This License Agreement ("Agreement") is between Licensor, Ford Motor Company ("Ford") and the named End-User ("Licensee") through its authorized representative, and provides the terms and conditions by which Licensee may use the Ford Catalog AdvantageTM
software product and the associated Ford parts catalog data (collectively "Software").
In consideration of Licensee's monthly payment to Ford of the Subscription costs and while in compliance with the terms and conditions of this Agreement, Ford grants to Licensee a non-exclusive and non-transferable license to use the Software for Licensee's internal business purposes of ordering, stocking and selling spare or replacement parts for Ford branded vehicles with specific rights to:
- load and use the Software on any single computer terminal when Licensee is under a Subscription for a single concurrent user;
- load and use the Software on a network of computer terminals, provided that Licensee is under a Subscription for a plurality of concurrent users;
- reload and use the Software on a substitute computer terminal when the primary computer terminal is being repaired or scrapped; and/or
- copy the Software for archival purposes only, provided the copy contains all the original Software's proprietary notices.
Upon receipt of each new version of the Ford Catalog AdvantageTM
software product or Ford data, Licensee shall immediately follow the provided instructions and install such new version to replace the former version. The rights and obligations under this Agreement also shall apply to each new version.
3. RESTRICTIONS ON USE.
Except as otherwise expressly provided under this Agreement, Licensee shall have no right and Licensee specifically agrees not to:
4. INTELLECTUAL PROPERTY RIGHTS.
- permit individuals who are not employees or contractors associated with Licensee's business to use the Software;
- permit concurrent multi-computer use of the Software except with a corresponding concurrent Subscription;
- copy the Software other than as specified above;
- rent, lease, grant a security interest in or otherwise transfer rights to the Software;
- remove any proprietary notices or labels on the Software or its output;
- transfer, assign or sublicense its license rights to any other person or entity, or use the Software on unauthorized computer equipment, without prior written permission from Ford;
- make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;
- reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law;
- use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Ford; or
- allow copies of the Software to remain on any computer equipment that is scrapped or otherwise removed from control of Licensee.
All title to copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, text, and symbols incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by Ford or its suppliers. All title in other intellectual property rights in and to the content that may be accessed through use of the Software are owned by Ford or its suppliers and may be protected by applicable patent or other intellectual property laws and treaties. The License grants no rights to use such content except in conjunction with the normal and intended operation of the Software. If this Software contains documentation that is provided only in electronic form, you may print one copy of such electronic documentation for your own personal use, with no rights to further distribute or to create derivative works based thereon. You may not copy the printed materials accompanying the Software.
The Software contains trade secrets and other valuable information that are proprietary and confidential to Ford and/or Ford's suppliers. For purposes of this Agreement, Licensee accepts all information contained in the Software as being Confidential Information belonging to Ford. Except to the extent necessary to exercise the license rights set forth above, Licensee will hold in confidence all documents and other materials representing or embodying the Software and other information identified in writing as Confidential Information of Ford or its suppliers to the same extent that Licensee would protect its own confidential information.
The obligation under the preceding paragraph does not extend to that portion of information which:
- was or has become public through no fault of Licensee;
- was already known to Licensee; or
- becomes known to Licensee without breach of an obligation to keep the information confidential.
Licensee will take the necessary steps to also impose the obligations of this Article on Licensee's employees and any other person Licensee uses for executing the present agreement.
The obligation of Confidentiality shall extend for the term of the License and an additional period of three (3) years following full compliance with the return or destruction requirements associated with termination of the License.
6. TERM & TERMINATION.
The License granted herein is effective until terminated.
Except to the extent restricted by language contained in special or promotional offers through which this License Agreement commenced, Licensee may terminate the License at any time by allowing at least thirty (30) days for the cancellation request to be processed and become effective-. Prior to the date of termination, Licensee must remove the Software from all equipment in which it has been installed and either return all copies of documentation and the Software to Ford or destroy all such copies, and provide a written statement to Ford certifying that all Software has been removed, the date of removal, and that all such copies of documentation and the Software have been returned or destroyed.
Ford may terminate the License with immediate effect by providing written notice to Licensee, if Licensee fails to comply with the obligations and restrictions described in this Agreement. Ford may terminate the License by providing written notice to Licensee that Ford is quitting the business of licensing the Software, effective no earlier than thirty (30) days following the date of such notice to Licensee. Upon termination by Ford, Licensee shall immediately remove the Software from all equipment in which it has been installed and either return all copies of documentation and the Software to Ford or destroy all such copies, and provide a written statement to Ford certifying that all Software has been removed, the date of removal, and that all such copies of documentation and the Software have been returned or destroyed.
7. LIMITED WARRANTY.
Ford warrants that the original media on which the Software is furnished will perform substantially in accordance with its accompanying product information for the term of the License. Ford does not warrant that the Software, including the Ford data, is error free.
No Software reseller, dealer, agent or employee of Ford, is authorized to make any modifications, extensions or additions to this warranty. If any modifications are made to the Software by the user, or the media is subjected to accident, abuse or improper use, the terms of the warranty shall be void.
Except for the foregoing, the Software is provided "as is". If the Software does not perform substantially in accordance with the documentation, the entire liability of Ford, and Licensee's exclusive remedy shall be limited to either, at Ford's option, replacement of the Software or refund the effected portion covered by the paid Subscription.
THE FOREGOING LIMITED WARRANTY STATES THE SOLE AND EXCLUSIVE REMEDIES FOR THE LICENSEE. FORD, AS WELL AS ITS AUTHORIZED SOFTWARE RESELLERS, DEALERS, AGENTS AND SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS LICENSEE MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, LICENSOR, AS WELL AS ITS AUTHORIZED SOFTWARE RESELLERS, DEALERS, AGENTS AND SUPPLIERS DISCLAIM AND MAKE NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY OTHER MATTERS, INCLUDING NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS, OR MERCHANTABILITY, FITNESS OR SATISFACTORY QUALITY FOR ANY PARTICULAR PURPOSE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, TO THE EXTENT ALLOWED BY APPLICABLE LAW. THE TERMS OF THIS SECTION SURVIVE THE TERMINATION OF THIS AGREEMENT IRRESPECTIVE OF THE CAUSE OF THE TERMINATION, BUT DO NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE SOFTWARE AFTER TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE SHALL FORD OR ITS AUTHORIZED SOFTWARE RESELLERS, DEALERS, AGENTS OR SUPPLIERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOST CAPITAL, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL FORD BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT FORD RECEIVED FROM LICENSEE FOR A LICENSE TO USE THE SOFTWARE, EVEN IF FORD SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. FORD AND ALL OTHER PARTIES INVOLVED IN THE DEVELOPMENT OF THE SOFTWARE ARE NOT RESPONSIBLE FOR ANY ERRORS, AND/OR FINANCIAL LOSSES, AND/OR PROBLEMS, AND/OR LOSS OF CLIENTS, AND/OR LOSS OF INFORMATION AND/OR DIFFICULTIES THE USERS OF THE SOFTWARE MAY EXPERIENCE AS A RESULT OF ITS USE.
Licensee assumes full responsibility for the selection and suitability of the computer equipment on which the Software is installed, as well as for its installation and use, and for the results obtained from the Software. Ford is not responsible for any loss of database files of Licensee.
10. PRODUCT SUPPORT.
Although Ford intends to provide support to Licensee in the form of help desk assistance and occasional updated versions of the Software and data files, Ford is not obligated to provide such support. The support policies and practices of Ford are subject to change without notice or obligation. Licensee is solely responsible for applying to its activities any customer support information provided by Ford and for any consequences thereof.
11. Alternate Dispute Resolution.
If a dispute arises between the Parties relating to this Agreement, the following procedure shall be implemented before any Party pursues other available remedies except that each Party may seek injunctive relief from a court where appropriate in order to maintain the status quo or to prevent continuing acts, which caused the dispute while this procedure is being followed:
a. The Parties shall hold a meeting promptly, attended by persons with decision making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute; provided, however, that no such meeting shall be deemed to vitiate or reduce the obligations and liabilities of the Parties hereunder or be deemed a waiver by a Party hereto of any remedies to which such Party would otherwise be entitled hereunder, and further provided that all such statements made at such meeting shall be strictly off the record and shall not be admissible in any court or arbitration proceeding. If, within thirty (30) days after such meeting, the Parties have not succeeded in negotiating a resolution of the dispute, they agree to submit the dispute to mediation in accordance with the then current Model Procedure for Mediation of Business Disputes of the CPR International Institute for Conflict Prevention & Resolution ("CPR") and to bear equally the costs of the mediation.
b. The Parties will jointly appoint a mutually acceptable mediator, seeking assistance in such regard from the CPR if they have been unable to agree upon such appointment within twenty (20) days from the conclusion of the negotiation period.
c. The Parties agree to participate in good faith in the mediation and negotiations related thereto for a period of thirty (30) days. If the Parties are not successful in resolving the dispute through the mediation, then the Parties agree to submit the matter to binding arbitration or a private adjudicator, or either Party may seek an adjudicated resolution through the appropriate court.
d. Mediation or arbitration shall take place in Dearborn, Michigan unless otherwise agreed by the Parties. The substantive and procedural law of the State of Michigan shall apply to the proceedings. Equitable remedies shall be available in any arbitration. Punitive damages shall not be awarded. This Section is subject to the Federal Arbitration Act, 9 U.S.C.A. § 1 et seq.
Notice to Ford and other written communications with Ford concerning the Software or this Agreement shall be addressed to:
Ford Catalog AdvantageTM
39201 Schoolcraft Road,
Livonia, Michigan 48150
13. GOVERNING LAW.
This License agreement, including its Limited Warranty provisions, shall be governed by the laws of the State of Michigan, without reference to choice of law rules or principles. All disputes arising under this agreement shall be resolved in the applicable state or federal courts of Michigan. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
The extent of the Subscription ordered by Licensee will determine the Subscription cost that will be charged in U.S. dollars to Licensee's parts account administered by Ford, on a monthly basis. Subscription costs are subject to change by Ford, at any time, and the contemporaneous costs are published in Ford's current marketing materials.
This agreement constitutes the entire understanding of the parties and is intended as the final expression of their agreement.
To Enroll: Please call 1-800-34-FLEET (35338), Option 3, Pick 5 or you may use the online Enrollment Form
by logging in with your user name and password.