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Home My WebLink AboutMITCHELL REPAIR INFORMATION COMPANY 1 ..,-1 "A.JIf06n~. '" 'WI N-2000-1 19 IIFI CI rt::1/j. ~t'Ulr INSURANCE NOT REQumi:.uiw","" Information CDmpany WORK MAY PROCEED CJ) Mitchel/Repair Information Company 9889 Willow Creek Rd San Diego CA 92131 CLERK OF COUNCIL DATE: t ~ /~-tJ,) (.: ~~ END USER LICENSE AGREEMENT I' (11''/ This END USER LICENSE AGREEMENT (the "Agreement") is entered into as of the Effective Date (as defined on the signature page hereto) by and between MITCHELL REPAIR INFORMATION COMPANY ("Mitchell"), and: CITY OF SANTA ANA (a charter city & municipal corporation) 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 ("End User"), with respect to the following facts: A. End User desires delivery of a Mitchell Computerized Repair Information Systems (the "System") as indicated in Section 3 of this Agreement NOW. THEREFORE. for valuable consideration. receipt of which is hereby acknowledged, the parties agree as follows: I. Term. The term of this Agreement shall commence upon the date of execution of this Agreement by Mitchell ("Effective Date") and shall remain in full force and effect for either twelve (12), twenty-four (24) or thirty-six (36) months as defined as "Term" on the Order Form attached hereto. This Agreement may be renewed by End User for successive twelve (12) month terms at the end of the initial term and on each anniversary of the Effective Date thereafter. unless Mitchell declines to renew, by giving notice in writing to the End User at least thirty (30) days prior to the anniversary of the Effective Date. Termination of this agreement shall not terminate End User's obligations under Sections 2, 4. 5. 8, 9, 10 and ] L 2. License. Subject to the terms and conditions of this Agreement, Mitchell grants to End User a nonexclusive and non-trnnsferab]e license to use the System. The System may be used solely (I) by End User, (I]) for the purpose of accessing data on the System, (1I1) or conducting shop management Mitchell shal] retain title at all times to the System, and End User shall have no rights therein except to use the System as set forth herein (End User may continue to use the System upon expiration of their System subscription, except as a result of an Agreement breach by End User). Upon expiration of the system subscription, End User will not be entitled to technical or content support. 3. Mitchell Computerized Repair Information System: Mitchell Computerized Repair Information System selected by End User: (Indicate all that apply.) 4. Price and Payment Terms. In consideration of the license fee set forth herein, End User shall pay to Mitchell the End User Fees and any multi-user fees (collectively, the "End User Fees") set forth in the Price List or Order Form incorporated herein in its entirety by reference. Mitchell may change the Price List at any time during the term of this Agreement or thereafter. The End User Fees du not include sales, use. excise. or other similar taXes, all of which are the obligation of End User. Mitchell offers multiple payment plans for continuing service for the second and subsequent years set forth in the Price List or Order Form. 5. Maintenance of Equipment and Software. End User, and not Mitchell, shall bear sole responsibility to obtain. maintain and operate, or cause to be obtained, maintained and operated at its own expense, all equipment and non-Mitchell software that may be used in conjunction with the System. Mitchell On-Demand Mitchell On-Demand for Transmissions Mitchell On-Demand Truck Edition _ Mitchell Mechanical Parts and Labor Estimating _ Mitchell Management Solutions: Series 1/1ll2000 _ Other (Specify) 6. Confidentiality, (ProDrietarv Ril!.htsl End User acknowledges that the System, comprises information which constitutes a trade secret of Mitchell in which Mitchell has a proprietary interest End User therefore agrees that no portion of the information constituting the System will be disclosed to others, copied, reproduced, disseminated, broadcast, displayed, reverse engineered, disassembled, compiled or used for any purpose or purposes other than as specifically contemplated by this Agreement in paragraphs" A" and "2" above. End User shall exercise its best efforts to protect the System and to prevent its dissemination to unauthorized persons. Furthermore, End User shall not assign, pledge. sublicense or permit any other use of the System without obtaining the prior written consent of Mitchell, which consent may be withheld at the sole discretion of Mitchell. End User shall immediately return to Mitchell all System discs and other information together with all copies and derivatives thereof immediately upon the (I) receipt of replacement discs or information and a return request statement, or (ii) termination of this Agreement. 7. Mitchell System Modification. Mitchell reserves the right to make changes in rules of operation, security measures, accessibility, procedures, types of terminal equipment, types of system equipment, system progranuning languages and any other matters ...,.I...t~........- 1.... t1..,. ~~'If't<>..... ...roo,.;! ,tlf' IU"'" Ur11-'h"nt ~^.. ...""f;;"..... , 8. Updates. Mitchell may update thr 'stem data ("Data Updates") from time to tim' 'ring the course of this Agreement and shall deliver any such Data Updates to End User dIMrIg the term of the license as determined by rvWell. Upon receipt of revised or replacement CD-ROM discs and/or floppy diskettes, End User agrees to destroy all previous discs, or return them to Mitchell upon request 9. Warranty. THE SYSTEM IS DELIVERED "AS IS" AND MITCHELL MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WIlli RESPECT TO THE SYSTEM OR THE DATA UPDATES, THE COMPUTER PROGRAM ALLOWING USE OF THE SYSTEM, OR ANY SERVICES PERFORMED BY ANY THIRD PARTY. IN PARTICULAR, MITCHELL DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR- FREE. End User acknowledges and agrees that (I) Mitchell is not the manufacturer or distributor of any automotive repair parts referenced in the System, (II) Mitchell makes no representations or warranties with respect to the quality or availability of such parts or the accuracy of the prices of such parts and (Hi) if End User utilizes any non-Mitchell-supplied interface program to interface with the System, End User shall look solely to the vendor of such interface program with respect to any losses or damages caused by such interface program. Mitchell is not responsible for obsolescence of the System and Data Updates and shall have no responsibility for suspended, outdated or uncorrected versions of the System and Data Updates. 10. Limitation of Liability. End User agrees that Mitchell shall not be liable to End User for any direct, indirect, special, incidental or consequential damages, including but not limited to loss oJ anticipated profits, in connection with or arising out of the use of the System and Data Updates. End User's sole remedy upon breach of this Agreement by Mitchell, that Mitchell is unable to cure after a reasonable notice period, shall be termination of the Agreement and refund of unearned portions of the End User Fee. End User agrees to indemnifY Milchell and hold it harmless ag/linst all claims and damages, including without limitation, reasonable attorney's fees arising out of End User's use of the System and the Data Updates, unless such claims or damages result from, or unless End User's authorized use of the System has given rise to claims or damages based on the infringement of any copyright or other proprietary right of any Third party. 11. Termination. The following actions by the End User shall constitute a breach of the Agreement and shall allow Mitchell to terminate the Agreement immediately upon notice: any use or dissemination of the System or Data Updates which is not expressly permitted herein; the appointment of a receiver to lake possession of End User's assets or the institmion of bankruptcy by or ag/linst End User; dissolution or discontinuance of business operations of End User; or, failure to make timely payment to Mitchell of the End User Fee. including any renewal fee. Immediately upon the effective date oJ termination of this Agreement, End User shall cease using the System. shall return the System, Data Updates, and all Mitchell documents and information pertaining thereto, and shall certifY to Mitchell in writing that the System and all Mitchell documents and ioJorrnation pertaining thereto have been returned. Upon termination of this Agreement by Mitchell for any such cause, End User shall not be entitled to any refund of the End User Fees. 12. General Provisions. 12.1 Entire Agreement This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter hereof and supersedes all prior discussions between them. 12.3 Assignment. End User may not assign its rights or delegate its duties hereunder without first securing the permission to do so from Mitchell, which permission may be withheld at the sole discretion of Mitchell. For purposes of this section, the End User shall be deemed to have assigned this Agreemeut if there is, in the aggregate, a change of ownership of 25% or more of End User or a merger or combination of End User with another entity of business, whether End User is the surviving entity or not Any such attempted conveyance shall be void and shall constitute a default entitling Mitchell to terminate this Agreemeut. Mitchell may freely assign its rights hereunder without securing End User's permission to do so. 12.4 Choice of Law and Forum. This Agreement has been entered into under the laws of the State of California and the parties hereto agree that it shall be interpreted, and all disputes arising hereunder shall be resolved, in accordance with California law. All disputes arising hereunder shall be heard by a court of competent jurisdiction in the County of Orange, Slate of California. 12.5 Waiver. Failure oJ either party hereto to eoIorce at any time any term of this Agreement shall not be a waiver of that party's right thereafter to eoIorce each and every terrn of this Agreement TIIE UNDERSIGNED AGREE TO TIlE lERMSAND CONDmONSSET FORlH ABOVE AND ON TIIE REVERSE SIDE OFTIDS PAGE. IN WITNESS WHEREOF, the parties hereto bave executed this Agreement on the respective dates indicated below. End User/Owner By: Title: Printed Name: Date: Address; // ./' /' /' " Accepted by; MITCHELL REPAIR INFORMATION CI.... By: ./ Title: ~ Printed Name: ./' Effective Date: /' Address; 9889 WilloW Creek Road, San Diego, CA 92131 J-;"JL-17~00 ID.818 530 8986 PAGE 2/2 ~,<9,'.'"'",,",'.',,,' ......:C.;., ir" ~ Information Company Mitcbe/jlepait IDfonnalion Company l''ET\VORKEND USER LICENSE AGREEMENT This Addendum to the Mitchell Computerized Repair Information Sl"'em (the "SYStem") End User License Agreement (the "Agreemenf') is enfered into as of the Effective Date below l>yand l>etwee:n IvllTCHELL REPAD{ INFORMATION COMPANY ("Mitchell"), aDd; CITY OF SANTA ANA REF #309851 ATTN: BRUCE FRUCHTER OR TERRY PRICE 215 S CENTERSTBLDG J SA.'!TA ANA, CA 92703 714-647-3360 ("End User"), with respect to the following facts: Number of licensed network users: ON.DEMAND: we;; WIN95: Novell: WFW: MEeH. EST. WIN: Series I '>VIN: Series II: Network Server Information: Computer Manufacturer: Computer Model: Floppy Disk Size 3.5": 5.25": CD Drive Mfg./Model: Hard Disk Capaciry: MB Ram Printer Mfg.&lodel: MB Ram ON-DEMAND: DOS: Novell: lantastic: Workstation Information: # oflS'etwork WorkstRtions: Computer Manufa crurc:r; Computer Model: Floppy Disk Size 3.5": 5.25"; CD Drive l\ffg./Model: Hard Disk Capacity: MB Ram Printer MfgJ Model: MB Ram LieellSC Grant in addition to the rights set forth in Section 2 of me AgrCl:lIlcnt, Mitchell herel>y sn,nts to End User A non-<Oll;clusive, non- transferable right lIlld license to use the System on a network for no more than tho number ofliceDsed users at the location listed above operating on the computer equipment descnbed in the Agreement. All otherTOIlIl$ lIlld Conditions of the Agreement shall remain in full foree and effect. In addition. End Users may not: Copy the nerwork System; Download the System, except for lIll End User's authorized use; Allow data from the System to be made available to non-Vsers, except in print form only as incid<ntal samples used for illustrative or demonstration pwposes; Assign, sell or pass along nerwork System data: Provide services for a fee using the System without prior wnttRn agreement from Mitchell. 2. Audit End User grants Mitchell the right to enter the authorized location to conduct periodic audits of me authorized loeation to monitor and confirm use of the ne\Wotk System. THE UNDERSIGNED AGREE TO THE TER..\IS AND CONDITlO::>S SET FORTH ABOVE. IN \'nTIlESS WHEREOF, the parties berelO bave executed tjris Agreement on tbe respective dales indicated below End User/Owner: Accepted by :MITCHELL REPAIR lNFOR..\1ATlON COMPANY Title; Printed Name; Date: Address: City: State: Zip: Title: Printed Name; Effe<:tiveD.te: August 7 I 2000 Signann:e: Date: Si:nature: Date: NOTE: Mitchell will notaeccpt Network System orders without a duly executed copy of a Mitchell Computerized Repair Information End User License Agreement (attached nr on file at Mitchell) lIlld the Network End U,er License AgreL'InCI1t '''L-17-00 !0.37 FROM.MITCHELL 10.618 530 8888 PAGE 1/2 v.~ . ..__.".....__......-.....""'.loJv.Vlc..v ...:. ,,'.J REIIITTOt FROM THE US: Miu:hdl1rlflfOfll'Wion~V_fiUlll6OOOO_....0 Box731OO-SaM...."CO.CA941BO-3199 FROII CAHAD... """""'-~"nl"""."'" Company-p,O. eo.< 7425- """"'" Sla1ionA- _. ON MSW:lC. Canada ~. ,?-, ,/"1/ ~PONDf:NOE: 988S 1NiKow~(.1'-fl'.O. 8cm 262fi0- san Diego, CA921~$.0::260-(88$} 7U8742-~19) 549-?"eO& 'J..,L.JI-rL- FtderafIDNo.33-0734307... GSrNo.S97'11'835ORTOOOlS -,....; \ _ PIIT._, OCOD DPIlEI'AY 0- DC:lW)rrCARo 0- ~"O.NO. ..L.........y6ILE: STRUT ADClRUS ACCouNT NO. l g I/" eoNPANY HAIlE f'7 I. I 1- ATTENTION JP> It') (I .-:- 1/"'-:; ~ 7A trll-1 , TEl.B'llOItE 1"7 I f<.Il/" -'f17j<1L~Vb III DATE ",,'F 5A 71A IAI/!A ~f/~~ITI~~I/~rlep~ pel7~v '7 0;;-1, / Irll' n I If. [ ':::I) IAIL If] STIPIlOV ~ :ap' :::7,"10rl':/r: I r.lKT. 51!<>. DlIYI'Il crrv NEWACCOUNT DYES DNO DCIlECKDox,FcLWIT,N_nONHASctlANGED I - tT_1nar J NO~ I I " h CJf"""'l CORP ID , CORP NAME BlU TO NO. V TELEPIIOHE eoUPANY MAIm LEAsE cor ATTanlOH fvaI I NOI STREET LEASE NO. AI>DRESS , crrv $TJPIIOY ZIP I I I TIlANSFERITIIIJ] SHIP TO 0- DcuSTOMEll DOTItER V.--'NFO. PRODUCT QTY NET PRICE SOURCECOtIE DLV"D (VERI ~ a; ... ... ::) I&. fPy't, OOWN PAYMENT MONTHI.Y SOURCE CODE DLV"D PRODuCT QTY PAYMENT . /VERI Do > U TOTAL /2) 131 co CADDIES DyES DNO o VISA 0 IIiIASTERc.AIlD D"'SCOVER DAME![ CAIIIltIOLDER NA.... ::NO. EXP{IIIJ SPECI.<IL IHSTRIJCnONSo ANNUAL AMOUNT (1) DOWN PAYMENT (2) POSTACE a HANDUNQ COD CHAIlOE *TAX *TAX TOTAL BALANCE DUIi MONTHLY PAYMau (3) 'ttax iJ/f); h 0 l Pj 0 ....... r "'l "IF'TU EXEIIP'T, ATTACtf EXE&IP'I' Cli:RTIPICATE ~::.n;HA~~tf;!J::;tft; ) $OPt "'" ., ~ . . MITCHELL REPAIR INFO~ATION SERVICE (under $1 OK) ....", IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: d-~~~4P~ ~~m.iaE.Helliy Clerk of the COlL'1cil CITY OF SANTA ANA a municipal corporation of the State of California ~ ~/)~ City Manager APPROVED AS TO FORM: Joseph W. Fletcher CITY ATTORNEY ~ti.f~ Lisa E. Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: - -11itc:~11 Ri~~ation Co~any Name: -::::z::::>~/--z. W/.//~J Title : ~/"""6^~ s;., ~ Employer ID # ,{)tJn7D