Terms & Conditions

PARAMOUNT DATA MANAGEMENT INC. TERMS OF SERVICE

Effective Date: August 31, 2020

THESE TERMS OF SERVICE (“TERMS”) APPLY TO YOUR COMPANY’S USE OF THE PARAMOUNT DATA MANAGEMENT PLATFORM (“PLATFORM”) PROVIDED BY PARAMOUNT DATA MANAGEMENT INC. (“PDM”). PLEASE READ ALL OF THE TERMS AND CONDITIONS OF THE FOLLOWING TERMS CAREFULLY.

BY USING THE PDM PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE READ ALL OF THE TERMS; (II) YOU UNDERSTAND ALL OF THE TERMS; AND (III) YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO ALL OF THE TERMS SET FORTH HEREIN.

IF YOU DO NOT AGREE WITH ANY OF THE TERMS, YOU MAY NOT ACCESS OR USE THE PDM PLATFORM.

1.     DEFINITIONS

1.1 “Company” means the entity executing these If Company is a service provider acting on behalf of another entity, Company represents that it has the right to act on behalf of its client and to bind both itself and its client to these Terms.

1.2 “First Party Data” means data sourced from Company. First Party Data may be Company’s own data or data Company licenses from a third party.

1.3 “PDM Materials” means all Third Party Data or other materials made available on the PDM Platform.

1.4 “PDM Platform” means the online data management platform through which Company may obtain Third Party Data and/or manage First Party Data which may include access to certain application programming interfaces (APIs).

1.5 “Third Party Data” means third party data on the PDM Platform, not sourced from Company.

2.     PDM PLATFORM

2.1 Access to PDM Platform. Company must provide an email address and secure password to access to the PDM Platform. Company must maintain the security of those Each agent, representative, employee, or any person or entity acting on Company’s behalf with respect to the use of the PDM Platform will be subject to and will abide by this Agreement.

2.2 Suspension. If Company is in breach or default of any obligation under this Agreement, PDM may, in addition to any other rights and remedies, block or restrict Company’s access to the PDM Platform, and otherwise suspend performance under this Agreement, without liability.

2.3 Access to Third Party Data. In order to access Third Party Data through the PDM Platform, Company must be (i) granted access to specific Third Party Data by the relevant third party or (ii) have valid credentials with third party platforms and permission from the third party to access the Third Party Data. Company’s access to the applicable Third Party Data on the PDM Platform is subject to the continued approval from such third party or validity of Company’s credentials and approval on third party Company must seek approval for such access; PDM does not make any guarantee that Company will be entitled to access any specific Third Party Data.

2.4 First Party Data. Company may also provide First Party Data that it wishes to make available to other users as Third Party Data or that it wishes to remain private and only accessible to Such First Party Data may be sourced either directly from Company or from a third party that has granted Company rights to upload to the PDM Platform.

3.     DATA RIGHTS

3.1 Inbound License to First Party Data. If Company imports and edits First Party Data on the PDM Platform, Company grants PDM a nonexclusive, worldwide, royalty-free, sublicensable license to (a) distribute First Party Data through the PDM Platform, if Company grants access to other companies; (b) use, copy, reproduce, distribute, and make derivative works of First Party Data for the purpose of providing the PDM Platform and related services to Company; and (c) use First Party Data in connection with PDM’s improvement of the PDM Platform and related PDM products and services. Unless Company specifically makes the First Party Data private, certain of the First Party Data will be available to all users of the PDM Platform (such as brand name, product list, part number/name/image), but full access to First Party Data will only be made available to companies specifically approved by Company. Once Company has indicated that a particular company may access the First Party Data, PDM will permit such access until Company notifies PDM to revoke the access or PDM revokes the user’s access to the PDM Platform. PDM is not liable to Company for any use or misuse of the First Party Data by any permitted PDM Platform user. Company represents and warrants that it has all the necessary rights and licenses to make the First Party Data available through the PDM Platform and that such First Party Data was collected in accordance with applicable laws, rules and regulations.

3.2 Outbound License to Third Party Data. If Company obtains Third Party Data from the PDM Platform, subject to the terms of this Agreement, PDM hereby grants Company a limited, nonexclusive, nontransferable, nonsublicensable license to use the Third Party Data obtained through the PDM Platform solely in connection with Company’s sale of products. Company may independently obtain additional rights to modify, use or share specific Third Party Data from the applicable Manufacturer, but PDM is not required to seek such rights on Company’s behalf. Company may allow service providers to use Third Party Data on Company’s behalf, so long as the Third Party Data is used for the sole benefit of Company and not for any third party. Company is responsible for all use of Third Party Data by its service providers and for their compliance with all terms of this Agreement. Company acknowledges that PDM is just providing a platform for providing the Third Party Data and has no obligation to independently confirm the accuracy of any data received from Manufacturers.

3.3 Reservation of Rights; Restrictions. The PDM Platform and PDM Materials are licensed, not sold, by PDM to Company. Company will not, and Company will not allow any or any third party to do, any of the following: (a) share, reproduce, license, distribute, publicly perform or publicly display, lease, rent, transfer, resell or otherwise dispose of the PDM Materials except as expressly set forth herein or separately permitted by a Manufacturer; (b) modify, alter or create any derivative works of the PDM Materials; (c) reverse engineer, disassemble, decompile or attempt to uncover the source code for or any trade secrets related to the PDM Platform or PDM Materials; (d) work around any technical limitations in the PDM Platform; (e) use the PDM Platform or PDM Materials to create a competing product or service; (f) use the PDM Platform or PDM Materials other than for its intended purpose; or (g) use the PDM Materials or Platform in violation of applicable laws, regulations and self-regulatory requirements.

4.     FEES

4.1 Free Account. If Company has registered for a free account, no fees will be charged to Company for its use of the PDM Platform.

4.2 Paid Account. If Company is using a paid account, Company will be charged a monthly or annual fee as set forth in the Order Form.

4.3 Optional Services. Optional Services, such as export, API access, or other custom integration work, will be charged at the fees set forth in the Order Form.

4.4 Payment Terms. PDM will invoice Company on a monthly or annual basis unless otherwise set forth in an Order Form. Fees are in United States Dollars and are non-refundable. Company will pay all amounts due within 15 calendar days of Company’s receipt of the Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Company will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by PDM to collect any amount that is not paid when due. Other than federal and state net income taxes imposed on PDM by the United States, Company will bear all taxes, duties, and other governmental charges relating to Company’s use of PDM Data or the PDM Platform.

4.5 Billing Contact. Company must provide current billing contact Company is responsible for all charges due to inaccurate billing contact information.

5.     TERM AND TERMINATION

5.1 Term. This Agreement will commence on the Effective Date and will continue until terminated pursuant to this Section 5.

5.2 Termination. PDM may terminate this Agreement or restrict all or part of Company’s access to the PDM Platform at any time for any reason. If Company has a paid account, such termination will be effective at the end of the month for which Company has prepaid for access. If Company is using a free account, the termination will be effective immediately. Company may cease use of the PDM Platform at any time. Company will not receive a refund of any prepaid fees.

5.3 Effect of Termination; Survival. Upon termination of this Agreement, Company will delete all PDM Materials in its possession and will, upon request from PDM, certify in writing (signed by an officer of Company) that it has done so. Any of Company’s First Party Data that was made available to other users will be removed from the PDM Platform deleted according to PDM’s standard deletion policies (except that aggregated First Party Data may continue to be used for product improvement). Sections 3.1(d), 3.3, 4.4, 5.3, 6, 7, 8, 9 and 10 and any payment obligations will survive any termination of this Agreement.

6. DISCLAIMER OF WARRANTIES.

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PDM PLATFORM, PDM MATERIALS, AND ANY SERVICES PROVIDED BY PDM IN CONNECTION WITH THIS AGREEMENT, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. PDM EXPRESSLY DISCLAIMS, ON ITS BEHALF AND ON ITS SUPPLIERS’ BEHALVES, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF PDM OR ITS SUPPLIERS TO ANY THIRD PARTY.

7.     INDEMNIFICATION

7.1 By Company. Company will indemnify, defend, and hold harmless PDM and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, incurred by PDM in connection with any actual or threatened third-party claim arising directly or indirectly from (i) Company’s or its permitted agents’ use of the PDM Platform or any PDM Materials, (ii) Company’s violation of applicable laws, rules and regulations, or (iii) any Third Party Data or other materials uploaded by Company to the PDM Platform.

7.2 Obligations. All indemnification obligations under this Agreement will be conditioned upon: (i) prompt written notice by PDM to Company of the claim for which indemnity is sought; (ii) reasonable information, assistance and cooperation by PDM, at Company’s expense, in defending or responding to the claim as the Company may request; and (iii) complete control and sole authority by Company over the defense and settlement of the claim, subject to PDM’s approval of any such settlement, which will not be unreasonably withheld or delayed.

8.     LIMITATIONS OF LIABILITY

8.1 Disclaimer of Consequential Damages. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 3.3, COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCURRING.

8.2 General Cap on Liability. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 3, COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES WILL A PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID OR PAYABLE BY COMPANY TO PDM UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE DATE OF THE ACTION OR CLAIM OR (B) $10,000.

8.3 Independent Allocations of Risk. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHERS, AND EACH WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

9.     GENERAL

9.1 Confidentiality. In the event that the parties have signed a mutual confidentiality or nondisclosure agreement (“NDA”), the terms and conditions of such NDA will apply to this Agreement. If no NDA is in place or the NDA terminates prior to the termination of this Agreement, the parties agree to the following: Each party agrees to retain in confidence all non-public information, trade secrets and know-how disclosed by a party pursuant to this Agreement which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (the “Confidential Information”). The PDM Materials are Confidential Information of PDM and/or the Manufacturers. Each party agrees to: (a) preserve and protect the confidentiality of the Confidential Information: (b) refrain from using the Confidential Information except as contemplated herein; and (c) not disclose the Confidential Information to any third party except to employees as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees). Notwithstanding the foregoing, a party may disclose Confidential Information which is: (i) already publicly known; (ii) discovered or created by a party without reference to the Confidential Information; (iii) otherwise known to a party through no wrongful conduct or (iv) required to be disclosed by law or court order.

9.2 Relationship. This Agreement will not be interpreted or construed as (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting either party from collecting, licensing, or otherwise dealing in data or information from any third party.

9.3 Privacy. PDM will treat Company’s personal data in accordance with the terms of its Privacy Notice, available at https://pdm-automotive.com/privacy/. By using the PDM Platform, Company agrees that PDM’s processing of its personal data complies with all privacy laws applicable to its role as a platform provider.

9.4 No Third-Party Beneficiaries. The provisions of this Agreement are for the benefit of the parties to this Agreement and not for any other person or entity.

9.5 Assignability. Company may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of PDM. Any such assignment will be void and of no force or effect. PDM may assign this Agreement without restriction. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

9.6 Notices. Any notice under this Agreement will be effective if in writing and sent by email (read receipt requested), facsimile, certified or registered mail, or insured courier, return receipt requested, to a party at its address below. Each party may update its address by notice to the other party in accordance with this section.

9.7 Force Majeure. Neither party will be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control (including, without limitation, the other party’s act or failure to act).

9.8 Governing Law. This Agreement and Company’s use of PDM Data will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 N. Convention on Contracts for the International Sale of Goods. Each party hereby consents irrevocably to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington, in connection with any action arising out of or in connection with this Agreement.

9.9 Dispute Resolution; Arbitration. Any disputes between the parties arising out of this Agreement shall be resolved as follows: members of the senior management of both parties shall meet to attempt to resolve such If a dispute cannot be resolved within thirty (30) days, the dispute shall be settled by binding arbitration conducted in accordance with the JAMS procedures pursuant to its Streamlined Arbitration Rules and Procedure, by a single arbitrator, in Seattle, Washington. The arbitrator shall be selected as provided in the Streamlined Arbitration Rules and Procedure. Unless provided otherwise herein, the arbitrator may not award non-monetary or equitable relief of any sort. The arbitrator shall have no power to award damages inconsistent with this Agreement. No discovery shall be permitted in connection with the arbitration unless it is expressly authorized by the arbitrator upon a showing of substantial need by the party seeking discovery. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a party shall give written notice to all other parties and shall afford such parties a reasonable opportunity to protect their interests. The result of the arbitration shall bind the parties, and judgment on the arbitrator’s award may be entered in any court having jurisdiction. Each party shall bear its own costs of the arbitration. The fees and expenses of the arbitrator shall be shared equally by the parties.

9.10 Waiver. Either party’s waiver of any breach of any provision of this Agreement does not waive any other Either party’s failure to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such party’s right to demand strict performance in the future.

9.11 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.

9.12 Updates. These Terms may be updated from time to time. Such modifications will be effective thirty (30) days after the updated Terms are published on this If Company does not agree to the updated Terms, Company’s sole remedy will be to cease use of the PDM Platform.

9.13 Entire Agreement. This Agreement, including all terms and policies referenced in this Agreement (and an NDA, if applicable), and the terms of any order for PDM Materials under this Agreement, constitute the final and complete expression of the agreement between Company and PDM regarding their subject matter. This Agreement supersedes, and its terms govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of PDM has any authority to bind PDM with respect to any representation, warranty, or other expression unless it is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the provisions of this Agreement.