TUNEDIN™ LOOPED MENU OF SERVICES END USER LICENSE AGREEMENT
THIS Video END USER LICENSE AGREEMENT (the “Agreement”) is entered into by and between Candace Crowe, Inc., a Florida corporation, d/b/a Candace Crowe Design, whose current mailing address is 3452 Lake Lynda Drive, Suite 160, Orlando, Florida 32817 (“CCD”), and the licensee.
LICENSE. (a) In consideration of the Licensee’s purchase of the TunedIN™ Video (the “Video”), as evidenced by Licensee’s execution of the TunedIN™ Order Form, CCD hereby grants to Licensee a nonexclusive right to use and display the Video at licensee’s practice’s physical location. The license granted hereunder does not include any use of the Video over the Internet and such use is specifically prohibited. (b) Licensee acknowledges that CCD has created, and is the owner of the Video, including any and all upgrades, modifications, updates, or enhancements of the Video. Licensee shall use the Video only for its own business purposes and shall not utilize it in the development of any other computer video products.
OWNERSHIP OF VIDEO. (a) Licensee acknowledges and understands that CCD is the owner of all right, title and interest, including all patent, trademark and copyright rights therein, to the Video, including all modifications and updates, regardless of the media or form in which the original disk or copies may exist, and that Licensee, through this Agreement or otherwise, does not acquire any ownership rights to the Video. Nothing contained in this Agreement is intended to grant to Licensee any intellectual property rights in the Video. Licensee acknowledges that the Video is entitled to protection under the copyright laws of the United States, and agrees that it shall not remove any copyright or other proprietary notices from the Video. Licensee further acknowledges that the existence or lack of a copyright notice shall not cause the Video to be in the public domain or to be other than an unpublished work with all rights reserved under the copyright laws. (b) Licensee acknowledges that all copyright, patent, trademark, trade secret, confidential information, and other intellectual and proprietary rights in the Video are, and shall remain, the valuable property of CCD. Licensee agrees not to sell, assign, lease, license, disclose, give, or otherwise transfer the Video or any copy thereof to any third party. Licensee shall not, without CCD’s prior written consent, copy or reproduce the Video, or modify, adapt, or create derivative works based on the Video or any accompanying materials. (c) Licensee shall safeguard any and all copies of the Video against unauthorized use and/or disclosure, shall not tamper with, bypass or alter any security features or attempt to do so, and shall neither cause nor permit any person under its control or in its service to disassemble or attempt to disassemble the Video object code. Licensee agrees to notify CCD promptly in the event that Licensee becomes aware of any infringements of the Video.
LIMITED WARRANTY. In no event will CCD be liable to Licensee for damages, whether based on contract, tort, warranty, or other legal or equitable grounds, including any loss of profits, lost savings, or other incidental or consequential damages arising out of Licensee’s use or inability to use the Video. The entire risk as to the quality and performance of the Video is with Licensee, who shall be obligated to test the Video to ensure that it operates in accordance with Licensee’s specifications. CCD’s entire liability and Licensee’s exclusive remedy shall be the replacement of the Video that is returned to CCD. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to Licensee. This warranty gives Licensee specific legal rights, and Licensee may also have other rights that vary from state to state.
TERM. This Agreement may be terminated at any time by either party upon thirty (30) days prior written notice. In addition, CCD may terminate this Agreement immediately if Licensee should file for bankruptcy or fail to comply with any term or condition of this Agreement. In such event, no notice shall be required by CCD to effect such termination. Upon termination of this Agreement, all rights granted to Licensee under this Agreement shall forthwith terminate and immediately revert to CCD.
ACKNOWLEDGEMENT AND ACCEPTANCE OF AGREEMENT; Video. (a) Licensee hereby acknowledges that Licensee has had an opportunity to consult with legal counsel concerning this Agreement and Licensee has fully reviewed this Agreement and understands its terms. Licensee agrees to indemnify and hold CCD harmless from any and all claims or causes of actions arising out of Licensee’s use of the Video. CCD will make every reasonable effort to assure the accuracy of the material produced. However, CCD is not responsible for the correctness of copy, illustrations, photography, trademarks, nor for obtaining clearances or approvals, all of which is the responsibility of Licensee. In addition, Licensee shall be responsible for compliance with the Health Insurance Portability & Accountability Act of 1996 (“HIPAA”) as to any patient information disclosed under the terms of this Agreement.(b) Photography and illustration rights are determined by the photographers involved in the Project, not CCD. CCD retains the right to use the files created for Licensee for marketing and promotional purposes as determined by CCD. By signing below, Licensee agrees that the specifications, costs, and all other terms and conditions contained herein are satisfactory and are hereby accepted. In addition, Licensee hereby represents and warrants to CCD that Licensee has the unrestricted right to use and publish all images and other content furnished by Licensee to CCD, and such use does not now, nor will it in the future, violate any intellectual property or proprietary rights. Further, all images and other content and material provided by Licensee to CCD, including, without limitation, any copyrighted material, trademarks, service marks, logos, and/or depictions of any kind, does not violate any law or regulation of a governmental body having jurisdiction thereon, or any right of any third party including, but not limited to, any property or privacy right. Licensee shall be responsible for compliance with the Health Insurance Portability & Accountability Act of 1996 (“HIPAA”) as to any patient information disclosed under the terms of this Agreement.
ENFORCEMENT OF AGREEMENT. In the event that enforcement of this Agreement becomes necessary, the prevailing party shall be entitled to recover from the other party, in addition to all other remedies available at law, an amount equal to all costs and expenses incurred in connection with such enforcement, including reasonable attorney fees at the trial level and in connection with all appellate proceedings. This Agreement and all instruments or documents related thereto shall be construed in accordance with the laws of the State of Florida without regard to the conflict of laws principles. In the event of any legal or equitable action arising under this Agreement, the parties agree that jurisdiction and venue of such action shall lie exclusively within the courts of Florida located in Orange County, Florida, and the parties specifically waive any other jurisdiction and venue.
GENERAL PROVISIONS. The following provisions apply in the construction and interpretation of this Agreement: (i) this Agreement constitutes the entire agreement and understanding between the parties as to the subject matter hereof, and shall not be amended or modified in any manner except by an instrument in writing executed by the parties or their respective successors in interest; (ii) any number of counterparts of this Agreement may be signed and delivered, each of which shall be considered an original and all of which, together, shall constitute one and the same instrument; (iii) whenever possible, each part of this Agreement shall be interpreted in such a manner as to be valid under applicable law, and the invalidity or unenforceability of a particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted; (iv) the waiver by CCD of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement or of any future breach of the provision so waived; and (v) the terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors, and permitted assigns.