END USER LICENSE AGREEMENT
The herein contained End User License Agreement (the "Agreement" or "License" or "EULA")
shall be considered a legally binding agreement between you (an individual or an entity, hereinafter
"Licensee" or "You" or "Your") and SkuSuite, Inc. for the use of the specified software: Collision
Core Inventory which may include related printed material, media and any other components
and/or software modules (the "Product"). Other aspects of the Product may also include, but are
not limited to, software updates and any upgrades necessary that SkuSuite, Inc. may supply to
You or make available to You, or that You obtain after the initial access of the Product, and as
such that said items are not accompanied by a separate license agreement or terms of use.
BY WAY OF ACCESSING OR OTHERWISE USE OF THIS PRODUCT, YOU ARE
AGREEING TO BE LEGALLY BOUND BY THE HEREIN CONTAINED TERMS OF THIS
LICENSE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF
THIS EULA, YOU THEN HAVE NO RIGHTS TO USE OR ACCESS THE PRODUCT AND
SHOULD THEREFORE NOT ACCESS NOR USE THE PRODUCT.
THIS PRODUCT IS PROTECTED BY COPYRIGHT LAWS, AS WELL AS ANY OTHER
INTELLECTUAL PROPERTY LAWS. THIS PRODUCT IS LICENSED AND NOT SOLD.
1. DEFINITIONS AND INTERPRETATIONS
1.01 "Agreement" or "License" or "EULA" shall mean this End User License Agreement.
1.02 "Licensee" or "You" or "Your" shall mean You, the individual or business entity
licensing the Product under of the terms of this Agreement.
1.03 "Intellectual Property" means current and future worldwide rights under patent law,
copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
1.04 "Update" means maintenance of, or a fix to, a version of Product, including, but not
limited to: a hot fix, patch, or enhancement, none of which function as a standalone service or
other software package and which do not have an additional cost for any existing Licensee.
1.05 "Upgrade" means a major, standalone version of Product, which may include
additional applications, features, or functionality.
1.06 A person includes a natural person, corporate or unincorporated body (whether or
not having separate legal personality) and that person's legal and personal representatives,
successors and permitted assigns.
1.07 Words in the singular shall include the plural and vice versa.
1.08 A reference to one gender shall include a reference to the other genders.
1.09 A reference to a statute, statutory provision or subordinate legislation is a reference
to it as it is in force from time to time, taking account of any amendment or reenactment and
includes any statute, statutory provision or subordinate legislation which it amends or re- enacts;
provided that, as between the Parties, no such amendment or re-enactment shall apply for the
purposes of this Agreement to the extent that it would impose any new or extended obligation,
liability or restriction on, or otherwise adversely affect the rights of, any Party.
1.10 A reference to writing or written includes e-mail.
1.11 Any obligation in this Agreement on a person not to do something includes an
obligation not to agree or allow that thing to be done.
1.12 Any phrase introduced by the terms "including", "include", "in particular" or any
similar expression shall be construed as illustrative and shall not limit the sense of the words
preceding those terms.
1.13 References to articles, sections, or clauses are to the articles, sections, and clauses
of this Agreement.
1.14 "We", "us", and "our", means SkuSuite, Inc.
2. LICENSE GRANT. SkuSkuite, Inc. shall grant to You a non-exclusive license for
the use of the Product subject to all the terms and conditions set forth herein. Furthermore, this
EULA shall also govern any and all software Updates and Upgrades provided by SkuSuite, Inc.
that would replace, overwrite and/or supplement the previous version of the Product, unless those
other Updates and Upgrades are covered under a separate license, in which case the terms of that
license will govern. This License shall remain in force during the term of the subscription period
provided in Your separate agreement with The Sherwin-Williams Company (“Sherwin-
Williams”), unless terminated prior to that time as provided herein.
3. TERMINATION. Should You breach this EULA, Your right to the use of the
Product will immediately terminate and shall terminate without any notice being given. However,
all provisions of this EULA, with the exception of the License grant, shall survive termination and
will remain in effect. Upon termination of the License grant, You agree not to attempt to access
the Product.
4. DISTRIBUTION. The Product is developed, provided, hosted, and maintained by
SkuSuite, Inc. and distributed by Sherwin-Williams. You acknowledge that Sherwin-Williams has
no responsibility or control over the functionality or performance of the Product. Sherwin-
Williams disclaims all liability for any loss or damage resulting from or relating to Your use of the
Product, any act or omission by SkuSuite, Inc, or any unauthorized access to, or theft, loss, or
corruption of, any data or information You input or authorize to be input into the Product. You
agree to pay any subscription fees for access to the Product to Sherwin-Williams that may be set
forth in Your separate agreement with Sherwin-Williams, if any. If You do not pay such fees, or
otherwise fail to comply with any terms of Your separate agreement with Sherwin-Williams, You
acknowledge that access to the Product may be revoked pursuant to the terms of that agreement.
5. USE OF INFORMATION. You acknowledge that by using the Product, You
will be submitting certain data, such as inventory and business information (“Data”), to the
Product, either directly or via integration with a third-party software application (e.g., a
management or estimating application). You acknowledge that SkuSuite, Inc. may share such Data
with Sherwin-Williams and You hereby consent to such sharing. Sherwin-Williams may use the
Data to help improve the Software, document product usage, analyze trends, develop predictions
and statistical analyses, and develop alerts and self-guidance. Sherwin-Williams may also use such
data in an aggregate form to develop and provide reports to third parties, including collision centers
and original equipment manufacturers. In addition, SkuSuite, Inc. may make your personal data
available to Sherwin-Williams to allow Sherwin-Williams to offer you features and enhancements
related to the Sherwin-Williams Collision Core suite of services (e.g., single sign-on). You shall
be solely responsible for the accuracy, quality, integrity, and legality of all Data You submit
directly or indirectly and the means by which You acquire the Data. You represent and warrant
that You have provided appropriate notice and obtained appropriate consent, in accordance with
applicable laws, to allow Sherwin-Williams and/or SkuSuite, Inc. to use the Data as contemplated
by this Agreement. You acknowledge that Sherwin-Williams personnel may be placing product orders on your behalf via the Product with your consent.
6. INTELLECTUAL PROPERTY
6.01 PROTECTED PRODUCT. The Product is protected by copyright and other
Intellectual Property laws and treaties, and as such all rights, title, and interest in and to the content
offered, including but not limited to, any photographs, images, video, and text that may be
incorporated as part of the offered content. Such offered content is protected by copyright laws
and international treaty provisions. Therefore, offered content must be treated as any other
copyrighted material, with the exception that it is allowable for You to make copies as provided
by the License. However, printed material, which may accompany any offered content, may not
be copied.
6.02 NO GRANT OF RIGHTS. Except as expressly stated herein, this Agreement does
not grant either Party any rights to the other's content or any of the other's Intellectual Property.
Specifically, SkuSuite, Inc. owns all Intellectual Property rights in Product.
6.03 LIMITED INDEMNITY. SkuSuite, Inc. agrees to defend or at its option to settle,
any third-party claim, suit or proceeding (collectively, "Action") brought against You alleging the
Product infringes any third-party copyright or patent right. SkuSuite, Inc. shall have sole control
of any such Action or settlement negotiations, and SkuSuite, Inc. agrees to pay, subject to the
limitations hereinafter set forth, any final judgment entered against You on such issue in any such
Action defended by SkuSuite, Inc. SkuSuite, Inc. will be relieved of the foregoing obligations unless You promptly notify SkuSuite, Inc. in writing of such Action (unless a delay does not
prejudice SkuSuite’s response to the Action), give SkuSuite, Inc. authority to proceed as
contemplated herein, and give SkuSuite, Inc. proper and full information and assistance to settle
and/or defend any such Action.
Notwithstanding the foregoing provisions, SkuSuite, Inc. assumes no liability for infringement
claims arising from (i) combination of the Product or portions thereof with other software not
provided by SkuSuite, Inc. if such infringement would not have occurred but for such combination,
or (ii) the modification of the Product or portions thereof unless such modification was made or
authorized by SkuSuite, Inc., if such infringement would not have occurred but for such
modification.
7. RESTRICTIONS ON USE. As a Licensee, You may not: (a) Share, distribute, lend,
lease, sublicense or otherwise make available, in any manner whatsoever, to any third party the
offered content; (b) Modify, adapt, create derivative works from or translate any part of the offered
content other than what may be used within Your work in accordance with this License; (c)
Reverse engineer, decompile or disassemble the offered content, nor attempt to locate or obtain its
source code; (d) Attempt to alter or remove any trademark, copyright or other proprietary notice
contained within the offered content; or (e) Make use of any offered content in any manner not
stipulated within this EULA or the documentation accompanying the offered content.
8. UPDATES/UPGRADES. SkuSuite, Inc. may find the need to make available
Updates or Upgrades for the Product, in accordance with the herein contained terms and conditions
of this EULA. It shall be at the sole discretion of SkuSkuite, Inc. to make conditional releases of
said Updates or Upgrades to You upon Your continued acceptance of another EULA. Should You
elect to make use of these updates, You are therefore agreeing to be subject to all applicable
license, terms and conditions of this EULA and/or any other agreement.
9. LIMITED WARRANTY; DISCLAIMER OF WARRANTY. SkuSuite, Inc.
warrants that during the applicable subscription term (a) the Product will perform materially in
accordance with the any applicable usage guides and policies made available by SkuSuite, Inc. to
You, and (b) SkuSuite, Inc. will not materially decrease the overall functionality of the Product.
SkuSuite, Inc. shall use reasonable efforts consistent with prevailing industry standards to
maintain Product in a manner which minimizes errors and interruptions.
HOWEVER, SkuSuite, Inc. DOES NOT WARRANT THAT PRODUCT WILL BE
UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO
THE RESULTS THAT MAY BE OBTAINED FROM USE OF PRODUCT.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS
EXPRESSLY PROVIDED FOR HEREIN AND NOTWITHSTANDING ANYTHING TO THE
CONTRARY, NEITHER PARTY OR ANY OFFICER, DIRECTOR,
SUBSIDIARY, AFFILIATE, OR EMPLOYEE OF EITHER PARTY, MAKES ANY OTHER
WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT.
NEITHER SKUSUITE, INC. NOR ANY OFFICER, DIRECTOR, SUBSIDIARY, AFFILIATE,
OR EMPLOYEE MAKES ANY REPRESENTATION OR WARRANTY ABOUT ANY
CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH PRODUCT.
10. LIMITATION OF LIABILITY AND REMEDIES. In spite of any damages that
You may or may not incur for any reason, which may include, but are not limited to, any and all
direct or general damages, the entire liability of SkuSuite, Inc), along with Your exclusive remedy
with regards to all of the foregoing, shall hereby be limited to the amount actually paid by You for
this Product. The foregoing limitation shall not apply to the obligation of SkuSuite, Inc. under
Section 6.03. The aforementioned limitations, exclusions and any disclaimers shall apply to the
maximum extent allowable by law, even should any proposed remedy fail its essential purpose.
11. MISCELLANEOUS.
11.01 SUCCESSORS AND ASSIGNS. This EULA, in its entirety, shall be legally
binding upon and inure to the benefit of SkuSuite, Inc. and You, our respective successors and
permitted assigns.
11.02 SEVERABILITY. If any provision of this Agreement is held to be illegal, invalid
or unenforceable by a court of competent jurisdiction, the remaining provisions shall not be
affected.
11.03 WAIVER. If there is any waiver of any breach or failure to enforce any of the
provisions contained herein, it shall not be deemed as a future waiver of said terms or a waiver of
any other provision of this EULA.
11.04 AMENDMENTS. Any waiver, supplementation, modification or amendment to any
provision of this EULA, shall only be effective when done so in writing and signed off by
SkuSuite, Inc. and You.
11.05 GOVERNING LAW. This EULA shall be governed solely by the laws of the State
of New York and of the United States. Should any action arise out of or in relation to this EULA,
such action may be brought exclusively in the appropriate federal or state court in Nassau County,
New York, and as such, You and SkuSuite, Inc. irrevocably consent to the jurisdiction of said
court and venue.
11.06 ASSIGNMENTS. You may not assign or transfer any part of this Licensee without
the written consent of SkuSuite, Inc., except that, if a change of control occurs (including a
sale or merger), the Party experiencing the change of control may ensure this License remains in
full force and effect by providing written notice to the other Party within thirty
(30) days after the change of control.
11.07 VALID AND BINDING. This Agreement constitutes a valid and legally binding
obligation of the Parties, enforceable against the Parties in accordance with its terms, subject in all
respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally and general equitable
principles.
11.08 EFFECT OF TITLE AND HEADINGS. The title of the Agreement and the
headings of Sections, and Clauses are included for convenience and shall not affect the meaning
of the Agreement or the Section.
11.09 FORCE MAJEURE. Except for payment obligations, if either Party is prevented
from performing or is unable to perform any of its obligations under this License due to causes
beyond the reasonable control of the Party invoking this provision, including but not limited to
acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor
disputes (each, a "Force Majeure Event"), such Party's performance shall be excused and the time
for performance shall be extended accordingly provided that the Party immediately takes all
reasonably necessary steps to resume full performance.
11.10 CONTACT INFORMATION.
Support@SkuSuite.com