This license is not a sale. Title and copyrights to Nexcat and the Electronic Parts Catalog Databases (the "Product") remain with WHI Solutions. Unauthorized copying of the data, or failure to comply with the provisions of this License Agreement, will result in automatic termination of this license and will make available to WHI Solutions other legal remedies.
End-User acknowledges that the Product is confidential, proprietary material owned and copyrighted by WHI Solutions. End-User agrees that WHI Solutions shall retain exclusive ownership of the Product, including all literary property rights, copyrights, trademarks, trade secrets, trade names, or service marks, including goodwill and that WHI Solutions may enforce such rights directly against End-User in the event the terms of this Agreement are violated.
The Product is intended for use solely by End-User for their own internal purposes as an alternative electronic information source of data. End-User agrees not to copy, modify, sub-license, assign, transfer or resell the Product, in whole or in part. End-User agrees to use its best efforts to prevent violation of these restrictions by agents, employees and others, taking such steps and reasonable security precautions as may be necessary.
Failure to pay the license fees shall cause this agreement to expire. WHI Solutions may terminate use of the Product and this Agreement at its discretion.
WHI SOLUTIONS REPRESENTS THAT THE PRODUCT DOES NOT VIOLATE OR INFRINGE ANY PATENT, TRADEMARK, TRADE SECRET, COPYRIGHT, OR SIMILAR RIGHT. IN THE EVENT THE PRODUCT IS HELD TO INFRINGE THE RIGHTS OF ANY THIRD PARTY, WHI SOLUTIONS SHALL HAVE THE OPTION EITHER TO PROCURE THE RIGHT FOR THE END-USER TO CONTINUE USING THE PRODUCT OR AT WHI SOLUTIONS' EXPENSE, TO REPLACE OR MODIFY THE PRODUCT SO THAT IT BECOMES NON-INFRINGING. WHI SOLUTIONS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY OF THE PRODUCT, THE MERCHANTABILITY AND FITNESS OF THE PRODUCT FOR A PARTICULAR PURPOSE. FURTHER, WHI SOLUTIONS DOES NOT WARRANT THE COMPATIBILITY OF THE PRODUCT WITH END-USER'S COMPUTER HARDWARE AND/OR SOFTWARE SYSTEM.
End-User's sole and exclusive remedy for any damage or loss in any way connected with the Product furnished herein, whether by breach of warranty, negligence, or any breach of any other duty, shall be, at WHI Solutions' option, replacement of the Product or return or credit of an appropriate portion of any payment made by End-User with respect to such Product. Under no circumstances shall WHI Solutions be liable to End-User or any other person for any indirect, special or consequential damages of any kind, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction or any and all other commercial damages or losses. Additionally, WHI Solutions assumes no liability for damages caused by incorrect parts usage and has no responsibility to verify that the parts are correct for a customer's vehicle in accordance with the manufacturers' specifications.
WHI Solutions may obtain injunctive relief and may enforce any other rights and remedies to which it may be entitled in order to protect and preserve its proprietary rights.
This Agreement is the complete and exclusive statement of the understanding between the parties, with respect to the subject matter, superseding all prior agreements, representations, statements and proposals, oral or written.
Any amendment which affects the rights or obligations of WHI Solutions shall require the written consent of WHI Solutions. Notices herein shall be delivered to the following addresses by hand, or by certified mail, return receipt requested, and shall be deemed delivered five (5) days after mailing:
WHI Solutions, Inc.
5 International Drive
Rye Brook, NY 10573-7016
No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach.
Limitation of Liability
IN NO EVENT WILL WHI SOLUTIONS BE LIABLE FOR ANY DAMAGES, INCLUDING LOSS OF DATA, LOST PROFITS, COST OF COVER, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM THE USE OF THE PROGRAM OR ACCOMPANYING DOCUMENTATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF WHI SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU ACKNOWLEDGE THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK.
This Agreement shall be governed by the laws of the State of New York. This Agreement is the entire agreement between WHI Solutions and End-User concerning the Product and supersedes any other communications or advertising with respect to the program and accompanying documentation. If any provision of the Agreement is held invalid, the remainder of the Agreement shall continue in full force and effect.