This Software Agreement (“Agreement”), effective as of the date hereof (the “Effective Date”) is made by and between Biomechanics Consulting and Research, LC (“Biocore”) and you (“you” or the “undersigned”). BY CLICKING ON THE BUTTON BELOW, YOU AGREE TO ENTER INTO THIS AGREEMENT IN AN ONLINE ELECTRONIC FORMAT AND TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST LEAVE THIS PAGE.
1. The undersigned has requested that Biomechanics Consulting and Research, LC (“Biocore”) provide the undersigned with certain software, computer programs, and/or source code downloaded, accessed, or otherwise used by the undersigned at https://biocorellc.com/software (collectively, the “Software”), in connection with the undersigned’s efforts to validate the results of certain tests conducted by or on behalf of the undersigned. Biocore hereby agrees to provide the undersigned with a limited, nonexclusive, non-transferable, non-sublicensable right to use the Software solely at the undersigned’s premises for its own internal research, testing, and validation purposes and in accordance with the terms of this Agreement. The undersigned shall not use the Software for any purpose not within the scope of this Agreement, including for consulting services or in connection with providing expert witness services or other similar services. All rights are reserved by Biocore.
2. Due to the experimental nature of the tests, the validation thereof, as well as the nature of the Software itself, the undersigned acknowledges and agrees that Biocore is unwilling to provide the Software to the undersigned unless the undersigned first reviews and executes this Agreement.
3. THE SOFTWARE IS PROVIDED TO THE UNDERSIGNED “AS IS” AND “WITH ALL FAULTS”. BIOCORE MAKES NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED, IN FACT, OR ARISING BY OPERATION OF LAW OR COURSE OF DEALING, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND DATA ACCURACY. FURTHER, BIOCORE MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE OR THE USE OR OPERATION THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED EVEN IF BIOCORE IS MADE AWARE OF SUCH ERRORS. BIOCORE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE SOFTWARE OR THE RESULTS DERIVED THEREFROM, INCLUDING BUT NOT LIMITED TO THE CORRECTNESS, ACCURACY, RELIABILITY, OR USEFULNESS OF THE SOFTWARE. BIOCORE ASSUMES NO RESPONSIBILITY WHATSOEVER (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) WITH RESPECT TO THE USE OR POSSESSION OF THE SOFTWARE BY THE UNDERSIGNED OR ANY THIRD PARTY. IN NO EVENT SHALL BIOCORE BE LIABLE FOR ANY DECISION MADE OR ACTION TAKEN IN RELIANCE ON ANY RESULTS OR OTHER OUTPUT DERIVED FROM THE SOFTWARE.
4. The undersigned acknowledges and agrees that it is solely responsible for determining the appropriateness of using the Software and assumes all risks associated with its use or possession, such as program errors, compliance with applicable laws, and damage to or loss of data, programs, or equipment. Any usefulness or ability of the Software to assist the undersigned in the validation of its test results OR OTHERWISE shall be determined solely by the undersigned and the undersigned assumes all risks AND FOREVER DISCHARGES BIOCORE in connection therewith.
5. The undersigned acknowledges and agrees that Biocore is not under any obligation to provide any enhancements, updates, maintenance or support for the Software.
6. This Agreement may be terminated by Biocore immediately for any reason or no reason and with no prior notice given.
7. The undersigned agrees to indemnify, defend, and hold harmless Biocore and its officers and representatives, from and against any and all claims, demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments, costs, and expenses (including reasonable attorney fees), arising out of or related to the undersigned’s use or possession of the Software. The undersigned further agrees that in no event shall Biocore be liable for any special, indirect, consequential, punitive, or similar damages. In addition, Biocore’s liability with regard to the Software or any use or misuse thereof shall be limited to $100.
8. This Agreement is governed by 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. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and may not be discharged, amended, or renewed except by a writing signed by duly authorized representatives of both parties.
9. 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. Nothing contained herein will be construed as creating a joint venture, association, partnership, franchise, or agency relationship. Your obligations and agreements under this Agreement shall survive termination of this Agreement.
10. The Software may be 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 Software, 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. The undersigned agrees that it shall not export or re-export the Software.
BY DOWNLOADING SOFTWARE FROM THIS WEBSITE, YOU, THE LICENSEE, ARE AGREEING TO ENTER INTO THE TERMS OF, AND BECOME A PARTY TO, THIS AGREEMENT IN AN ONLINE ELECTRONIC FORMAT AND TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.