• DATA AUTHORIZATION AND LICENSE AGREEMENT

    PER AUTOMOTIVE DISTRIBUTION NETWORK'S AGREEMENT WITH EPICOR SOFTWARE CORPORATION

    This Data Authorization and License Agreement (the "Agreement") is entered into between Epicor Software Corporation ("Epicor", "we", "us") and the member of the Automotive Distribution Network (the "Participant") who has signed this Agreement and hereby agrees to participate in sharing data as described in this agreement.

    WHEREAS, Epicor is in the business of obtaining and hosting data and providing data, services involving data, and data applications (singularly and collectively "data services"), including without limitation, data relating to sales, inventory, part descriptions, part numbers, numbers of units sold, dates of sales, inventory quantities, cost of goods sold, sales prices, and catalog lookup of after-market automotive parts ("Transaction Data");

    WHEREAS, Epicor and Automotive Distribution Network ("ADN") have entered into an agreement (the "ADN Agreement") pursuant to which ADN has agreed to pay Epicor's and other third party license fees in order for Epicor to provide data services ("ADN Data Warehouse and ADN Data Warehouse Services") to ADN and to members of ADN who elect to participate by entering into this Agreement (each ADN member who signs this Agreement, or an agreement with terms substantially similar to those in this Agreement, shall be considered a "Participant" – and your Transaction Data is referred to as "Participant Data");

    WHEREAS, ADN has entered into a business arrangement with vendors of automotive parts ("ADN Vendors") to help facilitate establishing the ADN Data Warehouse, and, in return, receive certain restricted rights to ADN Data Warehouse Services; and

    WHEREAS, the purpose of this Agreement is to authorize Epicor to obtain Transaction Data from your business or computer systems ("System") and to make such Transaction Data available for use by ADN, an ADN Participant, ADN Vendors, and Epicor as described herein.

    NOW, THEREFORE, the parties hereby agree as follows:

    1. Authorization. You agree to provide Participant Data to us in one of the following ways: (i) You either hereby authorize Epicor to enable your System to remotely and periodically transmit Participant Data to Epicor; or (ii) You hereby authorize us to engage an authorized third party with whom we work to install equipment (at our cost) to facilitate the transmission of Participant Data; or (iii) You will be responsible to engage a third party to program your System per instructions we will provide to send Participant Data to us. By your signature below, you warrant that you have the authority to provide Participant Data to us.

    2. Data Warehouse. You grant Epicor a right to reproduce, prepare derivative works, and distribute Participant Data, including aggregating and normalizing your Participant Data with Transaction Data provided by other Participants and in connection with providing our data services to others. Solely and exclusively for reports we make available to ADN and ADN Vendors, your Participant Data will be identifiable.

    3. License. We grant you a limited, non-exclusive, restricted, terminable and non-transferable right within the United States and Canada to obtain reports (the "reports") from the ADN Data Warehouse in accordance with our written instructions and as ADN determines to permit. Such reports are solely for your internal use in your ordinary and customary business operations of providing aftermarket products to retail businesses. No other individual, firm, corporation or enterprise is permitted to access or in any way use, directly or indirectly, the reports without the prior written consent of Epicor and ADN. You will not use the reports in connection with a time sharing, rental, service bureau or support services arrangement. You may not copy, distribute, sublicense, transfer to others, or make derivative works of the reports, including but not limited to creating (i) any statistical report which would act as a substitute for and be used by Epicor, ADN, or Polk, or (ii) create any database which is a substitute for or parallel to ADN Data Services or ADN Data Warehouse. You agree that Epicor or its affiliates solely and exclusively own title to and all rights and interests in the reports. You agree to take reasonable steps to prevent the unauthorized or unlawful use of the reports. The ADN Data Warehouse Services includes the following copyrighted and proprietary products and materials:

    a. MicroStrategy. MicroStrategy Inc. ("MicroStrategy") provides certain copyrighted and proprietary material, including software and documentation which are obtained under a license from MicroStrategy. MicroStrategy is a third-party beneficiary to this Agreement solely with regard to the rights you receive to use the ADN Data Warehouse Services. MicroStrategy makes no direct warranty of any kind to you and disclaims liability for damages whether direct or indirect, incidental or consequential, arising in connection with your use of the ADN Data Warehouse Services. You do not owe a fee for the rights or licenses provided by MicroStrategy or Epicor which are described in this paragraph.

    b. Polk Data License. R.L. Polk & Co. ("Polk") provides certain copyrighted and proprietary material, including Polk's proprietary National Vehicle Population Profile and Trucking Industry Profile databases ("Polk Data"). Polk grants you a limited, non-exclusive, terminable and non-transferable right to obtain Polk Data from the ADN Data Warehouse as ADN, Polk, and Epicor choose to permit in writing from time to time. You may also electronically access Polk Data as determined by ADN and Polk in writing from time to time until the ADN Data Warehouse includes Polk Data and the intended features and functionality are operational. Polk and ADN shall determine when the ADN Data Warehouse is operational. Polk Data and electronic access are for your internal use only in your ordinary course of your business. No other individual, firm, corporation or enterprise is permitted to access or in any way use or view the Polk Data, directly or indirectly without the prior written consent of Polk and ADN Network.. You agree to take reasonable steps to prevent the unauthorized or unlawful use of the reports. Polk makes no representation and warranty regarding Polk Data. You may not copy, distribute, sublicense, make derivative works of, or assign the Polk Data. You may not use the Polk Data to create (i) any statistical report which would act as a substitute for and be used by Epicor, ADN, or Polk, or (ii) create any database which is a substitute for or parallel to Polk Data. You expressly acknowledge that your sole remedy is an action against Epicor, but that Polk is a third party beneficiary of this Agreement. Title to Polk Data and any derivative thereof, is and shall always remain with Polk. The Polk license is provided at no additional cost to you per the terms of the licensing arrangement between ADN, Polk, and Epicor. Without expanding your rights and license granted to you to the Polk Data, your access to and use of Polk Data is also subject to and governed by all of the other terms in this Agreement.

    4. Market Research. When we provide data services, also referred to as market research services, on a fee or no-fee basis to third parties, such as aftermarket manufacturers and distributors, your Participant Data may be aggregated with the Transaction Data from others. We will not individually identify you or your customers in the course of providing such market research services. We maintain the anonymity of our sources of Transaction Data when providing any information based upon that data to any third party. For clarity, Participant will be entitled to Epicor's Basic Vista Market Intelligence Reporting Package at no additional cost as ADN has paid the applicable license fees; provided, however, that you agree to use your reasonable best efforts to provide or enable us to receive data from your system that includes catalog look up, part purchase, and history information which is equivalent to that provided by other Participants whose system is so enabled.

    5. Operation. Epicor may enable your System to remotely upload Participant Data to us on a daily basis. If you do not have an Epicor System, Epicor will use commercially reasonable efforts to work with you or your System provider to allow you to upload Participant Data to Epicor. If necessary, you authorize Epicor, or our authorized contractors, to install remote access software on your System to facilitate the Participant Data upload. We will not unreasonably interrupt the operation of your System while accessing your Participant Data. All transmissions to us of Participant Data will be initiated either by your System or by us, depending on your System type. In the event that we use a dial telephone line to obtain your Participant Data, we will be responsible for all charges for these calls, whether initiated by your System or by us.

    6. Ownership. You will fully own your Participant Data at all times. We will fully own all property rights (including all intellectual property rights) to all compilations, reports, analyses, databases and derivative works created by us containing your Participant Data.

    7. Termination. Either you or we may terminate this Agreement at any time effective immediately upon receipt of a written notice of termination from the other. Notice to us must be sent to Epicor Software Corporation, 804 Las Cimas Parkway, Austin, TX 78746, V.P. of Information Services and Legal Department. Epicor's right to obtain Participant Data from your System will cease within five (5) business days from the date of termination of this Agreement. The provisions of Sections 7, 8 and 9 will survive termination of this Agreement. Epicor agrees to return your identifiable Participant Data, but shall retain the right to continue to use Participant Data to the extent it has been combined or aggregated with data from other companies.

    8. Warranty Disclaimer and Limitation of Liability. EPICOR DISCLAIMS ANY AND ALL WARRANTIES WITH REGARD TO THE MATTERS CONTAINED IN THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILIITY OR FITNESS FOR A PARTICULAR PURPOSE. OUR LIABILITY FOR ANY FAILURE TO PERFORM ANY OF OUR OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING A DEFECT OR ERROR IN OUR SERVICES OR EQUIPMET, IS LIMITED TO REPERFORMING SUCH SERVICE OR REPLACING SUCH EQUIPMENT. WE WILL NOT IN ANY EVENT BE LIABLE TO YOU UNDER THIS AGREEMENT FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF PROFITS, DATA OR GOODWILL, OR USE OF DATA BY ANY THIRD PARTY, WHETHER SUCH DAMAGES OR LOSSES ARISE IN CONTRACT, TORT OR OTHERWISE, OR ARE SUFFERED DIRECTLY OR INDIRECTLY, EVEN IF WE ARE INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. OUR MAXIMUM LIABILITY FOR ANY CLAIM ARISING FROM THIS AGREEMENT WILL NOT EXCEED $500.

    9. Indemnity. You will indemnify and hold Epicor and Epicor's employees, agents, affiliates, subcontractors and other participants harmless from any claims, actions, suits or proceedings brought against Epicor based on any allegation that your Participant Data, when used in accordance with this Agreement, violates any patent, trademark, copyright or other intellectual property or right of privacy of a third party.

    10. General. This Agreement shall be governed by and construed under the laws of the State of Texas. Either you or we may assign this Agreement with written notice to the other. This Agreement contains the entire understanding of the parties, is intended as a final expression of their agreement regarding the matters contained herein, and it may not be modified except in a written document signed by an authorized representative of each party.

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