Mitchell Repair Information Company

Information from Mitchell about ON-DEMAND

Mitchell Repair Information Company creates and distributes software for the automotive repair industry. Mitchell's products range from ON-DEMAND Repair, Estimating, Heavy Truck and Transmission, to management products such as Series I and II. These products provide automotive technicians with the latest repair information in the industry, as well as help shop owners manage their business.

Software Licensing Agreement for Mitchell Repair Products

("End User"), with respect to the following facts:

End User desires delivery of a Mitchell Repair Product. The Mitchell Repair electronic products include shop management and information access applications that provide data for service and repair procedures, specifications, schematics and illustrations, parts pricing and labor times for estimating and for the repair of automobiles, light trucks, and vans.

NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:

1. Terms & Conditions. This agreement is effective during the agreed upon length of time for which the particular product has been purchased.

2. License. Subject to the terms and conditions of this Agreement, Mitchell grants to End User a nonexclusive and non-transferable license to use the Mitchell Product. The Mitchell Product may be used solely (i) by End User, (ii) for the purpose of accessing mechanical service and repair data on the Product, (iii) or estimating mechanical parts and labor costs on the Product, (iv) or for shop management. If bought under the Purchase Option Plan, Mitchell shall retain title at all times to the Product (excluding hardware), and End User shall have no rights therein except to use the Mitchell Product as set forth herein. Upon expiration of the initial term, End User will not be allowed access to the data or receive technical or content support, unless End User continues the monthly payment for the Purchase Option Program service.

End User shall not, without obtaining Mitchell's prior written approval which may be withheld at Mitchell's sole discretion, use the Product at any location except as specifically described herein or in the agreement attached hereto:

End User may not sell, market or in any other manner distribute to any third party, or to any location, the Product or any information contained in or derived from the Product.

3. Maintenance of Equipment and Software. End User, and not Mitchell, shall bear sole responsibility to obtain, maintain and operate, or cause to be obtained, maintained and operated at its own expense, all equipment used in conjunction with the Product.

4. Confidentiality. (Proprietary Rights) End User acknowledges that the Product, comprises information which constitutes a trade secret of Mitchell in which Mitchell has a proprietary interest. End User therefore agrees that no portion of the information constituting the Product may be disclosed to others, copied, reproduced, disseminated, broadcast, displayed, reverse engineered, disassembled, compiled or used for any purpose or purposes other than as specifically contemplated by this Agreement in paragraph "2" above. End User shall exercise its best efforts to protect the Product and to prevent its dissemination to unauthorized persons. Furthermore, End User shall not assign, pledge, sublicense or permit any other use of the Product without obtaining the prior written consent of Mitchell, which consent may be withheld at the sole discretion of Mitchell.

5. Mitchell Product Modification. Mitchell reserves the right to make changes in rules of operation, security measures, accessibility, procedures, types of terminal equipment, types of system equipment, system programming languages and any other matters relating to the Product and its use, without prior notice.

6. Updates. Mitchell may update the Product data (�Data Updates�) from time to time during the course of this Agreement and shall periodically deliver any such Data Updates to the End User. Upon receipt of revised or replacement CD-ROM discs and/or floppy diskettes, End User agrees to destroy all previous discs, or return them to Mitchell upon request.

7. Warranty. THE PRODUCT IS DELIVERED "AS IS" AND MITCHELL MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PORDUCT OR THE DATA UPDATES, THE COMPUTER PROGRAM ALLOWING USE OF THE PRODUCT, OR ANY SERVICES PERFORMED BY ANY THIRD PARTY. IN PARTICULAR, MITCHELL DOES NOT WARRANT THAT ACCESS TO THE DATA WILL BE UNINTERRUPTED OR ERROR-FREE. End User acknowledges and agrees that (i) Mitchell is not the manufacturer or distributor of any automotive repair parts referenced in the Product, (ii) Mitchell makes no representations or warranties with respect to the quality or availability of such parts or the accuracy of the prices of such parts.

8. Limitation of Liability. End User agrees that Mitchell shall not be liable to End User for any direct, indirect, special, incidental or consequential damages, including but not limited to loss of anticipated profits, in connection with or arising out of the use of the Product and Data. End User's sole remedy upon breach of this Agreement by Mitchell, that Mitchell is unable to cure after a reasonable notice period, shall be termination of the
Agreement and refund of unearned portions of the End User Fee. End User agrees to indemnify Mitchell and hold it harmless against all claims and damages, including without limitation, reasonable attorney's fees arising out of End User's use of the System and the Data Updates, unless such claims or damages result from, or unless End User's authorized use of the Product has given rise to claims or damages based on the infringement of any copyright or other proprietary right of any Third party.

9. Termination. The following actions by the End User shall constitute a breach of the Agreement and shall allow Mitchell to terminate the Agreement immediately upon notice: any use or dissemination of the Product or Data which is not expressly permitted herein; the appointment of a receiver to take possession of End User's assets or the institution of bankruptcy by or against End User; dissolution or discontinuance of business operations of End User; or, failure to make timely payment to Mitchell of the End User Fees. Immediately upon the effective date of termination of this Agreement, End User shall cease using the Product and accessing the data. Upon termination of this Agreement by Mitchell for any such cause, End User shall not be entitled to any refund of the End User Fees.

10. General Provisions.

10.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and supersedes all prior discussions between them.

10.2 Attorneys' Fees. If any action or proceeding is brought in connection with this agreement, the prevailing party shall be entitled to its attorney's fees and other costs and expenses incurred in such action or proceeding, including any appeals or petitions therefor.

10.3 Assignment. End User may not assign its rights or delegate its duties hereunder without first securing the permission to do so from Mitchell, which permission may be withheld at the sole discretion of Mitchell. For purposes of this section, the End User shall be deemed to have assigned this Agreement if there is, in the aggregate, a change of ownership of 25% or more of End User or a merger or combination of End User with another entity of business, whether End User is the surviving entity or not. Any such attempted conveyance shall be void and shall constitute a default entitling Mitchell to terminate this Agreement. Mitchell may freely assign its rights hereunder without securing End User's permission to do so.

10.4 Choice of Law and Forum. This Agreement has been entered into under the laws of the State of California and the parties hereto agree that it shall be interpreted, and all disputes arising hereunder shall be resolved, in accordance with California law. All disputes arising hereunder shall be heard by a court of competent jurisdiction in the County of San Diego, State of California.

10.5 Waiver. Failure of either party hereto to enforce at any time any term of this Agreement shall not be a waiver of that party's right thereafter to enforce each and every term of this Agreement

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