FE Model Terms and Conditions

1.1 Licensor grants to Licensee a limited royalty-free, fully paid-up, non-exclusive, non-transferable license, without the right to sublicense, to use the Licensed Material solely at Licensee’s premises for its own internal research purposes (the “License”). The Licensee is expressly excluded from using the Licensed Material or any Improvements (as defined herein) for any purpose not within the scope of the License, including for consulting services or in connection with providing expert witness services or other similar services.1.2 “Licensed Material” means the software, models, and other materials and works downloaded, accessed, or otherwise used by Licensee at www.biocorellc.com, including but not limited to all finite element models.

1.3 Licensor reserves all rights not expressly licensed, and nothing in this Agreement will entitle Licensee to use any invention, technology, know-how, or any other property (including intellectual property) of Licensor other than the Licensed Material. Licensee agrees and acknowledges that the rights granted to it pursuant to this Agreement are non-exclusive and non-transferable and that the Licensee is not being granted a license of copyright or any other intellectual property right. Licensee further agrees not to change any copyright notice included in the Licensed Material.

1.4 Licensee shall not sublicense, lend, lease, transfer, or otherwise disclose, provide, or make available the Licensed Material to any third party.

2.1 Licensee acknowledges and agrees that Licensor is not under any obligation to provide any maintenance or support services for the Licensed Material pursuant to this Agreement.2.2 Licensee acknowledges and agrees that Licensor is not under any obligation to provide any enhancements or updated versions of or with regard to the Licensed Material pursuant to this Agreement.

3.1 Licensor agrees that Licensee may modify, enhance or create derivative works based upon the Licensed Material (the “Improvements”). Licensee agrees that Licensor shall have a royalty-free, fully paid-up, non-exclusive, transferable license to use any Improvements to the Licensed Material developed by or on behalf of Licensee, in whole or in part.3.2 Licensee will take reasonable steps to communicate in a timely manner to Licensor full details of any Improvements.

4.1 Licensee will appropriately cite and reference Licensor in any publication or presentation which uses or otherwise relies on Licensed Material. Publications and presentations using the Licensed Material or Improvements shall include the following acknowledgement (or such other acknowledgement mutually agreed by the parties): “The author(s) acknowledge Biomechanics Consulting and Research, LC and Football Research, Inc. for supporting the development and licensing the use of models used in this study. The study’s conclusions do not represent the conclusions or opinions of either such entity.” Licensee further agrees to adhere to the requirements of Licensor’s Citation Policy. In the event of a conflict between this Agreement and the Citation Policy, the terms of the Citation Policy shall control.

5.1 “Confidential Information” will mean any information of a confidential or proprietary nature (including trade secrets) received by or otherwise made available to the Licensee from Licensor or its employees, representatives, or agents, in any medium and whether or not marked as “confidential” or “proprietary”. Confidential Information from the Licensor may include information about Football Research, Inc. or any of its financing sources, including without limitation the National Football League.5.2 Licensee is expressly prohibited from using any Confidential Information except as provided for under the License.

5.3 Licensee will not use or disclose, publish, release, transfer or otherwise make available to any third party, any portion of the Confidential Information without the prior written consent of Licensor. Licensee will protect all Confidential Information with the same degree of care as it uses to avoid unauthorized use, disclosure, publication or dissemination of its own confidential information of a similar nature, but in no event less than a reasonable degree of care.

5.4 The obligations in this Agreement will not restrict any disclosure of Confidential Information where Licensee can demonstrate that: (a) such Confidential Information was independently developed by Licensee prior to its receipt thereof without violating any of Licensee’s obligations; (b) such Confidential Information is or becomes publicly known (other than through unauthorized disclosure by Licensee); or (c) such Confidential Information is lawfully received by the Licensee from a third party without any obligation of confidentiality.

5.5 The provisions of this Article 5 will survive the termination of this Agreement for a period of five (5) years and, with respect to trade secrets, until such Confidential Information is no longer a trade secret.

6.1 LICENSOR MAKES NO WARRANTY THAT THE LICENSED MATERIAL WILL MEET LICENSEE’S NEEDS, PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT LICENSOR WILL CORRECT ANY ERROR THAT MAY EXIST WITHIN THE LICENSED MATERIAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED MATERIAL IS LICENSED "AS IS" AND “WITH ALL FAULTS” AND LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY NON-INFRINGEMENT WARRANTY AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR ASSUMES NO RESPONSIBILITY WHATSOEVER (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) WITH RESPECT TO THE USE BY LICENSEE OF LICENSED MATERIAL BY LICENSEE OR ANY THIRD PARTY.6.2 For the avoidance of doubt, Licensor makes no representations or warranties concerning the Licensed Material including, but not limited to, the validity or scope of any Licensed Material or that the Licensed Material or anything made, used, developed or sold using the Licensed Material, including any Improvement, will be free from infringement of any patent, trademark, copyright or other rights of any third party or meet any industry, government, or customer requirements.

6.3 To the greatest extent of applicable law, Licensee agrees to indemnify, defend, and hold harmless Licensor, Football Research, Inc., and their respective affiliates, financing sources, officers, directors, agents, and employees, from and against any and all claims, demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments, costs (including settlement costs), and associated expenses (including reasonable attorney fees), arising out of or related to: (1) Licensee, its employees or agents’ breach, default, or other noncompliance with the terms and conditions of this Agreement, (2) Licensee’s use of the Licensed Material; or (3) the Improvements.

6.4 UNLESS PROHIBITED BY LAW, THE MAXIMUM AGGREGATE CUMULATIVE AMOUNT OF MONEY DAMAGES FOR WHICH LICENSOR MAY BE LIABLE UNDER THIS AGREEMENT WILL BE LIMITED TO $100. Licensee expressly assumes all liability for damages that may arise from the use or possession of the Licensed Material or the Improvements and agrees that Licensor shall not be liable to Licensee for any loss, claim, or demand made by or against Licensee which relates to or arises out of the use or possession of the Licensed Material or Improvements by Licensee.

6.5 The obligations of this Article 6 will survive the termination of this Agreement and under no circumstance will Licensor be liable to Licensee for any indirect, punitive, consequential, special or lost profit damages, even if advised of the possibility of the same.

7.1 This Agreement commences on the Effective Date and shall continue in effect until terminated in accordance with this Agreement.

8.1 This Agreement may be terminated by Licensor immediately for any reason or no reason and with no prior notice given.8.2 Other than as may be provided in this Agreement, it is expressly agreed and accepted by the parties that under no circumstances will the termination of this Agreement entitle Licensee to any kind of compensation, damages, loss of profits, or otherwise.

9.1 Upon the termination of this Agreement:

• the License automatically terminates and Licensee will cease all use of the Licensed Material;
• Licensee will delete all copies of the Licensed Material and certify the deletion to Licensor; and
• Licensee will return to Licensor all Confidential Information disclosed or otherwise made available to it and all copies in its possession, custody or control or, at Licensor’s option, destroy such Confidential Information and provide to Licensor a certificate evidencing such return or destruction.

Notwithstanding the foregoing, Licensor’s license regarding the Improvements shall survive any termination of this Agreement.

10.1 Licensor expressly reserves the sole and exclusive right to take such action as it may deem necessary and appropriate against infringers of the Licensed Material. In the event Licensee becomes aware of any infringement or suspected infringement of the Licensed Material, Licensee will promptly notify Licensor and provide reasonable detail of such infringement or suspected infringement.

11.1 All notices, requests, and other communications required by or permitted under this Agreement must be in writing, including electronic transmittal, and sent to, in the case of Licensor, to models@biocorellc.com and in the case of Licensee, to the mailing address and/or email address currently on file with Licensor, or at such other address as the parties may designate by written notice to the other party. All notices, requests and other communications will be deemed given when hand-delivered or when electronically transmitted or if by mail, by registered mail with verification of receipt upon date of mailing.

12.1 This Agreement and any rights granted to Licensee are personal to Licensee and Licensee may not assign (including by operation of law) without the prior written consent of Licensor.

13.1 This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous oral and written agreements, proposals, negotiations, representations, commitments and other communications between the parties with respect to its subject matter.13.2 This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to conflicts of law rules, and the parties agree to submit to the exclusive jurisdiction and venue of the state and federal courts serving Charlottesville, Virginia.

13.3 No waiver will be effective unless given in writing and signed on behalf of the party making such waiver. No waiver will be implied from conduct or failure to enforce rights.

13.4 If any part of this Agreement is held indefinite, invalid, or otherwise unenforceable, the rest of this Agreement will continue in full force.

13.5 All headings are for reference purposes only and will not affect the interpretation of this Agreement.

13.6 This Agreement may not be discharged, amended, or renewed except by a writing signed by duly authorized representatives of both parties.

13.7 This Agreement may be executed in one or more counterparts and by electronic transmission, each of which is deemed an original and all of which together constitute one and the same instrument.

13.8 Nothing contained in this Agreement will be construed as creating a joint venture, association, partnership, franchise, or agency relationship, and nothing contained in this Agreement will be construed as making a party liable for the debts or obligations of the other party, unless expressly provided in this Agreement or another agreement.

13.9 All provisions of this Agreement that by reasonable construction of their terms or nature, would require survival beyond the termination of this Agreement shall survive such termination.

13.10 The Licensed Material is subject to United States export control jurisdiction, and may not be shipped, transferred, re-exported to any country or recipient, or used for any purpose prohibited by any applicable international and national laws that apply to the Licensed Material, including the U.S. Export Administration Regulations as well as end-user, end-use, and destination restrictions issued by the United States and other governments. Licensee agrees that it shall not export or re-export Licensed Material.