THESE TERMS AND CONDITIONS CONSTITUTE A BINDING AGREEMENT. PLEASE READ THEM CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, OBLIGATIONS AND REMEDIES.
BY CHECKING THE “I ACCEPT BOX” YOU SIGNIFY THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS HEREIN, DO NOT DOWNLOAD THE 3D MODELS.
Capitalized terms used herein shall have the meanings ascribed to them below:
“3D Models” means the 3D Models of humans and certain parts of the human anatomy comprised of Tools and Content and licensed hereunder by Licensor;
“Agreement” means this license agreement between Licensor and Licensee;
“Content” means digital libraries containing images, animations and other data and navigational aids, documents and databases that originate in Licensor;
“Intellectual Property Rights” means rights in and to patents, trade marks, service marks, trade and service names, copyrights, database rights and design rights (whether or not any of them are registered and including applications for registration of any of them), know-how, moral rights, trade secrets, confidential and proprietary information, all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may subsist anywhere in the world now existing or hereafter arising;
“Licensee” means “you”, either as an individual for your own personal or business use and any of your Representatives, and if acting in your capacity as a Representative of an entity or organization, then the term Licensee shall refer to such entity or organization and each of their Representatives;
“Licensee Modification” shall have the meaning set forth in Section 6.1.4;
“Licensor” means ECL Design Group, LLC dba Cadhuman.com, a South Carolina company;
“Representatives” means officers, directors, employees, agents, contractors and other representatives, acting for and on behalf of an entity or an organization;
“Tools” means graphical imaging software tools that originate in Licensor.
2. Use Rights
2.1 Limited License. Subject to Licensee’s compliance with the terms of this Agreement, Licensor grants Licensee a non-exclusive, non- transferable, non-sublicensable, right and license to:
2.1.1 download, install, read, execute and run the 3D Models on up to a total of two (2) single computer hard disks (a third copy of the 3D Models may be installed on a home or portable computer provided that a copy is never loaded in the RAM of the home or portable computer at the same time it is loaded into the RAM of the primary computer), or install a copy of the 3D Models on a storage device, such as a network server, used only to install or run the 3D Models on Licensee’s other computers over an internal network, provided however, that only up to two (2) separate dedicated computers may utilize the 3D Models that are installed or run from the storage device. The license for the 3D Models may not be shared or used concurrently on different computer;
2.1.2 use and modify the 3D Models in application of choice;
2.1.3 display and perform works created using and incorporating such 3D Models, including 2d and 3d rendering/printing for design, engineering and marketing validation/presentation. All subject to the restrictions set forth in this Agreement.
2.2 Reservation of Rights. All rights not granted hereunder are expressly reserved by Licensor. There are no implied licenses to any of the 3D Models or any components thereof or other Intellectual Property Rights of Licensor hereunder.
3. Restrictions on Use
3.1 Use Restrictions. Licensee undertakes not to, and to ensure that Licensee’s Representatives shall not:
3.1.1 sell, transfer, assign, lease, license, sublicense, loan, rent or otherwise distribute the 3D Models or any components thereof in any manner whatsoever. For clarification, the foregoing also prohibits the dissemination (but not use) of any templates or new 3D models that Licensee derives from the 3D Models;
3.1.2 reverse engineer, disassemble, decompile, decipher, or otherwise seek to duplicate the performance characteristics of the 3D Models or any component thereof;
3.1.3 translate, adapt or modify the delivery format or medium of the 3D Models to any other delivery format or medium,now known or hereafter devised with the intent of redistribution for commercial resale;
3.1.4 use the 3D Models or any components thereof, directly or indirectly, on a time sharing basis or as a service bureau or otherwise to provide services for any third party;
3.1.5 reconfigure or re-brand the 3D Models, or create new products or services from the 3D Models for distribution in a “white label” manner or otherwise;
3.1.6 create scandalous, obscene, pornographic or immoral works, in whole or in part, using the 3D Models;
3.1.7 use the 3D Models or any components thereof for any illegal or injurious purposes including defamatory, infringing, or other unlawful purpose or otherwise violate the legal rights of others;
3.1.8 use or permit the use of the 3D Models or any component thereof as a trademark or service mark, or claim any proprietary rights of any sort in the 3D Models or any component thereof;
3.1.9 use the 3D Models in electronic format, on-line or in multimedia applications unless the 3D Models are incorporated for viewing purposes only and no permission is given to download, save or use the 3D Models for any reason or purpose whatsoever;
3.1.10 use the 3D Models in relation to identifiable individuals, products or entities for any commercial purpose or in a manner that suggests their association with, sponsorship or endorsement of any product or service;
3.1.11 publish or sell any products created or derived from the 3D Models (e.g. illustrations and animations) in any stock image library;
3.1.12 generate, render, print or otherwise create or manufacture 3 dimensional objects of the 3D Models provided for commercial resale, without Licensor’s prior written consent;
3.1.13 use the 3D Models for any medical diagnosis or treatment purposes.
3.2 Restricted Government Rights. If Licensee is a branch or agency of the United States Government, the following provision applies: All components of the 3D Models have been created and developed at private expense and provided with “limited rights” as set forth in this Agreement. Any software, data or documentation provided hereunder is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 CFR 12.212 (Sept 1995). Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government end users acquire such software and documentation with only those rights explicitly set forth herein.
3.3 No Exploitation. Licensee shall not use or exploit the 3D Models in any manner, except as expressly permitted hereunder.
4. Term and Termination
4.1 Term. This Agreement is effective immediately upon downloading the 3D Models on any computer hard disks or data storage devices, and shall continue until terminated.
4.2 Termination. Licensee may terminate this Agreement at any time. Licensor may immediately terminate this Agreement if Licensee breaches any terms of this Agreement.
4.3 Effect of Termination. Following termination of this Agreement, Licensee shall promptly remove and purge the 3D Models and any copies and versions thereof from any computers or data storage devices or systems.
4.4 Survival. All sections of this Agreement which by their nature survive termination shall continue in full force and effect beyond any termination of this Agreement, including, without limitation, all provisions which relate to proprietary rights, disclaimers, limitation of liability, waiver and indemnification.
5. Ownership and Intellectual Property Rights
5.1 Licensor’s Rights. All right, title and interest, including all Intellectual Property Rights in the 3D Models or any part thereof are and shall remain the sole and exclusive property of Licensor, and Licensee is not by reason of this Agreement acquiring any rights therein, other than as expressly provided in this Agreement.
5.2 No Derivatives. Except for the limited use rights granted hereunder, Licensee shall not create derivative works from or improvement to the 3D Models.
5.3 Attribution. Licensee shall not delete or alter any Licensor proprietary information, copyright or trademark notices, if any, appearing on or within the 3D Models.
5.4 Infringement. Licensee shall take commercially reasonable steps to protect the 3D Models from unauthorized access, duplication, distribution, publishing, transmission, display, or other unauthorized use. Licensee shall notify Licensor of any and all infringements or illegal uses of Intellectual Property Rights that come to Licensee’s attention. Licensor shall have the right, but not the obligation, to prosecute and conduct all proceedings or actions involving its Intellectual Property Rights and to take any actions that it may deem proper or necessary for the protection of its Intellectual Property Rights. Upon Licensor’s request, Licensee shall cooperate fully with Licensor in connection with any such actions.
5.5 Injunctive Relief. The 3D Models are of an original and unique character, and therefore losses caused by a violation or threatened violation of this Agreement cannot be adequately compensated by monetary damages alone. Accordingly, Licensor shall be entitled to seek an injunctive relief in the event of a violation or threatened violation of the Agreement as well as to monetary damages and such other appropriate relief in law or in equity.
6. Representations, Warranties & Disclaimers
6.1 By Licensee. Licensee represents and warrants as follows:
6.1.1 Licensee has the authority to enter into this Agreement and to perform in accordance with the terms hereof;
6.1.2 Licensee will comply with all laws, rules and regulatory requirements, which may be applicable to Licensee’s obligations hereunder;
6.1.3 Licensee shall inform its Representatives using the 3D Models of the terms and conditions of this Agreement and agrees that any violation by any of them shall constitute a violation by Licensee;
6.1.4 any and all uses of the 3D Models, other than in the format and manner delivered by Licensor and any modifications, alterations, or presentation thereof (“Licensee Modifications”), whether or not permitted hereunder, shall not infringe upon, or otherwise violate any Intellectual Property Rights;
6.1.5 Licensee shall obtain and maintain all such licenses, consents, rights and permissions required for the use of any third party software, data or content that are not supplied by Licensor and are used in conjunction with the 3D Models.
6.2 By Licensor. Licensor represents and warrants as follows:
6.2.1 Licensor has the authority to enter into this Agreement and to perform in accordance with the terms hereof;
6.2.2 Licensor will comply with all laws, rules and regulatory requirements, which may be applicable to Licensee’s obligations hereunder;
6.2.3 to the best of its knowledge, Licensor has all rights necessary to deliver the 3D Models to Licensee in the format and manner and for the use set forth hereunder, and the 3D Models in the format and manner delivered to Licensee, do not infringe Intellectual Property Rights.
6.3 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR (INCLUDING ITS REPRESENTATIVES AND AFFILIATES) DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS, AND HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE 3D MODELS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR REPRESENTATION AS TO THE OPERATION, PERFORMANCE AND/OR USE OF THE 3D MODELS, OR ANY COMPONENTS THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE (WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED), TITLE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE OR IMPLIED INDEMNIFICATION OBLIGATIONS. IN ADDITION LICENSOR (INCLUDING ITS REPRESENTATIVES AND AFFILIATES) DOES NOT WARRANT OR GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS, OR COMPLETENESS OF THE 3D MODELS OR THEIR INTEROPERABILITY IN COMBINATION WITH OTHER SOFTWARE, DATA OR MODELS SELECTED BY LICENSEE. LICENSOR (INCLUDING ITS REPRESENTATIVES AND AFFILIATES) SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS OR DELAYS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM LICENSEE’S USE OR RELIANCE ON ANY ASPECT OF THE 3D MODELS. FURTHERMORE, LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE 3D MODELS WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. LICENSEE EXPRESSLY AGREES THAT THE 3D MODELS AND ANY COMPONENTS THEREOF ARE PROVIDED HEREUNDER ON AN "AS IS" AND “AS AVAILABLE” BASIS, AND LICENSEE’S USE THEREOF IS AT LICENSEE’S OWN RISK. Some jurisdictions do not allow the exclusion of implied warranties therefore, the above exclusions may not apply to Licensee.
6.4 No Updates or Changes. Except as expressly provided herein, Licensor shall have no obligation to provide any upgrades, updates, modifications, additions, new versions or new releases of the 3D Models or any components thereof. Further, Licensor shall not be required to deliver or make the 3D Models available for delivery or download in any other manner or format other than that selected by Licensor in its sole discretion.
7. Limitation of Liability
7.1 Direct Damages. IN NO EVENT SHALL LICENSOR (INCLUDING ITS REPRESENTATIVES AND AFFILIATES) BE LIABLE (JOINTLY OR SEVERALLY) TO LICENSEE OR ANY PERSON OR ENTITY FOR DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, OR DAMAGES FOR LOST TIME OR GOOD WILL, BUSINESS INTERRUPTION, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR RELATING IN ANY WAY TO THE 3D MODELS. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF LICENSOR FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID BY LICENSEE TO LICENSOR FOR THE APPLICABLE 3D MODEL. If any applicable authority holds any portion of this section to be unenforceable, the liability will be limited to the fullest possible extent permitted by applicable law.
7.2 Remedies for Defects. Licensor provides a (i) thirty-(30) days money-back guarantee on the 3D Models if the downloadable files cannot be used in conjunction with or otherwise are not compatible or interoperable with any software indicated by Licensor to be compatible or interoperable with the 3D Model and (ii) thirty-(30) days money-back guarantee or free replacement, at Licensee’s choice, if within the foregoing period Licensee notifies Licensor that the downloadable digital files are defective, provided such defect is unrelated to misuse by Licensee. THE FOREGOING CONSTITUTES THE SOLE AND EXCLUSIVE REMEDY OFFERED BY LICENSOR WITH RESPECT TO DEFECTS IN THE 3D MODELS.
7.3 Additional Actions by Licensor. If the 3D Models are enjoined for any reason or if Licensor believes they may be enjoined, Licensor shall have the right, at its own expense to take action to: (i) procure for Licensee the right to continue using the 3D Models or any parts thereof, (ii) modify the 3D Models, or any parts thereof or re-direct the manner in which they are used such that they become non-infringing, (iii) replace the 3D Models or any part thereof with non-infringing materials; or if none of the foregoing is commercially reasonable, terminate the Agreement and refund on a pro-rata basis payments made by Licensee for the period such services were not available or usable.
Licensee shall, at its sole cost and expense, indemnify, defend and hold harmless Licensor, and its officers, directors, employees, consultants, agents and third party providers from and against all losses, liabilities, costs, damages and expenses, including but not limited to reasonable legal fees and expenses, incurred or suffered as a result of any third party claims (including informal claims), actions or demands against any Licensor indemnitee arising out of or in connection with the: (i) unauthorized use of the 3D Models under the Agreement by Licensee or its representatives, or the permitted use thereof other than in the format or manner delivered by Licensor; (ii) Licensee’s Modifications; (iii) Licensee’s products or services; or (iv) Licensee or its Representative’s breach of Licensee’s obligations under this Agreement.
9.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of South Carolina, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules are not mandatorily applicable by statute and would require or permit the application of the laws of another jurisdiction, as to all matters, including, but not limited to, matters of validity, construction, effect, performance and remedies. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. Further, UCITA whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified shall not apply to this Agreement and is hereby disclaimed. In connection with any litigation arising out of or relating to this Agreement, each party consents to the exclusive jurisdiction and venue of the state and federal in courts located in Anderson County, South Carolina.
9.2 Severability. In the event that any court having competent jurisdiction over the interpretation of this Agreement shall finally determine that one or more of the provisions contained herein shall be unenforceable in any respect, then such provision shall be deemed limited and restricted to the extent that such court shall deem it to be enforceable, and, as so limited or restricted, shall remain in full force and effect. In the event that any such provision or provisions shall be deemed wholly unenforceable, such provision shall be deemed deleted from this Agreement, and the remaining provisions shall remain in full force and effect. Any such judicial interpretation requiring limitation or deletion of a provision shall be valid only in the jurisdiction in which such interpretation is made.
9.3 No Waiver. No failure or delay on the part of either party in the exercise of any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
9.4 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties regarding the subject matter hereof, and supersedes all prior communications (written or verbal), proposals and agreements between them relating thereto. Licensor reserves the right to require Licensee to sign a non-electronic version of this Agreement.
9.5 Amendment. This Agreement may only be modified or amended in a writing, which makes express reference to this Agreement and is signed by a duly authorized representative of each Party. No other act, communication, representation, document, usage custom or practice shall be deemed to modify or amend this Agreement.
9.6 Construction and Interpretation. The word ‘including’ shall be deemed to mean ‘including but not limited to’ unless expressly set forth to the contrary. The words “herein”, “hereof” and “hereunder” and other words of similar import refer to the Agreement as a whole, as the same may be amended or supplemented and not to any subdivision contained in this Agreement. Neutral pronouns and any variations thereof shall be deemed to include the feminine and masculine and all terms used in the singular shall be deemed to include the plural, and vice versa, as the context may require. Where any provision in this Agreement refers to an action to be taken by a party, or which such party is prohibited from taking, such provision shall be applicable whether the action in question is taken directly or indirectly by such party. Section headings in this Agreement are for convenience only and shall not affect the interpretation of any provision of this Agreement.
Updated: March 18, 2013, 07:02 [p.m.] EST