This Agreement governs your download and use of the MIPS Calculator (“Calculator”) offered by Symphony Performance Health, Inc. dba SPH Analytics (“SPH Analytics,” “we,” “us” or “our”).
PLEASE READ THIS LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE DOWNLOADING THE CALCULATOR. BY CLICKING THE “ACCEPT” BOX AND DOWNLOADING THE CALCULATOR, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT DOWNLOAD OR USE THE CALCULATOR AND INSTEAD CLICK “DISAGREE.” IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT DOWNLOAD OR USE THE CALCULATOR.
You may not download or use the Calculator if you are a direct competitor of SPH Analytics except with our prior express written consent.
This License is effective between you and SPH Analytics as of the date you accept this License and/or download the Calculator.
1. Rights; License
A. To download the Calculator, you must provide the information requested during the registration process. In our discretion, we may not approve your download.
B. The Calculator is licensed, not sold, to you by SPH Analytics for use only under the terms of this License. SPH Analytics reserves all rights no expressly granted to you. The rights granted herein are limited to SPH Analytics’ intellectual property rights in the Calculator and do not include any other patents or intellectual property rights.
C. Until termination of, and as long as you comply with, this License, SPH Analytics grants you a limited, nonexclusive, nontransferable right to download and use the Calculator for your own internal business purposes, subject to the terms and conditions of this License.
E. By you or your affiliates providing feedback of any kind, you grant to SPH Analytics a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into any SPH Analytics product or services any suggestion, enhancement request, recommendation, correction or other feedback relating to the Calculator.
A. You may install and use one copy of the Calculator on a single computer at a time. You may make one copy of the Calculator in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original.
B. You may not and you agree not to, or to enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Calculator or any services provided by the Calculator, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by the licensing terms governing the use of open source components that may be included with the Calculator). Any attempt to do so is a violation of the rights of SPH Analytics and its licensors. If you breach this restriction, you may be subject to prosecution and damages.
C. You may not alter or remove any copyright or other proprietary notice that appears on or in the Calculator.
D. You may not rent, lease, sublicense, assign, or transfer your rights in the Calculator, or authorize the Calculator to be copied onto another user’s Computer. You may not make the Calculator available over a network where it could be run or used by multiple computers at the same time, or use the Calculator for third party transactions, commercial time-sharing, rental or service bureau use.
3. Disclaimer of Warranties
A. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE CALCULATOR IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
B. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CALCULATOR IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SPH ANALYTICS AND SPH ANALYTICS’ LICENSORS (COLLECTIVELY REFERRED TO AS “SPH ANALYTICS” FOR THE PURPOSES OF SECTIONS 3 AND 4) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE CALCULATOR, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR THAT IT IS FREE FROM BUGS OR VIRUSES.
C. SPH ANALYTICS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE CALCULATOR, THAT THE FUNCTIONS CONTAINED IN THE CALCULATOR WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE CALCULATOR WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE CALCULATOR WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, OR THAT DEFECTS IN THE CALCULATOR WILL BE CORRECTED. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES.
D. SPH ANALYTICS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE CALCULATOR WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
E. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SPH ANALYTICS OR AN SPH ANALYTICS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OF ANY KIND.
4. Limitation of Liability; Indemnity
A. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL SPH ANALYTICS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE CALCULATOR OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE CALCULATOR, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SPH ANALYTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall SPH Analytics’ total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of five dollars ($5.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
B. Indemnification. You agree to indemnify and hold SPH Analytics harmless from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of your use of the Calculator or breach of this License (collectively referred to as “Claims”). We reserve the right, in our sole discretion, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by SPH Analytics in the defense of any Claims.
5. Government End Users
The Calculator and related documentation, if any, are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
This License is effective until terminated. Your rights under this License will terminate automatically without notice from SPH Analytics if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Calculator and destroy all copies of the Calculator, full or partial. The rights, license, restrictions, disclaimer of warranties, indemnity, limitation of liability, termination and general provisions shall survive any termination of this Agreement.
7. Export Restrictions
You acknowledge that the Calculator and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export any part of the Calculator, in violation of these laws and regulations, directly or indirectly. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit users to access or use the Calculator in a U.S. embargoed country or in violation of any U.S. export law or regulation.
A. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of Illinois, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
B. Complete Agreement. This License constitutes the entire agreement between you and SPH Analytics relating to the use of the Calculator and supersedes all prior or contemporaneous understandings, communications and agreements, oral or written, regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by SPH Analytics.
C. Other. There are no third-party beneficiaries under this Agreement. Third party works are licensed separately. No failure or delay by SPH Analytics in exercising any right under this License will constitute a waiver of that right.
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