GENERAL TERMS AND CONDITIONS OF
BUSINESS FOR erWIN WEBSHOP ("GTB")
LICENSEE ACCEPTS THE GTB, INCLUDING THE LIMITATION OF LIABILITY AND LIMITED WARRANTY EXPRESSLY STATED BELOW BY ACCESSING, PURCHASING, DOWNLOADING OR USING ANY ESI FROM VOLKSWAGEN GROUP OF AMERICA, INC. ("VWGOA") ON OR AFTER MAY 15, 2009.
VWGOA REJECTS ANY CHANGE, MODIFICATION OR SUPPLEMENT TO THE GTB AND REJECTS ANY ADDITIONAL OR ALTERNATE TERMS IN ANY ACKNOWLEDGEMENT OR SIMILAR DOCUMENT FROM LICENSEE.
1. License. VWGOA grants to Licensee a non-exclusive, revocable and non-transferable license ("License") to use the ESI from VWGOA. "ESI" means information and supporting documentation related to repair services for any Volkswagen or Audi vehicle, such as instructions, technical literature, tool list or any other related materials supplied by VWGOA to Licensee during the term of this agreement, as updated, modified or amended. The ESI is for Licensee’s use only. Printed and electronic copies of the ESI shall only be saved on equipment or stored at location(s) that Licensee owns ("Licensee Location"). Licensee shall not directly or indirectly disclose, share or distribute any ESI to any third-party for any reason without VWGOA’s advance written consent. Licensee shall only use the ESI for the conduct of Licensee’s own business. Licensee shall not copy all or part of the ESI without VWGOA’s written permission. Additional conditions for this License, including system set up requirements and payment terms, are stated on the erWin webshop homepage under the "Step by Step" heading.
2. ESI Ownership. VWGOA owns and has the right to license the ESI and it has the right to modify the ESI and to grant this License.
3. Title to ESI. The ESI, and all updates, modifications and copies thereof are the sole property of VWGOA, and Licensee waives any claims thereto. All applicable rights to patents, copyrights, trademarks and trade secrets in the ESI shall remain in VWGOA. Licensee shall not sell, transfer, publish, disclose, display or otherwise make available the ESI to others. Licensee shall secure and protect the ESI in a manner consistent with the maintenance of VWGOA’s rights therein and shall take all necessary actions with its employees or agents who are permitted access to the ESI to satisfy Licensee’s obligations. All copies of the ESI made by the Licensee are the property of VWGOA. Violation of any provision of this Section shall be the basis for immediate termination of this Agreement.
4. Use and Training. Licensee shall limit the use of the ESI to its employees who have been appropriately trained and are skilled in the use of the ESI.
(a) VWGOA warrants that the ESI accurately documents the diagnostic and repair information, procedures, tooling, and other information reasonably necessary to assist Licensee in servicing Volkswagen and Audi vehicles.
(b) VWGOA further warrants that the ESI shall be current throughout the term of this Agreement.
(c) LICENSEE MUST USE THE SUPPORT FORM ERWIN_Problem_Form.doc TO NOTIFY VWGOA IN WRITING IF THE ESI IS INCOMPLETE OR INCORRECT WITHIN 5-DAYS AFTER IT HAS ACTUAL OR CONSTRUCTIVE NOTICE OF THE ALLEGED PROBLEM. VWGOA SHALL AMEND, CORRECT OR SUPPLEMENT THE ESI. TO THE EXTENT LICENSEE INCURS ANY LOSS AS A RESULT OF VWGOA’S NEGLIGENCE, VWGOA SHALL ONLY BE LIABLE FOR THE LESSER OF (1) ACTUAL COSTS LICENSEE INCURRED IN RELIANCE ON THE INCORRECT OR INCOMPLETE ESI OR (2) €20,000 PER OCCURRENCE, WHICH IS DEFINED AS THE OCCASION ON WHICH LICENSEE DOWNLOADED THE ESI AT ISSUE. THIS IS LICENSEE’S EXCLUSIVE REMEDY REGARDLESS OF FACTS, CIRCUMSTANCES, LAW OR REGULATION GIVING RISE TO LICENSEE’S CLAIM.
(d) THE ABOVE IS A LIMITED EXPRESS WARRANTY AND IT IS THE ONLY WARRANTY MADE BY VWGOA. VWGOA MAKES AND LICENSEE RECEIVES NO ADDITIONAL WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VWGOA SHALL HAVE NO LIABILITY FOR LOST PROFITS, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL AND SIMILAR DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STATED LIMITED EXPRESS WARRANTY TO REMEDY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF LICENSOR FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE ESI.
(e) Licensor’s liability arising out of contract, negligence, strict liability in tort or warranty shall not exceed any amounts stated in Section 5(c) above.
6. Indemnity. VWGOA, at its own expense, shall defend any action brought against Licensee to the extent it is based on a claim that any ESI infringes any patents, copyrights, license or other property right, provided that VWGOA is immediately notified in writing of such claim. VWGOA shall have the right to control the defense of all such claims, lawsuits and other proceedings. Licensee shall not settle any claim, lawsuit or proceeding without VWGOA’s prior written approval. If Licensee settles an action without VWGOA’s prior written approval, VWGOA shall have no obligation to indemnify Licensee. If, as a result of any claim of infringement against any patent, copyright, license or other property right, VWGOA is enjoined from using the ESI, or if VWGOA believes the ESI is likely to become the subject of a claim of infringement, VWGOA at its option and expense, may procure the right for Licensee to continue to use the ESI or replace or modify the ESI so as to make it non-infringing. If neither of these two options is reasonably practicable, VWGOA may discontinue the License on one week’s written notice. The indemnity obligations in this Agreement set forth the entire liability of VWGOA with respect to infringement of any copyrights, patents, licenses or other property rights by the ESI.
7. Term and Termination. This License is for the duration Licensee selected upon purchasing and/or downloading the ESI. VWGOA may terminate the License immediately if: (a) Licensee or its officers or employees violate any provision of the GTB including, but not limited to, those relating to confidentiality; or (b) VWGOA reasonably concludes that Licensee is not able to service Volkswagen or Audi vehicles in a safe and lawful manner. Licensee shall immediately return all ESI to VWGOA upon termination, including all copies thereof.
(a) The GTB state the complete and exclusive agreement between the parties and supersede and merge all prior representations, assurances, warranties, proposals, understandings and other agreements, oral and written, between the parties relating to ESI. The GTB may not be modified or altered except by written instrument duly executed by both parties.
(b) This Agreement and performance hereunder shall be governed by the laws of the State of Virginia, without regard to choice of law principles which would require application of the laws of other jurisdictions.
(c) If any court of competent jurisdiction shall determine that part or all of the GTB are unenforceable or invalid, the parties expressly agree and stipulate that the challenged provisions shall be modified and enforced to the extent permitted by law.
(d) The Licensee may not assign its obligations under the GTB without VWGOA’s prior written consent.
(e) VWGOA shall have the right to collect from Licensee its reasonable expenses incurred in enforcing the GTB, including attorney’s fees.
(f) The waiver or failure of VWGOA to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.