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1StopMotors™ Terms of Use
Effective — May 2009
Last updated — July 2009
This Agreement is made and entered into on the Date of Acceptance ("Effective Date") by and between 1StopMotors™ ("OSM"), and Acceptance User (together the "Parties" and individually the "Party") (certain terms used herein shall have the meaning ascribed to such terms as set forth in DEFINITIONS). In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as:
6. Confidentiality and Trade Secrets
6.1. Throughout the Term and for a period of two (2) years after the Termination Event (or any longer period allowed by law), User shall not Disclose the Confidential Information to any Person. In perpetuity, User shall not Disclose the OSM Trade Secrets (including, without limitation, the terms of this Agreement) to any Person. This Section does not apply to information or data generally publicly known through no fault of User.
6.2. User: (a) shall not remove, alter, hide or otherwise diminish or denigrate any notice of confidentiality, secrecy, privacy or indication of proprietary right, title or interest (a "Notice") that is discernable on or with respect to any Media embodying any Confidential Information; (b) shall not separate or disembody any Confidential Information from any Media embodying or containing Confidential Information provided by OSM and/or OSM's agent(s) to User; and (c) hereby covenants, represents and warrants that any Media bearing a Notice shall not be necessary to create a presumption that certain Content is Confidential Information.
6.3. If User is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information, User shall provide OSM with prompt written notice of such request or requirement so that OSM may seek protective orders or other appropriate remedies and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by OSM, User nonetheless is legally compelled to disclose Confidential Information to any court or tribunal or else would stand liable for contempt or suffer other censure or penalty, User may, without liability herein, disclose to such court or tribunal only that portion of the Confidential Information which the court requires User shall exercise best efforts to preserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with OSM to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such court or tribunal.
7. Audit
User shall allow OSM to enter any and all locations where the Licensed Property are used at reasonable times to audit and inspect User's use of the Licensed Property; provided, however, that OSM shall provide User at least twenty-four (24) hours notice of such audit or inspection; provided further, however, that if such audit or inspection results in the finding of a material breach of this Agreement on the part of User, User shall be responsible for any Amounts and/or damages associated with such audit or inspection.
8. Equitable Relief
User covenants, represents and warrants that any violation of Sections 2, 4 or 6 by User shall cause irreparable injury to OSM and shall entitle OSM to extraordinary and equitable relief by a court, including, but not limited to, temporary restraining orders and preliminary and permanent injunctions, without the necessity of posting bond or security.
9. Disclaimer of All Warranties and Representations
THE LICENSED PROPERTY AND ALL SERVICES PROVIDED BY OSM ARE PROVIDED "AS IS." OSM DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED PROPERTY OR ANY OF THE SERVICES OR TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES HERETO PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES (some jurisdictions do not allow the exclusion of implied warranties, so the exclusion of implied warranties may not apply to the User) OR CONDITIONS OF TITLE, NON INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT OSM KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
10. Limitations on Liability
OSM AND OSM'S REPRESENTATIVES SHALL NOT BE LIABLE TO USER (NOR ANY PERSON CLAIMING ANY RIGHT, TITLE, OR INTEREST DERIVED FROM OR AS SUCCESSOR TO USER'S RIGHT, TITLE AND INTEREST) IN ANY MANNER (INCLUDING, WITHOUT LIMITATION, ON ACCOUNT OF OR DUE TO BREACH OF THIS AGREEMENT): (A) IN OR FOR AN AMOUNT THAT EXCEEDS THE AMOUNTS PURSUANT TO THIS AGREEMENT RECEIVED AND RETAINED BY OSM FROM USER WITHIN THE PRIOR SIX (6) MONTHS OF TERMINATION OF THIS AGREEMENT; (B) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF CONTENT ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTIES HAVE ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES; OR (C) IN THE EVENT THAT USER'S SUBJECT VEHICLE IS NOT SOLD OR IS SOLD FOR AN AMOUNT LESS THAN USER LISTED.
11. Termination
11.1. In addition to any and all other remedies available to OSM at law or equity, OSM shall have the right to immediately terminate this Agreement, with or without notice, upon the occurrence of any of the following events:
11.1.1. on the date identified in a five (5) day prior notice sent by OSM to User terminating the Agreement and/or the grant of license to User if User refuses to sell the Subject Vehicle in accordance with the terms identified in the Registration (or as amended and updated through use of the Licensed Software by User or negotiated by User with a potential buyer of the Subject Vehicle) or upon presentment of another reasonable offer;
11.1.2. User commits an act of fraud against OSM, regardless of whether such act of fraud is a material breach;
11.1.3. User Discloses Confidential Information or OSM Trade Secrets, regardless of whether such Disclosure is a material breach;
11.1.4. User materially breaches any provision relating to, associated with, or arising from OSM Intellectual Property; or
11.1.5. User otherwise materially breaches this Agreement (including, without limitation, User fails to pay the Amounts in accordance with Section 3).
11.2. User may terminate this Agreement at any time, with or without cause, upon thirty (30) days prior written notice to OSM.
11.3. On termination of this Agreement, in addition to all other rights and remedies available to OSM: (a) User shall immediately cease any further use of the Licensed Property, (b) upon OSM's request, User shall immediately return to OSM all property of OSM, including, without limitation, all Licensed Property and any Confidential Information, along with a signed written statement by User or an officer of User certifying that User has complied with this Section 11.3 and (c) OSM shall not refund any Amounts paid by User. Notwithstanding the return of such property, User shall continue to be bound by User's obligations of confidentiality and security as set forth in this Agreement.
12. Indemnification
Notwithstanding any other provision of this Agreement, User shall indemnify and hold OSM and OSM's Representatives (the "Indemnified Parties") harmless from and against any Losses incurred by any of the Indemnified Parties with respect to, arising from or out of any Claim that relates to or arises out of any act or omission of User (except an act or omission that emanates from an infringement by OSM of a third Person's Intellectual Property), including, without limitation, the misuse of the Licensed Property, alleged breach, or investigation relating to a possible breach, of any legal requirement or of any covenant, representation, warranty or other obligation of User contained in or arising out of this Agreement.
13. Limitations on Assignment
This Agreement, including, without limitation, the license granted pursuant to Section 2.1, is personal to User, and User shall not assign or transfer any of User's rights or have assumed any of User's obligations pursuant to this Agreement to and by, respectively, third Persons, without the prior written consent of OSM, such consent granted or denied in OSM's sole and absolute discretion.
14. Non-Waiver
Waiver by OSM of performance of any provision of this Agreement shall not be a waiver of, nor prejudice to, OSM's right to require, strict performance of the same or any other provision in the future.
15. Notice
OSM may provide any notice by posting to the OSM's website, mail, electronic mail or facsimile transmission (in OSM's sole and absolute discretion) and such notice shall satisfy any legal requirement that communications be in writing.
16. General Provisions
16.1. Unless otherwise specified, all terms and provisions shall be applicable throughout the Term.
16.2. The provisions herein concerning Intellectual Property shall be construed as independent of any other provision hereof and raising a defense to an obligation of User in this Agreement related to Intellectual Property shall not impair the on going duty of User to perform in accordance with User's own obligations pursuant to this Agreement.
16.3. If any provision of this Agreement should be held to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then such court shall correct the defect in a narrowly tailored manner to approximate the manifest intent of the Parties.
16.4. Sections 2.2, 3, 4, 5, 6, 7, 8, 9, 10, 11.3, 12, 13, 14, 15, and 16 shall survive any termination or expiration of this Agreement.
16.5. This Agreement, together with all Schedules and Exhibits, constitutes the entire agreement between the Parties with respect to the licensing of the Licensed Property. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the Parties with respect to the licensing of the Licensed Property shall be of any force or effect.
16.6. This Agreement may be changed, waived, discharged or terminated by User only by an instrument in writing, signed by an officer of OSM.
16.7. Subject to Section 13, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
16.8. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada. User consents to personal jurisdiction, as well as exclusive venue for any Claim regarding or arising out of this Agreement in the appropriate state or federal court located in Clark County, Nevada.
