PLEASE READ THIS LICENSE AGREEMENT CAREFULLY, BY CLICKING “I ACCEPT,” YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT.
WHEREAS, DC Practice Tools, LLC (hereinafter, the “Licensor”) has developed an advertising system for chiropractors to use in marketing their practice known as “The Ultimate Chiropractic Ads” (hereinafter, the “System”);
WHEREAS, the person who clicks “I accept” represents and warrants that he/she is authorized to act on behalf of a particular chiropractic practice that desires to use the System to advertise that chiropractic practice, which chiropractic practice shall hereinafter be referred to as “Licensee’s Practice”;
WHEREAS, the person who clicks “I accept” and Licensee’s Practice shall be collectively referred to hereinafter as the “Licensee”;
WHEREAS, the System contains information that explains the System to Licensee and informs Licensee how to implement the System to advertise Licensee’s Practice (hereinafter, the “Information”);
WHEREAS, the System also contains pre-printed advertisements and booklets owned by Licensor but provided to Licensee under the terms herein for Licensee to use in advertising Licensee’s Practice (hereinafter, the “Advertising Material”); and,
WHEREAS, Licensor and Licensee, who shall hereinafter collectively be referred to as “the Parties”, wish to set forth their agreement regarding ownership of the System and terms and conditions upon which Licensee may use the System.
NOW THEREFORE, in consideration of the mutual promises, conditions, and undertaking of the Parties as set forth in this Agreement, which consideration expressly includes the recitals above, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties AGREE AS FOLLOWS:
1. License. Licensor hereby grants to Licensee a non-exclusive, non-transferable, revocable license to use the System solely in conjunction with Licensee’s Practice under the terms provided herein (hereinafter, the “License”). The License is personal to Licensee, cannot be transferred, and authorizes Licensee to use the System only in the following manner, which hereafter shall be collectively referred to as the “Uses”: (i) reproduce and publish copies of Advertising Material with information about Licensee’s Practice inserted therein; (ii) use the Information solely within Licensee’s Practice; and, (iii) perform and/or display publicly the Advertising Material with information about Licensee’s Practice inserted therein. Licensee may sublicense to others its right to exercise the Uses only to the extent that such sublicense is needed to advertise and/or create advertisements for Licensee’s Practice and provided that the receiver of any Information, if any, agrees in writing to keep said Information confidential by agreeing to a confidentiality provision at least as restrictive as contained herein this License Agreement. Licensor retains all ownership of the System as well as the Advertising Material and Information contained therein.
2. Confidentiality. Licensee agrees the Information contained within the System is confidential and proprietary to Licensor, and, Licensee shall maintain the confidentiality of the Information at all times. Licensee agrees that it will not, during the course of this License Agreement and after any termination or revocation hereof, disclose or disseminate any Information to any person or entity for any reason or purpose whatsoever and agrees not to use any Information in conjunction with any other person or entity other than Licensee’s Practice under any circumstance. Licensee agrees that it shall take all reasonable measures (1) to protect the secrecy of and avoid disclosure or third-party use of the Information and (2) to prevent it from falling into the public domain or into the possession of persons other than those persons authorized under this License Agreement to have such Information. Such measures shall include, but not be limited to, the degree of care that Licensee utilizes to protect its own confidential information of a similar nature, which shall be no less than reasonable care.
3. Termination. This License Agreement and the License hereunder is effective until terminated or revoked. Licensee may terminate this License Agreement at any time by returning the System, related documentation (if any), and all electronic and/or printed copies of the Advertising Material in Licensee’s possession, including without limitation copies of the Advertising Material with information about Licensee’s Practice inserted therein. In addition, the License granted hereunder shall be and automatically is revoked, immediately and without notice from or affirmative act of Licensor, if Licensee fails to comply with any provision of this License Agreement. Upon revocation, Licensee must destroy or return the System, related documentation (if any), and all electronic and/or printed copies of the Advertising Material in Licensee’s possession, including without limitation copies of the Advertising Material with information about Licensee’s Practice inserted therein.
4. Limited Warranty on Media. Licensor warrants the tangible media on which the System is expressed to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date the License is purchased as evidenced by a copy of Licensee’s receipt. Licensor’s entire liability and Licensee’s exclusive remedy will be replacement of the media not meeting Licensor’s limited warranty and which is returned to Licensor with a copy of the receipt. Licensor will have no responsibility to replace any media damaged by accident, abuse, or misapplication. ANY IMPLIED WARRANTIES ON THE TANGIBLE MEDIA, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE THE LICENSE IS PURCHASED. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND, LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.
5. Limited Money Back Guarantee. For up to ninety (90) days after Licensee purchases the License granted herein, Licensee may return the System to Licensor and receive a refund of the License purchase price provided that Licensee does the following: (1) provides to Licensor a published copy of at least one advertisement from the Advertising Material which Licensee placed in a newspaper of general circulation in the area where Licensee’s Practice is located; (2) returns to Licensor, at Licensee’s cost, the original System and all of its contents without any defects; (3) returns or destroys any and all electronic and/or printed copies of the System or any of its contents that remain in Licensee’s possession after return of the System, including, without limitation, copies of the Advertising Material with information about Licensee’s Practice inserted therein; (4) acknowledges and agrees in writing, on a form to be provided by Licensor, that Licensee will not use and/or reproduce the System and/or any part thereof after the System has been returned; and, (5) acknowledges and agrees in writing, on a form to be provided by Licensor, that Licensee will not disclose to third parties, use, and/or disseminate the Information after the System has been returned.
6. Disclaimer of Warranty on System. Licensee expressly acknowledges and agrees that use of the System is at its sole risk. The System and related documentation are provided “AS IS” and without warranty of any kind and LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND/OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SYSTEM IS ASSUMED BY LICENSEE. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF USE OF THE SYSTEM, THE ADVERTISING MATERIAL, OR THE INFORMATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR LICENSOR’S AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE, SHALL LICENSOR, OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE SYSTEM OR ANY ADVERTISING MATERIAL, EVEN IF LICENSOR OR LICENSOR’S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to Licensee for all damages, losses, and causes of action (whether in contract, tort (including negligence), or otherwise) exceed the amount paid by Licensee for the License.
8. Governing Law, Jurisdiction, and Venue. This License Agreement shall be governed by and construed in accordance with laws of the State of Texas, without reference to its conflicts of law principles. Any action for a dispute arising out of or related to this License Agreement shall exclusively be brought in, and Licensee irrevocably consents to, the personal and exclusive jurisdiction and venue of the state courts within the county of Bexar County, Texas, or, in the case of exclusive federal jurisdiction, the United States District Court for the Western District of Texas.
9. Severability. If any term, condition, restriction, or provision of this License Agreement is declared or found by a court of competent jurisdiction to be illegal, unenforceable, or void, the parties shall endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this License Agreement. If the parties fail to agree on such amendments, such invalid term, condition, or provision shall be severed from the remaining terms, conditions, restrictions, and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law, and, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this License Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.
10. Entire Agreement. This License Agreement constitutes the entire agreement between the Parties pertaining to its subject matter, and it supersedes all prior contemporaneous agreements, representations, and understandings of the Parties. No supplement, modification, or amendment of this License Agreement shall be binding unless executed in writing by the Parties.
11. Waiver. No waiver of any provision of this License Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.
12. Transfer of Licensee’s Practice. Licensee may transfer its rights under this License Agreement to a successor in interest of Licensee’s Practice by way of merger, acquisition, or sale of substantially all of its assets, provided that the transferee of Licensee’s Practice agrees in writing to the terms herein and Licensee, not the transferee, provides to Licensor a copy of the transferee’s agreement to be bound by this License Agreement prior to any transfer contemplated herein this Paragraph 12.
13. Assignment or other Transfer of Licensee’s Rights. Unless expressly provided herein this License Agreement, Licensee shall not assign, sublicense, lease, or otherwise transfer Licensee’s rights hereunder this License Agreement. Any attempted transfer of Licensee’s rights in violation of this License Agreement shall immediately revoke the License granted hereunder without notice from or any affirmative act of Licensor.
14. Jointly Drafted. This License Agreement shall be deemed to have been jointly drafted by all Parties hereto for the purposes of applying any rule of contract construction.
15. Headings. Headings and numbers in this License Agreement are for the convenience of reference only and should not be used to construe or interpret its terms in any manner.