CENTRAL SERVICE LICENSE AGREEMENT
This End User License Agreement (“EULA” or “Agreement”) is a legal contract between either (i) Constellation R.O. Writer Inc. dba R.O. Writer or (ii) if you are a customer located in Canada, Perseus Group Software Corp. dba R.O. Writer (as applicable, “Licensor”) and Licensee (sometimes referred to as “you,” “your” or “Licensee”). This EULA is for Licensor’s suite of software applications (“Software”) that comprises the R.O. Writer service known as Central Service (“Central Service” or the “Service(s)”). It also covers any user documentation, whether provided online, in an electronic format or otherwise, you may have purchased, downloaded or subscribed to for Central Service (“Documentation”). Licensor’s offices are located at 11350 McCormick Road, Executive Plaza III, Suite 200, Hunt Valley, MD 21031. Licensor individually is a “Party” and collectively are the “Parties.”
Licensor may update this Agreement at any time, and will make the updated Agreement available by posting the updated version on its website at https://www.rowriter.com/Home/central_service, which you should regularly check for updates and/or changes. Licensor will use reasonable efforts to inform you of any such updates via the email you provide in your SOF (defined below). However, your continued use of the Software and the Services shall be conclusive evidence that you have read and consented to this Agreement as amended or modified and further agree on a going forward basis to comply with, and be bound by, all the terms and conditions contained in the Agreement as amended or modified at that time. If at any point you do not agree to any portion of the Standard Terms and Conditions then in effect, you must immediately stop using the Software and Services, as amended or modified at that time.
1. License Grant: Subject to your full compliance with the terms of this License, Licensor grants to Licensee, and Licensee accepts from Licensor, in accordance with the terms hereof, a non-exclusive, non-transferable, revocable, and limited license to use the R.O. Writer Central Service software application(s) (the “Software” and, together with the Service, “Central Service”). Licensee has the right to use Central Service solely for the internal business purpose of operating one or more vehicle repair shops, which Licensee shall update as it seeks to add or delete a vehicle repair shop to Central Service by providing Licensor at least 15 business days’ notice to allow Licensor to generate an additional quote, sales order form, or other comparable ordering document (“SOF”) updating Licensee’s License. This License conveys no interest to Licensee, except as expressly stated herein. To avoid any confusion, this License conveys no other rights, express or implied, and no interest in Central Service to Licensee. Central Service is copyrighted and licensed (not sold). All other use of Central Service is strictly prohibited. For purposes of this License, the term Central Service shall include any corresponding manuals, documentation, information and other support materials provided to Licensee by Licensor.
2. Proprietary Rights; Confidentiality: Central Service is proprietary to Licensor. Licensor retains all right, title and interest in and to Central Service and all modifications, derivative works, and related materials, ideas, methods, procedures, processes, know-how and techniques, including, without limitation, functions, models, templates, algorithms, processes, structure features, software sequence and organization, user interfaces, screen designs, consulting and software tools, utilities, routines, and systems operation methods (collectively, “Licensor Materials”), all of which constitute Licensor trade secrets and/or confidential information. Licensee agrees to maintain the confidentiality of the Licensor Materials and, in particular, to restrict access to and use of Central Service to Licensee and Licensee’s employees and agents (such as accountants and lawyers) who agree in writing not to disclose any Licensor Materials to any third parties and to use Central Service strictly in accordance with the terms hereof (“Authorized Users”). Licensee further agrees not to disclose and/or allow access to any Licensor Confidential Information and Licensor Materials to a non-Authorized User, except as required by a lawful court order. If Licensee receives such an order, it agrees to contact Licensor immediately via email notification and providing Licensor a copy of the order. Licensee further agrees to coordinate its response to the order with Licensor to enable Licensor to file any court document it deems necessary with the issuing court. Licensor and Licensee shall convey in good faith to ensure Licensor acts within a timely fashion and does not place Licensee in jeopardy of violating a court order. Licensee acknowledges that Central Service and any third-party software that may be included therein are protected by United States copyright laws and international treaty provisions.
3. Further Restrictions: Authorized Users; Licensee Responsibilities: Licensee may only provide Authorized Users access to Central Service, including, without limitation, access to user IDs, passwords or electronic authentication keys. Licensee is responsible for the actions of Authorized Users as if Licensee had made the actions itself. Other than Authorized Users, no third party may have use of or access to Central Service. Under no circumstances shall an Authorized User be a person or entity engaged in point of sale software development. Licensee and Authorized Users shall not, nor shall they attempt to, or permit or assist any person or entity to: (i) sublicense, transfer, rent, lease, assign, reverse assemble, create a derivative work of, translate, modify, misuse, damage, impair, misappropriate, disassemble, decompile, reproduce, or reverse engineer all or part of Central Service, or otherwise attempt to derive algorithms, techniques, or non-public features of the Service or the Software; (ii) use Central Service to benefit a third party; (iii) develop, market, license or sell a product or service which appropriates or uses as source material any Licensor Materials; (iv) breach a Licensor security measure; (v) access or use another licensee’s data (except as may be expressly permitted by Licensee); or (vi) use Central Service with Licensee Data (as defined below) that infringes a third-party right, or is obscene, defamatory or otherwise unlawful. Results of any breach of (i), (ii), and (iii) shall be Licensor’s property and confidential information.
Further, Licensee is responsible for compliance with this License by all persons and entities that obtain access to Central Service through or on behalf of Licensee. If Licensor determines, in its sole discretion, that any Licensee Data stored within Central Service is illegal, infringing, or could create liability for Licensor and/or its current and/or future subsidiaries, parents or affiliate(s), Licensee shall immediately, at its sole expense, destroy it, delete it or otherwise transfer it from Central Service. Notwithstanding the foregoing, neither Licensor nor its parents or affiliate(s) shall have any duty to monitor Licensee Data to determine whether the same is illegal, infringing or could create liability.
Licensee further agrees and acknowledges that: (1) Licensee may not access Central Service or transmit Licensee Data to Central Service from a country prohibited by the United States or Canada Government; (2) use of Central Service requires Internet connectivity; (3) Licensee will not prevent or otherwise circumvent Central Service from connecting to the Internet as necessary (including, without limitation, by using firewalls or any other electronic methods); (4) except as expressly provided for in this License, no other right or license, either express or implied, under any patent, trademark, copyright, trade secret or intellectual property right of any kind is granted hereunder; (5) Licensee is not entitled under the terms of this License to receive support or maintenance from Licensor, and Licensor shall not be obligated to provide support and maintenance to Licensee, including, among other things, phone support or access to certain sections of the R.O. Writer support website (Licensor offers a Software Maintenance Program directly to its licensees, subject to the terms of a separate Software Maintenance Program Agreement); and (6) Licensor may, in any way, employ, modify, develop, market, disclose, and otherwise exploit Central Service, Licensor Materials, and upgraded or modified versions thereof, including, without limitation, that which allows Licensor, its parents or affiliate(s) to meter usage. Neither Licensor nor its current and/or future subsidiaries, parents or affiliate(s) agree to any terms precluding or limiting its right to provide any product or service to any person or entity.
Licensee is responsible for: (A) ensuring proper use of Central Service; (B) implementing and maintaining audit controls, check points, safeguards, operating methods, and procedures for access to and use of Central Service; (C) ensuring that no credit card numbers, social security numbers, or other personally identifiable information is included in Licensee Data and/or transmitted to Central Service; (D) complying with all laws, rules and regulations applicable to Licensee’s operations, including, without limitation, Licensee’s use and configuration of Central Service; and (E) using commercially reasonable measures to safeguard Central Service user IDs, passwords, and electronic authentication keys. LICENSOR AND LICENSOR’S AFFILIATES SHALL NOT BE OBLIGATED TO CORRECT DEFECTS OR BE LIABLE FOR DAMAGES CAUSED BY LICENSEE’S FAILURE TO COMPLY WITH THE FOREGOING.
4. License From Licensee; Licensee Data Collection and Disclosure: “Licensee Data” shall mean any data, information or other materials of any nature whatsoever provided or made available to Licensor in the course of Licensee’s use of Central Service. Licensee Data may include information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, or any other information that is regulated as “personal data” or “personal information” under applicable law (“Licensee Personal Data”). Licensee warrants it has all necessary rights to provide and make available the Licensee Data to Licensor and its current and/or future subsidiaries, parents or affiliate(s) as described herein and hereby does grant to Licensor and its current and/or future subsidiaries, parents or affiliate(s) a non- exclusive, royalty-free license to collect, access, copy, store, record, back-up, combine, analyze, transmit, maintain, display, disclose, share, make available, view, print, delete, or otherwise use or process (“Process”) Licensee Data as necessary for Licensor to perform its obligations hereunder on Licensee’s behalf, including Licensor’s provision, back-up, storage and maintenance of and modifications and improvements to Central Service. This includes, without limitation, for purposes of providing additional services requested by Licensee, for purposes of enforcing this License, and for purposes of complying with applicable law or court order. Licensor may combine data received from one or more entities to which Licensor is a service provider, to the extent necessary to detect data security incidents, or protect against fraudulent or illegal activity. Licensor is prohibited from using, retaining, disclosing, or otherwise Processing Licensee Data for any other purpose. For the avoidance of doubt, except as otherwise set forth herein, Licensor may not sell, resell, lease, assign, rent, sublicense, distribute, transfer, disclose, time-share or otherwise exchange Licensee Data (or any portion thereof) for monetary or other consideration. Licensee hereby grants to Licensor and its current and/or future subsidiaries, parents or affiliates(s) a non- exclusive, royalty-free, irrevocable, perpetual license to Process Licensee Data that is “deidentified” or “aggregated” (as those terms are defined under applicable law), for analyzing and improving Central Service, marketing and promoting Central Service, and for other Licensor purposes in Licensor’s discretion. Licensee also acknowledges and agrees that Licensor may also collect general statistical information about Licensee’s use of Central Service and information regarding Licensee’s operating environment, including, without limitation, information regarding the Licensee’s network, processor, computer memory, installed software and configurations and other miscellaneous hardware (“Usage Data”). Usage Data shall be owned by Licensor, and Licensor may Process the Usage Data for its own business and commercial purposes.
If Licensee is also a franchisee (a “Midas Franchisee User”) of Midas International, LLC , the following provisions shall also apply. Licensee hereby authorizes Licensor to share certain Licensee Data with Midas International, LLC and its parents and affiliates (collectively, “Midas”) to use for the purposes set forth above on behalf of Licensee, and as necessary for Licensee’s other commercial purposes, including royalty reporting, warranty registration and compliance verification with respect to the foregoing items. In addition, Licensee permits and authorizes Midas to use the Licensee Data that is “deidentified” or “aggregated” (as those terms are defined under applicable law) in marketing and sales analytics systems, provided that said deidentified or aggregated Licensee Data is used only in connection with the franchise system of which Licensee is a part. If Licensee is not a franchisee of a Licensor affiliated or parent company, Licensee shall disregard this paragraph as it does not pertain to Licensee. If Licensee’s franchisee status changes while this Agreement is in effect, Licensee shall provide Licensor with prompt written notice of its change of status. Notwithstanding anything to the contrary contained in this EULA, upon a Midas Franchisee User’s termination of franchisee status with Midas, such user’s access to any functionalities or services (including any data sharing arrangements) provided exclusively to Midas franchisees by Licensor shall be terminated.
5. Fees: Licensee shall pay basic monthly subscription fees as described in Licensor’s then-current price list and additional fees for each increased level of Central Service functionality. Licensor may, in its sole discretion, charge additional fees for updates to Central Service content, functionality and/or Central Service user interfaces. If Licensee fails to remit the subscription fees timely, Licensor will notify Licensee that it is in default of this License and Licensee shall have ten (10) days to cure such default. If Licensee fails to cure the default within the ten (10) day cure period, Licensor may deny access to Central Service. Licensor, its current and future subsidiaries, parents or affiliates and it and their employees, officers, directors, or agents shall not be liable for any damages due to such interruption or termination, and Licensee shall pay Licensor’ any back due payments and the then-current commercially reasonable fees for any subsequent restoration of access. If Licensee is a Midas Franchisee User, Licensee acknowledges and agrees that if Licensee’s status as a Midas franchisee terminates, effective as of such termination date, the Fees due with respect to such Licensee shall automatically adjust to Licensor’s then-current retail rates
6. Service; Availability; Security; Support: Licensor will use commercially reasonable efforts to make Central Service available during normal business hours (9am - 5pm eastern time); restrict maintenance to occur during non-business hours; and provide Licensee with notification of scheduled downtime. Licensee agrees that occasional downtime, updates and maintenance are sometimes required during business hours, which may impair responsiveness and accessibility. Licensee further agrees that Central Service may also be unavailable due to emergency downtime to protect the system, back-up data, or because of events beyond Licensor’s control. Availability of Central Service is also subject to Licensee’s maintenance of its interface and connectivity to Central Service. Licensor follows commercially reasonable security measures, which may include firewalls, virus screening, logon IDs, passwords, intrusion detection, periodic reporting, security patches and virus definitions. Licensor routinely backs up information, and archives and holds data in secure storage. Security policies address data retention and destruction to balance privacy, integrity, access controls, storage, cost management, and legal requirements. Loss of Licensee Data may occur and Licensee should provide for additional back-up storage of its original Licensee Data. If a disaster destroys the hosting data center, Licensor will relocate the most recent available backups to its alternate data center. However, Licensor shall not be liable for any lost or corrupted data.
Defects due to the following by Licensee or an Authorized User are not considered downtime: (i) negligence, errors, misuse, modification or damage to Central Service; (ii) failure to use defect corrections, enhancements, updates or workarounds; (iii) use combined with products, information, third- party software or an interface not provided by Licensor; (iv) defects in quality or integrity of data from other systems, or in hardware, software or equipment not part of Central Service, or which is not operating according to manufacturer specifications; and (v) failure to maintain proper connectivity. If an issue is excluded by the foregoing, investigation and repair shall be additional services, paid for by Licensee.
7. Notice of Certain Occurrences: Licensee agrees to notify Licensor immediately if Licensee becomes aware of an unauthorized use or transfer of Central Service, Licensor Materials or any part thereof or information relating thereto in a manner inconsistent with this License. Licensee will furnish full details of any such occurrence to Licensor, will assist in preventing the recurrence of such occurrence, and will cooperate with Licensor in any litigation against third parties deemed necessary by Licensor to protect its proprietary rights. Licensee’s compliance with this paragraph shall not be construed as a waiver of any right that Licensor may have to recover damages or obtain other relief from Licensee relating to any such occurrence.
8. No Transfer without Consent: Licensee shall not assign or otherwise transfer access to Central Service or this License to a successor, affiliate or any other person or entity, voluntarily, by operation of law or in any other manner, without the prior written consent of Licensor. Any attempt by Licensee to assign any of its rights, duties or obligations under this License without such consent is void. Subject to the foregoing, this License shall be binding on, and inure to the benefit of, the heirs, successors and assigns of Licensee.
9. Remedies: If Licensee attempts to use, copy, license or convey Central Service in a manner contrary to the terms of this License or in derogation of Licensor’ proprietary rights, whether as explicitly herein stated, determined by law, or otherwise, Licensor shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining such action, Licensee hereby acknowledging that other remedies are inadequate.
10. Termination: If any of the terms and conditions of this License are breached by Licensee or an Authorized User, in addition to any other rights and remedies of Licensor, Licensor may terminate this License and immediately prohibit Licensee from accessing Central Service. Within one (1) year after the termination or expiration of this License and upon Licensee’s written request, at its sole expense and pursuant to Licensor’ then current rates for such services, Licensor shall use commercially reasonable efforts to transfer Licensee Data from Central Service to Licensee. Paragraphs 1, 2, 3, 4, 6, 10, 11, 12, 13, 14, 15, 16, and 17 of this License shall survive any termination of this License and remain in effect in accordance with their respective terms, as shall any other provision hereof which, by its nature, needs to survive in order to be given its full force and effect. Termination of this Agreement shall not affect any right, obligations, or liabilities accruing prior thereto, relating to any breach of this Agreement.
Upon termination of this Agreement or the license granted hereunder, Licensee will promptly: (a) discontinue all use of the Service and Documentation; (b) return or destroy, at Licensor’s request, all Software associated with the Service and Documentation (in the case of the Software and any Documentation provided in electronic or digital format, by erasing them from the magnetic media and hardware system on which they are stored and, at Licensor’s request, returning the media and Documentation, if any); (c) return or destroy, at Licensor’s request, all of Licensor’s confidential information; (d) certify in writing to Licensor, within thirty (30) days of such termination, that Licensee has complied with this section; and (e) pay any fees or expenses that are or will become due through the effective date of termination (which amounts will immediately become due and payable). All fees and expenses of any kind that have been paid are non-refundable, for any reason, including termination of this Agreement.
11. Exclusion of Warranty: Except as stated in the Limited Warranty section of this License, CENTRAL SERVICE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, LICENSOR, ITS SUPPLIERS, AND AUTHORIZED PARTNERS MAKE NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EITHER EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE), AS TO ANY MATTER INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, UNINTERRUPTED, SECURE OR ERROR-FREE USE, OR ARISING FROM COURSE OF DEALING OR TRADE PRACTICE. YOU ASSUME RESPONSIBILITY FOR SELECTING CENTRAL SERVICE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM CENTRAL SERVICE. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS. NO THIRD PARTY IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY, AND LICENSOR DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS MADE BY PERSONS OTHER THAN LICENSOR. The entire risk as to the quality and performance of Central Service is with Licensee. Should Central Service or any part thereof prove defective, Licensee (and not Licensor, its parent or affiliate companies, Licensor distributor, or any owner or licensor to Licensor of such program) assumes the entire cost of all necessary servicing, repair and correction. Licensee assumes all responsibility for Licensee’s use of Central Service and the results or lack thereof obtained from such use.
12. Limited Warranty: Licensor warrants that Central Service will be provided by Licensor in a workmanlike, professional manner. In the event of a breach of this provision, Licensor shall use commercially reasonable efforts to correct Central Service. If Licensor is unable to cure a breach of this warranty after commercially reasonable efforts, Licensor or Licensee may terminate this License and Licensor shall refund Licensee the most recent monthly subscription fee paid by Licensee. THIS SECTION SETS FORTH LICENSEE’S SOLE REMEDY FOR BREACH OF THIS WARRANTY.
13. LIMITATION OF LIABILITY: NOTWITHSTANDING ANY CONTRARY TERM HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSEE BE ENTITLED TO RECOVER FROM LICENSOR OR ITS PARENT OR AFFILIATE COMPANIES DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES OF THE TYPE, RESULTING FROM, OR CONCERNING THE FOLLOWING, WHICH ARISE FROM OR RELATE TO THIS LICENSE OR ANY USE OR INABILITY TO USE CENTRAL SERVICE: CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, OR PUNITIVE; LOSS OF REVENUE, BUSINESS, SAVINGS, GOODWILL AND PROFITS; SERVICE FAILURE OR DELAY; DATA LOSS OR CORRUPTION; SYSTEM ERRORS OR INCOMPATIBILITY; SECURITY BREACH; FAILURE TO ACCURATELY READ, UPDATE, PROVIDE OR TRANSMIT INFORMATION; FORCE MAJEURE EVENTS; AND TAX RELATED PENALTIES, INTEREST OR FEES, EVEN IF LICENSOR, ITS PARENT OR AFFILIATE COMPANIES KNEW OR SHOULD HAVE KNOWN OF SUCH RISKS. LICENSEE ACKNOWLEDGES THAT LICENSOR, ITS CURRENT AND FUTURE SUBSIDIARIES, PARENT OR AFFILIATE COMPANIES HAVE ESTABLISHED THE LICENSE FEES FOR CENTRAL SERVICE AND ARE ENTERING INTO THIS LICENSE IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS LICENSE AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. LICENSOR AND ITS CURRENT AND FUTURE SUBSIDIARIES, PARENT AND AFFILIATE COMPANIES EXPRESSLY DISCLAIM LIABILITY FOR ALL CLAIMS, DAMAGES, ACTIONS, FEES, EXPENSES AND LOSSES ARISING FROM OR RELATING TO LICENSEE DATA. NO THIRD PARTY MAY RELY ON OR BENEFIT FROM CENTRAL SERVICE, AND LICENSEE SHALL BE RESPONSIBLE FOR ALL LIABILITY ARISING FROM OR RELATED TO SUCH UNAUTHORIZED RELIANCE. LICENSEE’S SOLE REMEDY AND LICENSOR’ AND ITS CURRENT AND FUTURE SUBSIDIARIES PARENT OR AFFILIATE COMPANIES’ SOLE OBLIGATION FOR LIABILITY ARISING FROM OR RELATED TO THIS LICENSE OR CENTRAL SERVICE, SHALL BE THE RETURN OF THE MOST RECENT MONTHLY SUBSCRIPTION FEE PAID BY LICENSEE. THIS LIMITATION INCLUDES LICENSOR’S INDEMNIFICATION OBLIGATIONS. THE FOREGOING STATES THE ENTIRE LIABILITY OF LICENSOR TO LICENSEE, WHETHER FOR DAMAGES OR OTHERWISE, FOR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO ANY LICENSED SOFTWARE OR DOCUMENTATION AND ANY WARRANTY CLAIMS, INCLUDING EXPRESS AND/OR IMPLIED WARRANTIES OF ALL KINDS.
14. Indemnification: Licensee agrees to indemnify, defend, and hold Licensor and its current and future subsidiaries, parent and affiliate companies and it and their employees, officers, directors, and agents harmless for any losses, claims, or damages, including without limitation, reasonable attorneys’ fees, costs, penalties, and expenses, however arising, including without limitation, through negligence, arising out of or in connection with (1) the use or misuse of Central Service; (2) any Licensee Data, including but not limited to illegality, infringement, obscenity, privacy violations, and defamation; (3) any actions taken by Licensor through Central Service at the direction of Licensee; and (4) any allegations that Licensor processed information in violation of local, state, provincial, federal, and/or common law and/or regulations, including but not limited to the TCPA, CAN-SPAM Act, Anti-Spam laws, defamation, and privacy laws.
If Licensee gives Licensor prompt written notice of any claim identified in this paragraph, Licensor will indemnify, defend and hold harmless Licensee from and against damages (subject to the limitations set forth in this Agreement) actually awarded against Licensee to a third party resulting from such third party’s claims or any settlement agreed to by Licensor in favor of such third party alleging that Central Service infringes or violates any superior rights of any third party in any intellectual property rights claim and specifically to: (a) United States patent, (b) trademark, (c) copyright, or (d) trade secret. Licensor has the right to (a) assume the defense of such claim and select counsel and (b) consent to the entry of judgment with respect to, or otherwise settle such claim. At Licensee’s expense, it shall cooperate in the defense or prosecution of such claim. Should Central Service become, or in Licensor’s opinion be likely to become, the subject of a claim of infringement, Licensor will also, at its sole option, either (a) obtain for Licensee the right to continue using the allegedly infringing material pursuant to the terms and conditions of this Agreement, if, in Licensor’s sole discretion, such action is practical or (b) replace or modify the allegedly infringing material so that it becomes non-infringing but functionally equivalent, if, in Licensor’s sole discretion, such action is practical. The foregoing indemnification obligation will not apply to any claim based on or arising from: (a) software not owned or developed by or on behalf of Licensor, (b) the combination of the Service with other products not owned or developed by or on behalf of Licensor provided the infringement arises in connection with the combination, (c) software supplied by Licensor in accordance with Licensee’s designs, specifications, or instructions, (d) the failure of Licensee to use updated or corrected versions of Central Service provided by Licensor, or (e) the failure of Licensee to use Central Service for its intended purposes.
15. Taxes and Duties: Licensee is responsible for all taxes imposed in connection with the License for Central Service or which Licensor may incur in respect of the License (except taxes imposed on Licensor’ income) and for all expenses that are not covered by the subscription fees, including, without limitation, all applicable sales, use, value added, gross receipts or other taxes of any kind or nature and any penalties, interest and collection or withholding costs associated with any of the foregoing items. All such amounts are in addition to other amounts payable hereunder, and this obligation shall survive termination or expiration of the License.
16. Miscellaneous: Licensee hereby acknowledges and agrees that this License may be amended or modified by Licensor in its sole discretion, including without limitation at such time as Licensor may make available updates, amendments, modifications or upgrades to Central Service, which amendments or modifications may be presented to Licensee electronically at the time Licensee accesses Central Service or by posting the updated version on Licensor’s website at https://www.rowriter.com/Home/central_service. Licensee further acknowledges and agrees that it is Licensee’s sole responsibility to read this License, as may be modified from time to time, and that Licensee shall be deemed to have accepted any amendments or modifications to this License if Licensee accesses Central Service after being presented with an updated License. Licensee shall not use the name, logo, or mark of Licensor (including its parent, subsidiaries, and affiliates) without the prior written approval of Licensor and shall upon request from Licensor cease such use and/or remove any reference of Licensor. Licensee further agrees that its continued access to Central Service shall also constitute acceptance of any amendments or modifications to this License. This License will be governed by the laws applicable to agreements made entirely in the State of Maryland, without reference to any laws with respect to the conflict of laws. Any legal action relating to this License shall be instituted in a state or federal court located in Baltimore County, Maryland. The parties hereby agree to the jurisdiction of the state and/or federal courts in Baltimore County, Maryland and shall not contest the Court’s jurisdiction (personal or subject matter) and ability to resolve any dispute. Licensor and Licensee further agree venue is proper in, these courts in any such legal action. This License is the complete and exclusive statement of the agreement between Licensee and Licensor with respect to the subject matter of this License. This License supersedes any proposal or prior agreement, oral or written, and any other communication between Licensee and Licensor or any Licensor distributor relating to the subject matter of this License. Should any part of this License be declared invalid for any reason, such decision shall not affect the validity of the remaining provisions of this License, which shall continue in full force and effect as if this License had been executed with the invalid portion thereof eliminated.
17. Assignment: Licensor may assign this agreement with notice to Licensee. Licensee may not assign this Agreement without the written approval of Licensor in Licensor’s sole discretion.
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