Legal

Audatex North America, Inc. Web Site
Terms and Conditions of Use.

AUDATEX NORTH AMERICA, INC., along with all its subsidiaries and affiliates ("AUDATEX"), provides the information and services on its World Wide Web site(s) (the "Site") under the following terms and conditions. By accessing and/or using the Site, you indicate your acceptance of these terms and conditions.

LAWS AND REGULATIONS. Access to and use of this Site are subject to all applicable international, federal, state and local laws and regulations. User agrees not to use the Site in any way that violates such laws or regulations.

COPYRIGHT AND TRADEMARKS. The information available on or through this Site is the property of AUDATEX NORTH AMERICA, INC., or its licensors, and is protected by copyright, trademark, and other intellectual property laws. Users may not modify, copy, distribute, transmit, display, publish, sell, license, create derivative works or otherwise use any information available on or through this Site for commercial or public purposes. Users may not use the trademarks, logos and service marks ("Marks") for any purpose including, but not limited to use as "hot links" or meta tags in other pages or sites on the World Wide Web without the written permission of AUDATEX NORTH AMERICA, INC. or such third party that may own the Mark.

TAMPERING. User agrees not to modify, move, add to, delete or otherwise tamper with the information contained in AUDATEX NORTH AMERICA INC.'s Web site. User also agrees not to decompile, reverse engineer, disassemble or unlawfully use or reproduce any of the software, copyrighted or trademarked material, trade secrets, or other proprietary information contained in the Site.

THIRD PARTY INFORMATION. Although AUDATEX NORTH AMERICA, INC.  monitors the information on the Site, some of the information is supplied by independent third parties. While AUDATEX NORTH AMERICA, INC.  makes every effort to insure the accuracy of all information on the Site, AUDATEX NORTH AMERICA, INC.  makes no warranty as to the accuracy of any such information.

LINKS TO THIRD PARTY SITES. This Site may contain links that will let you access other Web sites that are not under the control of AUDATEX NORTH AMERICA, INC. The links are only provided as a convenience and AUDATEX NORTH AMERICA, INC.  does not endorse any of these sites. AUDATEX NORTH AMERICA, INC. assumes no responsibility or liability for any material that may be accessed on other Web sites reached through this Site, nor does AUDATEX NORTH AMERICA, INC.  make any representation regarding the quality of any product or service contained at any such site.

LINKS FROM THIRD PARTY SITES. AUDATEX NORTH AMERICA, INC.  prohibits unauthorized links to the Site and the framing of any information contained on the site or any portion of the Site. AUDATEX NORTH AMERICA, INC.  reserves the right to disable any unauthorized links or frames. AUDATEX NORTH AMERICA, INC.  has no responsibility or liability for any material on other Web sites that may contain links to this Site.

NO WARRANTIES. Information and documents provided on this Site are provided "as is" without warranty of any kind, either express or implied, including without limitation warranties of merchantability, fitness for a particular purpose, and non-infringement. AUDATEX NORTH AMERICA, INC.  uses reasonable efforts to include accurate and up-to-date information on this Site; it does not, however, make any warranties or representations as to its accuracy or completeness. AUDATEX NORTH AMERICA, INC.  periodically adds, changes, improves, or updates the information and documents on this Site without notice. AUDATEX NORTH AMERICA, INC.  assumes no liability or responsibility for any errors or omissions in the content of this Site. Your use of this Site is at your own risk.

LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL AUDATEX NORTH AMERICA, INC. BE LIABLE FOR ANY DAMAGES SUFFERED BY YOU, INCLUDING ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF INFORMATION, PROGRAMS OR OTHER DATA) THAT RESULT FROM ACCESS TO, USE OF, OR INABILITY TO USE THIS SITE OR DUE TO ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE INTERNET, EVEN IF AUDATEX NORTH AMERICA, INC. WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

PRIVACY. Protecting the privacy of our clients and users of our Sites is important to AUDATEX NORTH AMERICA, INC. The AUDATEX NORTH AMERICA, INC.  Web Site Privacy Statement describes how we use and protect information you provide to us.

SECURITY. Data transmitted to and from AUDATEX NORTH AMERICA, INC.  client Sites is encrypted for the user's protection. However, the security of information transmitted through the Internet can never be guaranteed. AUDATEX NORTH AMERICA, INC. is not responsible for any interception or interruption of any communications through the Internet or for changes to or losses of data. User is responsible for maintaining the security of any password, user ID, or other form of authentication involved in obtaining access to password protected or secure areas of AUDATEX NORTH AMERICA, INC.  sites. In order to protect you and your data, AUDATEX NORTH AMERICA, INC. may suspend your use of a client site, without notice, pending an investigation, if any breach of security is suspected.

TRANSMISSION OF PERSONAL DATA. User acknowledges and agrees that by providing AUDATEX NORTH AMERICA, INC. with any personal information through the Site, User consents to the transmission of such personal user information over international borders as necessary for processing in accordance with AUDATEX NORTH AMERICA, INC.'s standard business practices and the AUDATEX NORTH AMERICA, INC. Web Site Privacy Statement.

ACCESS TO PASSWORD PROTECTED/SECURE AREAS. Access to and use of password protected and/or secure area of the Site is restricted to authorized users only. Unauthorized access to such areas is prohibited and may lead to criminal prosecution.

Services and Products

By signing an Audatex Service Agreement that references these Audatex Terms and Conditions (this “Agreement”), you (the “Client”) agree to the terms and conditions set forth below.

  1. AUDATEX SERVICE AND PRODUCTS. 

    Audatex will furnish to Client, and Client will purchase or license from Audatex, as applicable, the products and related services listed in the Service Agreement in accordance with the terms and conditions of this Agreement.  For purposes of this Agreement, all products, software, data and other services provided by Audatex shall be collectively referred to as the “Products.”

  1. DEFINITIONS

A.      "Access" means the ability access the Products locally or via the internet and/or to connect to the Audatex Web site in order to access the Audatex Service.

B.      “Access Information” means the passwords and user IDs that allow Access to the Audatex Service and process Audatex transactions.

C.     “Audatex Confidential Information” means information disclosed by Audatex, including, without limitation, the terms and conditions of this Agreement, trade secrets, methodologies, supplier lists, customer lists, customer data, cost and price data, software, computer and telecommunications systems, records, technical processes and formulas, product designs, sales, unpublished financial information, product and business plans, usage rates, projections, marketing data and memoranda, papers, letters, e-mail, notes, plans, documentation, records and all copies thereof relating to the existing or planned business or technology of Audatex.

D.     “Audatex Service” means the Internet-based claims management system located at the URL http://www.audatexsolutions.com (together with all related successor sites thereto, the “Audatex Website”) that allows authorized users to Access and input data for an on-line software application that provides a communication link among participating entities in the automotive claims process.

E.      “Client End User” means those persons or entities that: (i) meet Audatex’s end user criteria; (ii) are specifically authorized by Client to have Access to and use of the Input Data; (iii) are bound by a Client End User Agreement with Audatex; and (iv) Client is responsible for paying all fees incurred by such Client End User.

F.      “Client Property" means non-vehicle related data that is inputted by Client and/or Client End User and submitted via the Products and which specifically identifies an insured, a claimant, the Client, and/or a Client End User.

G.     “Documentation" means the applicable specifications, manuals, product data sheets, instructions or other documentation relating to the Audatex Service, whether in hardcopy or electronic form, that is furnished to Client and Client End User during the term of this Agreement.

H.     “Input Data” means data: (i) that is inputted by Client and/or Client End Users and submitted via the Products.

I.       “License” means the license granted in Section 3, paragraph A.

J.      “Software” means any systems programs, applications programs, databases and related information and documentation contained in the Products.

K.      “Trading Partners” means those persons or entities that: (i) have agreed to provide or receive services through the Products for or on behalf of Client; (ii) are bound by similar terms and conditions with Audatex; and (iii) are authorized by Client to Access the Input Data.

  1. GRANT OF LICENSE

A.      Subject to the continued payment of the fees due hereunder by Client to Audatex as provided in Section 6 of this Agreement, the terms and conditions of this Agreement and other applicable terms and conditions described on the Audatex Website, Audatex grants to Client a personal, non-exclusive, non-transferable limited license to Access and use the Products.

B.      The License is solely for Client’s own internal use and benefit, and not for resale, transfer, sublicense, or use by or for the benefit of, any third party or entity.  Client shall use the Products only as specifically authorized by Audatex herein and shall not use, link or interface the Products with any equipment, software, data, network or communications system, in any manner or in connection with any function, not specifically authorized by Audatex.

C.     Client may not use the Products, directly or indirectly, for any purpose other than as expressly permitted under this Agreement and at the Audatex Website.

D.     Client will provide Audatex with information required by Audatex for Client’s registration to allow Access to the Products.  Client will provide true, accurate and complete information.  Audatex will endeavor to verify Client’s registration information and such verification may require contacting Client.  Client will keep the registration information current and accurate.  After verification and acceptance of Client's registration, Audatex will provide Client with the Access Information.  Client shall be solely responsible for maintaining the confidentiality of the Access Information and for any use of the Access Information.  Client shall notify Audatex immediately of any known or suspected unauthorized Access or disclosure of Client’s account or Access Information.

E.      Client shall not use, transfer, distribute, interface, integrate, or dispose of any information or content data contained in the Products in any manner that could compete with Audatex’s business.  Client may not: (i) use the Products to provide services to third parties; (ii) obtain, or assist others in obtaining Access to the Products other than as permitted hereunder; or (iii) reproduce, republish or offer any part of the Products (or compilations based on any part of the Products) for sale or distribution in any form, over or through any medium whether in hard copy, electronically or otherwise, including, without limitation, wireless communications, via cable or broadband services, hyperlink, framing or in any other manner on the Internet, any public or private bulletin board system or other electronic network without the prior written consent of Audatex.

  1. TERM OF AGREEMENT

This Agreement shall commence on the Effective Date set forth on the Service Agreement and shall continue for the term stated on the Service Agreement (“Initial Term”).  If a term is not stated on the Service Agreement, the Initial Term shall be deemed to be twenty-four (24) months.  Upon expiration of the Initial Term, this Agreement shall automatically expire. Client's and Audatex's continuing obligations under this Agreement including, without limitation, those relating to the Products, the Audatex Confidential Information, the Client Property, and those relating to limitation of liability under Paragraph 15 below, shall survive the termination or expiration of this Agreement.

  1. OWNERSHIP AND CONFIDENTIALITY

A.      Audatex and Audatex's licensors own all right, title and interest in and to the Products, including, but not limited to, all databases, computer programming, software and related information and Documentation, as well as any technology used to create the Products.   Other than the License granted to Client in this Agreement, Client shall have no ownership rights in and to the Products, or the technology used to create the Products.  Audatex (or its licensors or third-party information and content providers) retains all rights, title and interest in and to all of the information, content, data, designs, materials and all copyrights, patent rights, trademark rights and other proprietary rights inherent therein or appurtenant thereto, provided by Audatex.   All rights not expressly granted hereunder by Audatex are expressly reserved to Audatex and its licensors and information and content providers.

B.      Client shall not, either directly or indirectly, through its consultants, contractors, representatives, affiliates, or authorized Client End Users, attempt to reverse engineer, copy, reproduce, recompile, decompile, disassemble, distribute, publish, resell, sublicense, modify, create derivative works from, or in any way exploit any portion or component of any technology or software created by Audatex and used in connection with the Products, and all such information and code shall be deemed Audatex Confidential Information.  Modification of the content of the Products by Client shall be a material breach of this Agreement.

C.     Audatex Confidential Information shall be deemed confidential and proprietary to Audatex.

D.     Client shall reproduce Audatex's name on any copies of reports, estimates and forms, irrespective of the form of such copy, as Client may lawfully reproduce for its own use.

E.      Audatex will treat Client Property as confidential, except as specifically provided in this Agreement. Notwithstanding the above, Client shall allow Audatex to use Client Property in the compilation of statistics, which statistics shall be the property of Audatex.  Audatex shall have the sole right to use, recompile, reassemble, sell, and distribute such statistics.  Audatex reserves the right and is hereby authorized by Client, to use and distribute all Input Data or data derived from the Products that does not constitute Client Property.

F.      Audatex and Client will take appropriate steps to notify their respective employees and consultants, with a need to know and who are not competitors of Audatex, who are granted Access to Client Property or the Audatex Confidential Information, as the case may be, of their confidentiality obligations with respect thereto.  Audatex and Client will instruct such persons to keep Client Property and Audatex Confidential Information, as the case may be, confidential by using the same care and discretion that such party uses with respect to its own trade secrets and proprietary data and information.  Notwithstanding the foregoing, Audatex may disclose and provide access to Client Property and/or other Client information as required or compelled by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process by court order of a court of competent jurisdiction, or in order to comply with applicable requirements of any government department or agency or other regulatory authority.

G.     Audatex shall not be liable, either in contract or in tort, for the unauthorized Access to, alteration, theft or destruction of Client Property through accident or by fraudulent means or devices, even if such Access occurs as a result of Audatex’s own negligence or with the use of the Products.

H.     As requested by Audatex during the term of this Agreement, or upon expiration or any termination of this Agreement, Client shall return or destroy, as Audatex directs, all material (including all copies) in any medium that contains, refers to, or relates to the Audatex Confidential Information. 

  1. PRICING

A.      The prices for the Products are specified in the Service Agreement.

B.      Client shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, except taxes related to the income of Audatex or the employees of Audatex.

C.     Professional services, including custom development, may be provided at Audatex’s then prevailing standard time and materials rate (currently $200 per hour as of the Effective Date of this Agreement) in accordance with a mutually agreed upon statement of work. Unless and until a mutually agreed upon statement of work has been executed by both Audatex and Client, Audatex has no obligation to provide professional services to Client.

D.     Audatex may provide litigation support, including depositions, research and court appearances, at Audatex’s then prevailing rates in accordance with a mutually agreed upon statement of work. Unless and until a mutually agreed upon statement of work has been executed by both Audatex and Client, Audatex has no obligation to provide litigation support to Client.  

E.      Invoices are due within thirty (30) days after the date of an invoice and shall be provided in Audatex’s standard format.  If Client fails to pay any amounts due under this Agreement, Client shall, upon demand, pay interest at the rate of 1-1/2% per month (but in no event more than the highest interest rate allowable by law) on such delinquent amounts from the due date until the date of payment.  If Audatex’s financial institution returns Client’s payment to Audatex because of insufficient funds, then Audatex will charge a fifty dollar ($50) fee to Client. 

  1. AVAILABILITY AND USE OF THE PRODUCTS

A.      Audatex will make reasonable commercial efforts to support and make available the Products in accordance with Audatex’s then prevailing Service Level Schedule.  Audatex support services shall be provided on the condition that Client and its employees have completed appropriate Audatex training, as determined by Audatex in its sole discretion.  Notwithstanding the foregoing, if Client, its employees or authorized third parties have not completed the appropriate training, as determined by Audatex, Audatex reserves the right to: (i) deny access to support and (ii) charge Client additionally for support resulting from non-training.   Audatex training and support services are provided at Audatex’s then prevailing rates.

B.      In order to improve the quality of the Products, Audatex reserves the right to update and modify operation of the Products, including but not limited to changes in: (i) the rules of operation; (ii) accessibility periods; (iii) identification procedures; (iv) type of equipment, type of system, and service equipment required; (v) the timing of scheduled maintenance; and (vi) the registration information and Access Information procedures.  During maintenance or updating, the Products may be unavailable. 

C.     Audatex may make updates to the Products, the frequency of which will be determined solely by Audatex. 

D.     Audatex reserves the right to discontinue providing any Product upon sixty (60) days prior written notice to Client; provided, however, Audatex will replace any such Product with a product functionally similar to the Product being replaced, at no additional cost to Client, for the remainder of the term of this Agreement.

E.      Audatex's support services will not include any assistance relating to interruptions, delays, disconnections or other errors involving Client’s telecommunications or cable line provider or Client's connection to the Internet.

F.      Client will use the Products in accordance with such reasonable rules as may be established by Audatex from time to time as set forth in any documentation furnished to Client by Audatex or set forth on the Audatex Website.

G.     Client shall be solely responsible for all log-on or other charges associated with the ability to use the Products.

H.     Client assumes exclusive responsibility for: (i) the consequences of any instructions Client gives; (ii) Client’s failure to properly Access or use the Products; and (iii) Client’s failure to supply accurate Client Property and Input Data.

I.       Client shall be entitled to use and disclose information extracted from a Product that does not constitute Audatex Confidential Information solely for the following purposes: (a) to use extracted information in a management system for internal use only; and/or (b) to transmit the extracted information to a third party as permitted in the normal course of estimate valuation, provided such third party is not a competitor of Audatex.

  1. COMMUNICATIONS LINES

A.      Client shall order the installation of appropriate communications lines and equipment to enable Client to Access and use the Products.  Client shall pay all charges relating to the installation and use of communications lines and equipment in connection with the Products.

B.      Audatex shall not be responsible for the reliability and continued availability of the communications lines and equipment used by Client in Accessing and using the Products.

C.     Client shall be responsible for all charges relating to long distance, message units, cellular and 800# use for accessing the network connecting to Audatex's host computer or server.

  1. FILE SECURITY; RETURN OF INPUT DATA

A.      Audatex reserves the right to issue and change procedures from time to time to improve file security.

B.      Audatex will take reasonable precautions to prevent the loss or alteration to the Input Data, but Audatex cannot guarantee against any such loss or alteration.  Accordingly, Client will maintain a procedure external to the Products for reconstruction of lost or altered Input Data to the extent deemed necessary by Client.  In connection with the foregoing, it is understood that Client shall maintain appropriate back-up information and shall assume and be responsible for risk of loss and/or damage to documents and records.

C.     After termination of this Agreement, Audatex will dispose of all Input Data in any manner deemed appropriate by Audatex unless Client, prior to such termination, furnishes to Audatex written instructions for the disposition of such Input Data at Client's expense.  At Client's request and provided that Audatex has been paid for all Products provided through the date of termination, Audatex will provide Client, in a standard Audatex format and at Audatex's then standard rates for such format, any and all Input Data then in Audatex's possession.

D.     Input Data will be available to Client via the Internet for a period of time as specified in the Product specifications or the Service Agreement.  Input Data can be retained for an extended period of one (1) year at additional cost to Client.  At the end of the one (1) year retention period or upon termination of this Agreement by either party, whichever is earlier, Audatex will make the Input Data then in Audatex’s possession available to Client in a standard Audatex format and at Audatex’s standard rates for such format.

  1. SOFTWARE

A.      To the extent that the Products contain any Software, Client is a licensee and/or sub-licensee of Audatex of such Software.  Client accepts such licenses and/or sublicenses, as the case may be, from Audatex for the Software upon the terms and conditions set forth in this Agreement.

B.      The licenses and/or sublicenses for the Software granted by Audatex to Client hereunder convey personal, non-exclusive, non-transferable rights to Client to use the Software for the limited purposes set forth herein.

C.     Client may need to download certain software components from the Audatex Website in order for Client to use the Products.

D.     Audatex is not responsible for any bugs, viruses or errors in the downloaded software which result from Client’s telecommunication or cable line provider, Client’s connection to the Internet or connecting Client networks, or Client software.              

E.      Client will abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the downloaded software and/or in the Audatex Website and Client will retain all copyright and other proprietary notices on any forms downloaded from the Audatex Website.

F.      Client further agrees to any and all additional terms and conditions that are set forth on the Audatex website with respect to the Audatex Service.

  1. RETURN OF PRODUCTS

Upon termination of this Agreement for any reason, Client shall immediately cease to use the Products and shall return or destroy, at Audatex’s discretion, any and all copies of the Products, Documentation, and Audatex Confidential Information (including, without limitation, worksheets, documentation, computer program media and CDs) relating to the Products which are in its possession or in the possession of its employees, agents or Client End Users.  Client is responsible for packing the Products, Audatex Confidential Information and Documentation in accordance with Audatex's instructions, and paying all associated freight, insurance, shipping and packing materials charges for its return to Audatex.

  1. AUTHORIZATION

Client hereby authorizes Audatex to allow authorized Client End Users and Trading Partners to Access the Input Data.

  1. WARRANTY

A.      Audatex warrants that the Products will substantially conform to their design specifications as represented in the applicable documentation under normal use and circumstances.  This warranty shall not extend to any items which have been altered, changed or modified in any way without Audatex's prior written consent in each instance.  Audatex does not warrant that the Products will meet Client’s requirements or that operation of the Products will be uninterrupted, error-free or consistently at optimal speed.

B.      AUDATEX WILL NOT BE LIABLE TO CLIENT FOR OR DUE TO UNFORSEEABLE AND REASONABLY UNPREVENTABLE INTERRUPTIONS OR DEGRADATIONS OF SERVICES, LACK OF INTERNET CAPACITY, DEFICIENCIES OR INSTABILITY OF INTERNET SYSTEMS AND SERVICES PROVIDERS, OR INTERCEPTION OF DATA THROUGH THE INTERNET BY THIRD PARTIES.

C.     EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES RELATING TO THE PRODUCTS, AUDATEX WEBSITE, AUDATEX SERVERS, OR DATABASES COVERED BY THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO (1) ANY WARRANTY AS TO THE QUALITY, ACCURACY OR SUITABILITY OF THE INFORMATION CONTAINED IN THE DATABASES, AND (2) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  AUDATEX AND ITS LICENSORS DO NOT WARRANT THE ACCURACY OF PRICES, STANDARDS OR OTHER DATA CONTAINED IN THE DATABASES.

D.     AUDATEX DOES NOT GUARANTEE THE SEQUENCE, ACCURACY, COMPLETENESS OR TIMELINESS OF THE PRODUCTS.  AUDATEX HAS THE RIGHT TO CHANGE THE CONTENT OR TECHNICAL SPECIFICATIONS OF ANY ASPECT OF THE AUDATEX WEBSITE OR THE PRODUCTS AT ANY TIME AT AUDATEX’S SOLE DISCRETION.

 

  1. LAWS AND GOVERNMENTAL REGULATIONS

A.      Client is responsible for: (i) compliance with all laws and governmental regulations affecting Client’s business and (ii) any use Client may make of the Products to assist Client in complying with such laws and governmental regulations.  Audatex and its suppliers have no responsibility relating thereto (including, without limitation, advising Client of Client’s responsibility in complying with any laws or governmental regulations affecting Client’s business).  In no event shall Client rely solely on Client’s use of the Products in complying with any laws and governmental regulations.

B.      If, in Audatex’s sole judgment, providing the Products to Client hereunder violates, or is likely to violate, any laws or governmental regulations, Audatex may, upon written notice to Client, immediately cease providing the Products to Client and immediately terminate this Agreement.

  1. LIMITATION OF LIABILITY

A.      Audatex's sole liability to Client or any third party for claims, notwithstanding the form of such claims (e.g. contract, negligence or otherwise), arising out of: (i) the unavailability of the Products; (ii) the interruption in or delay of the Products; or (iii) errors or omissions in the Products provided or to be provided by Audatex hereunder shall be to use commercially reasonable efforts to make the Products available as soon as reasonably practicable.

B.      Audatex shall not have any liability under this Agreement for any money damages resulting from claims made by Client or any third party for any and all causes covered by Paragraph 15(A) above.  Audatex's sole liability under this Agreement for money damages resulting from claims made by Client or any third party arising from or related to any and all causes not covered by Paragraph 15(A) above shall be limited to the lesser of: (i) the amount of actual damages incurred by Client; or (ii) an amount which will not exceed three months average total monthly charges paid by Client for the particular service as to which Client's claim relates during the twelve (12) months preceding the month in which the damage or injury is alleged to have occurred, or such lesser number of months if Client has not received twelve (12) months Access and use of the Products.  Such damages shall be the full extent of Audatex's monetary liability under this Agreement regardless of the form in which any such legal or equitable claim or action may be asserted against Audatex and shall constitute Client's sole monetary remedy.

C.     Audatex shall not be liable or deemed to be in default for any delay or failure to perform under this Agreement resulting directly or indirectly from any cause beyond Audatex's reasonable control.

D.     IN NO EVENT WILL AUDATEX BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHICH CLIENT MAY INCUR OR EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN IF AUDATEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1. INDEMNIFICATION

Audatex shall defend and hold harmless Client against all damages and costs which may be finally assessed in any claim that Audatex developed Products infringe any U.S. patent, copyright or trade secret, provided that Client shall give prompt written notice to Audatex of any such claim, shall cooperate fully with Audatex, and that Audatex shall take over, settle, or defend such claim under Audatex’s sole direction and at Audatex’s expense.  If the Products are found to constitute an infringement and the use of the Products is enjoined, Audatex, at its option and expense shall either: (i) replace or modify the Products with a non-infringing product; (ii) produce for the Client the right to continue to use the Audatex Service or Products; or (iii) grant the Client the option to terminate this Agreement.  With respect to Software not developed by Audatex, to the extent permitted under Audatex's agreements with licensors of the non-Audatex developed Software, Audatex will pass on to Client the non-Audatex developed Software licensors' proprietary rights infringement indemnification obligations; provided, however that non-Audatex developed Software licensors shall be fully responsible for the payment of any award under the terms of their agreements with Audatex and that Audatex shall not have any responsibility relating thereto.  The foregoing remedies shall not be available to Client if an alleged infringement results from, or is based upon, the use of the Products in combination with any other services or products not licensed by Audatex to Client. 

  1. DEFAULT BY CLIENT

Should Client: (a) default in the payment of any sum of money due hereunder; (b) default in the performance of any other of its obligations under this Agreement; or (c) commit an act of bankruptcy or become the subject of any proceeding under the Bankruptcy Act or become insolvent, or if any substantial part of Client's property becomes subject to any levy, seizure, assignment, application or sale for or by any creditor or governmental agency, then, in any such event, Audatex, at its option, may, upon written notice thereof: (i) terminate this Agreement; (ii) declare all amounts due and to become due hereunder immediately due and payable; (iii) demand that Client (and Client will) return any or all portions of the Products the Audatex Confidential Information, and any Access Information resident in Client’s computer memory with a certificate to that effect issued by an officer of Client; (iv) demand that Client immediately cease Access to and use of the Products and Audatex Website; and/or (v) terminate all of Client's rights relating to the Products.  The remedies contained in this Paragraph 17 are cumulative and in addition to all other rights and remedies available to Audatex under this Agreement, by operation of law or otherwise.

  1. GENERAL

A.      Client has not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement. This Agreement (including other applicable terms and conditions described at the Audatex Website) including all Service Agreements executed hereunder, contains the entire agreement of the parties with respect to its subject matter and supersedes all existing agreements and all other oral, written or other communications between them with respect to its subject matter.  This Agreement shall not be modified in any way except by a writing signed by both parties.  In the event of a conflict between the terms and conditions of any Service Agreement and the terms and conditions of this Agreement, the terms and conditions of the Service Agreement will take precedence.

B.      This Agreement may not be assigned by Client, in whole or in part, without the prior written consent of Audatex.  Audatex shall have the right, without notice to or consent of Client, to assign, transfer, pledge or otherwise dispose of this Agreement to one or more assignees.  Each assignee shall have all of the rights but none of the obligations of Audatex under this Agreement.  In the event of any such assignment by Audatex, the right of the assignee to receive payments and other amounts payable hereunder as well as any other right of the assignee shall not be subject to any defense, set-off or counterclaim which Client may have against Audatex or any other party.  On receipt of notification of such assignment, Client shall comply with the written directions or demands of such assignee and shall make all payments due hereunder as such assignee may direct in writing.  This Agreement is binding upon and shall inure to the benefit of Audatex and Client and their respective successors and permitted assigns.

C.     A breach of any provision of Paragraphs 3, 5 and/or 6 of this Agreement will cause Audatex irreparable injury and damage and therefore may be enjoined through injunctive proceedings in addition to any other rights or remedies which may be available to Audatex at law or in equity.

D.     If any provision of the Agreement (or portion thereof) is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.

E.      The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation.

F.      The individuals entering into this Agreement on behalf of Audatex and Client do each hereby represent and warrant that they are duly authorized by all necessary action to enter into this Agreement on behalf of their respective principals.

G.     All notices shall be in writing and shall be forwarded by registered or certified mail and sent to Audatex and Client at the addresses set forth on the first page of this Agreement or to any other address designated in writing hereafter.  Any notice to Audatex shall be sent Attention:  Managing Director, and shall include a copy to the Legal Department, Attention: General Counsel.

H.     This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, excluding its conflict of laws, rules and principles.  All disputes and matters whatsoever arising under, in connection with or incident to this Agreement shall be litigated, if at all, exclusively in and before the Superior Court of California for San Diego County and the parties irrevocably consent to the personal jurisdiction and venue therein.