Terms and Conditions
These terms and conditions (“Terms”) that apply to the provision of various tools, content, and services (the “Developer Tools”), including the Application Programming Interface that provides access to PartsTech’s Platform’s auto parts catalog and ordering capabilities (the “PartsTech API”) by PartsTech, Inc., a Delaware corporation (“PartsTech”) to the entity identified on the Order Form (“Developer”). These terms are incorporated into the Order Form, and together, the Order Form and these Terms constitute the “Agreement.” An “Order Form” means any order for access to the PartsTech API, signed by Developer and PartsTech. Both PartsTech and Developer are sometimes referred to herein as a “Party” or collectively as the “Parties.” The term “You” or “Your” will also refer to Developer.
ACCORDINGLY, for good and valuable consideration, receipt and sufficiency of which are acknowledged, the Parties agree as follows.
Definitions.
“API Keys” means the confidential security keys PartsTech provides to You for Your use of the PartsTech API, including the Developer ID, certificate ID, and application ID.
“Catalog Webservice” means the applicable portion of the PartsTech API which provides integration of the Platform with Your Application, giving Your Users access to and use of PartsTech’s full catalogue of parts and services natively within Your Application.
“Documentation” means the technical content that documents the PartsTech API and is incorporated herein by this reference.
“Labor Operations Webservice” means the applicable portion of the PartsTech API which provides integration of the PartsTech Services related to flat-rate labor guides and associated estimated work times.
“Location” means the physical location or locations of Your User connected with a PartsTech user account.
“PartsTech Content” means any data transmitted to You or Your Users through the PartsTech API, including but not limited to data and intellectual property of PartsTech’s licensors, as applicable.
“PartsTech Data” means the data, including the PartsTech Content and Documentation, provided by PartsTech to You and Your Users via the PartsTech Services and the PartsTech API.
“PartsTech Offerings” means, as applicable, each of the PartsTech API, the Documentation, Test User, the PartsTech Content, the PartsTech Data, the PartsTech Platform and the PartsTech Services.
“PartsTech Terms” means the terms and policies pursuant to which PartsTech offers the PartsTech Services to its users, as amended from time to time, currently available through a link on PartsTech’s Platform (www.partstech.com/m/terms-of-service), as such PartsTech Terms may be amended by PartsTech from time to time.
“PartsTech Platform” means the web-based auto parts catalog and ordering system for auto parts research and procurement through the website at www.PartsTech.com and related subdomains, mobile applications, and other web services and properties of PartsTech.
“Punchout Webservice” means the applicable portion of the PartsTech API which provides integration of the PartsTech Platform with Your Application, giving Your Users access to and use of the PartsTech Platform (or certain portions thereof) from within Your Application.
“PartsTech Services” means the services on the PartsTech Platform to search for parts (including by decoding license plate and vehicle identification number information), check availability and price, and place orders with participating distributors and retailers.
“Test User” means the non-production / test user account provided by PartsTech to You to enable You to test Your Application with the PartsTech API.
“Tires Webservice” means the applicable portion of the PartsTech API which provides integration of the Platform’s Services related to tires.
“Your Application” means the software application, website or other interface that You develop, own or operate to interact with the PartsTech API.
“Your Users” means end-users of Your Application and anyone who sublicenses Your Application.
Purpose. The PartsTech API is made available by PartsTech to You to provide You with access to the PartsTech Services, which will provide You with auto parts catalog and ordering capabilities on Your Application, and to facilitate the research and purchase of auto parts on a vehicle-by-vehicle basis by automobile part and repair shop for Your Users.
Reservation of Rights. PartsTech retains the right to determine the content, appearance, design, functionality, and all other aspects of the PartsTech Offerings, including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of any of the PartsTech Offerings, and any element, aspect, portion or feature thereof, from time to time.
Licenses.
Pursuant to the terms set forth herein, PartsTech grants to Developer, during the Term, a limited, non exclusive, revocable, non-sublicensable (except as expressly permitted herein), non-transferable (except as expressly permitted herein) license to access and use the PartsTech API and the API Keys solely for the purposes of integrating Your Application with the other PartsTech Offerings to facilitate auto parts research and purchases by Your Users on Your Application on a vehicle-by-vehicle basis (the “Permitted Use”). PartsTech further grants to Developer a limited, non-exclusive, revocable right to sublicense the right to access and use the PartsTech Offerings to Your Users solely for the Permitted Use. You may not use, and You shall not permit Your Users to use, any of the PartsTech Offerings for any other purpose other than the Permitted Use without PartsTech’s prior written consent. To the extent that any of the PartsTech Offerings include third party intellectual property (including but not limited to trademarks) which are sublicensed to You by PartsTech (“Third Party IP”), You may not use, and You shall not permit Your Users to use, such Third Party IP except as expressly permitted in this Agreement, and such Third Party IP remains subject to any limitations imposed by the licensor of such Third Party IP.
You hereby grant to PartsTech the non-exclusive, unconditional, worldwide, irrevocable, perpetual, and cost free right and license to use, copy, record, distribute, reproduce, sublicense (through multiple levels), make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of the data compiled in connection with Your or Your Users’ use of the PartsTech Offerings (with the exception of personally identifiable information), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed. Without limitation, the rights You grant include the right to configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, translate, and combine such data with other materials.
PartsTech will provide You with API Keys which will permit You to utilize the PartsTech API. You may not share with or transfer the API Keys to any third party without PartsTech’s prior written consent, which may be withheld for any reason or for no reason. The API Keys are the property of PartsTech and may be revoked at any time by PartsTech.
Third Party APIs. Features of the PartsTech Services that interoperate with third party services (such as Motor.com for Labor Webservices) depend on the continuing availability of certain third-party APIs and other programs (“Third Party APIs”) for use with the PartsTech Services. If a third-party ceases to make available any of the applicable Third Party APIs on reasonable terms to PartsTech, PartsTech may cease providing such third party features without entitling You to any refund, credit, or other compensation.
Fees for PartsTech API and PartsTech Services. The fees for the PartsTech API and the PartsTech Services are listed on the Order Form (collectively, the “Fees”). You shall select which Services You desire to access, and You shall pay the corresponding Fees for such Services in accordance with the billing terms listed on the Order Form.
Your Responsibilities; Restrictions.
The Developer agrees to:
Allow Your Users, subject to the restrictions in Sections 3 and 4 hereof, and subject to Your Users’ compliance with PartsTech’s Terms to access the PartsTech Offerings available throughout the Application, including all free and paid versions of Your software, solely for the Permitted Use;
Offer the PartsTech Offerings at no additional charge or premium to Your Users except as otherwise approved in advance by PartsTech in writing;
Use PartsTech as Your exclusive provider of parts catalog searching and ordering functionality for Your Application. PartsTech shall be deemed to be the exclusive provider of such functionality for Your Application when the following conditions are met.
PartsTech is the sole parts catalog and procurement solution offered for aftermarket parts sourcing within the Your Application.
No other automotive parts or tire catalogs and procurement connections or integrations are offered within Your Application outside of the PartsTech Offerings.
If a part or tire supplier is not connected to PartsTech, and You deem that a connection with such supplier is necessary, You must provide PartsTech with a written request to connect to such supplier. Once received, PartsTech shall have 90 days to communicate with You the timeline of an integration.
If it is determined by PartsTech that PartsTech cannot integrate with the supplier requested, or the supplier won’t cooperate with PartsTech to complete an integration, PartsTech shall issue a waiver for a direct integration with Your Application to the supplier without negating the exclusivity status for Your Application
If it is determined by PartsTech that You have violated the exclusivity terms outlined above, You will be charged an annual fee for integration with the PartsTech Offerings. The cost of that integration will be outlined in Your Order Form.
Maintain the confidentiality of Your username, password, API Keys, and other account information required to access the Services (“Your Account Information”), refrain from providing any other party with access to Your Account Information, and maintain the confidentiality of Your User’s user names, passwords and other account information required to access the PartsTech Services through the Application (collectively, “Your Users’ Account Information”);
Notify PartsTech in writing immediately of any unauthorized use or attempt to use Your Account Information, Your Users’ Account Information, or any other known breach of security involving any of the PartsTech Offerings; and
Promptly notify PartsTech in writing of any problems You or Your Users encounter with respect to any of the PartsTech Offerings, including, without limitation, the PartsTech API.
Ensure that You, Your Users, and Your Application all will comply with the PartsTech Terms, which are incorporated into these Terms by reference. In the event of a conflict between these Terms and the PartsTech Terms regarding Your or Your Users’ right to access and use of the PartsTech Offerings and/or the Developer Tools, these Terms will control.
Ensure that You display or otherwise make immediately available (i.e., via an embedded window or a direct link) Your Application privacy policy to Your Users before they are permitted to download, install, or sign up to Your Application. Your privacy policy must be consistent with all applicable laws and be no less protective of the confidential information of individual users than the PartsTech Privacy Policy (https://www.partstech.com/m/privacy-policy).
Develop, implement, maintain and enforce a written information privacy and security program (“Security Program”) that (A) follows generally accepted security best practices for Your Application; (B) includes administrative, technical and physical safeguards reasonably designed to protect the confidentiality, integrity and availability of PartsTech Data; (C) is appropriate to the nature, size and complexity of Your business operations; and (D) complies with any applicable laws that are applicable for the geographic region in which You do business.
Ensure that the Application will follow industry best practices and customs with respect to accessible and responsive design, user experience, data use optimization (e.g. as to not use excessive battery, bandwidth, or system resources of Your Users).
You further agree that You will not, will not permit Your Users to, and will not assist or enable any other parties to:
cache, copy, record, pre-fetch, compile or otherwise store any portion of the PartsTech Data except as required for Your accounting purposes on an order-by-order basis, or attempt or provide a means to execute any “bulk download” operation of the PartsTech Data;
reverse engineer, decompile, disassemble, reverse assemble, modify, reproduce, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party application or website (with the exception of Your Users), or otherwise use or exploit any of the PartsTech Offerings in any way for any purpose except as specifically permitted by this Agreement or with the prior written consent of PartsTech, or, in the case of PartsTech Data from a PartsTech licensor, the owner of such PartsTech Data;
use the PartsTech Offerings (or any portion thereof) to build a competitive product, service, platform or database of auto parts, vehicles, pricing information, parts stores, distributors or manufacturers;
knowingly create an application, website, program or other product or service that may be used to violate these Terms, the PartsTech Terms, or applicable laws, rules or regulations.
create, compile or disclose metrics about, or perform any statistical analysis of, any of the PartsTech Offerings without PartsTech’s written consent;
use the PartsTech Offerings (or any portion thereof) on behalf of any third party except as expressly permitted in this Agreement;
copy, rent, lease, sell, transfer, assign, sublicense any part of the PartsTech Offerings except as expressly permitted in this Agreement;
use any PartsTech Offering in a manner that suggests an unauthorized association with any of PartsTech’s licensors’ products, services or brands;
remove or modify any trademark, copyright or other intellectual property notices contained in any PartsTech Offering, including but not limited to such notices provided by any of PartsTech’s licensors;
use any PartsTech Offering (including but not limited to Third Party IP incorporated therein) other than as permitted pursuant to this Agreement or in violation of any restrictions as may be provided from time to time by PartsTech or PartsTech’s licensors;
attempt to or actually interfere with, bypass, or circumvent any security feature of any PartsTech Offering or any feature that restricts or enforces limitations on use of or access to any PartsTech Offering;
make available to a third party, any token, key, password or other login credentials to any PartsTech Offering, including, without limitation, the PartsTech API or API Keys; or
use any PartsTech Offering except as expressly permitted in this Agreement, or otherwise violate the PartsTech Terms.
Conduct. Developer shall refrain from engaging in any illegal, unfair or deceptive trade practices or unethical business practices whatsoever with respect to its use of the PartsTech Offerings and its performance of its obligations under this Agreement.
Representations. You represent and warrant to us that: (a) if You are a business, You are duly organized, validly existing and in good standing under the laws of the jurisdiction in which Your business is registered, (b) You have all requisite right, power and authority to enter into this Agreement and perform Your obligations under this Agreement, and (c) the individual signing on behalf of the Developer is the duly authorized representative with the authority to bind the Developer to this Agreement. You represent and warrant to us that You are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.
Proprietary Rights. As between PartsTech and Developer, the PartsTech Offerings and all intellectual property rights contained in the foregoing, are and will at all times remain the sole and exclusive property of PartsTech or its applicable licensors, and are protected by applicable intellectual property laws and treaties (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
Marketing and Promotion.
PartsTech and Developer shall plan and undertake one or more marketing and promotional methods regarding Developer’s integration with and use of the PartsTech Offerings, as mutually agreed by the Parties, including but not limited to: joint webinars, press releases, testimonials, demonstrations, blog posts and website posts (collectively, the “Marketing Materials”). Both Parties agree to jointly review all Marketing Materials prior to any dissemination or posting of such Marketing Materials, and refrain from any such dissemination or posting until both Parties have approved such Marketing Materials in writing. Upon the expiration or termination of this Agreement, the Parties will have no right or obligation to promote the other Party’s product and services, and must obtain the advanced written consent of the other Party to continue promoting the other Party’s products and services.
Developer agrees to promote the integration of Your Application with the PartsTech Offerings to its customer database through personal solicitation, email or direct mail; provided, that You may not state or imply that PartsTech endorses the Application or related services absent PartsTech’s prior written consent.
Trademarks. Each Party is hereby granted permission to use the other Party’s name in its online and print promotional materials for the sole purpose of identifying the Party as an integration Developer in accordance with the provisions of Section 11 above, and providing a reference to additional information on their products and services. Each Party is granted permission to use the other Party’s trademarks and trade names only as necessary to the performance of the obligations under this Agreement, and only pursuant to the terms of this Agreement. Reproduction of any trademarks, logos or symbols shall conform to brand guidelines that either Party may from time to time provide.
Maintenance; Training and Support.
PartsTech will use commercially reasonable efforts to maintain the PartsTech API and minimize any disruptions to Developer’s access to the PartsTech Offerings.
Each Party shall provide reasonable technical training on its products and services to the other Party’s employees as reasonably necessary to effectively market, integrate, provide and support the PartsTech Offerings with the Application.
Developer shall provide all information, data and documentation as may be reasonably required by PartsTech to perform the obligations of PartsTech set forth in this Agreement, including but not limited to: (1) integration set up instructions, (2) parts procurement instructions and (3) customer support contact information prior to launching the integration.
Each Party shall provide access to a full version of its product for training and support purposes.
Each Party shall have the sole discretion to determine the amount and type of support resources it shall make available. Expenses for the implementation of this support program shall be borne by the Party incurring the expense unless otherwise agreed by the Parties in writing.
Relationship. The Parties hereto are separate and independent legal entities. Nothing in this Agreement is intended or should be construed or deemed to create a principal/agent, partnership, joint venture or employer/employee relationship between the Parties. Neither Party shall have any authority, express or implied, to bind the other Party.
Indemnification. Developer shall defend, indemnify and hold harmless PartsTech, its officers, directors, employees, representatives and agents, from and against any suit, claim, damages and/or losses (including, without limitation, court costs and reasonable attorneys’ fees) (collectively, “Losses”) arising out of the actual or alleged (a) use or exploitation of collected data in violation of any applicable law, or (b) use of the PartsTech Data other than as authorized by this Agreement. PartsTech shall defend, indemnify, and hold harmless Developer, its officers, directors, employees, representatives, and agents from and against any Losses arising out of the actual or alleged infringement of the intellectual property rights of a third party associated with the PartsTech Offerings. In the event a claim of infringement subject to indemnification is made, or if PartsTech believes that such a claim is likely to be made, PartsTech shall, at its expense, either: (i) procure for Developer the right to continue using the Services; or (ii) replace or modify the Services so that they becomes non infringing; or (iii) if neither (i) Nor (ii) above is commercially reasonable, terminate this Agreement. Neither Party, in its capacity as the indemnifying party (in such capacity, the “Indemnifying Party”) will consent to the entry of a judgment or settle any indemnified claim without the prior written consent, which may not be unreasonably withheld, of the indemnified party (in such capacity, the “Indemnified Party”). The Indemnifying Party will use counsel reasonably satisfactory to the Indemnified Party. If the Indemnified Party reasonably determines that a defense or defenses are available to the Indemnified Party that are not available to the Indemnifying Party, and raising the defense or defenses would create a conflict of interest for the counsel defending the claim, the Indemnified Party will be entitled to retain separate counsel for the purpose of raising these defenses at the Indemnified Party’s expense. The Indemnifying Party’s obligations under this Section are independent of its other obligations under the Agreement and shall survive termination of the Agreement.
Nondisclosure. In the course of providing or receiving the Services, each Party (the “Receiving Party”) may receive or otherwise be exposed to Confidential Information (as defined below) of the other Party (the “Disclosing Party”). “Confidential Information” means any and all information, however disclosed (whether verbally or in writing, in digital or tangible form), that a reasonable party would deem to be proprietary or confidential, including but not limited to information pertaining to the Disclosing Party’s finances, know-how, product formulas, processes, procedures, equipment, standards, designs, specifications, product samples, development ideas, proposed products, proposed services, business plans, business analyses, customer lists, pricing information, market data, sales information, marketing strategies, distribution relationships, employees, and the existence and terms of this Agreement.
The Receiving Party agrees not to disclose, reproduce or otherwise use any of the Confidential Information (except as expressly permitted herein) without the Disclosing Party’s prior written consent, and agrees to use the same degree of care it uses to protect its own information of a similar nature (provided that, at a minimum, the Receiving Party shall exercise reasonable care).
For purposes of this Agreement, Confidential Information shall not include information that: (i) is now or subsequently becomes generally known or available to the public through no fault of the Receiving Party; (ii) the Receiving Party can demonstrate was rightfully in its possession prior to the disclosure to the Receiving Party by the Disclosing Party; (iii) is independently developed by the Receiving Party without the use of any Confidential Information; (iv) the Receiving Party rightfully obtains from a third party who, to the Receiving Party’s knowledge, has the right to transfer or disclose such Confidential Information; or (v) the Receiving Party is required by law or court order to make a disclosure, provided that the Receiving Party shall, unless prohibited by applicable law, first provide the Disclosing Party with written notice of such requirement, and the opportunity to take such steps as the Disclosing Party believes is reasonably necessary to prevent or restrict such disclosure, including but not limited to seeking a protective order.
No Warranties. The PARTSTECH OFFERINGS ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY, OF ANY KIND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PARTSTECH DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND DUTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE PARTSTECH OFFERINGS, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INTERFERENCE WITH QUIET ENJOYMENT. FURTHER, PARTSTECH DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE PARTSTECH OFFERINGS WILL BE UNINTERRUPTED, SECURE, TIMELY OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR IN WRITING, OBTAINED BY YOU FROM PARTSTECH WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
Limitation of Liability. SOME OF THE PARTSTECH OFFERINGS ARE BEING PROVIDED FREE OF CHARGE. ACCORDINGLY, DEVELOPER AGREES THAT PARTSTECH SHALL HAVE NO LIABILITY ARISING FROM, RELATING TO OR BASED ON DEVELOPER’S USE OF ANY PARTSTECH OFFERING, OR PORTION THEREOF, THAT IS PROVIDED FREE OF CHARGE. FOR ANY PAID PARTSTECH OFFERING (OR PORTION THEREOF), THE TOTAL LIABILITY OF PARTSTECH, AND ITS AFFILIATES AND LICENSEE, FOR ANY CLAIM UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID TO PARTSTECH TO USE THE APPLICABLE PARTSTECH OFFERING (OR PORTION THEREOF) DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT SHALL PARTSTECH OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES AND SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE (ACTIVE OR PASSIVE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS OR REVENUE, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE ANY PARTSTECH OFFERING (OR PORTION THEREOF).
Term. The initial term of this Agreement will commence on the Effective Date and will end on the date specified on the Order Form (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive one year renewal terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either Party provides written notice to the other Party of its desire to avoid such automatic renewal at least thirty (30) days in advance of the conclusion of the immediately preceding term, or unless otherwise terminated earlier pursuant to Section 20.
Suspension; Termination. PartsTech may suspend Your access to the PartsTech API for any or no reason and at any time with or without notice to You and without liability to You, provided that PartsTech will endeavor to provide You with reasonable notice of such suspension and the reason, if any. Either Party may terminate this Agreement in the event of a material breach by the other Party of any of its obligations hereunder, which breach is not cured (or is incapable of being cured) within ten (10) days after receipt of written notice of such breach. Developer may terminate this Agreement for convenience by providing thirty (30) days advance written notice to PartsTech. In the event of the termination of this Agreement, Developer shall immediately (a) discontinue use of the PartsTech Offerings, (b) cause the PartsTech Data to be removed from Your Application, servers, records, websites and other materials of the Developer and its affiliates, and (c) either return to PartsTech the PartsTech Data or certify in writing to PartsTech that the PartsTech Data and all copies thereof have been destroyed and erased.
Governing Law; Jurisdiction. This Agreement shall be construed and controlled by the laws of the Commonwealth of Massachusetts, without regard to conflict of law principals that would result in the application of any other laws. The Parties submit to the jurisdiction and venue of the state or federal courts located in Suffolk County, Massachusetts.
Dispute Resolution.
In the event of any dispute, claim, question or disagreement arising from our relating to this Agreement or the alleged breach thereof, the Parties shall use their best efforts to mutually settle such dispute, claim, question or disagreement. To this effect, the Parties shall consult and negotiate with each other in good faith, and, recognizing their mutual interests, attempt to reach a just and equitable resolution satisfactory to both Parties.
If the Parties do not reach such a resolution within a period of sixty (60) days from the occurrence of the act, inaction, or event in dispute, then, upon notice by either Party to the other Party, all such disputes, claims, questions or disagreements shall be finally settled by binding arbitration, before a single arbitrator, administered by the Judicial Arbitration and Mediation Services (the “JAMS”) in accordance with the rules and provisions of JAMS, Boston, Massachusetts.
The individual who will serve as the arbitrator will be determined by mutual agreement of the Parties. If the Parties are unable to agree on an arbitrator, then an arbitrator shall be selected by the JAMS in its sole and absolute discretion.
The Parties will make a good faith effort to conclude arbitration within sixty (60) days of the initial request for arbitration.
The final decision of the arbitrator shall be a reasoned written opinion with specific findings of fact and conclusions of law and may be reduced to and entered as a judgement in any court of competent jurisdiction.
Notwithstanding anything to the contrary contained in this section or elsewhere in this Agreement, either Party may bring suit in the state or federal courts in Suffolk County, Massachusetts to enjoin infringement or other misuse of intellectual property rights.
Attorneys’ Fees. In the event any litigation, arbitration or other proceeding is brought by either Party arising out of or relating to this Agreement, each Party shall be responsible for its own costs, attorneys’ fees and other expenses incurred by such Party in such litigation, arbitration or proceeding.
No Third-Party Beneficiaries. Except as expressly provided herein, no provision of this Agreement are intended to or shall be construed to confer upon or give to any person other than PartsTech and Developer any rights, remedies or other benefits under or because of this Agreement. It is not the intention of this Agreement or of the Parties to confer a third-party beneficiary right or right of action upon any third party. Your User’s sole relationship will be with Developer and Your User’s sole recourse will be with Developer.
Entire Agreement, Amendment, Waiver. This Agreement and its Exhibits constitute the entire agreement between the Parties with respect to the subject matter hereof. This Agreement shall not be modified except by a writing dated subsequent to the date of this Agreement and signed by authorized representatives of both Parties. None of the provisions of this Agreement shall be waived by any act or acquiescence on the part of a Party, its representatives or employees, but only by an instrument in writing signed by an authorized officer of Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.
Survival. Sections 1, 3, 4(b), 6, 7(b), 10, 14-18 (inclusive) and 20-31 (inclusive) shall survive the termination of this Agreement for any reason, including but not limited to the expiration of the Term.
Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any purported assignment or delegation in violation of this Section shall be null and void. Notwithstanding the foregoing, either Party may assign its rights and obligations in whole or in part to any successor in interest resulting from (1) a consolidation or merger of a Party with or into another entity, (2) a sale, transfer or other disposition of all or substantially all of the assets of a Party, or (3) the acquisition of the beneficial ownership of more than 50% of the outstanding voting securities of a Party (collectively, a “Change in Control”), provided that such assignment shall not be permitted in the event of a Change in Control by an individual, entity or group of entities acting in concert that the other applicable Party deems in its reasonable discretion to be a competitor of such Party. No permitted assignment or delegation shall relieve the assigning or delegating Party of any of its obligations hereunder without the express, prior written consent of the other Party.
Severability. The invalidity or unenforceability of any provision of this Agreement shall in no manner affect the validity or enforceability of any other provision hereof.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. A signature transmitted by PDF, fax, email or other electronic means shall be deemed to be, and shall have the same legal effect as, an original signature.
Headings. The headings and captions of this Agreement are provided for convenience only and are intended to have no effect in construing or interpreting this Agreement.
Notices. Any notice, request, consent or approval required or permitted to be given under this Agreement or pursuant to law shall be sufficient if in writing and when sent by trackable delivery services with proof of receipt, or by courier with proof of receipt to the receiving Party’s principal business address.