ACES Subscription Agreement

IMPORTANT – THIS IS A LEGAL DOCUMENT. BEFORE INSTALLING, ACCESSING, OR USING THIS ACA PROPERTY, YOU (with "You" or “your” referring to the person using under this agreement or the entity (named on the account with ACA) that will be subject to the following terms and conditions) SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT (THE “Agreement”) AS THEY DEFINE THE TERMS AND CONDITIONS UNDER WHICH YOUR SUBSCRIPTION (AND ASSOCIATED LICENSED RIGHT) TO ACCESS AND USE CERTAIN ACA LICENSED PROPERTY (as further defined below) WILL BE MADE AVAILABLE OR PROVIDED BY THE AUTO CARE ASSOCIATION ("ACA").

BY CLICKING "I ACCEPT" AT THE END OF THIS AGREEMENT OR BY INSTALLING, ACCESSING, OR USING ANY PART OF THE ACA LICENSED PROPERTY (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT AND ITS TERMS AND CONDITIONS, AND THAT YOU AGREE TO BE BOUND LEGALLY BY IT AND ITS TERMS AND CONDITIONS.

IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION BY ACA TO INSTALL, ACCESS, OR OTHERWISE USE ANY ACA LICENSED PROPERTY. IN SUCH CASE, PLEASE CLICK "I REJECT" AND PROMPTLY RETURN AND/OR DELETE ANY MATERIALS RELATED TO THE ACA LICENSED PROPERTY THAT YOU HAVE RECEIVED FROM ACA OR THAT YOU HAVE IN YOUR POSSESSION.

1. LICENSE GRANT. (a) Internal Use License. Conditioned on your continued compliance with the terms and conditions of this Agreement (including, without limitation, your payment of the applicable fee(s) pursuant to Section 6 below), this Agreement provides you with a limited, revocable, non-exclusive, nontransferable license to access and use the Vehicle Configuration Database (VCDB), the Product Classification database (PCdb) and the Qualifier database (QDB) located at www.autocarevip.com (the "ACA Licensed Property") for your internal business purposes. Any third party data, services, and/or software made a part of or otherwise made available with the ACA Licensed Property are subject to the terms and conditions herein and any other terms and licenses (if any) prescribed and posted by such third party licensors or providers. This license permits you to (i) access and use on an end user and internal business purpose basis the ACA Licensed Property, (ii) create printouts of output from the ACA Licensed Property for internal business purposes only, and (iii) create derivative content using your own software products or by the development effort of your own employees or contractors by combining information, data records, files, or other materials (which have been procured separately from a party or person other than ACA and which do not already contain any information, materials, or data of ACA) with the ACA Licensed Property and allow for the exchange of such derivative content with other external users in accordance with the Distribution License grant below. Any rights granted hereby are licensed and not sold or otherwise transferred or assigned to you or any third party.

(b) Distribution License. Subject to the terms and conditions of this Agreement (including, without limitation, your payment of the applicable fee for your level of use), ACA hereby grants to you, during the Term, and you hereby accept, a limited, revocable, nontransferable right and license, on a non-exclusive basis in the states or countries in which you are authorized to do business, to allow individuals, employees, contractors, or other businesses affiliated with your organization or who constitute direct clients or end users to access and use the ACA Licensed Property or create derivative work of the ACA Licensed Property by allowing such individual, employee, contractor, affiliated business, direct client, or direct end user to use your own software to combine information, data records, files, or other materials (which have been procured separately from a party or person other than ACA and which do not already contain any information, materials, or data of ACA) with parts (but not all of) the ACA Licensed Property. Any and all such use may only be for the personal or internal business purposes of such individual, employee, contractor, affiliated business, direct client, or direct end user and not for further distribution, copying, or access by such individual, employee, contractor, affiliated business, direct client, or direct end user; provided, further that (i) the ACA Licensed Property may never be distributed or otherwise made available by You to any third party on any basis other than as part of an internally used database that may only be further accessed or used by individuals, employees, contractors, affiliated businesses, direct clients, or direct end users in connection with external queries for specific information or data; (ii) the ACA Licensed Property may only be made available to third parties pursuant to terms and conditions at least as restrictive and protective of ACA as those contained herein and such terms and conditions must expressly prohibit further distribution or sublicensing of the ACA Licensed Property; (iii) any and all such access and use shall only be for the purpose of querying the ACA Licensed Property in order to identify particular output and not for the purpose of copying or making available the ACA Licensed Property in whole or substantially in whole, and (iv) the ACA Licensed Property must at all times contain the ACA trademarks, proprietary notices and other identifying marks included with the ACA Licensed Property when made available by ACA. ACA reserves the right to request a complete and accurate report setting forth the identity of all of your sub licensees of the ACA Licensed Property.

2. LICENSE GRANT RESTRICTIONS. Except as provided above or unless expressly permitted by ACA through its prior separate consent, you may not modify, alter, comingle, merge, translate, decompile, create derivative work(s) of, distribute, disassemble, reverse engineer, benchmark, broadcast, transmit, reproduce, attempt to examine the source code for, publish, license, sub-license, transfer, sell, resell, exploit, rent, timeshare, outsource, provide on a service bureau basis, lease, grant a security interest in, transfer any right(s) in, or otherwise use in any manner not expressly permitted herein the ACA Licensed Property or any part thereof. In addition, you may not remove or alter any proprietary notice on the ACA Licensed Property. All rights not expressly granted to you herein are hereby reserved by ACA, and you expressly acknowledge and agree that other than to the extent expressly permitted under Section 1(b), nothing herein provides to you any right to distribute or provide the ACA Licensed Property (or access thereto) to any other person, who is not an employee, or other entity, including any affiliate or subsidiary, without ACA’s express and prior written consent.

3. USER OBLIGATIONS. By installing, accessing, or using the ACA Licensed Property in order to view any information and materials, you represent that the person agreeing to this Agreement is at least eighteen (18) years of age and that you will, at all times, provide true, accurate, current, and complete information when submitting information or materials in connection with your use of the ACA Licensed Property, including, without limitation, when you provide information via a registration or submission form and when such information is submitted on behalf of the entity named on the registration or submission form, which for the purposes of this Agreement, must be a single corporate entity. You represent that you are authorized to bind and accept this Agreement on behalf of the entity named on the registration or submission form. If you provide any false, inaccurate, untrue, or incomplete information, ACA reserves the right to terminate immediately your access to and use of the ACA Licensed Property. By downloading, accessing, and/or using the ACA Licensed Property, you also represent that you agree to abide by all applicable laws and regulations with respect to your use of the ACA Licensed Property and not to use the ACA Licensed Property for any unfair, harassment, or deceptive purposes. ACA assumes no responsibility or liability for any claims that may result directly or indirectly from the communications or interactions you establish using the ACA Licensed Property

4. USERNAME HANDLING POLICY. Use of the ACA Licensed Property requires both a username and a password (to be provided by ACA) and access privileges or rights with respect to the ACA Licensed Property shall be determined by ACA in accordance with this Agreement. You should consider your username and password as confidential information. Only one person can use one password. Doing so insures that only you will be able to access your account through the ACA Licensed Property. Anyone with knowledge of both your username and password can gain access to the restricted portions of the ACA Licensed Property and to your account. Accordingly, by using the ACA Licensed Property, you agree to keep your username and password confidential. You also agree not to use another person’s username and password. You will immediately notify ACA if you become aware of any loss or theft of your password or any unauthorized use of your username and password. ACA cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. With notice, ACA reserves the right to delete or change a password at any time and for any reason.

5. PROPRIETARY RIGHTS. ACA and/or its licensors, as applicable, retain all ownership right, title, and interest in and to all programs, software, databases, information, and documentation associated with the ACA Licensed Property as well as any data or content compiled, collected, or associated with the ACA Licensed Property or with the selection or arrangement thereof. The ACA Licensed Property is © 2012-17 Auto Care Association and/or its licensors. AUTO CARE ASSOCIATION, ACA, and all other names, logos, and icons identifying ACA and its products and services are proprietary trademarks of ACA and/or its licensors, as applicable, and any use of such marks without the express written permission of ACA is strictly prohibited. Except as expressly provided herein, ACA does not grant any express or implied right to you or any other person under any intellectual or proprietary rights. Accordingly, unauthorized use of the ACA Licensed Property may violate intellectual property or other proprietary rights laws as well as other domestic and international laws, regulations, and statutes, including, but not limited to, United States copyright, trade secret, patent, and trademark law.

6. FEES; PAYMENT TERMS. You acknowledge and agree that you will pay the applicable fee(s) specified by ACA on your application or otherwise for each year during the Term. You will only be eligible for member rates if you are a member in good standing of the Auto Care Association and maintain such membership throughout the Term ("ACA Member"). If you elect a subscription option available to members only and you cease to be an ACA Member at any time during the Term, your subscription will automatically be converted to a non-member Internal Use License.

7. CONFIDENTIALITY. You acknowledge and agree that the ACA Licensed Property contains certain proprietary trade secrets and non-public information of ACA and/or its licensors (the “Confidential Information”). You agree to secure and protect the confidentiality of the Confidential Information of ACA (and/or its licensors) in a manner consistent with the maintenance of ACA’s rights therein, using at least a degree of care as you use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement.

8. SECURITY. You shall not, nor shall you permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by ACA for use of the ACA Licensed Property. ACA reserves the right at any time, and without notice, to modify, suspend, terminate, or interrupt operation of or access to the ACA Licensed Property, or any portion thereof, in order to protect the ACA Licensed Property or ACA’s rights or business. You will immediately notify ACA if you become aware of any unauthorized use of the ACA Licensed Property.

9. WARRANTY DISCLAIMER. THE ACA LICENSED PROPERTY AND ANY ASSOCIATED INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS WELL AS ANY WARRANTY RELATED TO THE USE, OR THE RESULTS OF THE USE, OF THE ACA LICENSED PROPERTY IN TERMS OF AVAILABILITY, ACCURACY, SECURITY, RELIABILITY, OR OTHERWISE. ACA AND ITS THIRD PARTY LICENSORS DO NOT WARRANT THAT THE ACA LICENSED PROPERTY WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY, AND PERFORMANCE OF THE ACA LICENSED PROPERTY IS WITH YOU.

10. LIMITATION OF LIABILITY. ACA SHALL NOT BE LIABLE FOR ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND ACA’S CONTROL, INCLUDING, BUT NOT LIMITED TO, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER CONNECTION PROBLEMS, COMPUTER VIRUSES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES, OR NATURAL DISASTERS, STRIKES, OR OTHER LABOR PROBLEMS, WARS, OR GOVERNMENTAL RESTRICTIONS. MOREOVER, YOU AGREE THAT IN NO EVENT SHALL ACA BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE ACA LICENSED PROPERTY, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF ACA HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF ACA OR ITS THIRD PARTY LICENSORS FOR ANY REASON WHATSOEVER RELATED TO USE OF THE ACA LICENSED PROPERTY OR ANY CLAIMS RELATING TO THIS AGREEMENT OR THE ACA LICENSED PROPERTY SHALL NOT EXCEED $5,000 (USD).

11. INDEMNITY.  You agree to defend, indemnify, and hold harmless ACA and its board of directors, committee members, affiliates, employees, licensors, agents, directors, officers, partners, representatives, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from your use of the ACA Licensed Property and any breach by you of this Agreement. You shall use reasonable efforts to cooperate with ACA in defense of any claim, and you acknowledge and agree that ACA reserves the exclusive right, in its sole discretion, to participate in any claim and assume, at your sole expense or such other cost sharing arrangement agreeable to ACA, the control, defense, and/or settlement of any matter otherwise subject to this indemnification obligation.

12. GOVERNING LAW. This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the United States of America and the State of Maryland, U.S.A. as applied to agreements entered into and completely performed in the State of Maryland. For any disputes between the parties under or arising out of this Agreement, the parties agree that jurisdiction shall be in the courts of the State of Maryland. The parties also acknowledge and agree that any state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. Moreover, the parties agree that no action or proceeding may be brought arising from this Agreement more than four (4) years after such claim first arose

13. TERM AND TERMINATION. This Agreement takes effect at the moment you click “I ACCEPT” or you install, access, or use the ACA Licensed Property and your right to use the ACA Licensed Property is effective upon ACA's acknowledgement of receipt of your initial subscription fee pursuant to Section 6 and shall continue until terminated as set forth below (the "Term"). This Agreement will terminate automatically if you click “I REJECT” or if fail to comply with any of the terms and conditions described herein, including by exceeding the scope of the license or failing to pay in a timely manner any applicable fees, charges, or costs. Termination or expiration of this Agreement will be effective without notice. You may also terminate at any time by ceasing to use the ACA Licensed Property, but all applicable provisions of this Agreement will survive termination, as outlined below. Upon termination or expiration, you must return, destroy, or delete from your system all copies of the ACA Licensed Property (and any associated materials and data) in your possession. In addition to the miscellaneous clause below, the provisions concerning ACA's ownership rights in its proprietary information and intellectual property, confidentiality, indemnity, disclaimers of warranty, limitation of liability, termination, and governing law will survive the termination or expiration of this Agreement for any reason

14. MISCELLANEOUS. You acknowledge that any breach, threatened or actual, of this Agreement will cause irreparable injury to ACA, such injury would not be quantifiable in monetary damages, and ACA would not have an adequate remedy at law. You therefore agree that ACA and/or it licensors shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement. Accordingly, you hereby waive any requirement that ACA post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to ACA to enforce any provision of this Agreement. The parties agree that this Agreement is for the benefit of the parties hereto as well as ACA’s licensors with respect to enforcing rights in such licensors’ intellectual property or data. This Agreement is personal to you, and you may not assign your rights or obligations to any other person or entity without ACA’s prior written consent. Failure by ACA to insist on strict performance of any of the terms and conditions of this Agreement will not operate as a waiver by ACA of that or any subsequent default or failure of performance. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. If any provision (or part thereof) contained in this Agreement is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein. You and ACA are independent contractors. No joint venture, partnership, employment, or agency relationship exists between you and ACA as result of this Agreement or your utilization of the ACA Licensed Property, and you shall have no right to bind ACA without its prior written permission. Headings herein are for convenience only. This Agreement represents the entire agreement between you and ACA with respect to using the ACA Licensed Property as a registered user, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and ACA with respect to the ACA Licensed Property. Unless otherwise agreed to by ACA, please note that ACA reserves the right to change the terms and conditions of this Agreement and under which the ACA Licensed Property is extended to you by providing you in writing or electronically a copy of such revised terms. ACA may also change any aspect of the ACA Licensed Property. Your continued use of the ACA Licensed Property will be conclusively deemed acceptance of any change to this Agreement or the ACA Licensed Property.

  PLEASE MANIFEST YOUR ASSENT TO THIS AGREEMENT BY CHECKING THIS BOX.

 

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