For purposes of this Agreement, the "Licensee" is the entity associated with your login and password. By clicking "I Accept", you represent that you are authorized by such entity to accept these terms and conditions, and enter into this Agreement, on its behalf.
1. License Grant. Any documents, files or other information ("Documents") downloaded from KMAultrasound.com after clicking the "I Accept" button are licensed by Keith Mauney Ultrasound, LLC (KMA) to Licensee on a limited and non-exclusive basis, solely for Licensee’s personal use in the course of personal, patient or student education. Licensee may incorporate part or all of any anatomy chart in a presentation or publication provided KMA’s original copyright and ownership notice is prominently displayed. Worksheets or Employment Agreement can be modified as desired for departmental or practice use. No other right or license is granted to Licensee by this Agreement to use the Documents or any other intellectual property owned by KMA.
2. Term of License. The license to use Documents received under this Agreement will be effective as of the date of receipt of such Documents, and shall continue in force until the termination by KMA as set forth in Paragraph 8.
3. Use of the Documents. The Documents and all copies thereof are proprietary to KMA and are protected by copyright and other intellectual property laws of the United States and other countries. Licensee may not rent, lease, sell, publish, display, modify or create derivative works of the Documents unless specifically permitted herein, and may not use the Documents for any purpose other than the purposes specifically set forth in Paragraphs 1 and 4 hereof. Without limiting the generality of the foregoing, Licensee may not use the Documents to: Licensee may make tangible copies of the Documents but only as strictly necessary to carry out the activities described in Paragraphs 1 and 5, and may make one electronic copy of the Documents for archival backup purposes only, provided that all such copies include all copyright and other proprietary notices contained on the original.
4. Warranty. NOTHING HEREIN SHALL CONSTITUTE A WARRANTY TO LICENSEE, NOR SHALL BE DEEMED TO AFFECT OR MODIFY ANY EXPRESS WARRANTY GRANTED TO LICENSEE IN THE DOCUMENTS OR IN ANY OTHER AGREEMENT BETWEEN KMA AND LICENSEE. LICENSEE HEREBY WAIVES, RELEASES AND RENOUNCES ANY AND ALL OTHER WARRANTIES, GUARANTEES, OBLIGATIONS AND LIABILITIES OF KMA AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES AGAINST KMA, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR OTHER WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT.
5. Limitation of Liability. IN NO EVENT WILL KMA BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR DAMAGES OF ANY NATURE, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS AND LOST BUSINESS), SPECIAL OR PUNITIVE ARISING OUT OF LICENSEE’S USE OR INABILITY TO USE THE DOCUMENTS, OR LICENSEE’S MODIFICATIONS NOT APPROVED BY KMA, WHETHER SUCH DAMAGES ARE BASED UPON BREACH OF WARRANTY OR TORT, INCLUDING NEGLIGENCE, EVEN IF KMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALL DOCUMENTS ARE PROVIDED "AS IS".
6. Indemnification. Licensee will indemnify and hold harmless KMA, its officers, directors, employees and shareholders, and their respective successors and assigns, from any and all damage, loss, liability and expense (including reasonable attorneys’ fees and court costs) incurred as a result of any claim, demand or action based on, related to, or arising out of the use of the Documents by or on behalf of Licensee, or any breach of this Agreement by Licensee or its employees or agents.
7. Termination and Remedies. Licensee’s rights under this Agreement will terminate automatically without notice from KMA if Licensee breaches this Agreement. Upon such termination, Licensee immediately shall cease all use of the Documents and destroy all copies and derivatives thereof, whether in full or partial format. KMA reserves the right to pursue any and all remedies, at law and in equity, in the event of Licensee’s breach, which the Parties agree will cause irreparable harm to KMA and for which KMA will be entitled to immediate injunctive relief in any court having jurisdiction and without posting bond.
8. Assignment. This license is personal to Licensee. Neither this Agreement nor any of Licensee’s rights or obligations hereunder may be sublicensed, assigned or transferred in whole or in part by Licensee without the prior written consent of KMA, except in conjunction with the sale of Licensee’s business operations to a third party, provided that such third party accepts, in writing, Licensee’s rights and obligations hereunder. Any other attempted sublicense, assignment or transfer without KMA’s consent shall be void and of no force or effect. KMA retains all rights in the Documents not expressly granted to Licensee under this Agreement.
9. Audit and Compliance. Upon written request from KMA, Licensee shall make its books, records and facilities available for audit and inspection by KMA (or KMA’s third party auditor) to determine if Licensee is in compliance with the terms of this Agreement. KMA will hold any non-public information obtained in such audit in confidence, except as necessary to comply with a subpoena, court order, government law or regulation, or to enforce its rights under this Agreement. In addition, upon written request from KMA, Licensee shall provide to KMA a verified statement regarding Licensee’s compliance with the terms of this Agreement.
10. General. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency between the Parties. Neither Party has the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. KMA has the right to modify and/or replace the Documents at its sole discretion. The provisions of Sections 5-13 shall survive the termination of this Agreement, regardless of the reason for termination. Neither any waiver by KMA of a breach or default under this Agreement, nor the failure of KMA to enforce any provision of this Agreement, shall be construed as a waiver of any subsequent breach or default of a similar nature.
11. Applicable Law. This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to its conflict of laws provisions. The Parties agree that any action or claim relating to or arising out of this Agreement shall be brought in a state or federal court sitting in the State of Texas, and the Parties hereby irrevocably consent to personal jurisdiction and venue of, and agree to be bound by any judgment and orders rendered by, such courts.
12. KMA Corporation. KMA Corporation operates through its divisions and as the parent company for its subsidiaries. KMA and the "KMA & Design" graphic are registered trademarks of KMA Ultrasound Training, LLC, and may not be used without permission from KMA.
13. Entire Agreement. Except with respect to any executory contracts between the Parties that deal exclusively and specifically with all or part of the Documents that are the subject of this Agreement, this Agreement shall be deemed to contain the entire agreement between the Parties with regard to the Documents licensed hereunder, and it supersedes any previous understandings, commitments or agreements pertaining thereto, whether written or oral. In the event any such executory contract exists, then this Agreement shall be deemed to supplement said contract. If any provision of this Agreement is held illegal, invalid or otherwise unenforceable, the remaining provisions of this Agreement shall not be so affected, and the Parties shall work in good faith to replace such illegal, invalid or unenforceable provision with one that, to the extent possible, is consistent with the Parties’ original intent.