• FORM OF DATA AUTHORIZATION AND LICENSE AGREEMENT

    DATA AUTHORIZATION AND LICENSE AGREEMENT

    PER FEDERATED AUTO PARTS DISTRIBUTORS’ AGREEMENT WITH EPICOR SOFTWARE CORPORATION

    This Data Authorization and License Agreement (the “Agreement”) is entered into between Epicor Software Corporation. (“Epicor”, “we”, “us”) and a member of the Federated Auto Parts Distributors (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 Federated Auto Parts Distributors, Inc., a Virginia corporation (“ Federated”) have entered into an agreement (the “Federated Agreement”) pursuant to which Federated has agreed to pay Epicor’s and other third party license fees in order for Epicor to provide data services (“Federated Data Warehouse and Federated Data Warehouse Services”) to Federated and to members of Federated who elect to participate by entering into this Agreement (each 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, 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 Federated, Federated Participants, 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, modify and prepare derivative works, and distribute Participant Data aggregated with similar data and in a manner that is not attributed to a specific Participant including aggregating and normalizing your Participant Data with Transaction Data provided by other Participants and in connection with providing our data services to others. 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 will be included only if and to the extent we remove any data that permits someone to identify such Data as being attributed to a specific Participant or to Federated, and aggregate such Data with the Transaction Data from others.

    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 Federated Data Warehouse in accordance with our written instructions and as Federated 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 Federated. 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, Federated, or Polk, or (ii) create any database which is a substitute for or parallel to Federated Data Services or Federated 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 Federated 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 FEDERATED 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 FEDERATED 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”). If included in the Federated Data Warehouse and made available to you, Polk grants you a limited, non-exclusive, terminable and non-transferable right to obtain Polk Data from the FEDERATED Data Warehouse as FEDERATED, Polk, and Epicor choose to permit in writing from time to time. You may also electronically access Polk Data as determined by FEDERATED and Polk in writing from time to time until the FEDERATED Data Warehouse includes Polk Data and the intended features and functionality are operational. Polk and FEDERATED shall determine when the FEDERATED 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 FEDERATED 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, FEDERATED, 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 FEDERATED, 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. 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.

    5. 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, database structures, and derivative works created by us containing your Participant Data.

    6. Termination. You 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 78764, Attention: Legal Department and V.P. of Information Services. 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. We may terminate this Agreement if the Federated Agreement terminates or if you fail to cure a material breach hereof within thirty (30) days of written notice of such breach.

    7. 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.

    8. Indemnity. Epicor agrees to defend and indemnify you from and against any third party claims, actions or demands to the extent such third party claim alleges that Epicor’s Services or Epicor’s Data Warehouse license granted herein (but excluding therefrom claims related to the data contained therein) violates a copyright, patent, trademark, service mark, or trade secret of another party, provided you give us prompt written notice of any such claim, tender the defense of any such claim to us, provide us with full cooperation for the defense of the claim, and not settle or compromise such claim without our prior written approval. In the event of any actual or threatened claim of infringement, we may, at our option: (i) procure for you the right to continue use of such Service as provided in this Agreement; (ii) modify such Service so that it is no longer infringing; (iii) terminate the license for such infringing Service and, if you have paid license fees directly to us, refund such license fees you paid us for such Service; or (iv) replace such Service with a non-infringing Service that is functionally equivalent or superior in performance. The rights granted to you under this paragraph will be the sole and exclusive remedy for any alleged or actual infringement of any intellectual property rights of any kind. We will have no liability to you if any alleged or actual infringement (or claim concerning such infringement) is based upon: (1) unauthorized modification of the Service or modification pursuant to your or Federated’s request; (2) use of the Service in a manner for which it was not intended or licensed under this Agreement; or (3) use of other than the most current release of the Service or Data Warehouse if such claim would have been prevented by the use of such release. You will indemnify and hold Epicor and Epicor’s employees, agents, affiliates, subcontractors and other participants harmless from any third party 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, provided we give you prompt written notice, cooperate in the defense, and not take action which is detrimental to your defense.

    9. General. This Agreement shall be governed by and construed under the laws of the State of Delaware. 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. All notices, reports, requests, approvals and other communications required or permitted under this Agreement must be in writing. They will be deemed given when received if sent by commercial overnight courier with written verification of receipt, or sent by registered or certified mail, return receipt requested, postage prepaid, in both cases addressed to the address specified below in the signature block. Notices sent to Epicor will be directed to its General Counsel. Neither party shall be responsible to the other for any failure or delay in its performance under this ALA (other than for failure or delay in the payment of undisputed money due and payable hereunder) to the extent said failures or delays are proximately caused by any condition beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, Acts of God, wars, insurrections, act of terrorism, riot, strike, fire, sabotage, flood, or other natural disaster, catastrophe, or other similar cause outside the reasonable control of the affected party. The parties have expressly requested that the ALA be drawn up in the English language.

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