a modified Agreement on the Aftermarket ConneX gateway, with a notice to Members of the modification. Member is responsible for reading this Agreement, as modified, from time to time, and shall be deemed to have received notice of any changes seven days after the modified Agreement is posted, regardless of whether actual notice is received by Member. Member agrees that continued use of the Aftermarket ConneX Gateway after notice of modified terms shall constitute acceptance of the modified terms. Member may terminate this Agreement at any time by contacting the location specified below. C. No Waiver. The failure by ACTIVANT to insist upon strict performance of any of the terms and conditions herein, or to exercise any rights or remedies, shall not be construed as a waiver of its rights to assert any of the same or to rely on any such terms or conditions at any time thereafter. D. Severability and Survival. The unenforceability in whole or in part of any term or condition herein shall not affect the enforceability of any other parts of this Agreement. Sections 2, 4, 5, 6, 8, 9, 10, and 12 shall survive termination of this Agreement, a Member's registration, or operation of the Aftermarket ConneX gateway. E. Termination. ACTIVANT reserves the right to terminate a Member's registration or the operation of the Aftermarket ConneX gateway at any time, for any or no reason, and without notice. F. Reference. Member hereby grants ACTIVANT a license to use Member's name on ACTIVANT's Aftermarket ConneX gateway, websites, and in promotional materials, as a customer of the ACTIVANT Aftermarket ConneX gateway. G. Third Party Rights. No term of this agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this agreement. H. Headings; Construction. The headings contained in this Agreement are for reference purposes only and shall not modify or affect this Agreement in any manner whatsoever. Wherever required by this context, any gender shall include any other gender, the singular shall include the plural, and the plural shall include the singular. I. Geographic Location. ACTIVANT has offices, and may be readily contacted, at the following locations. Activant Solutions Inc. 804 Las Cimas Parkway, Suite 200 Austin, Texas 78746 512-278-5000 (phone) 800-678-5266 (support) 512-330-9273 (fax) Activant Solutions Inc. Europe Unit C1 Brandon Court, Progress Way Binley Industrial Estate, Coventry CV3 2TE United Kingdom 024 7663 6000 (phone) 800-678-5266 (support) 024 7644 0049 (fax) Activant Solutions Inc. France 2, rue des Commères 78310 COIGNIERES 33 (01) 30.49.06.07 (phone) 800-678-5266 (support) 33 (01) 30.49.02.09 (fax) J. Agreement. THIS IS A LEGALLY BINDING CONTRACT. YOU MUST READ AND UNDERSTAND THIS AGREEMENT. YOU MUST AGREE TO BE BOUND BY THIS AGREMEENT, AS MODIFIED FROM TIME TO TIME. AS A MEMBER OR OTHERWISE, YOU HEREBY AGREE TO ACCESS, VIEW, OR USE THIS SITE AND THE AFTERMARKET CONNEX GATEWAY IN ACCORDANCE WITH THIS AGREEMENT. TO CONCLUDE THIS CONTRACT, GO TO THE SIGNATURE PAGE AND: (1) CHECK THE "YES" BOX UNDER THE STATEMENT “I confirm I have read, and agree to, the terms and conditions set forth in this Agreement.”; AND (2) SIGN THE AGREEMENT ELECTRONICALLY BY CLICKING THE "I ACCEPT" BUTTON UNDER THE STATEMENTS “By clicking the "I Accept" button below, I intend to sign, and am signing, this Agreement. By signing this Agreement, I represent that I am a duly authorized representative of Member and that Member and I intend to be legally bound to the terms and conditions set forth herein.” K. Following conclusion of this Agreement, ACTIVANT shall send this Agreement to you by email, or in some other manner and format as determined solely by ACTIVANT but that will permit you to store and reproduce this Agreement. In the event that ACTIVANT maintains any records regarding this Agreement in paper form, ACTIVANT shall provide you with reasonable access to such paper records at a mutually agreed upon time and in a mutually agreed upon manner. Member hereby acknowledges that ACTIVANT shall not file a copy of this Agreement with, and such Agreement shall not be accessible through, any third party, including any governmental or regulatory office or body. L. While Member is providing its consent to use an electronic agreement to govern the Member’s use of the Aftermarket ConneX gateway, Member is not required to enter future agreements solely in electronic form. The terms and conditions set forth in this Agreement may only be amended by Member in a writing manually executed by an authorized representative of ACTIVANT. Other information retained by ACTIVANT about Member may be reviewed, corrected or edited by Member by contacting ACTIVANT at the location specified above (though, in some situations, deleting certain information may not be technically feasible and termination of Member’s account may be required to comply with a request from Member to delete such information). Member expressly consents to receiving all notices hereunder in electronic form, though this consent may be withdrawn at any time by contacting ACTIVANT at the address set forth in this Section."

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