- Ownership of the Licensed Application and Equipment. The Licensed Application and Equipment are the valuable property of Trauma Simulator and our licensors and are protected by copyright and other intellectual property laws and treaties. Trauma Simulator, and our licensors, own all right, title and interest in and to the Licensed Application and Equipment, including all copyright and other intellectual property rights therein. Trauma Simulator reserves all rights not expressly granted to you in this Agreement.
- Scope of License to the Licensed Application and Equipment. The Licensed Application and the Equipment are licensed, not sold, to you. Subject to the terms and conditions of this Agreement, Trauma Simulator grants you a limited, non-exclusive, non-transferable license to download, install and use the Licensed Application on and with the Equipment. You acknowledge that Trauma Simulator may electronically access the Licensed Application and Equipment to push upgrades to the Licensed Software, diagnose problems with the Licensed Application or Equipment, or to enforce any of its rights under, and in accordance with, this Agreement. The terms of this license will govern any upgrades provided by Trauma Simulator that replace or supplement the original License Application or Equipment, unless an upgrade is accompanied by a separate license, in which case the terms of that separate license will govern.
- License Restrictions. The license granted to you in Section 2 does not allow you to do any of the following: (a) install, use or authorize the installation of the Licensed Application on any system, computer or equipment other than the Equipment; (b) distribute, copy, license, rent, sell, publish, lease or otherwise transfer the Licensed Application (except as expressly permitted by this Agreement) or any proprietary materials of Trauma Simulator to any third party; (c) reverse engineer, decompile, disassemble or attempt to discover any source code or trade secrets related to the Licensed Application, Equipment or any proprietary materials of Trauma Simulator; (d) modify, alter or create any derivative works of the Licensed Application or based on any proprietary materials of Trauma Simulator; (e) remove, alter, or obscure any copyright, trademark or other proprietary rights notice on or in the Licensed Application or Equipment; (f) work around any technical limitations in the Licensed Application or Equipment; or (g) use the Licensed Application or Equipment for purposes for which each was not designed. Unless explicitly stated herein or otherwise by Trauma Simulator, nothing in this Agreement shall be construed as conferring any right or license to intellectual property rights, whether by estoppel, implication or otherwise. If you breach any of these restrictions, you may be subject to prosecution and damages.
- Use of Data. Trauma Simulator is not collecting information about equipment, system, or application software and peripherals. All data in relation to use of Licensed software belongs to you and is stored on your computer.
- No Warranty. YOU ACKNOWLEDGE AND AGREE THAT: (A) THE LICENSED APPLICATION AND EQUIPMENT MAY CONTAIN BUGS, ERRORS, AND DEFECTS; (B) USE OF THE LICENSED APPLICATION AND EQUIPMENT IS AT YOUR SOLE RISK; AND (C) THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. ACCORDINGLY, THE LICENSED APPLICATION AND EQUIPMENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTY OF ANY KIND. TRAUMA SIMULATOR DISCLAIMS ALL WARRANTIES (EXPRESS AND IMPLIED AND ARISING BY LAW OR OTHERWISE) REGARDING THE LICENSED APPLICATION AND EQUIPMENT AND THEIR PERFORMANCE OR SUITABILITY FOR YOUR INTENDED USE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. TRAUMA SIMULATOR SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF, OR INABILITY TO USE, THE LICENSED APPLICATION AND EQUIPMENT OR ANY SERVICE THAT THE LICENSED APPLICATION OR EQUIPMENT IS INTENDED TO ACCESS OR FOR ANY LOSS OF DATA. TRAUMA SIMULATOR DOES NOT REPRESENT OR WARRANT THAT THE LICENSED APPLICATION AND EQUIPMENT WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS (“FAULTS”) OR IN A SECURE MANNER OR THAT ANY FAULTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANATOMY NEXT OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. IN THE EVENT THAT THE LICENSED APPLICATION OR EQUIPMENT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
The laws of some states or jurisdictions do not allow the exclusion of implied warranties. To the extent that those laws apply, the exclusions set forth above may not apply to you.
- Third Party Claims. If any third party notifies you of any third party claims that the Licensed Application or Equipment, or your possession or use thereof, infringe any intellectual property rights of a third party, you agree to promptly contact Trauma Simulator and provide a description of the nature or basis of the alleged claim. Trauma Simulator will have sole discretion to terminate the license granted herein, settle or defend the claim.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANATOMY NEXT AND ITS REPRESENTATIVES SHALL HAVE NO LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE) FOR ANY DAMAGES SUSTAINED BY YOU ARISING FROM YOUR DOWNLOAD OR INSTALLATION OF, OR ACCESS TO, THE LICENSED APPLICATION OR EQUIPMENT, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOSS OF DATA, EVEN IF TRAUMA SIMULATOR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Commercial Items; Limited Rights. As an agency of the United States government, you acknowledge that: (a) the Licensed Application constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable, with the commercial license rights and restrictions described in this Agreement; (b) your rights are limited to those specifically granted under this Agreement, and Exonicus reserves all other rights, title, interest and licenses therein; and (c) the Licensed Application is provided with “restricted rights” as provided for in FAR 52.227-19 (DEC 2007) and DFARS 227-7202 or their successors, as applicable.
- Termination. Any use of the Licensed Application or Equipment other than as specifically authorized under this Agreement or the Additional Terms, without the prior written permission of Exonicus, is strictly prohibited and will immediately terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. You may terminate this Agreement at any time by (a) ceasing use of the Licensed Application and Equipment and returning the Equipment to Exonicus at the address set forth in Section 15 (b) deleting all copies of the Licensed Application in your possession or control. Trauma Simulator reserves the right to terminate this Agreement at any time, for any or no reason. In the event of termination, the license granted to you herein will automatically terminate and you must immediately cease all use of the Licensed Application and Equipment, destroy all copies of the Licensed Application within your possession or control and return the Equipment to Trauma Simulator at the address set forth in Section 15.
- Survival. Sections 1, 3, 4, 5-8, 9 (last sentence only) and 10-15 of this Agreement shall survive any termination of this Agreement.
- Modifications. Trauma Simulator reserves the right to modify or discontinue, temporarily or permanently, the Licensed Application or Equipment (or any features or portions thereof) without prior notice. You agree that Exonicus will not be liable for any modification, suspension or discontinuance of the Licensed Application or Equipment (or any part thereof).
- Severability. If any provision of this Agreement is held invalid or unenforceable, it will be so held to the minimum extent required by law and all other provisions will remain valid and enforceable.
- Governing Law and Venue. This Agreement and your download and installation of, and access to, the Licensed Application and Equipment will be governed and interpreted in accordance with the laws of the State of Washington, without reference to its choice of law rules. Each party irrevocably consents to the jurisdiction and venue of the federal and state courts located in King County, Washington, U.S.A., with respect to any Dispute between the parties that is not subject to arbitration under this Agreement.
- Miscellaneous. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be deemed to be restated to reflect the original intention of the parties to the maximum extent possible and in accordance with applicable law, and the remaining provisions, terms, covenants, and restrictions of this Agreement will remain in full force and effect. You may not assign this Agreement or any of your rights under this Agreement without the prior written consent of Exonicus, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by Exonicus and our respective successors and assigns. Any failure by Trauma Simulator to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and shall remain in full force and effect.
- Notices. Any notice or other communication to Trauma Simulator under this Agreement shall be given to:
Exonicus, Inc. , 530 S 373rd St, Federal Way WA 98003, United States