License Agreement

TOPLINE SOFTWARE LICENSE AGREEMENT

MASTER LICENSE AGREEMENT

This Software License Agreement (“Agreement”) is made this ___ day of _____________, 20____ by and between Keystone Automotive Operations, Inc., a Pennsylvania Corporation located at 44 Tunkhannock Avenue, Exeter PA 18643 d/b/a Topline Software Solutions (“Topline”) and ____________________________________, a/an __________________ [state] ____________________________ [corporation, partnership, LLC, etc.] located at ____________ _________________________________________________ (“you” or “Client”).

WHEREAS Topline is in the business of developing and licensing dealership management software, point-of-sales software, and related software for applications in the automotive and recreational vehicle (RV) industries; and Topline desires to license, and Buyer desires to obtain rights to install and use, certain Software as more particularly described herein;

NOW THEREFORE this Agreement sets forth the terms under which Topline will provide you with its software product (“Software”) and any associated professional services (“Services”) subject to Client’s fulfillment of the terms and conditions herein and as set forth in Appendix A.

  1. Scope of This Agreement.

    This Agreement, including the terms and conditions set forth in its Appendices, governs any and all obligations between Client and Topline with regard to (1) Topline’s provision, initial installation, and initial configuration of the Software; (2) Client’s use of the Software; (3) Topline’s obligations to maintain and/or update the Software; and (4) Topline’s obligations to provide further Services related to the Software.

  2. Definitions.
  3. Limitation of Liability.
    1. Waiver of Consequential Damages.

      To the fullest extent allowed by law, Topline shall not be liable for any loss of use, lost data, failure of security mechanisms, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, even if informed of the possibility of such damages in advance.

    2. Liability Cap.

      To the fullest extent allowed by law, Topline’s entire liability under this agreement shall not exceed the amount actually paid by Client to Topline under this agreement during the twelve months prior to the date the claim arose.

  4. Force Majeure.

    Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.

  5. Publicity Rights.

    Topline may identify you as a Topline client in our promotional materials.  You may request that we stop doing so by making such a request in writing at any time.  Upon receipt of such a request, Topline will remove you from all future promotional materials.

  6. Dispute Resolution; Governing Law.
    1. Preliminary Dispute Resolution.

      In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties.  Barring exigent circumstances rendering more expeditious action reasonably necessary, neither party shall initiate legal proceedings of any kind against the other for a period of no less than thirty days following the first written notice of the alleged breach or basis for disagreement.

      1. Governing Law; Jurisdiction.

        This Agreement will be governed by and construed in accordance with the applicable laws of the State of Illinois.  Each party irrevocably agrees that any legal action, suit, or proceeding must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal courts of Chicago, Illinois, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Chicago, Illinois, generally and unconditionally, with respect to any action, suit, or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Topline may bring a claim for equitable relief in any court with proper jurisdiction.

      2. Injunctive Relief; Enforcement.

        Nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations, or enforcement or recognition of any award or order in any appropriate jurisdiction.

  7. Assignment.

    Client may not assign this Agreement without the prior written consent of Topline (which consent will not be unreasonably withheld).  Topline may assign its rights and obligations under this Agreement in whole or in part without consent of Client.  Any permitted assignee shall be bound by the terms and conditions of this Agreement.

  8. Equipment Maintenance.

    Other than as specifically provided elsewhere in this Agreement, this Agreement shall not be interpreted to require any maintenance by Topline of any Hardware.  Topline is not responsible for the maintenance or the support of any Hardware, which shall be owned, operated, and maintained by Client.

  9. General.
  • “Hardware” shall mean computer systems and related devices necessary to operate the Software.
  • “Specific Terms and Conditions” shall mean the details set forth in Appendix A, which may include:
    1. identification and description of the Software and Services to be provided to Client;
    2. listing of minimum Hardware specifications, satisfaction of which is understood to be necessary for proper operation of the Software;
    3. minimum performance criteria for the Software and/or System;
    4. an estimated timeline for Preliminary Testing and System Acceptance Testing; and
    5. a statement of any Data Conversion or Data Importation contemplated to be within the scope of this Agreement.
  • “System” shall mean the Software as implemented and operating on Hardware.
  1. Scope of License & Ownership of the Software.

    For the term of this Agreement—subject to the terms and conditions set forth in this Agreement, including the Specific Terms and Conditions set forth in Appendix A—Topline hereby grants to Client a worldwide, non-exclusive, non-transferable license (“the License”) of those rights necessary for Client to install and use the Software for the purposes set forth in Appendix A.  Client may further make machine-readable copies of the Software for purposes backup or archival purposes only.

    All other uses of the Software are expressly prohibited.  Client further may not enable any third party—including, without limitation, any subsidiaries or franchisees of Client—to access or otherwise use the Software without prior written permission from Topline.  Absent an express written agreement to the contrary, Client’s License shall terminate upon the expiration or termination of this Agreement.

    This Agreement only licenses the Software to Client and does not provide for any sale of the Software.  Topline owns and retains ownership (including all intellectual property rights) in and to the Software and any future modifications, improvements, and derivative works thereof, regardless of whether such modifications, improvements, and derivative works are developed by, at the behest of, or at the expense of Topline, Client, or a third party, subject only to specific exceptions expressly set forth in Appendix A.

  2. Limited Access and License to Client Materials and Data.

    Client agrees to provide Topline with reasonable access to all Client materials, personnel, equipment, data, and facilities (collectively, “Client Materials and Data”), particularly including all Client Systems, to the extent such access is reasonably necessary for the performance of Topline’s obligations pursuant to this Agreement, and for the limited purpose of enabling and facilitating Topline’s performance of its obligations pursuant to this Agreement.  To the extent Client fails to timely provide the foregoing access Topline shall be excused from performance of those obligations until a reasonable time following when said failure is remedied.

    Client hereby further grants Topline a limited right to use the Client Materials and Data to the extent reasonably necessary for the limited purpose of facilitating or enabling Topline’s performance of its obligations to Client pursuant to this Agreement.  Client owns and retains ownership (including all intellectual property rights) in and to the Client Materials and Data and may impose reasonable restrictions upon Topline’s access to and use of any portions of said Client Materials and Data (subject to the understanding that any such restrictions may constitute a failure to provide access and, thus, excuse Topline’s non-performance of its obligations under this Agreement).

  3. Ownership of Client Feedback.

    Topline encourages and welcomes feedback, comments, suggestions, ideas, descriptions of processes, or provision of other information to Topline about or in connection with the Software, including without limitation ideas, concepts, know­how, or techniques (“Feedback”) as a means of improving the Software.  Identifying information related to Client feedback will be kept confidential and Topline will only disclose identifiable Client Feedback upon express written permission from Client or upon Client’s execution of an opt-in clause.  If Client provides any Feedback, Topline shall have a worldwide, royalty­free, non­exclusive, perpetual, and irrevocable license to use, copy, modify, and otherwise exploit the Feedback for any purpose, without any compensation to Client or any restriction or obligation on account of intellectual property rights or otherwise.  Nothing in this Agreement shall limit Topline’s right to use, develop, evaluate, or market the Software, whether incorporating Feedback or otherwise.

  4. Maintenance, Updates, Upgrades, and Discontinuation.

    Through the term of this Agreement, Topline shall make all commercially reasonable efforts to maintain the Software in operable condition such that it continues to satisfy all criteria set forth in Appendix A.  Pursuant to this obligation, Topline may periodically issue and make available “Updates” to the Software.  Said Updates shall be deemed to become part of the Software upon issuance, and thus shall be covered by the License granted by Topline to Client pursuant to this Agreement.  Said Updates may, at Topline’s sole discretion, further comprise additional features or improvements beyond those required to fulfill Topline’s maintenance obligations.

    Topline shall make Updates reasonably available and accessible upon issuance thereof and provide adequate documentation and instructions to reasonably enable the deployment thereof to Client Systems, but Client shall be solely responsible for deploying issued Updates to Client Systems.  Topline’s obligations to maintain operability of the Software is limited to only the latest version of the Software, and any and all of Topline’s maintenance and operability-related obligations shall be deemed suspended as to Systems operating prior versions of the Software.

    From time to time, Topline may issue “Upgrades” for the Software.  Such Upgrades may comprise new features or materially change the functionality of the Software.  Upgrades are not deemed to become a part of the Software upon issuance, and thus the License granted pursuant to this Agreement does not encompass Upgrades.  Client shall have no right or entitlement to such Upgrades absent written amendment of this Agreement and Appendix A to expressly expand the scope of the License to encompass the Upgrades.  Client understands that Upgrades may result in changes to the Specific Terms and Conditions, including without limitation changes to minimum Hardware requirements that may necessitate the purchase by Client of new Hardware.  Topline reserves the sole right to designate whether an improvement constitutes an “Upgrade.”

    Topline reserves the right, upon twelve months’ notice, to discontinue support and maintenance for the Software.  Such discontinuation of support and maintenance shall release Topline from all obligations relating to maintaining the continued operability of the Software or provision of support, but shall not affect or curtail any other rights or obligations under this Agreement.  Upon receipt of notice by Topline of its intended discontinuance of support and maintenance for the Software, upon payment of all outstanding invoice and fees due to Topline, Client shall have the right to immediately terminate this Agreement and cancel any pending installations or work orders.

  5. Audit Rights.

    Upon request, Client shall provide a signed certification that it is using all Products pursuant to the terms of this Agreement, particularly including the Specific Terms and Conditions.  Client further agrees to permit Topline and/or its authorized agent to audit Client’s use of the Software upon no less than ten days’ advance notice, said notice specifying the location, date, and time of the audit.  Topline will bear all out-of-pocket costs of the audit.  Client will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at Client’s sole expense.  Should an audit reveal that Client has exceeded the scope of its License, Topline may declare Client in breach of this Agreement and may seek remedies including but not limited to, revoking Client’s access to the Software upon no less than 30 days’ written notice, or seek damages pursuant to Client’s breach of this Agreement.

  6. Payments.

    All payments are non­refundable and all payment obligations are non-cancellable unless otherwise specified in this Agreement.  Payment shall be made in U.S. dollars pursuant to the terms of Appendices A and B, and if not specified within Appendices A and B, terms shall be assumed to be net 30 days from the date of invoice. Client will be responsible for all taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income of Topline).  Upon termination, all payments due shall be accelerated and become immediately due and payable.  Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

    Unless otherwise specified, the Services term will automatically renew and extend, on an annual basis, at Topline’s then-current rates.  Either party may give the other written notice of non­renewal at least 30 days prior to expiration of the then-current Services Term.

  7. Subcontractors.

    Topline may use the services of subcontractors for performance of its obligations to Client under this Agreement.

  8. Termination.

    Either party may terminate this Agreement if the other party: (i) fails to cure any material breach of this Agreement within thirty days of receipt of written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, or comparable proceeding or if any such proceeding is instituted against such party and not dismissed within sixty days thereafter.  Further, either party may terminate this Agreement without cause upon 30 days’ written notice to the other party; however, should Client terminate this Agreement without cause, Client shall, on the date of termination, pay to Topline the cancellation charge set forth in Appendix A.

    Upon termination of this Agreement, you agree to promptly delete or otherwise destroy all copies of the Software or any portion thereof in your (and any of your agents’) possession.  You and Topline both agree to delete, or otherwise destroy, the other party’s Data and Confidential Information (defined below) within 60 days of the termination date of the Agreement. At your request and expense, Topline will provide you with a copy of Your Data prior to deleting it from Topline’s Systems.

  9. Restrictions.

    Except as otherwise expressly permitted in this Agreement, upon the written consent of Topline, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Software or any portion thereof to a third party; (b) use the Software or any portion thereof for the benefit of any third party; (c) incorporate the Software or any portion thereof into a product or service you provide to a third party; (d) interfere with any license key or other access mechanism in the Software or any portion thereof, or otherwise circumvent mechanisms in the Software or any portion thereof intended to limit your use; (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non­public APIs to the Software or any portion thereof; (f) remove or obscure any proprietary or other notices contained in any Software or any portion thereof; or (g) publicly disseminate information regarding the performance of the Software or any portion thereof.

  10. Confidential Information.

    Each party (as “Receiving Party”) agrees that all business, technical, and financial information; code; inventions; and know­how that it obtains from the other party (as “Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure.  The Software and any pricing data pertaining thereto, or to services associated therewith shall be deemed Confidential Information of Topline without any marking or further designation.  Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information, except to its employees and agents on a need-to-know basis.  The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information.  Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law, or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

  11. Warranties and Disclaimers.

    All Software is provided “as is” and Topline expressly disclaims any and all warranties of any kind or nature—whether express, implied, or statutory—including and without limitation the implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose.

    Any Hardware is purchased by the Client, and thus shall be understood to be the property of Client.  Topline expressly disclaims any and all warranties of any kind or nature as to any and all Hardware—whether express, implied, or statutory—including and without limitation the implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose.

  12. Indemnifications.
    1. IP Indemnification by Topline.

      Topline shall defend Client against any claim brought against Client by a third party alleging that the Software, when used as authorized under this Agreement, infringes a United States copyright or patent (a “Claim”), and will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Topline (including reasonable attorneys’ fees) arising out of a Claim, provided that Topline has received from Client: (a) prompt written notice of the Claim (but in any event notice in sufficient time to reasonably enable Topline to respond to the Claim without forfeiting any defenses); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim and all relevant evidence in your possession, custody, or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim.  If Client’s use of the Software is (or in Topline’s opinion is likely to be) enjoined, if required by settlement, or if Topline determine such actions are reasonably necessary to avoid material liability, Topline may, at its option and in its sole discretion: (i) procure a license for Client’s continued use of the Software in accordance with this Agreement; (ii) substitute a substantially functionally similar product; or (iii) terminate your right to continue using the Software and refund all fees paid over the preceding three months.

      Topline’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Topline under this Agreement in the 12-month period immediately preceding the claim is less than US$50,000; (2) if the Software is modified by any party other than Topline, but solely to the extent the alleged infringement is caused by such modification; (3) if the Software is used in combination with any non-Topline product, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Topline’s software or deliverables; (5) to any Claim arising as a result of (a) any Client Materials and Data, or (b) any third-party deliverables or components contained within the Software; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a Claim without Topline’s prior written consent.  This Section states Topline’s sole liability and Client’s exclusive remedy for any infringement of intellectual property rights in connection with any Software or other deliverable provided pursuant to this Agreement.

    2. Indemnity for Your Data.

      You will defend, indemnify, and hold harmless Topline from and against any loss, cost, liability, or damage, including attorneys’ fees, for which Topline becomes liable arising from or relating to any claim relating to any Client Materials and Data, including but not limited to any claim brought by a third party alleging that any Client Materials and data, or Client’s use of the Software in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law.  This indemnification obligation is subject to Client receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Client to reasonably respond without forfeiting any defenses); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Topline at Client’s expense.

This Agreement is the entire agreement between you and Topline relating to Topline’s Software and Services and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software, Services, or any other subject matter covered by this Agreement.  If any provision of this Agreement is held to be void, invalid, unenforceable, or illegal, the other provisions shall continue in full force and effect.  This Agreement and any supplements, modifications, or amendments thereto shall be binding only if and when executed, in writing, by duly authorized representatives of each party.

The parties are independent contractors.  This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power, or authority to create any duty or obligation of the other party.  Any notice, report, approval, or consent required or permitted under this Agreement will be in writing to the address specified on the Order Form or such other address as may be given in writing by either party to the other.

If either party to this Agreement breaches any provision of this Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Agreement.  No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder at law or equity.

In witness hereto, the parties execute this Agreement as follows:

 

Keystone Automotive Operations, Inc. (d/b/a Topline Software Solutions), by

 

X______________________________

Name:__________________________

Title:___________________________

 

Address:_________________________

________________________________

 

Date:___________________________

 

 

________________________________, by

 

 

X________________________________

Name:____________________________

Title:_____________________________

 

Address:__________________________

_________________________________

 

Date:_____________________________

 


TOPLINE SOFTWARE LICENSE AGREEMENT

APPENDIX A

SPECIFIC TERMS AND CONDITIONS

  1. Definitions.
  • “Data Conversion” shall mean the process of adapting or changing the format or organizational structure of specified information owned or controlled by Client such that it may be imported into or used with the Software.
  • “Data Importation” shall mean the process of incorporating specified information owned or controlled by Client into or for use with the Software.
  • "Preliminary Test" shall mean diagnostic routines performed by Topline on the System to determine if the System is fit and ready for use by the Buyer in accordance with the criteria set forth in the Specific Terms and Conditions.
  • "Preliminary Test Date" shall mean the date on which Topline provides to Client written certification that the Preliminary Test has been completed, that the System was found to perform in accordance with the criteria set forth in the Specific Terms and Conditions, and thus is ready for use by Client.
  • “System Acceptance Test” shall mean a test as set forth in greater detail below to be performed by Client subsequent to the Preliminary Test Date to verify that the System performs in accordance with the criteria set forth in the Specific Terms and Conditions.
  • “System Acceptance Test Date” shall mean the date of the successful completion of the System Acceptance Test.
  • "System Documentation" shall mean documents, manuals, user guides, and recordings of any kind describing, explaining, or otherwise detailing any aspect or function of the System.
  • “System Down-Time” shall mean the proportion of System Scheduled Up-Time during which the System was inoperable over a given period, expressed as a percentage.“System Down-Time” shall exclude any time during which the System was inoperable due, in whole or in part, to factors other than failure of the Software, including but not limited to (1) errors, omissions, or improper or negligent operation by Client, Client’s employees, or any other individuals (other than employees of Topline); (2) Hardware failures, (3) power outages; or (4) the operating system (O/S) of Client’s computer(s).
  • “System Scheduled Up-Time” shall mean the periods of time during which the System is scheduled to be operable, as set forth herein.
  1. Project Description and Description of System.

    Topline Shopman Pro includes the Topline Shop base program for Parts & Service consisting of; Basic Work Order, Electronic Purchase Orders, Inventory Control, and QuickBooks Integration®[1]. In addition, the Pro Version includes; Job Style Work Orders, Technician Productivity, Enhanced Reporting, Marketing functions, Appointment Scheduler, Reorder Point Calculator, Seasonal Stocking Points, Technician Timeclock.

     

  2. Process for Delivery and Installation of Software.

    A copy of the Topline Program as described in Appendix A-2, will be created and initially hosted on the Topline platform for testing and review.  Installation will require  client’s involvement in setup of initial forms, user privileges, logo files, tax rules and any other items that require unique client direction for setup.  Upon completion, the program will be transferred to the client’s local server or remain on the Topline server if program is being hosted with Topline.   The client will be responsible for having an I.T. professional available to support client’s local server and network as needed. Topline does not support client’s local server or network, for issues non-related to Topline.

     

  3. Scope of Conversion Process & Identification of Data to be Converted.

    The Topline Support Team will make the best effort to complete all data extractions and conversions from Client’s current software as possible.  Requested data to be extracted and converted must be identified prior to completion of this Agreement to confirm requested data needs can be satisfied.  Data files that are supplied by the Client must be in a format that can be converted by the Topline staff. All data extractions and conversions must be completed within the standard Topline program installation and training process, or additional fees may be required.   For data being extracted from Client’s current software, Topline must have access to the program or file(s), using a remote connection.  Scope of Data Importation.

    Topline will evaluate the data fields that have been customer supplied or extracted from an existing software program. The fields will be examined for data integrity. A general standardization of field labels to map to the Topline format is included in the standard import process. Any additional custom conversion work that has been identified to accurately import existing data is listed below.

    Special Data Importation Agreement:   No additional customer conversion work needed.

     

    Customer supplied price files will be imported into the Topline program as a courtesy to the Customer. Topline will not retain any information from the supplied files and they will only be used for the Customer. The price files will be loaded using the following standard field identifiers: Distributor Part Number, Manufacturer's Part Number, Description, Cost Price, Retail Price & UPC.

     

  4. System Performance Criteria.

    System Scheduled Up-Time: During Client’s regular business hours.  Specifically, from ____ a.m. to ____ p.m. Central Time, seven days per week, except national holidays.  System Down-Time shall not exceed 1% over any sixty-day period.

     

  5. Preliminary Testing Process
    • Validate all Data provided
    • Complete process validation (add customer, add vehicle, create invoice/work-order, add parts and labor, finalize ticket, print, view and print historical invoice/work-order, create PO etc.)

       

  6. System Acceptance Testing Process
    • Confirm validation of all customer provided data
    • Complete process validation (add customer, add vehicle, create invoice/work-order, add parts and labor, finalize ticket, print, view and print historical invoice/work-order, create PO etc.)
    • Test client peripherals

       

  7. Cost Estimate and Payment Structure

    The complete balance of the purchase of the program is due upon execution of this Agreement.  Thereafter, the ongoing monthly support fees will begin billing 60 days from the date of this agreement. 

    The total estimated cost of the project does not include any additional payments that may become due and owing over the course of the parties’ relationship, such as, for example, payments for Software Upgrades and Services provided by Topline pursuant to Orders placed by Client, written changes to the scope of work contemplated by this Agreement, or Services rendered under this Agreement.  Such additional amounts shall be invoiced to Client pursuant to Paragraph 8 of the License Agreement, pricing to be determined based on the Schedule of Fees appended to the License Agreement as Appendix B.

     

  8. Cancellation Fee

          If Client exercises the right to terminate this Agreement without cause upon providing the 30 days’ written notice to the other party, Client shall, on the date of termination, pay to Topline the cancellation charge of $295.00.  

     

  9. Feedback Disclosure Opt-in.

    Client grants Topline the right to use and publicize any Feedback provided by Client to Topline.  Client consent is subject to the terms of this Agreement governing Client’s Confidential Information, which conditions Client does not waive.

  10. Contact Information.

Client shall direct correspondence relating to this Agreement and requests for Services under this Agreement to the following individual, unless directed otherwise by Topline:

Name:

Shawn Randall

Address:

44 Tunkhannock Ave

 

Exeter, PA 18643

 

 

Email:

sales@toplinesys.com

Telephone:

(888) 791-0550

 

Topline shall direct correspondence relating to this Agreement to the following individual, unless directed otherwise by Client:

Name:

 

Address:

 

 

 

 

 

Email:

 

Telephone:

 

 

 


TOPLINE SOFTWARE LICENSE AGREEMENT

APPENDIX B

SCHEDULE OF FEES

 

Service

Price and/or Rate

Shopman Pro License Fee (one-time fee for purchase)

$4,995 USD

Onboarding/Training (Initial setup and standard training)

Included with purchase of Topline License

Standard Program Documentation, including available Software Videos and Manuals

Included with purchase of Topline License

Monthly Support Program (Ongoing – billed monthly)

$225.00 per month for first 12 months; subject to annual increases of no greater than 20% per annum

Additional Training (post-program launch – Off Site only)

Included in Ongoing Support Fees

Additional Add-on Feature/Service:

Price and/or Rate

Shopman Mobile Software (one-time fee for purchase/set-up)

$495.00 USD

Shopman Mobile Software Support Fee – Per 5 users (Ongoing – billed monthly)

$49.95 USD

Admin Dashboard (one-time fee for purchase/set-up)

$495.00 USD

 

 

 

 

 

Payment Terms.

All payments made under this Agreement are to be paid in U.S. Dollars and made by (1) check payable to Keystone Automotive Operations, Inc. or (2) wire transfer to Keystone Automotive Operations, Inc.’s [Bank Name], USD account labeled [Acct Name/No.], ABA#[Routing Number], or as Topline otherwise directs Client in writing.

All invoices shall follow your current Keystone Automotive Operations payment terms from the date of the invoice.  An interest rate of 1% per month—or the highest interest rate allowable by law, if less than 1% per month—may be assessed to your balance in the event that there are any invoices outstanding for longer than 60 days.  Topline is further entitled to recover attorney fees in any successful action brought against Client for Client’s failure to pay its invoices.

 



[1] QuickBooks® integration does not include the software license.  QuickBooks® must be purchased separately.

TOPLINE SOFTWARE LICENSE AGREEMENT

MASTER LICENSE AGREEMENT

This Software License Agreement (“Agreement”) is made this ___ day of _____________, 20____ by and between Keystone Automotive Operations, Inc., a Pennsylvania Corporation located at 44 Tunkhannock Avenue, Exeter PA 18643 d/b/a Topline Software Solutions (“Topline”) and ____________________________________, a/an __________________ [state] ____________________________ [corporation, partnership, LLC, etc.] located at ____________ _________________________________________________ (“you” or “Client”).

WHEREAS Topline is in the business of developing and licensing dealership management software, point-of-sales software, and related software for applications in the automotive and recreational vehicle (RV) industries; and Topline desires to license, and Buyer desires to obtain rights to install and use, certain Software as more particularly described herein;

NOW THEREFORE this Agreement sets forth the terms under which Topline will provide you with its software product (“Software”) and any associated professional services (“Services”) subject to Client’s fulfillment of the terms and conditions herein and as set forth in Appendix A.

  1. Scope of This Agreement.

    This Agreement, including the terms and conditions set forth in its Appendices, governs any and all obligations between Client and Topline with regard to (1) Topline’s provision, initial installation, and initial configuration of the Software; (2) Client’s use of the Software; (3) Topline’s obligations to maintain and/or update the Software; and (4) Topline’s obligations to provide further Services related to the Software.

  2. Definitions.
  3. Limitation of Liability.
    1. Waiver of Consequential Damages.

      To the fullest extent allowed by law, Topline shall not be liable for any loss of use, lost data, failure of security mechanisms, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, even if informed of the possibility of such damages in advance.

    2. Liability Cap.

      To the fullest extent allowed by law, Topline’s entire liability under this agreement shall not exceed the amount actually paid by Client to Topline under this agreement during the twelve months prior to the date the claim arose.

  4. Force Majeure.

    Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.

  5. Publicity Rights.

    Topline may identify you as a Topline client in our promotional materials.  You may request that we stop doing so by making such a request in writing at any time.  Upon receipt of such a request, Topline will remove you from all future promotional materials.

  6. Dispute Resolution; Governing Law.
    1. Preliminary Dispute Resolution.

      In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties.  Barring exigent circumstances rendering more expeditious action reasonably necessary, neither party shall initiate legal proceedings of any kind against the other for a period of no less than thirty days following the first written notice of the alleged breach or basis for disagreement.

      1. Governing Law; Jurisdiction.

        This Agreement will be governed by and construed in accordance with the applicable laws of the State of Illinois.  Each party irrevocably agrees that any legal action, suit, or proceeding must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal courts of Chicago, Illinois, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Chicago, Illinois, generally and unconditionally, with respect to any action, suit, or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Topline may bring a claim for equitable relief in any court with proper jurisdiction.

      2. Injunctive Relief; Enforcement.

        Nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations, or enforcement or recognition of any award or order in any appropriate jurisdiction.

  7. Assignment.

    Client may not assign this Agreement without the prior written consent of Topline (which consent will not be unreasonably withheld).  Topline may assign its rights and obligations under this Agreement in whole or in part without consent of Client.  Any permitted assignee shall be bound by the terms and conditions of this Agreement.

  8. Equipment Maintenance.

    Other than as specifically provided elsewhere in this Agreement, this Agreement shall not be interpreted to require any maintenance by Topline of any Hardware.  Topline is not responsible for the maintenance or the support of any Hardware, which shall be owned, operated, and maintained by Client.

  9. General.
  • “Hardware” shall mean computer systems and related devices necessary to operate the Software.
  • “Specific Terms and Conditions” shall mean the details set forth in Appendix A, which may include:
    1. identification and description of the Software and Services to be provided to Client;
    2. listing of minimum Hardware specifications, satisfaction of which is understood to be necessary for proper operation of the Software;
    3. minimum performance criteria for the Software and/or System;
    4. an estimated timeline for Preliminary Testing and System Acceptance Testing; and
    5. a statement of any Data Conversion or Data Importation contemplated to be within the scope of this Agreement.
  • “System” shall mean the Software as implemented and operating on Hardware.
  1. Scope of License & Ownership of the Software.

    For the term of this Agreement—subject to the terms and conditions set forth in this Agreement, including the Specific Terms and Conditions set forth in Appendix A—Topline hereby grants to Client a worldwide, non-exclusive, non-transferable license (“the License”) of those rights necessary for Client to install and use the Software for the purposes set forth in Appendix A.  Client may further make machine-readable copies of the Software for purposes backup or archival purposes only.

    All other uses of the Software are expressly prohibited.  Client further may not enable any third party—including, without limitation, any subsidiaries or franchisees of Client—to access or otherwise use the Software without prior written permission from Topline.  Absent an express written agreement to the contrary, Client’s License shall terminate upon the expiration or termination of this Agreement.

    This Agreement only licenses the Software to Client and does not provide for any sale of the Software.  Topline owns and retains ownership (including all intellectual property rights) in and to the Software and any future modifications, improvements, and derivative works thereof, regardless of whether such modifications, improvements, and derivative works are developed by, at the behest of, or at the expense of Topline, Client, or a third party, subject only to specific exceptions expressly set forth in Appendix A.

  2. Limited Access and License to Client Materials and Data.

    Client agrees to provide Topline with reasonable access to all Client materials, personnel, equipment, data, and facilities (collectively, “Client Materials and Data”), particularly including all Client Systems, to the extent such access is reasonably necessary for the performance of Topline’s obligations pursuant to this Agreement, and for the limited purpose of enabling and facilitating Topline’s performance of its obligations pursuant to this Agreement.  To the extent Client fails to timely provide the foregoing access Topline shall be excused from performance of those obligations until a reasonable time following when said failure is remedied.

    Client hereby further grants Topline a limited right to use the Client Materials and Data to the extent reasonably necessary for the limited purpose of facilitating or enabling Topline’s performance of its obligations to Client pursuant to this Agreement.  Client owns and retains ownership (including all intellectual property rights) in and to the Client Materials and Data and may impose reasonable restrictions upon Topline’s access to and use of any portions of said Client Materials and Data (subject to the understanding that any such restrictions may constitute a failure to provide access and, thus, excuse Topline’s non-performance of its obligations under this Agreement).

  3. Ownership of Client Feedback.

    Topline encourages and welcomes feedback, comments, suggestions, ideas, descriptions of processes, or provision of other information to Topline about or in connection with the Software, including without limitation ideas, concepts, know­how, or techniques (“Feedback”) as a means of improving the Software.  Identifying information related to Client feedback will be kept confidential and Topline will only disclose identifiable Client Feedback upon express written permission from Client or upon Client’s execution of an opt-in clause.  If Client provides any Feedback, Topline shall have a worldwide, royalty­free, non­exclusive, perpetual, and irrevocable license to use, copy, modify, and otherwise exploit the Feedback for any purpose, without any compensation to Client or any restriction or obligation on account of intellectual property rights or otherwise.  Nothing in this Agreement shall limit Topline’s right to use, develop, evaluate, or market the Software, whether incorporating Feedback or otherwise.

  4. Maintenance, Updates, Upgrades, and Discontinuation.

    Through the term of this Agreement, Topline shall make all commercially reasonable efforts to maintain the Software in operable condition such that it continues to satisfy all criteria set forth in Appendix A.  Pursuant to this obligation, Topline may periodically issue and make available “Updates” to the Software.  Said Updates shall be deemed to become part of the Software upon issuance, and thus shall be covered by the License granted by Topline to Client pursuant to this Agreement.  Said Updates may, at Topline’s sole discretion, further comprise additional features or improvements beyond those required to fulfill Topline’s maintenance obligations.

    Topline shall make Updates reasonably available and accessible upon issuance thereof and provide adequate documentation and instructions to reasonably enable the deployment thereof to Client Systems, but Client shall be solely responsible for deploying issued Updates to Client Systems.  Topline’s obligations to maintain operability of the Software is limited to only the latest version of the Software, and any and all of Topline’s maintenance and operability-related obligations shall be deemed suspended as to Systems operating prior versions of the Software.

    From time to time, Topline may issue “Upgrades” for the Software.  Such Upgrades may comprise new features or materially change the functionality of the Software.  Upgrades are not deemed to become a part of the Software upon issuance, and thus the License granted pursuant to this Agreement does not encompass Upgrades.  Client shall have no right or entitlement to such Upgrades absent written amendment of this Agreement and Appendix A to expressly expand the scope of the License to encompass the Upgrades.  Client understands that Upgrades may result in changes to the Specific Terms and Conditions, including without limitation changes to minimum Hardware requirements that may necessitate the purchase by Client of new Hardware.  Topline reserves the sole right to designate whether an improvement constitutes an “Upgrade.”

    Topline reserves the right, upon twelve months’ notice, to discontinue support and maintenance for the Software.  Such discontinuation of support and maintenance shall release Topline from all obligations relating to maintaining the continued operability of the Software or provision of support, but shall not affect or curtail any other rights or obligations under this Agreement.  Upon receipt of notice by Topline of its intended discontinuance of support and maintenance for the Software, upon payment of all outstanding invoice and fees due to Topline, Client shall have the right to immediately terminate this Agreement and cancel any pending installations or work orders.

  5. Audit Rights.

    Upon request, Client shall provide a signed certification that it is using all Products pursuant to the terms of this Agreement, particularly including the Specific Terms and Conditions.  Client further agrees to permit Topline and/or its authorized agent to audit Client’s use of the Software upon no less than ten days’ advance notice, said notice specifying the location, date, and time of the audit.  Topline will bear all out-of-pocket costs of the audit.  Client will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at Client’s sole expense.  Should an audit reveal that Client has exceeded the scope of its License, Topline may declare Client in breach of this Agreement and may seek remedies including but not limited to, revoking Client’s access to the Software upon no less than 30 days’ written notice, or seek damages pursuant to Client’s breach of this Agreement.

  6. Payments.

    All payments are non­refundable and all payment obligations are non-cancellable unless otherwise specified in this Agreement.  Payment shall be made in U.S. dollars pursuant to the terms of Appendices A and B, and if not specified within Appendices A and B, terms shall be assumed to be net 30 days from the date of invoice. Client will be responsible for all taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income of Topline).  Upon termination, all payments due shall be accelerated and become immediately due and payable.  Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

    Unless otherwise specified, the Services term will automatically renew and extend, on an annual basis, at Topline’s then-current rates.  Either party may give the other written notice of non­renewal at least 30 days prior to expiration of the then-current Services Term.

  7. Subcontractors.

    Topline may use the services of subcontractors for performance of its obligations to Client under this Agreement.

  8. Termination.

    Either party may terminate this Agreement if the other party: (i) fails to cure any material breach of this Agreement within thirty days of receipt of written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, or comparable proceeding or if any such proceeding is instituted against such party and not dismissed within sixty days thereafter.  Further, either party may terminate this Agreement without cause upon 30 days’ written notice to the other party; however, should Client terminate this Agreement without cause, Client shall, on the date of termination, pay to Topline the cancellation charge set forth in Appendix A.

    Upon termination of this Agreement, you agree to promptly delete or otherwise destroy all copies of the Software or any portion thereof in your (and any of your agents’) possession.  You and Topline both agree to delete, or otherwise destroy, the other party’s Data and Confidential Information (defined below) within 60 days of the termination date of the Agreement. At your request and expense, Topline will provide you with a copy of Your Data prior to deleting it from Topline’s Systems.

  9. Restrictions.

    Except as otherwise expressly permitted in this Agreement, upon the written consent of Topline, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Software or any portion thereof to a third party; (b) use the Software or any portion thereof for the benefit of any third party; (c) incorporate the Software or any portion thereof into a product or service you provide to a third party; (d) interfere with any license key or other access mechanism in the Software or any portion thereof, or otherwise circumvent mechanisms in the Software or any portion thereof intended to limit your use; (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non­public APIs to the Software or any portion thereof; (f) remove or obscure any proprietary or other notices contained in any Software or any portion thereof; or (g) publicly disseminate information regarding the performance of the Software or any portion thereof.

  10. Confidential Information.

    Each party (as “Receiving Party”) agrees that all business, technical, and financial information; code; inventions; and know­how that it obtains from the other party (as “Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure.  The Software and any pricing data pertaining thereto, or to services associated therewith shall be deemed Confidential Information of Topline without any marking or further designation.  Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information, except to its employees and agents on a need-to-know basis.  The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information.  Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law, or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

  11. Warranties and Disclaimers.

    All Software is provided “as is” and Topline expressly disclaims any and all warranties of any kind or nature—whether express, implied, or statutory—including and without limitation the implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose.

    Any Hardware is purchased by the Client, and thus shall be understood to be the property of Client.  Topline expressly disclaims any and all warranties of any kind or nature as to any and all Hardware—whether express, implied, or statutory—including and without limitation the implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose.

  12. Indemnifications.
    1. IP Indemnification by Topline.

      Topline shall defend Client against any claim brought against Client by a third party alleging that the Software, when used as authorized under this Agreement, infringes a United States copyright or patent (a “Claim”), and will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Topline (including reasonable attorneys’ fees) arising out of a Claim, provided that Topline has received from Client: (a) prompt written notice of the Claim (but in any event notice in sufficient time to reasonably enable Topline to respond to the Claim without forfeiting any defenses); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim and all relevant evidence in your possession, custody, or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim.  If Client’s use of the Software is (or in Topline’s opinion is likely to be) enjoined, if required by settlement, or if Topline determine such actions are reasonably necessary to avoid material liability, Topline may, at its option and in its sole discretion: (i) procure a license for Client’s continued use of the Software in accordance with this Agreement; (ii) substitute a substantially functionally similar product; or (iii) terminate your right to continue using the Software and refund all fees paid over the preceding three months.

      Topline’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Topline under this Agreement in the 12-month period immediately preceding the claim is less than US$50,000; (2) if the Software is modified by any party other than Topline, but solely to the extent the alleged infringement is caused by such modification; (3) if the Software is used in combination with any non-Topline product, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Topline’s software or deliverables; (5) to any Claim arising as a result of (a) any Client Materials and Data, or (b) any third-party deliverables or components contained within the Software; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a Claim without Topline’s prior written consent.  This Section states Topline’s sole liability and Client’s exclusive remedy for any infringement of intellectual property rights in connection with any Software or other deliverable provided pursuant to this Agreement.

    2. Indemnity for Your Data.

      You will defend, indemnify, and hold harmless Topline from and against any loss, cost, liability, or damage, including attorneys’ fees, for which Topline becomes liable arising from or relating to any claim relating to any Client Materials and Data, including but not limited to any claim brought by a third party alleging that any Client Materials and data, or Client’s use of the Software in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law.  This indemnification obligation is subject to Client receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Client to reasonably respond without forfeiting any defenses); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Topline at Client’s expense.

This Agreement is the entire agreement between you and Topline relating to Topline’s Software and Services and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software, Services, or any other subject matter covered by this Agreement.  If any provision of this Agreement is held to be void, invalid, unenforceable, or illegal, the other provisions shall continue in full force and effect.  This Agreement and any supplements, modifications, or amendments thereto shall be binding only if and when executed, in writing, by duly authorized representatives of each party.

The parties are independent contractors.  This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power, or authority to create any duty or obligation of the other party.  Any notice, report, approval, or consent required or permitted under this Agreement will be in writing to the address specified on the Order Form or such other address as may be given in writing by either party to the other.

If either party to this Agreement breaches any provision of this Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Agreement.  No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder at law or equity.

In witness hereto, the parties execute this Agreement as follows:

 

Keystone Automotive Operations, Inc. (d/b/a Topline Software Solutions), by

 

X______________________________

Name:__________________________

Title:___________________________

 

Address:_________________________

________________________________

 

Date:___________________________

 

 

________________________________, by

 

 

X________________________________

Name:____________________________

Title:_____________________________

 

Address:__________________________

_________________________________

 

Date:_____________________________

 


TOPLINE SOFTWARE LICENSE AGREEMENT

APPENDIX A

SPECIFIC TERMS AND CONDITIONS

  1. Definitions.
  • “Data Conversion” shall mean the process of adapting or changing the format or organizational structure of specified information owned or controlled by Client such that it may be imported into or used with the Software.
  • “Data Importation” shall mean the process of incorporating specified information owned or controlled by Client into or for use with the Software.
  • "Preliminary Test" shall mean diagnostic routines performed by Topline on the System to determine if the System is fit and ready for use by the Buyer in accordance with the criteria set forth in the Specific Terms and Conditions.
  • "Preliminary Test Date" shall mean the date on which Topline provides to Client written certification that the Preliminary Test has been completed, that the System was found to perform in accordance with the criteria set forth in the Specific Terms and Conditions, and thus is ready for use by Client.
  • “System Acceptance Test” shall mean a test as set forth in greater detail below to be performed by Client subsequent to the Preliminary Test Date to verify that the System performs in accordance with the criteria set forth in the Specific Terms and Conditions.
  • “System Acceptance Test Date” shall mean the date of the successful completion of the System Acceptance Test.
  • "System Documentation" shall mean documents, manuals, user guides, and recordings of any kind describing, explaining, or otherwise detailing any aspect or function of the System.
  • “System Down-Time” shall mean the proportion of System Scheduled Up-Time during which the System was inoperable over a given period, expressed as a percentage.“System Down-Time” shall exclude any time during which the System was inoperable due, in whole or in part, to factors other than failure of the Software, including but not limited to (1) errors, omissions, or improper or negligent operation by Client, Client’s employees, or any other individuals (other than employees of Topline); (2) Hardware failures, (3) power outages; or (4) the operating system (O/S) of Client’s computer(s).
  • “System Scheduled Up-Time” shall mean the periods of time during which the System is scheduled to be operable, as set forth herein.
  1. Project Description and Description of System.

    Topline Shopman Pro includes the Topline Shop base program for Parts & Service consisting of; Basic Work Order, Electronic Purchase Orders, Inventory Control, and QuickBooks Integration®[1]. In addition, the Pro Version includes; Job Style Work Orders, Technician Productivity, Enhanced Reporting, Marketing functions, Appointment Scheduler, Reorder Point Calculator, Seasonal Stocking Points, Technician Timeclock.

     

  2. Process for Delivery and Installation of Software.

    A copy of the Topline Program as described in Appendix A-2, will be created and initially hosted on the Topline platform for testing and review.  Installation will require  client’s involvement in setup of initial forms, user privileges, logo files, tax rules and any other items that require unique client direction for setup.  Upon completion, the program will be transferred to the client’s local server or remain on the Topline server if program is being hosted with Topline.   The client will be responsible for having an I.T. professional available to support client’s local server and network as needed. Topline does not support client’s local server or network, for issues non-related to Topline.

     

  3. Scope of Conversion Process & Identification of Data to be Converted.

    The Topline Support Team will make the best effort to complete all data extractions and conversions from Client’s current software as possible.  Requested data to be extracted and converted must be identified prior to completion of this Agreement to confirm requested data needs can be satisfied.  Data files that are supplied by the Client must be in a format that can be converted by the Topline staff. All data extractions and conversions must be completed within the standard Topline program installation and training process, or additional fees may be required.   For data being extracted from Client’s current software, Topline must have access to the program or file(s), using a remote connection.  Scope of Data Importation.

    Topline will evaluate the data fields that have been customer supplied or extracted from an existing software program. The fields will be examined for data integrity. A general standardization of field labels to map to the Topline format is included in the standard import process. Any additional custom conversion work that has been identified to accurately import existing data is listed below.

    Special Data Importation Agreement:   No additional customer conversion work needed.

     

    Customer supplied price files will be imported into the Topline program as a courtesy to the Customer. Topline will not retain any information from the supplied files and they will only be used for the Customer. The price files will be loaded using the following standard field identifiers: Distributor Part Number, Manufacturer's Part Number, Description, Cost Price, Retail Price & UPC.

     

  4. System Performance Criteria.

    System Scheduled Up-Time: During Client’s regular business hours.  Specifically, from ____ a.m. to ____ p.m. Central Time, seven days per week, except national holidays.  System Down-Time shall not exceed 1% over any sixty-day period.

     

  5. Preliminary Testing Process
    • Validate all Data provided
    • Complete process validation (add customer, add vehicle, create invoice/work-order, add parts and labor, finalize ticket, print, view and print historical invoice/work-order, create PO etc.)

       

  6. System Acceptance Testing Process
    • Confirm validation of all customer provided data
    • Complete process validation (add customer, add vehicle, create invoice/work-order, add parts and labor, finalize ticket, print, view and print historical invoice/work-order, create PO etc.)
    • Test client peripherals

       

  7. Cost Estimate and Payment Structure

    The complete balance of the purchase of the program is due upon execution of this Agreement.  Thereafter, the ongoing monthly support fees will begin billing 60 days from the date of this agreement. 

    The total estimated cost of the project does not include any additional payments that may become due and owing over the course of the parties’ relationship, such as, for example, payments for Software Upgrades and Services provided by Topline pursuant to Orders placed by Client, written changes to the scope of work contemplated by this Agreement, or Services rendered under this Agreement.  Such additional amounts shall be invoiced to Client pursuant to Paragraph 8 of the License Agreement, pricing to be determined based on the Schedule of Fees appended to the License Agreement as Appendix B.

     

  8. Cancellation Fee

          If Client exercises the right to terminate this Agreement without cause upon providing the 30 days’ written notice to the other party, Client shall, on the date of termination, pay to Topline the cancellation charge of $295.00.  

     

  9. Feedback Disclosure Opt-in.

    Client grants Topline the right to use and publicize any Feedback provided by Client to Topline.  Client consent is subject to the terms of this Agreement governing Client’s Confidential Information, which conditions Client does not waive.

  10. Contact Information.

Client shall direct correspondence relating to this Agreement and requests for Services under this Agreement to the following individual, unless directed otherwise by Topline:

Name:

Shawn Randall

Address:

44 Tunkhannock Ave

 

Exeter, PA 18643

 

 

Email:

sales@toplinesys.com

Telephone:

(888) 791-0550

 

Topline shall direct correspondence relating to this Agreement to the following individual, unless directed otherwise by Client:

Name:

 

Address:

 

 

 

 

 

Email:

 

Telephone:

 

 

 


TOPLINE SOFTWARE LICENSE AGREEMENT

APPENDIX B

SCHEDULE OF FEES

 

Service

Price and/or Rate

Shopman Pro License Fee (one-time fee for purchase)

$4,995 USD

Onboarding/Training (Initial setup and standard training)

Included with purchase of Topline License

Standard Program Documentation, including available Software Videos and Manuals

Included with purchase of Topline License

Monthly Support Program (Ongoing – billed monthly)

$225.00 per month for first 12 months; subject to annual increases of no greater than 20% per annum

Additional Training (post-program launch – Off Site only)

Included in Ongoing Support Fees

Additional Add-on Feature/Service:

Price and/or Rate

Shopman Mobile Software (one-time fee for purchase/set-up)

$495.00 USD

Shopman Mobile Software Support Fee – Per 5 users (Ongoing – billed monthly)

$49.95 USD

Admin Dashboard (one-time fee for purchase/set-up)

$495.00 USD

 

 

 

 

 

Payment Terms.

All payments made under this Agreement are to be paid in U.S. Dollars and made by (1) check payable to Keystone Automotive Operations, Inc. or (2) wire transfer to Keystone Automotive Operations, Inc.’s [Bank Name], USD account labeled [Acct Name/No.], ABA#[Routing Number], or as Topline otherwise directs Client in writing.

All invoices shall follow your current Keystone Automotive Operations payment terms from the date of the invoice.  An interest rate of 1% per month—or the highest interest rate allowable by law, if less than 1% per month—may be assessed to your balance in the event that there are any invoices outstanding for longer than 60 days.  Topline is further entitled to recover attorney fees in any successful action brought against Client for Client’s failure to pay its invoices.

 



[1] QuickBooks® integration does not include the software license.  QuickBooks® must be purchased separately.

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