Power Information Network, a business division of J.D. Power and Associates
Access and Use Agreement

PLEASE READ CAREFULLY:

BY USING THE PIN SERVICES YOU AGREE TO ABIDE BY THE TERMS AND CONDITIONS OF THIS ACCESS AND USE AGREEMENT. IF YOU DO NOT AGREE YOU ARE PROHIBITED FROM USING THE PIN SERVICES.

LIQUIDATED DAMAGES

Subscriber agrees to pay Power Information Network, a business division of J.D. Power and Associates, as liquidated damages, $10,000 for each instance in which any portion of the studies, reports, software or other information provided to Subscriber by Power Information Network, a business division of J.D. Power and Associates is disclosed as part of any external advertising or other promotional campaign or communication by Subscriber or any of their employees, officers, directors, affiliates, agents or contractors. Such liquidated damages shall be in addition to all other remedies that may be available to Power Information Network, a business division of J.D. Power and Associates for breach of this Agreement.

1.LICENSE, OWNERSHIP AND RESTRICTIONS ON USE

Subscriber agrees that Power Information Network, a business division of J.D. Power and Associates is the exclusive owner of the studies, reports, data and other information provided by Power Information Network, a business division of J.D. Power and Associates to Subscriber (collectively "Information"), the desk-top software provided by Power Information Network, a business division of J.D. Power and Associates that allows you to view and use the Information (the “Software”), any electronic platform, including those accessed through the worldwide web, which enables Subscriber access to the Information (the “Platform”), and any other media containing the Information or the Software or the Platform, the Power Information Network, a business division of J.D. Power and Associates service marks, including the name Power Information Network, a business division of J.D. Power and Associates, each of the Power Information Network, a business division of J.D. Power and Associates Medallions, and all copyrights, trademark rights and other intellectual property rights with respect to each of the foregoing. Subscriber shall not directly or indirectly use or display Power Information Network, a business division of J.D. Power and Associates' name or service marks without the prior written consent of Power Information Network, a business division of J.D. Power and Associates. Subject to any restrictions or limitations specified in the invoice for the Information from Power Information Network, a business division of J.D. Power and Associates (the "Invoice"), Subscriber is hereby granted a non-exclusive, non-transferable license to use the Information and the Software for a period of five (5) years from the date of the Invoice; provided, however, that the said license for non-exclusive, non-transferable use and access to the Platform (and for any software, if accessed through the Platform) shall be in effect for only one (1) year from the date of account password activation for access to the Platform. Subscriber shall not modify, reverse engineer, decompile or disassemble any of the Software or Platform. Subscriber may access the Software from a hard disk, over a network, or by any other method it chooses, as long as it otherwise complies with the restrictions and limitations of this Agreement and as specified in the Invoice. Subscriber may make a reasonable number of copies of the Software subject to the limitations on use specified in this Agreement. Subscriber shall not provide access to, display, circulate or otherwise disclose any of the Information or the Software or the Platform to any person except employees or contractors of Subscriber who have agreed, for the benefit of Power Information Network, a business division of J.D. Power and Associates, to comply with the provisions of this paragraph 1 (“Authorized Users”). Notwithstanding the foregoing, all support and maintenance by Power Information Network, a business division of J.D. Power and Associates in connection with the Platform shall be for a period of one year from the date of activation, and, with respect to the Software, one year from the date of Invoice. Subscriber shall not use any of the Information or Software except as expressly permitted by this Agreement. Subscriber shall cease using the Information and Software and at the end of the five-year period, and, with respect to the Platform, after the one-year, period, as applicable, for which it is licensed and, upon the written request of Power Information Network, a business division of J.D. Power and Associates, shall destroy or return to Power Information Network, a business division of J.D. Power and Associates all copies of the Information and Software. Subscriber acknowledges and agrees that the Information is disclosed to Subscriber in confidence, portions of which are protectable as a trade secret of Power Information Network, a business division of J.D. Power and Associates.

2.CHARGES

(a) Service Fees. Subscriber shall pay the subscription fees for the Information, Software and Platform and the fees for all other services ordered from Power Information Network, a business division of J.D. Power and Associates (collectively, the "Services") in effect as of the date of the request by Subscriber for the applicable Service. Consulting support for the Services is limited to the amount specified by the specifications for such Services; additional charges apply for additional support.
(b) Payment of Fees. Subscriber shall pay all applicable fees, including any required prepayment of subscription fees, upon receipt of the invoice. Power Information Network, a business division of J.D. Power and Associates has no obligation to provide Services until they have been paid in full.
(c) Shipping. . Power Information Network, a business division of J.D. Power and Associates may charge Subscriber for any shipping costs for material supplied to Subscriber.
(d) Taxes. Subscriber is responsible for any federal, state or local sales, use, property or similar taxes that are itemized or may be imposed on transactions hereunder between Power Information Network, a business division of J.D. Power and Associates and Subscriber.
(e) Late Payment. Power Information Network, a business division of J.D. Power and Associates may assess a late charge at the maximum lawful annual rate not exceeding 18% on all amounts payable under this Agreement which Subscriber has not paid within 45 days of the date of the Power Information Network, a business division of J.D. Power and Associates invoice therefore. In addition to any and all other rights provided by this Agreement or otherwise by law or equity, Power Information Network, a business division of J.D. Power and Associates also may suspend any or all Services hereunder as long as any amount owed hereunder remains unpaid.

3.DISCLAIMER OF WARRANTY

Although Power Information Network, a business division of J.D. Power and Associates shall use all reasonable efforts to provide accurate and reliable Services under this Agreement, neither Power Information Network, a business division of J.D. Power and Associates nor any of its licensors of Information or Software or Platform included in the Services warrants the adequacy or accuracy thereof. POWER INFORMATION NETWORK, a business division of J.D. Power and Associates AND ITS LICENSORS PROVIDE THE SERVICES AS IS AND HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE SERVICES OR THE RESULTS TO BE OBTAINED FROM THE USE THEREOF, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.

4.INFRINGEMENT; INDEMNITY

Power Information Network, a business division of J.D. Power and Associates shall indemnify Subscriber with respect to all losses or damages incurred by Subscriber, including reasonable attorney's fees, as a result of any claim against Subscriber that the Services furnished by Power Information Network, a business division of J.D. Power and Associates and used by Subscriber as provided by this Agreement infringe any copyright or other proprietary rights of a third party, provided that Power Information Network, a business division of J.D. Power and Associates is given prompt written notice thereof and has sole control of the defense and settlement of such claim. In the event of such claim, Power Information Network, a business division of J.D. Power and Associates shall have the right to terminate this Agreement with respect to the allegedly infringing Services by giving written notice to Subscriber and by refunding to Subscriber the prorata share of any prepaid charges relating to such infringing Services. Subscriber shall indemnify Power Information Network, a business division of J.D. Power and Associates with respect to all losses or damages incurred by Power Information Network, a business division of J.D. Power and Associates, including reasonable attorney's fees, as a result of any claim arising out of Subscriber's use of the Services furnished by Power Information Network, a business division of J.D. Power and Associates, provided that Subscriber is given prompt written notice thereof and has sole control of the defense and settlement of such claim.

5.LIMITATION OF LIABILITY

Power Information Network, a business division of J.D. Power and Associates shall have no liability to Subscriber for any damages resulting from any interruptions, delays, inadequacies, errors or omissions relating to the Services or from the loss of Subscriber data or otherwise. IN NO EVENT SHALL POWER INFORMATION NETWORK, a business division of J.D. Power and Associates HAVE ANY LIABILITY, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, FOR LOST PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF POWER INFORMATION NETWORK, a business division of J.D. Power and Associates, EVEN IF POWER INFORMATION NETWORK, a business division of J.D. Power and Associates HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, POWER INFORMATION NETWORK, a business division of J.D. Power and Associate’s MAXIMUM LIABILITY TO SUBSCRIBER FOR ANY DAMAGES WITH RESPECT TO THE SERVICES OR UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE TOTAL FEES PAID BY SUBSCRIBER TO POWER INFORMATION NETWORK, a business division of J.D. Power and Associates UNDER THE INVOICE FOR THE SERVICES.

6.INJUNCTIVE RELIEF

Subscriber acknowledges that Power Information Network, a business division of J.D. Power and Associates cannot be adequately compensated in money damages for the consequences of a breach hereof, and agrees that Power Information Network, a business division of J.D. Power and Associates, in addition to its other remedies hereunder in the event of any disclosure in violation of Section 1 hereof, shall be entitled to an order enjoining any further breach hereof.

7.OTHER MATTERS

(a) Amendment. No waiver, alteration or amendment of any provision of this Agreement or any Power Information Network, a business division of J.D. Power and Associates price quoted for the Services shall be effective unless agreed in writing by an authorized representative of both parties.
(b)Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without regard to the conflicts of law rules of such state. Any dispute that arises under or relates to this Agreement (whether in contract, tort or both) commenced by either party shall be resolved in state or federal court in Ventura County, California, and the parties expressly waive any right they may otherwise have to cause any such action or preceding to be brought or tried elsewhere.
(c)Assignment. Neither this Agreement nor any of the Information may be assigned or otherwise transferred by Subscriber, in whole or in part, without the prior written consent of Power Information Network, a business division of J.D. Power and Associates. Power Information Network, a business division of J.D. Power and Associates may assign this Agreement, in whole or in part, to any affiliate or to any successor by acquisition or merger of Power Information Network, a business division of J.D. Power and Associates or the business operations to which this Agreement relates. The parties' rights and obligations under this Agreement will bind and inure to the benefit of their permitted successors and assigns.
(d)Entire Agreement. This Agreement, together with the terms on the face of the Invoice and any confidentiality or nondisclosure agreement between the parties that covers this Agreement, constitute the complete, final and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings and negotiations of the parties. The terms of any purchase order or other document issued by the Subscriber in conjunction with this Agreement shall be of no effect and shall not in any way extend or amend the terms and conditions of this Agreement unless those terms are expressly accepted in writing by both parties.
(e)Compelled Disclosure. Information may be disclosed by Subscriber pursuant to the lawful requirement or request of a governmental agency, or as required by subpoena, court order or operation of law (each a “Compelled Disclosure”), provided that Subscriber has given notice to Power Information Network, a business division of J.D. Power and Associates and has made a reasonable attempt in good faith to resist making such disclosure. If disclosure is required notwithstanding Subscriber’s efforts to resist such disclosure, Subscriber shall limit the disclosure to the minimum necessary to comply with such Compelled Disclosure including, when possible, obtaining a protective order limiting the Information disclosed and cooperating with Power Information Network, a business division of J.D. Power and Associates to limit such disclosure.
(f)Survival. Sections 1, 3, 4, 5, 6 and 7 shall survive termination of this Agreement.