LIMITED USE LICENSE AGREEMENT FOR GRXSM PRODUCTS
Last Updated: April 21,
2008
READ AND PRINT THIS AGREEMENT BEFORE
CLICKING
“I ACCEPT”
Article
I.
GENERAL PROVISIONS
Section
1.01
Application.
(a) This Agreement ("Agreement") is
made by and between GRX SOLUTIONS, LLC,
a Wisconsin limited liability company having its office at 5780
Seminole Ridge Circle (referred to herein as “we,” “us,” “Licensor” or “GRX”)
and you (referred to herein as "you," "your" or
"Licensee"). Licensor and Licensee may be referred to collectively
herein as the “Parties” and individually as a “Party.”
(b) This
Article I applies to all Licensees and all Products.
Section 1.02
Definitions.
For purposes of this Agreement:
(a) The
term “Product” shall mean and include any and all products we offer for
licensing, including products currently available and products we may have
discontinued.
(b) The
term “Licensed Product” shall mean a Product for which you have accepted this
Agreement and paid the applicable Fee.
(c) The
term “Fee” shall mean the licensing fee for a Licensed Product. If your clinic
or practice employs or otherwise includes three or fewer health care
practitioners, the Fee shall be the fee that is specified on the Site on the
date you accept this Agreement as to such Licensed Product. If your clinic or
practice employs or otherwise includes more than three health care
practitioners, the Fee shall be the fee quoted to you by Licensor when you
contact Licensor for pricing information. The Fee shall also be subject to any
additional Product-specific terms set forth in this Agreement, including but
not limited to those set forth in Article IV.
(d) The
term “Site” refers to the GRX website at www.grxsolutions.com
(e) The
term “Your Site” means a single, non-technique website, unaffiliated with an
educational institution, the primary purpose of which is to promote your individual
health care practice to the public.
(f)
The term “Materials” shall include but is not
limited to: trademarks, trade dress, logos, designs, sound recordings, musical
compositions, lyrics, pictures, graphics, photographs, text, videos, information,
instructions and any other intellectual property that you reproduce, distribute,
perform, adapt, display or in any other way present or exploit in any manner, using
any GRXSM Product.
g) If
Licensor grants you temporary access to any Product for demonstration purposes
you are considered a “Demonstration Licensee” and, as such, are subject to all
the terms and conditions of this Agreement, provided, however, that your
license to use the Product shall expire at the end of the specified
demonstration period. For the avoidance of doubt: aside from references to the
term of the license, all references in this Agreement to a Licensee shall also
include a Demonstration Licensee, and all references to a Licensed Product
shall refer, in such context, to the Product for which a Demonstration Licensee
shall have received a demonstration license.
h) This
Agreement incorporates by reference, and you expressly adopt and agree to, the
version of Licensor’s Terms of Use agreement for the Site in effect on the date
you execute this Agreement. In the event of conflict between such Terms of Use
agreement and this Agreement, this Agreement shall control.
Section 1.03
In consideration of the Fee for each Licensed Product Licensor grants
to Licensee and Licensee hereby accepts a revocable personal, non-exclusive,
non-transferable limited use license to use and display such Licensed Product
in accordance with the terms and conditions of this Agreement.
Section 1.04
Without limiting any other provision of this Agreement: Licensee shall
not reproduce, distribute, perform or display any Product for any purpose not
expressly authorized herein. Licensee shall not reverse engineer, decompile,
disassemble, or create derivative works from any Product. Licensee shall not give, sell, rent, lease,
sublicense, or otherwise transfer or distribute any Product. Licensee shall not
remove or alter, or cause to be removed or altered, any copyright, trademark,
trade name, service mark, or any other proprietary notice or legend appearing
on any Product, at any time.
Section 1.05
Licensed Products may only be used on Your Site. You shall be
exclusively responsible for the supervision, management, control and use of Licensed
Products on Your Site.
Section 1.06
You agree to fully defend and
indemnify Licensor from any and all claims, liabilities and costs (including
reasonable attorney fees) related to your violation of any of the terms or
conditions of this Agreement.
Section 1.07
You agree to fully defend, indemnify and hold Licensor harmless from
any and all claims, liabilities and costs (including reasonable attorney fees)
related to any use of any Product or Materials by you, your agents and
employees, and/or your end-users.
Section 1.08
You agree prominently and in such form as Licensor may prescribe, to
notify all end-users of Materials and Products that GRX bears no responsibility
for and makes no warranty or representation regarding the content or accuracy
of Materials or Products and that such end-users use and rely upon Materials
and Products at their own risk.
Section 1.09
You assume complete responsibility for all hardware and software used
by you and/or any end-user using Your Site, in conjunction with any Products. Licensor shall not be responsible in any way
for the non-performance or malfunction of any such hardware or software used in
conjunction with Products, or for any damages whatsoever arising therefrom.
Section 1.10
Term and Termination
(a) With
respect to each Licensed Product, this Agreement shall be effective upon
Licensee’s payment of the applicable Fee and shall remain in force for the Term
you choose at checkout, unless otherwise terminated as provided herein. (For
the avoidance of doubt: if you choose to license a Product for six months, the
Term of this Agreement as to such Product shall be six months. If you choose to
license a different Product for one year, the Term of this Agreement as to such
other Product shall be one year.) This Agreement shall not automatically renew.
(b) With
respect to any Licensed Product, Licensee may terminate this Agreement at any
time by removing the Licensed Product from Your Site and permanently destroying
all copies of the Licensed Product in Licensee’s possession or control.
(c) With
respect to any and all Licensed Products, this Agreement will terminate
immediately if Licensee fails to comply with any term or condition of this
Agreement. In such event, no notice shall be required by Licensor to effect
such termination. Any breach by Licensee of any terms or conditions herein
shall be deemed material.
(d) Upon
termination of this Agreement, Licensee agrees immediately to destroy all
copies of all Products in Licensee’s possession or control, in any form, along
with any related printed or written materials; or to return same to Licensor at
Licensee's expense. You understand and agree that Licensor may, in its sole
discretion, employ security measures to monitor and enforce Licensee’s
adherence to the terms and conditions of this Agreement.
Section 1.11
Fees and Payment.
(a) The
amount of the Fee for any Licensed Product shall be as Licensor may determine
from time to time in its sole discretion.
(b) Licensee
understands that Licensor may, in Licensor’s sole discretion, discount Fees for
certain categories of Licensees including, but not limited to, Graston
Technique® providers
who are members of the Graston Technique® online network.
(c) Licensee
agrees to pay Licensor all Fees, with a credit or debit card or similar form of
payment (a "Card” payment method).
In addition, Licensee agrees to pay Licensor any and all applicable tax
that may be levied in conjunction with any Licensed Product.
(d) You
authorize any and all charges and fees incurred under this Agreement to be
billed to your Card account. It is your sole responsibility to advise Licensor
of any billing problems or discrepancies within thirty (30) days after such
discrepancies or problems become known to you. Your Card issuer agreement
governs the use of your designated Card account; you must refer exclusively to
such issuer agreement, and not this Agreement, to determine your rights and
liabilities as a Cardholder.
Section 1.12
Reservation of Rights.
(a) Licensor
is the sole and exclusive owner of, and hereby reserves, all right, title, and
interest in and to all Products, the Site and all content on or associated with
either, including but not limited to all worldwide copyright, patent,
trademark, trade secret and other proprietary rights relating thereto. (Except
that Licensor does not own rights in or to the Graston Technique® trademark, but has licensed
the right to use such mark in the Graston Technique® Slide Show, and any and all use of the Graston Technique® trademark shall inure to the
benefit of its owner, TherapyCare Resources, Inc.)
(b) In
no case shall Licensee or any end-user of Licensee be considered a joint author
or owner of the Site or any Product. Licensee shall take all steps reasonably
necessary or requested to protect Licensor’s ownership rights.
(c) Licensor
reserves all rights not expressly granted in this Agreement.
Section 1.13
You hereby warrant and represent the following to GRX and acknowledge
that GRX is relying upon such warranties and representations:
(a) that
the factual assertions you have made and will make to us are true and complete;
(b) that
you have reached the age of majority and are otherwise competent to enter into
contracts in your jurisdiction; and that in any event you are at least 18 years
of age;
(c)
that you have obtained and hold all rights, approvals,
consents, licenses and/or permissions, in proper legal form, for all Materials;
that no other rights, approvals, consents, licenses and/or permissions
are required from any other person or entity for any use you make of Materials with
or in connection with any GRXSM Product; and that no Materials
violate any common law or statutory patent, copyright, privacy, publicity,
trademark or trade secret rights of any person or entity and are not libelous,
defamatory, obscene or otherwise actionable at law or equity;
(d) that you are not a resident of any jurisdiction where this
Agreement is void or prohibited or restricted by such jurisdiction’s laws or
regulations.
Section 1.14
You agree that this Agreement has the same legal force and effect as a
written contract with your written signature and that it satisfies any laws
that require a writing or signature, including any applicable statute of
frauds. You further agree that you shall not challenge the validity,
enforceability or admissibility of this Agreement on the grounds that it was
electronically transmitted or authorized. A printed version of this Agreement
shall be admissible in judicial or administrative proceedings based upon or
relating to the Agreement to the same extent and subject to the same conditions
as other business documents and records originally generated and maintained in
printed form. You acknowledge that you have had the opportunity to print this
Agreement.
Section 1.15
Disclaimer of Warranties
(a) ALL
PRODUCTS, INCLUDING ANY CONTENT OR INFORMATION CONTAINED THEREIN, ARE PROVIDED
“AS IS,” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR
IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GRX DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS
FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF
DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
(b) GRX
DOES NOT WARRANT THAT YOUR USE OF PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE OR
SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT PRODUCTS ARE FREE OF VIRUSES OR
OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR
OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT
NEEDED TO ACCESS THE INTERNET AND USE LICENSED PRODUCTS, AND ALL CHARGES
RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK TO YOURSELF AND YOUR
END-USERS FOR YOUR AND THEIR USE OF PRODUCTS AND YOUR AND THEIR RELIANCE
THEREON. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN PRODUCTS
AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY
DAMAGES TO YOUR AND YOUR END-USERS’ COMPUTER SYSTEMS OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OF PRODUCTS.
(c) SOME
STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE
OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
PROVIDED, HOWEVER, THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW YOU HEREBY
WAIVE THE PROVISIONS OF ANY STATE LAW LIMITING OR PROHIBITING SUCH EXCLUSIONS.
Section 1.16
Limitation of Liability
(a) GRX
IS NOT RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY
CONTRACT, NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF
OR RELATING IN ANY WAY TO USE OR MISUSE OF OR RELIANCE ON ANY PRODUCT, EVEN IF GRX
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL GRX’S
TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED $10.00 ORTHE TOTAL FEES
PAID BY YOU TO GRX, WHICHEVER IS GREATER. THIS LIMITATION SHALL ALSO APPLY,
WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, LOST PROFITS, AND LOST DATA. SUCH LIMITATION SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO
THE FULLEST EXTENT PERMITTED BY LAW.
(b) SOME
STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND
EXCLUSIONS MAY NOT APPLY TO YOU. PROVIDED, HOWEVER, THAT TO THE EXTENT
PERMITTED BY APPLICABLE LAW YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE LAW
LIMITING OR PROHIBITING SUCH EXCLUSIONS OR LIMITATIONS.
Section 1.17
Miscellaneous
(a) This
Agreement is binding on the Parties and their respective heirs, legatees,
executors, successors and assigns. This Agreement is the entire agreement
between the Parties. If any portion of this Agreement is found to be void or
unenforceable, the remaining portion shall be enforceable with the invalid
portion removed, giving all reasonable construction to permit the essential
purposes of the Agreement to be achieved. The Parties’ various rights and
remedies hereunder shall be construed to be cumulative.
(b) This
Agreement shall be deemed to have been made in the State of Wisconsin, and it
shall be governed by the substantive laws of the State of Wisconsin without
regard to any applicable conflict of laws provisions. The Parties submit to
jurisdiction in the state and federal courts sitting in Dane County, Wisconsin,
and you hereby waive any jurisdictional, venue or inconvenient forum
objections.
(c) Nothing
contained in this Agreement shall be construed to require the commission of any
act contrary to law. Nothing in this Agreement shall be construed or deemed to
create any partnership, agency, joint venture, employment or franchise
relationship between the Parties.
(d) You
agree to execute all further and additional documents as may be necessary or
desirable to effectuate and carry out the provisions of this Agreement.
(e) Captions
and headings used in this Agreement are for purposes of convenience only and
shall not be deemed to limit, affect the scope, meaning or intent of this
Agreement, nor shall they otherwise be given any legal effect.
(f)
No breach of this Agreement by Licensor shall be deemed
material unless Licensee shall have given Licensor written notice of such
breach, and Licensor shall fail to cure such breach within thirty (30) days
after its receipt of such notice.
(g) You
agree to defend, indemnify and hold Licensor harmless against any losses,
expenses, costs or damages (including any reasonable attorneys' fees and costs)
arising from, incurred as a result of, or in any manner related to any claim or
action based upon (a) your breach of any of the terms and conditions of any
portion of this Agreement, (b) your use of any Product, and/or (c) use of any
Product by any end-user using or accessing such Product through your website.
Licensor may participate in the defense of any claim or action and any
negotiations for its settlement or compromise. No settlement that may adversely
affect our rights or obligations shall be made without our prior written
approval.
(h) Notwithstanding
anything to the contrary contained herein, and without limiting other
provisions that may survive, Sections 1.04, 1.06, 1.07, 1.12, 1.13, 1.15, 1.16,
1.17 and Articles II, III and IV shall
survive termination of this Agreement.
Article
II.
THE GRASTON TECHNIQUE® SLIDE SHOW
Section 2.01
This Article II contains terms and conditions that, in addition to
those set forth in Article I, are applicable to all Licensees of the Product
known as the Graston Technique®
Slide Show (hereinafter the “Slide Show”).
Section 2.02
You warrant and represent that you are a practitioner or a provider of
the Graston Technique® and that you
enter into this license for the exclusive purpose of promoting the Graston Technique® in your
practice and/or educating the public at large about the Graston Technique®.
You further warrant and represent that Your Site does not represent and is not
affiliated with any educational institution.
Section
2.03
Your license for the Slide Show permits you to display the Slide Show,
for the Term of your Slide Show license, only on Your Site. You may not post
the Slide Show to any other website and you may not, knowingly, permit others
to link to the Slide Show on Your Site. You agree to post a notice on Your
Site, in such form as Licensor may prescribe, advising users not to link to the
Slide Show and instructing users to contact Licensor for licensing information.
In addition to any other remedies available to GRX, which remedies are hereby
expressly reserved, your breach of this Section 2.03 will result in
immediate termination of any and all licenses hereunder.
Section 2.04
At any time during the Term of your Slide Show license, Licensor may
require you to return and/or destroy all files embodying the Slide Show and to
remove the Slide Show and all related files from Your Site. In such case, users of Your Site will still
have access to the Slide Show for the remainder of your Term; such access,
however, will be to files residing on Licensor's servers that may be
password-protected.
Section 2.05
Licensor may terminate this Agreement immediately and without notice in
the event Licensor’s license to use the Graston
Technique® trademark terminates for any reason.
Section 2.06
This Article II shall survive any termination of this
Agreement.
Article
III.
THE GRXSM VIDEO CREATOR
Section 3.01
This Article III contains terms and conditions that, in addition to
those set forth in Article I, are applicable to all Licensees of the Product
known as the GRXSM VIDEO CREATOR (hereinafter
the “Video Creator”).
Section 3.02
In connection with your
use of the Video Creator, you may not use, link to or incorporate any images,
animations, trademarks or other material contained in the Graston Technique® Slide Show unless you
also subscribe to the Graston Technique® Slide Show.
Section 3.03
Any video that you create with the Video Creator contains material
proprietary to GRX and its vendors. Accordingly, you expressly agree to all of
the following:
(a) You
warrant and represent that you are a health care practitioner currently and
actively engaged in practice. You further warrant and represent
that Your Site does not represent and is not affiliated with any educational
institution.
(b) You
will not post any video you create with the Video Creator (hereinafter,
collectively, “Your Videos”) to any website other than Your Site. You will not,
knowingly, permit other websites to link to Your Videos on Your Site.
(c)
In addition to
any other remedies available to GRX, which remedies are hereby expressly
reserved, your breach of this Section 3.03 will result in immediate
termination of any and all licenses hereunder.
Section
3.04
At any time during the Term of your Video Creator license,
Licensor may require you to return and/or destroy all files embodying the Video
Creator and to remove the Video Creator and all related files from Your
Site. In such case, you will still have
access to the Video Creator for the remainder of your Term; such access,
however, will be to files residing on Licensor's servers that may be
password-protected.
Section 3.05
Without limitation of any other provision of this Agreement, you agree
to defend, indemnify and hold Licensor harmless against any losses, expenses,
costs or damages (including any reasonable attorneys' fees and costs) arising
from, incurred as a result of, or in any manner related to any claim or action
based upon any end-user’s use or reliance upon Materials.
Section
3.06
Protecting any intellectual
property rights you may have in or to Materials shall be your sole
responsibility and you hereby forever release and hold GRX harmless from any
and all claims related thereto.
Section
3.07
This Article III shall survive any termination of this Agreement.
Article
IV.
THE GRXSM ANATOMY VIEWER
Section 4.01
This Article IV contains terms and conditions that, in addition to
those set forth in Article I, are applicable to all Licensees of the Product
known as the GRXSM ANATOMY VIEWER
(hereinafter the “Anatomy Viewer”).
Section 4.02
Your Fee for use of the Anatomy
Viewer is based on usage and entitles you to a maximum of 500 hits per
month. You understand and agree that
Licensor will charge, and you will pay, additional fees for usage exceeding 500
hits per month.
Section
4.03
This Article IV shall survive any termination of this Agreement.
LICENSEE HEREBY ACKNOWLEDGES THAT
LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS
TERMS AND CONDITIONS.