END USER LICENSE AGREEMENT
This End-User License Agreement, (this “Agreement”), is a binding contract between AMFS Acquisition, LLC, also known as American Medical Forensic Specialists, an Ontellus Company (“AMFS”) and the individual or Person (“You” and “Your”) intending to download or otherwise use the Product.
AMFS PROVIDES THE PRODUCT SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. PLEASE READ THIS AGREMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOU AND YOUR USE OF THE PRODUCT. BY CLICKING THE “ACCEPT” BUTTON BELOW, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) IF AN INDIVIDUAL, YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND YOURSELF TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, AMFS WILL NOT AND DOES NOT LICENSE THE PRODUCT TO YOU AND YOU MUST NOT DOWNLOAD OR USE THE PRODUCT OR DOCUMENTATION.
1.0 Definitions. For purposes of this Agreement, the following terms have the following meanings:
1.1 “Documentation” means all documentation and other materials related to the Product and provided by AMFS, including user manuals, help files and any other instructions, specifications, documents, and materials that describe the functionality, installation, testing, operation, use, maintenance, support, technical features, or requirements of the Product.
1.2 “Intellectual Property Rights” means any and all intellectual property or proprietary rights throughout the world, including all: (i) patent rights (including patent applications and disclosures); (ii) registered and unregistered copyrights (including rights in software, including in source code and object code); (iii) registered and unregistered trademark rights; and (iv) trade secret rights.
1.3 “License” has the meaning set forth in Section 2.0.
1.4 “You” and “Your” have the meaning set forth in the preamble.
1.5 “AMFS” has the meaning set forth in the preamble.
1.6 “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
1.7 “Product” means the AMFS Expert Witness Analysis report, or AMFS Expert Witness Exclusion Report, or AMFS Expert Witness Survey, which provide background information on expert witnesses in the United States, as well as any updates, upgrades, enhancements, releases, improvements, and any other adaptations or modifications made to the Product (which may contain, among other things, error corrections or other changes to the functionality, compatibility, capabilities, performance, efficiency, or quality of such Product), whether or not owned by AMFS. AMFS is not obligated to update, upgrade, enhance or improve the Product.
1.8 “Term” has the meaning set forth in Section 10.0.
1.9 “Third-Party” means any Person other than you or AMFS.
1.10 “Third-Party Licenses” has the meaning set forth in Section 4.0.
2.0 License Grant and Scope. Subject to and conditioned upon your strict compliance with all of the terms and conditions set forth in this Agreement, AMFS hereby grants you a non-exclusive, non-transferable, non-sublicensable limited license (hereinafter, the “License”) during the Term to use the Product and Documentation, solely as set forth in this Section 2.0 and subject to all of the conditions and limitations set forth in Section 5.0 or elsewhere in this Agreement. This License grants you the right to access and use the Product in accordance with the terms of this agreement and any existing agreements between you and AMFS.
3.0 Fees. You agree to pay AMFS for use of the Product, at the advertised price, and agree that the fees are non-refundable.
4.0 Third-Party Software and Product. The Product may include software, content, data or other materials, including related documentation, that are owned by Persons other than AMFS and that are provided to you on terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). This License and your use of the Product are subject to such Third-Party Licenses. You are bound by and shall comply with all Third-Party Licenses. Any breach by you of any Third-Party License is also a breach of this Agreement.
5.0 Use Restrictions. You shall not, directly or indirectly:
5.1 use (including make any copies of) the Product or Documentation beyond the scope of this License;
5.2 permit any other Person (other than its own users) to use the Product or Documentation;
5.3 modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Product or Documentation or any part thereof;
5.4 reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Product or any part thereof;
5.5 remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other Intellectual Property Rights notices from the Product or Documentation, including any copy thereof;
5.6 except as contemplated by this License, copy the Product or Documentation, in whole or in part;
5.7 use the Product or Documentation in the operation of a service.
6.0 Responsibility for Use of Product. You are responsible and liable for all uses of the Product through access thereto provided by you, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Product by its own users or by any other Person to whom you may provide access to or use of the Product, whether such access or use is permitted by or in violation of this Agreement.
7.0 Maintenance and Support. This License does not entitle you to any maintenance or support services with respect to the Product.
8.0 Collection and Use of Information. You acknowledge that AMFS may, directly or indirectly through the services of Third Parties, collect, use and store information regarding your use of the Product to improve the performance of, or develop updates to, the Product.
9.0 Intellectual Property Rights. You acknowledge and agree that the Product and Documentation are provided under license, and not sold, to you. You do not acquire any ownership interest in the Product or Documentation under this Agreement or any other rights thereto other than to use the same in accordance with the License and subject to all of the terms, conditions and restrictions under this Agreement. AMFS (and its licensors and service providers) reserve and shall retain their entire right, title and interest in and to the Product and Documentation and all Intellectual Property Rights arising out of or relating to the Product and Documentation, except as expressly granted to you in this Agreement. You shall safeguard all Product and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. You shall promptly notify AMFS if you become aware of any infringement of AMFS’s Intellectual Property Rights in the Product or Documentation and fully cooperate with AMFS in any legal action taken by AMFS to enforce its Intellectual Property Rights.
10.0 Term and Termination. This Agreement and the License shall remain in effect unless terminated as set forth herein (the “Term”).
10.1 You may terminate this Agreement by ceasing to use and destroying all copies of the Product and Documentation.
10.2 Upon expiration or earlier termination of this Agreement, the License shall also terminate, and you shall cease using and destroy all copies of the Product and Documentation.
10.3 Notwithstanding any expiration or termination of this Agreement, any provisions of this Agreement which by their terms are intended to survive expiration or termination of this Agreement shall so survive and continue to full force and effect.
11.0 Warranty Disclaimer. THE PRODUCT AND DOCUMENTATION ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AMFS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCT AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. AMFS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PRODUCT WILL MEET THE YOU’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER PRODUCT, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
12.0 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
12.1 IN NO EVENT WILL AMFS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO THE YOU OR ANY THIRD-PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE PRODUCT, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT AMFS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 IN NO EVENT WILL AMFS AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED ONE-HUNDRED DOLLARS ($100).
12.3 THE LIMITATIONS SET FORTH IN THIS SECTION 12.0 SHALL APPLY EVEN IF THE LICENSE REMEDIES UNDER THIS AGREEMENT FAIL THEIR ESSENTIAL PURPOSE.
13.0 Confidentiality. Each party agrees to use commercially reasonable efforts to maintain the confidentiality of any confidential information of the other party that it obtains pursuant to this Agreement consistent with the efforts such party uses to protect its own confidential and trade secret information of like importance, and shall take all reasonable steps to ensure that such confidential information is not disclosed or distributed by its employees or agents to third parties not subject in writing to an agreement to protect such confidential information. Each party agrees that the Product and Documentation shall be deemed confidential information of AMFS.
14.0 No Legal Advice. The Product may provide information concerning potential legal issues, but it is not a substitute for legal advice from qualified counsel. At no time does AMFS review information for legal sufficiency, draw legal conclusions, provide legal advice, opinions or recommendations about anyone’s legal rights, remedies, defenses, options, selection of forms, or strategies. Use of the Product does not create any fiduciary relationship between you and AMFS. The accuracy of the Product is neither warranted nor guaranteed and you use the Product at your own risk. Reports created using the Product may require consultation with an attorney prior to filing. Use of the Product for the benefit of another if you are not licensed to practice law may subject you to civil and criminal penalties for the unauthorized practice of law.
15.0 Miscellaneous. For purposes of this Agreement, the following terms apply:
15.1 This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the courts within the State of Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens.
15.2 This Agreement, together with all schedules attached hereto constitutes the sole and entire agreement between you and AMFS with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
15.3 You shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without AMFS’s prior written consent, which consent AMFS may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving you (regardless of whether you are a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which AMFS’s prior written consent is required. No delegation or other transfer will relieve you of any of your obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section is void. AMFS may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15.4 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
15.5 This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.6 If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
15.7 For purposes of this Agreement,
15.7.1 the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”;
15.7.2 the word “or” is not exclusive; and
15.7.3 the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. All schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
15.8 The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.