COLLISION CORE CUSTOMER AGREEMENT

Last Updated July 31, 2024

This Agreement (“Agreement”) is by and between The Sherwin-Williams Company, together with its subsidiaries, affiliates, and brands (“Sherwin-Williams,” “we,” “our,” or “us”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer” or “you”) for the provision of automotive shop software solutions known as “Collision Core,” including Collision Core Scorecard (“Scorecard Service”), and Collision Core Inventory (“Inventory Service”) (each, a “Service,” and collectively, “Services”). Customer acknowledges that the Services are provided at no cost. This Agreement governs Customer’s use of one or more of the Services.

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “I ACCEPT,” YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. YOUR USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT USE THE SERVICES. YOU SHOULD ONLY ACCESS AND USE THIS PORTAL IF YOU HAVE BEEN AUTHORIZED TO DO SO BY AND ON BEHALF OF A CUSTOMER AND ARE AUTHORIZED TO ENTER INTO THESE TERMS FOR AND ON BEHALF OF CUSTOMER AND TO BIND CUSTOMER TO THESE TERMS. IN CONSIDERATION OF THE SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:

THIS PRODUCT IS PROTECTED BY COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS. THIS PRODUCT IS OFFERED AS A SERVICE AND NOT SOLD.

1. REGISTRATION.

A. Portal Account Registration. Customer agrees it must have, or register for, an account on the Collision Core Registration Portal (“Portal”) and register for the Services. By having a Portal account, Customer represents that (i) the information provided for the Portal account is accurate; (ii) Customer has not previously been suspended or removed from the Services; and (iii) Customer’s use of the account complies with any and all applicable laws and regulations.

If you create an account, you are solely responsible and liable for the security and confidentiality of your access and for all activity under your account. You will not sell, transfer, or assign your account or any account rights or share your login credentials.

2. RIGHTS TO USE; RESTRICTIONS ON USE.

A. Rights to Use. Subject to Customer’s compliance with this Agreement, Sherwin-Williams (i) authorizes Customer to use the Services, and (ii) grants Customer a non-exclusive right to use the Services in furtherance of Customer’s business purposes. All rights not expressly granted herein are reserved by Sherwin-Williams. Customer agrees that: (a) Sherwin-Williams and its licensors retain all copyrights and other intellectual property rights in the Services, any related documentation, and all associated trademarks and logos except for those trademarks and/or logos subject to Paragraph 2.C below (collectively “Intellectual Property”); and (b) Customer acquires no ownership in or to the Intellectual Property. Customer acknowledges that Sherwin-Williams may change or discontinue any of the features of the Services (or the Services as a whole) from time to time, in its sole discretion.

B. Restrictions on Use. Customer shall not: (i) share, lend, sublicense, resell, rent, distribute, or otherwise make the Services available, in any manner whatsoever, to a third party, other than as expressly permitted by Sherwin-Williams; (ii) modify, adapt, create derivative works from or translate any part of the Services other than what may be used within your work in accordance with this Agreement; (iii) circumvent or otherwise interfere with any authentication or security measures of the Services; (iv) transmit material containing software viruses or other harmful computer code; (v) reverse engineer, decompile, or disassemble the Service; (vi) attempt to alter or remove any trademark, copyright, or other proprietary notice contained within the Services; or (vii) make use of the Services in any manner not stipulated within this Agreement or the documentation accompanying the Services, including using the Services on behalf of any third parties or providing third parties with access to the Services other than as expressly permitted by Sherwin-Williams. You agree to comply with all applicable laws, statutes and regulations. You acknowledge and agree that the Scorecard Service is provided for your convenience and is not financial reporting software and should not be used as such. It should not be solely relied upon for business decisions.

C. Grant of License. Global Distributor Service Customers agree that by uploading your trademark and/or logo to the Services, you hereby grant to Sherwin-Williams a revocable, worldwide, non-exclusive, non-transferable, royalty-free license to display your logo and other trademarks for purposes of providing the Services. You represent that you have the full right and authority to grant the above license to Sherwin-Williams.

3. UPDATES/UPGRADES.

We may make available maintenance of or a fix to a version of the Services, with or without notice, including, but not limited to a hot fix, patch, or enhancement (“Update”), as well as a major, standalone version of the Services, which may include additional applications, features, or functionalities (“Upgrade”). Should you elect to make use of these Updates or Upgrades, you are agreeing to continue to be subject to the terms and conditions of this Agreement. There is no representation or guarantee as to Service uptime or availability and no compensation will be given for Service downtime or unavailability.

4. DATA PRIVACY AND SECURITY.

A. Use of Information. Customer acknowledges that, in order for Sherwin-Williams to provide the Services, Customer will be submitting certain personal and business data, such as customer, inventory, and business information (“Data”), to the Services, either directly or via integration with a third-party software application (e.g., a management or estimating application). We may use the Data, including in anonymized and/or aggregated form, for our business purposes including to help improve the Services, document product usage, analyze trends, develop predictions and statistical analyses, develop alerts and self-guidance, and provide reports to third parties, including collision centers and original equipment manufacturers.

B. Data Privacy. 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 to use the Data as contemplated by this Agreement. We will use your personal data in accordance with law, and in the manner set forth in our Privacy Policy that is incorporated into this Agreement.

C. Scorecard Customer Data. Scorecard Service Customers acknowledge that this Agreement is subject to a third-party agreement (“Data Sharing Agreement”), which states that (i) Sherwin-Williams’ third-party service provider ClaimsCorp Inc. (“ClaimsCorp”) will be connecting a data service to Customer’s automotive shop management or estimation software system, and (ii) through this data service, ClaimsCorp will be collecting data pertaining to vehicle repairs, including, but not limited to, repair order number, VIN number, and repair facility information (“Scorecard Customer Data”). As between Customer and Sherwin-Williams, Customer exclusively owns all rights, title and interest in and to the Scorecard Customer Data. Customer acknowledges and expressly agrees that ClaimsCorp will share this Scorecard Customer Data with Sherwin-Williams for Sherwin-Williams’ use in providing Customer with the Scorecard Service and as otherwise permitted in this Agreement. ClaimsCorp will not use or share Scorecard Customer Data for any other purpose. Customer hereby grants to Sherwin-Williams a royalty-free, fully-paid, non-exclusive, non-transferable, sub-licensable to ClaimsCorp, worldwide license to use and process Scorecard Customer Data for the purpose of: (i) providing the Scorecard Service to Customer, including any necessary support; (ii) improving the software; (iii) identifying trends and developing predictive analyses; (iv) developing industry benchmarking, for example across regions and demographics; and (v) any other activities expressly agreed to by Customer. Customer acknowledges that any Scorecard Customer Data used in the analyses and reports identified at this Section 4(C) shall be in aggregate form, and that such reports and analyses may be shared with third parties, including other collision centers and original equipment manufacturers. Customer acknowledges that Sherwin-Williams may share Scorecards with members of the Sherwin-Williams sales team in order to assist Customer in interpreting and implementing learnings from the Scorecards. HOWEVER, IF YOU HAVE A PREEXISTING AGREEMENT WITH CLAIMSCORP, YOUR SYSTEMS AND COLLECTION AND USE OF YOUR DATA IS SOLELY GOVERNED BY YOUR EXISTING AGREEMENT WITH CLAIMSCORP AND NOT BY THIS SECTION.

5. CANCELLATION; TERMINATION.

A. Cancellation. Customer may cancel its access to any Service by contacting Collision Core Support at 1-800-462-0194 or logging into Customer’s account via the Portal.

B. Termination. Sherwin-Williams may, in its sole discretion, terminate the Services upon giving you reasonable notice. Customer acknowledges that Customer’s access to a Service may be immediately terminated upon any violation by Customer of this Agreement. Upon termination, Customer agrees not to attempt to access any of the Services. In the event Customer’s agreement with ClaimsCorp is terminated, Customer’s access to Scorecard will terminate. However, to the extent Customer uses other Services, this Agreement and access to those Services will continue uninterrupted.

C. Effect of Cancellation, Termination, or Lack of Use of the Services. Upon any cancellation or termination of a Service, this Agreement will also terminate, and Customer will immediately lose access to Customer’s account(s) for the Service and will not be able to retrieve any data. In the event that Customer’s account is inactive or Customer fails to use the Services for any sixty (60) day period, Customer acknowledges Sherwin-Williams may, at its sole discretion and without notice, cancel Customer’s account and Customer will not be able to retrieve any data.

D. Effect of Cancellation, Termination, or Lack of Use of the Services on Data Sharing Agreement. Upon any termination of this Agreement as contemplated by Section 5(C), ClaimsCorp will cease sharing Scorecard Customer Data with Sherwin-Williams.

6. THIRD-PARTY SERVICE PROVIDERS.

Customer acknowledges and agrees that Sherwin-Williams does not and has no obligation to control, monitor, or restrict any third-party service provider, including, but not limited to ClaimsCorp. To the fullest extent available under the law, Customer also acknowledges and agrees that Sherwin-Williams is not liable for any issues related to services provided by such third-party service provider, including, but not limited to, the performance, functionality, or security of such third-party service.

7. THIRD-PARTY PRODUCTS.

A. Trademarks. All trademarks that appear in the Services are the property of their respective owners and used for identification purposes only.

B. Disclaimers. The Services may be used by third-parties to sell a catalogue of products, which may include non-Sherwin-Williams products. Sherwin-Williams does not manufacture or direct the manufacture of non-Sherwin-Williams products. The availability of non-Sherwin-Williams products in the Services does not constitute an affiliation or endorsement of any third-party products. Sherwin-Williams is not a reseller or distributor of non-Sherwin-Williams products and your purchase is being made through a third-party reseller or distributor. Sherwin-Williams makes no warranty or guarantees and assumes no liability for the accuracy or completeness of any product description, guarantee, pricing information, non-infringement, reliability, quality, performance, or shipping delays. You are responsible for reading all product instructions, warnings, and labels prior to use. Any dispute as to the purchase of non-Sherwin-Williams products is between you and the distributor or manufacturer of such product. You should contact the distributor about such dispute by calling the support line listed on the homepage of the Services or by other customary means. You agree that Sherwin-Williams will not be liable for any loss or damage of any sort incurred as a result of such dispute.

8. CONFIDENTIALITY.

Sherwin-Williams Confidential Information means all information relating to this Agreement and all aspects of the Services, including development plans, training materials, screenshots, and documentation. Customer Confidential Information means information Customer enters on the Collision Core Registration Portal. Each party agrees to hold the other party’s Confidential Information in strict confidence, use it only as permitted by this Agreement, and exercise reasonable efforts to prevent a disclosure of such Confidential Information. The receiving party agrees to immediately notify the other party in writing of any actual or suspected misuse, misappropriation, or unauthorized disclosure of the other party’s Confidential Information that may come to the receiving party’s attention.

9. LIMITED WARRANTY; DISCLAIMER.

We warrant that the Services will perform materially in accordance with any applicable documentation. Except as expressly provided in this Section, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHERWIN-WILLIAMS DISCLAIMS AND EXCLUDES ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND ARE USED AT YOUR SOLE RISK, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. SHERWIN-WILLIAMS DOES NOT WARRANT THE TIMELINESS, SUITABILITY, OR ACCURACY OF ANY RESULTS THAT CUSTOMER MAY OBTAIN FROM USE OF THE SERVICES. SHERWIN-WILLIAMS DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SERVICES, THAT THE SERVICES WILL BE FREE OF VIRUSES, BE INVULNERABLE TO DISRUPTION, INTRUSION, ATTACK, OR THAT ALL DEFECTS WILL BE CORRECTED. SHERWIN-WILLIAMS SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY, AND ASSUMES NO RESPONSIBILITY, FOR ANY LOSS OR DAMAGE RESULTING FROM OR RELATING TO CUSTOMER’S USE OF THE SERVICES OR RESULTS OBTAINED FROM THE SERVICES.

10. LIMITATION OF LIABILITY.

IN NO EVENT SHALL SHERWIN-WILLIAMS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO THIS AGREEMENT, ANY THIRD-PARTY SERVICE PROVIDER AGREEMENT INCLUDING, BUT NOT LIMITED TO, THE DATA SHARING AGREEMENT, OR THE SERVICE, OR ANY THIRD-PARTY PRODUCTS. The limitations of this Section 9 apply: (i) regardless of the form of action, whether in negligence, contract, tort, strict product liability, or otherwise; (ii) even if Customer is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (iii) even if Customer’s remedies fail of their essential purpose. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF SHERWIN-WILLIAMS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, AFFILIATES, AND SUBSIDIARIES, EXCEED THE GREATER OF (A) THE FEES PAID OR PAYABLE BY CUSTOMER TO SHERWIN-WILLIAMS FOR USE OR ACCESS TO THE PORTAL (IF ANY) DURING THE PRECEDING TWELVE (12) MONTH PERIOD OR (B) $100.

11. INDEMNIFICATION

You agree to defend, indemnify, and hold harmless Sherwin-Williams from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of this Agreement; (ii) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities; (iii) your violation of the rights of any third party including any intellectual property, publicity, confidentiality, property, or privacy right; or (iv) any misrepresentation made by you. Sherwin-Williams reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Sherwin-Williams’s defense of any claim. You will not in any event settle any claim without the prior written consent of Sherwin-Williams.

12. NOTICES.

Any communication between Sherwin-Williams and Customer relating to this Agreement shall be in writing and shall be sent by reputable overnight courier or by certified mail, return receipt requested, to, in the case of Customer, the contact person and address listed for Customer in the Collision Core registration process and, in the case of Sherwin-Williams, to Vice President, Marketing – Automotive, 4440 Warrensville Center Road, Warrensville, OH 44128, with a copy to General Counsel, 101 W. Prospect Ave, Cleveland OH, 44115. Either party may change the address for notice by sending a notice in the manner provided herein.

13. DISPUTE RESOLUTION.

The “Dispute Resolution” Section set forth in the Terms of Use at sherwin-williams.com/terms-of-use shall apply to this Agreement. Such section of the Terms of Use shall be incorporated into this Agreement by reference.

14. MISCELLANEOUS.

A. Successors and Assigns. This Agreement shall be legally binding upon and inure to our benefit, and that of our respective successors and permitted assigns.

B. Waiver. No waiver of either party’s rights under this Agreement shall be effective unless made in a writing signed by an authorized officer of Sherwin-Williams and signed on behalf of Customer. The waiver of a breach of any provision of this Agreement shall not constitute a waiver of a prior, concurrent, or subsequent breach of the same provision or of any other provision.

C. Governing Law. This Agreement shall be governed by Ohio law. Any claim, dispute, or litigation arising directly or indirectly in connection with this Agreement shall be decided solely and exclusively by a state or federal court located in Cuyahoga County, Ohio.

D. Severability. In the event any provision of this Agreement is held to be illegal or otherwise unenforceable for any reason, such provision shall be severed from the Agreement, but the entire Agreement shall not fail on account thereof, and the balance of the Agreement shall remain in full force and effect.

E. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties hereto with respect to the subject matter hereof. No statement or agreement, oral or written, made prior to this Agreement shall vary or modify the written terms hereof. The preprinted terms and conditions contained on any purchase order or other document submitted by Customer to Sherwin-Williams shall not apply to any purchase of subscriptions to a Service.

F. Amendments. Any waiver, supplement, modification or amendment to any provision of this Agreement shall only be effective when done so in writing and published on this website. Sherwin-Williams may modify this Agreement, with or without notice, at any time. Any such modification will supersede all previous versions and shall be effective immediately. Your continued use of the Services constitutes your acceptance of the modified Agreement.

G. Assignment. You may not assign or transfer any part of this Agreement without our written consent.

H. 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.

I. Force Majeure. Neither party shall be liable to the other party for any loss or injury, by reason or cause which is beyond such party’s reasonable control such as delay or failure to perform caused by fire, explosion, strike, shortages or inability to obtain or delays in delivery of key materials or supplies, labor disturbances, governmental actions, emergency declarations, public health emergencies (including employee restrictions), epidemics, pandemics, acts of god, any act of war or terrorism, or any other cause beyond such party’s reasonable control.