This License Agreement (this "Agreement") is entered into by and between ScienceMedia, Inc. ("ScienceMedia") and you ("Licensee").
1.1 Licensee has elected to obtain one of the following offerings from ScienceMedia (as selected by Licensee on the ScienceMedia website):
(a) "Evaluation License" means Licensee desires to evaluate ScienceMedia's offering referred to as "SMi Source," which is available through a secure website hosted by ScienceMedia (the "SMi Source Website") at no charge, subject to the additional terms and conditions herein;
(b) "Paid License" means Licensee has paid for a license to access SMi Source through the SMi Source Website, subject to the additional terms and conditions herein; or
(c) "Course License" means Licensee has paid for a license to access individual courses or bundles of courses provided by ScienceMedia on the SMi Source Website, subject to the additional terms and conditions herein.
1.2 Certain terms and conditions of this Agreement shall only apply in the case of the specific license type elected by Licensee (i.e., Evaluation License, Paid License or Course License), as expressly set forth herein. Otherwise, the terms and conditions of this Agreement will apply to all Evaluation Licenses, Paid Licenses and Course Licenses as a general matter.
The following terms have their respective meanings when used in this Agreement:
2.1 "Learning Content" means content which (i) consists of visual, structured and comprehensible tutorials, modules and clips, typically about complex medical and scientific concepts, (ii) can be navigated and accessed using SMi Source, and (iii) solely for Paid Licenses where the applicable "download" option is elected, can be used for continuing education and inclusion in user-generated learning, training, presentations, standalone, and promotional materials.
2.2 "Licensed Courses" means a specific subset of Learning Content that has been organized by ScienceMedia into prepackaged courses and that are expressly selected by the Licensee to be licensed pursuant to a Course License.
2.3 "Licensed Libraries" means a specific subset of the Learning Content expressly selected by the Licensee to be licensed pursuant to a Paid License.
2.4 "Proprietary Content" means any content or work product proprietary to Licensee.
2.5 "Proprietary Library" means any password protected or other private or restricted area of the SMi Source Website selected by Licensee that is accessible only to the Licensee.
2.6 "Term" means the term of this Agreement, as expressly contemplated in Sections 2, 3 or 4, as applicable.
2.7 "Terms of Use" means reasonable terms of use with respect to the SMi Source Website as may be expressly provided from time to time by ScienceMedia for users of the SMi Source Website, so long as such terms of use are not inconsistent with the terms of this Agreement.
2.8 "Work Product" means, collectively, SMi Source, Learning Content, Licensed Libraries, Licensed Courses and any other software systems, programs, databases, content, know-how or other work product made available on the SMi Source Website (whether pursuant to the rights granted hereunder or otherwise), and any documentation made available with respect to the foregoing.
3.1 The terms and conditions of this Section 3 shall only apply with respect to an Evaluation License.
3.2 Subject to the terms and conditions of this Agreement, ScienceMedia grants Licensee a limited, non-exclusive, non-transferable, revocable, personal license to access and use the evaluation or "demo" version of SMi Source through the SMi Source Website solely for evaluation purposes to determine if Licensee is interested in acquiring a commercial license (i.e., a Paid License) to access and use the paid version of SMi Source (the "Limited Purpose") and for no other purpose.
3.3 Licensee hereby agrees to indemnify, defend and hold ScienceMedia harmless against any and all losses, damages, liabilities, claims, actions or expenses of whatever kind resulting from any use by Licensee of SMi Source, the SMi Source Website or any content therefrom (even for use within the Limited Purpose).
3.4 The Term for an Evaluation License commences on the date the Licensee elects the Evaluation License as its option on the SMi Source Website and automatically terminates after the period of time indicated on the ScienceMedia website has elapsed (i.e., the Term of the Evaluation License is stated at the time the Evaluation License was selected by Licensee on the ScienceMedia website). Notwithstanding such limited term, ScienceMedia has the right to terminate the Evaluation License at any time and for any reason, with or without notice, in its sole discretion. ScienceMedia shall have no liability to Licensee in the event ScienceMedia terminates the Evaluation License. ScienceMedia may elect to extend the Term for an Evaluation License in its sole discretion.
4.1 The terms and conditions of this Section 4 shall only apply with respect to a Paid License.
4.2 Subject to Licensee's prepayment of the periodic license fee for a Paid License and compliance with the other terms and conditions of this Agreement, ScienceMedia hereby grants Licensee a limited, non-exclusive, non-transferable, personal license to do only the following:
(a) use the SMi Source Website to navigate and access the Licensed Libraries, but solely (i) during the Term, (ii) through the SMi Source Website and subject to the Terms of Use, and (iii) for purposes directly related to the business of the Licensee; and
(b) if the "download" option was elected by Licensee at the time Licensee made his, her or its election for a Paid License, the Licensee has the right to download through the SMi Source Website and incorporate into training or promotional materials limited clips of information taken from the Licensed Libraries, but solely (i) for purposes directly related to the business of Licensee, (ii) during the Term (although continued use following the Term of any such training or promotional materials created during the term is permitted hereunder so long as such use is otherwise in compliance with the terms and conditions of this Agreement or any applicable Terms of Use), (iii) as may then be permitted by the Terms of Use, and (iv) if any copyright notice of ScienceMedia included within such clips of information (as such information is made available in the Licensed Libraries) is displayed with any such information.
4.3 Licensee acknowledges and agrees that, to the extent Licensee incorporates or combines any Proprietary Content into the Learning Content (including, for example, where Proprietary Content is combined with Learning Content and such larger work product is at any time hosted or maintained on the SMi Source Website), including, without limitation, through any Proprietary Library, that: (a) Licensee does so at its own risk, including the risk that a third party may misappropriate, usurp or otherwise infringe upon such incorporated content; (b) Licensee shall retain the applicable proprietary rights to their Proprietary Content within such larger work product, but only to the extent such larger work product resides exclusively within the Proprietary Library when it is not being used for such Licensee's internal business purposes; and (c) ScienceMedia retains all right, title and interest to all other Learning Content (including, without limitation, any Proprietary Content if and to the extent it is not contained solely within any Proprietary Library).
4.4 The Term for a Paid License commences on the date the Licensee makes the prepayment of the first periodic license fee for the Paid License and terminates after the period of time indicated on the ScienceMedia website has elapsed (i.e., the Term of the Paid License is stated at the time the Paid License was selected by Licensee on the ScienceMedia website).
5.1 The terms and conditions of this Section 5 shall only apply with respect to a Course License.
5.2 Subject to Licensee's prepayment of the periodic license fee for a Course License and compliance with the other terms and conditions of this Agreement, ScienceMedia hereby grants Licensee a limited, non-exclusive, non-transferable, personal license to use the SMi Source Website to navigate and access the Licensed Courses, but solely (a) during the Term and (b) through the SMi Source Website and subject to the Terms of Use.
5.3 The Term for a Course License commences on the date the Licensee makes the prepayment of the periodic license fee for the Course License and terminates after the period of time indicated on the ScienceMedia website has elapsed (i.e., the Term of the Course License is stated at the time the Course License was selected by Licensee on the ScienceMedia website).
6.1 Licensee acknowledges and agrees that (a) the Work Product is the copyrighted work of ScienceMedia and contains proprietary and trade secret information of ScienceMedia and (b) other than the limited license rights expressly granted in Sections 2, 3 or 4 above (as applicable), ScienceMedia retains all right, title and interest in and to the Work Product (as well as all revisions, modifications and enhancements thereof), including without limitation any and all clips of information taken from the Licensed Libraries pursuant to Section 4.2(b) above.
6.2 Licensee shall not, and Licensee shall not permit any of its affiliates, agents, employees, consultants or any other person or entity to, do any of the following:
(a) sell, lease, license, sublicense, rent, transmit, distribute, assign, modify, translate, alter, decompile, separate, disassemble, discern the source code of or reverse engineer any Work Product;
(b) use SMi Source, the SMi Source Website, the Licensed Libraries or the Licensed Courses on a service bureau or time sharing basis or to provide services to third parties;
(c) provide Licensee's username or password, or otherwise provide access, to the SMi Source Website, SMi Source, the Licensed Libraries or the Licensed Courses to any third party;
(d) except as expressly provided in Section 4.2(b): (i) distribute, make available or copy any Work Product, commingle or combine any Work Product with any other materials or information, or write or develop any materials or information based upon any Work Product; or (ii) provide, disclose, divulge or make available to, or permit use of or otherwise allow access to, any Work Product by any person or entity;
(e) remove any identification, copyright, trademark or other notice from any aspect or portion of any of the Work Product;
(f) except as expressly provided in Section 4.2(b)(ii), use any Work Product beyond the Term; or
(g) access or use any part of the Learning Content except for the Licensed Libraries or the Licensed Courses, as applicable.
6.3 Licensee shall be responsible for any breach of the provisions of this Agreement or any applicable Terms of Use by any of its directors, officers, employees or agents. If Licensee is an entity, only a single individual employee of Licensee shall be issued a unique username and password for the SMi Source Website and, accordingly, only such individual shall have access to the benefits of the applicable license type (i.e., all licenses granted hereunder are essentially a "single seat license" and may not be used by multiple individuals).
7.1 Licensee agrees to pay ScienceMedia the fees in the amounts and according to the payment schedule set forth on the election form pursuant to which Licensee made the election for the applicable license type. All amounts payable hereunder are exclusive of any and all taxes, and Licensee is responsible for the payment of any and all such taxes (excluding any taxes based on ScienceMedia's net income). All amounts payable to ScienceMedia are stated, and Licensee shall pay, in United States dollars. Except as expressly provided herein, no amount paid by Licensee to ScienceMedia shall be refundable or creditable.
8.1 Licensee understands that ScienceMedia possesses and will continue to possess information, intellectual property, trade secrets, software, data, and other tangible and intangible property of a proprietary nature that has been created and developed by ScienceMedia or in which property rights have been assigned or otherwise expressly conveyed to ScienceMedia (including all Work Product and collectively, "Proprietary Information"), which Proprietary Information has commercial value in ScienceMedia's business; provided, however, that for purpose of this Section 8, Proprietary Information shall not include information that, as evidenced by written records: (a) becomes generally available to the public other than through a disclosure by Licensee; (b) is lawfully known to Licensee prior to being disclosed or made available by ScienceMedia; or (c) is developed independently by Licensee without reference to the Proprietary Information.
8.2 Licensee shall only use Proprietary Information in accordance with this Agreement and keep in its strictest confidence and trust all Proprietary Information disclosed or made available to it, and will not let any other person disclose, copy, reproduce, transmit or otherwise use any of such Proprietary Information; provided, however, that this obligation shall not apply to Proprietary Information to the extent Licensee is ordered to disclose the same pursuant to a binding order of a governmental agency or court of competent jurisdiction, so long as Licensee provides prompt notice of such order to ScienceMedia and cooperates with and assists ScienceMedia in connection with obtaining a protective order at ScienceMedia's cost and expense. Except as expressly provided in Section 4.2(b)(ii), upon the termination or expiration of this Agreement, Licensee shall return to ScienceMedia all Proprietary Information disclosed or made available to it, and shall not take or use any of the Proprietary Information or any reproduction or summary of such Proprietary Information (whether embodied in a tangible medium or otherwise).
8.3 Without limiting the foregoing provisions of this Section 8, the following shall be considered Proprietary Information: (a) the terms of this Agreement; and (b) SMi Source, the SMi Source Website, all Learning Content, all Licensed Libraries, all Licensed Courses and all other Work Product.
9.1 WITHOUT LIMITING THE PROVISIONS OF SECTION 9.2: (A) ALL WORK PRODUCT IS PROVIDED BY SCIENCEMEDIA "AS IS;" (B) SCIENCEMEDIA DISCLAIMS ALL WARRANTIES RELATING TO WORK PRODUCT OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT OF THIRD PARTY PROPERTY RIGHTS; AND (C) SCIENCEMEDIA DOES NOT WARRANT THAT WORK PRODUCT WILL MEET CUSTOMER'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. IN NO EVENT SHALL SCIENCEMEDIA BE LIABLE FOR (X) ANY LOSS OF USE, (Y) INTERRUPTION OF BUSINESS, OR (Z) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SCIENCEMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 SCIENCEMEDIA SHALL NOT BE LIABLE FOR, AND LICENSEE ASSUMES ALL LIABILITY FOR, LOSS OF PROFIT CONNECTED WITH OR ARISING OUT OF THE USE OF ANY WORK PRODUCT. NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, IN NO EVENT SHALL SCIENCEMEDIA'S LIABILITY OR DAMAGES FOR ANY CAUSE (REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE) EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY LICENSEE HEREUNDER PRIOR TO THE TIME SUCH LIABILITY OR DAMAGES ARE ACCRUED.
10.1 This Agreement shall automatically terminate without any further action by either party if either party files a petition or is subject to an involuntary petition filed against it under U.S. Bankruptcy Code, or any successor statute, which petition is not stayed or dismissed within sixty (60) days, provided, however, that the party which is not subject to such action or petition may waive such termination during such sixty (60) day period.
10.2 Either party may, without prejudice to any other right or remedy it may have, immediately upon the delivery of written notice to the other party terminate this Agreement, if the other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof from the non-breaching party. A failure to make a payment by Licensee shall be deemed to be a material breach of Licensee under this Agreement.
Section 11. Miscellaneous Provisions
11.1 Upon obtaining the written consent of ScienceMedia, Licensee may transfer its rights under this Agreement in its entirety only to a successor in interest of Licensee's business where such successor expressly assumes the obligations of this Agreement. Otherwise, this Agreement may not be transferred or assigned by Licensee. This Agreement may be assigned by ScienceMedia without Licensee's consent.
11.2 Each party shall comply with all applicable laws, rules, restrictions and regulations of the United States and any applicable foreign agency or authority. Licensee shall: (a) not, under any circumstances, export or re-export, or allow the export or re-export of, any portion of any Work Product in violation of any applicable restrictions, laws, rules or regulations; and (b) use the Work Product only in strict compliance with the terms of this Agreement and any Terms of Use.
11.3 This Agreement, together with any terms and conditions set forth on the election form pursuant to which Licensee elected the applicable license type (e.g., payment terms), constitutes the entire agreement and understanding of the parties, whether oral or written, and supersedes any prior or contemporaneous agreements or representations between the parties, with respect to the subject of this Agreement. Except as otherwise expressly provided herein, this Agreement may be modified only by a writing signed by an authorized representative of each party.
11.4 This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California without reference to principles of conflicts of laws. The parties agree that the venue for any action, injunctive application, or dispute determinable by a court of law arising out of this Agreement shall be the State of California and that the federal and state courts therein shall have jurisdiction over the subject matter and the parties.
11.5 Notices under this Agreement (i) to ScienceMedia shall be in writing, addressed to ScienceMedia at its address set forth on its main corporate website and (ii) to Licensee shall be in writing, addressed to the e-mail address or physical address provided by Licensee to ScienceMedia, and in each case deemed given when delivered personally, one day after being sent by a recognized overnight courier, three days after being sent by conventional mail (registered or certified, postage prepaid with return receipt requested), or one day after being sent by email.
11.6 Nothing contained in this Agreement is intended or is to be construed to create a partnership, joint venture or agency relationship. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect.
11.7 Nothing in this Agreement shall be construed to limit or delay either party's ability to seek immediate relief at law or in equity for any breach by the other party of this Agreement. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise. No waiver of any rights hereunder shall be deemed to be a waiver of the same or other right on any other occasion.
11.8 In the event that any party institutes any legal suit, action or proceeding against the other party to enforce the covenants contained in this Agreement (or obtain any other remedy in respect of any breach of this Agreement) arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys' fees and expenses and court costs.
11.9 The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
11.10 This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.