Article 2. The Developers collaborated and jointly developed the Data in response to the extremely harsh environment facing bars and restaurants brought on by the 2020 novel coronavirus pandemic in hopes of stopping the spread of infection. The Developers hope the face shields produced using the Data (the "Face Shields") will support bars and restaurants and revitalize the food-service industry.
Article 4. Subject to the provisions of these Terms, the Company, on behalf of the Developers, hereby grants to each User a non-exclusive, sublicensable (subject to subsection 2 below), royalty-free, paid-up, worldwide license to use the Data solely for the purpose of designing, developing, and fabricating Face Shields (the "Permitted Use").
2. The foregoing license grant includes the right to sublicense solely to third-party contractors (including suppliers) to the extent necessary for such third-party contractors to perform services for or on behalf of the User, in accordance with the terms and conditions set forth in these Terms. Each User shall ensure that each of its sublicensees complies with its respective sublicense and no sublicensee shall in any way discharge or diminish any of the User's obligations hereunder. The User shall remain directly and primarily liable to the Company under these Terms for any use of the Data, or any portion thereof, so sublicensed and for its sublicensee's compliance with all applicable provisions of these Terms.
4. The Company requires no royalty payments for the use of the Data.
5. The Company reserves all rights not expressly granted to the User in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to the User or any third party any intellectual property rights or other right, title, or interest in or to the Data.
- Without limiting the foregoing and except as otherwise expressly set forth in these Terms, no User shall at any time, directly or indirectly, (i) rent, lease, lend, sell, assign, distribute, publish, transfer, or otherwise make available the Data, (ii) reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the methods used to compile the Data, in whole or in part, (iii) remove any proprietary notices included within the Data, (iv) publish, enhance, or display any compilation based upon information derived from the Data, or (v) use the Data in any manner or for any purposes that infringes, misappropriates, dilutes, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- The User shall not in any way, directly or indirectly, engage in acts or make any statement, oral or written, that is reasonably expected to cause any harm to any of the Developers, or that is reasonably likely to injure, harm, or reflect unfavorably on the reputation of any of the Developers or their respective affiliates or any of their products or services. This provision is in addition to, and not in lieu of, the substantive protections under applicable laws relating to defamation, libel, slander, interference with contractual or business relationships, or other statutory, contractual, or tort theories.
- The User shall not, directly or indirectly, use the Data or Face Shields for the purpose of (i) slandering, defaming, or otherwise injuring a third party or (ii) engaging in other acts contrary to public policy.
- No User shall, directly or indirectly, take any action or use the Data in a manner that could tarnish, dilute, infringe, misappropriate, or otherwise be detrimental to the validity, value of, or goodwill in and to the Intellectual Property and Other Rights (as defined below).
- The User shall not, directly or indirectly, take any action or use the Data in a manner that could, or is reasonably likely to, result in a lien, security interest, or other encumbrance on the Intellectual Property and Other Rights.
(Intellectual Property Ownership)
Article 6. The User acknowledges that, as between the User and the Company, the Company owns, and shall retain sole and exclusive ownership of, all right, title, and interest, including all patent, trademark, copyright, goodwill, and other intellectual property rights (hereinafter, collectively, referred to as "Intellectual Property and Other Rights") in and to the Data. Nothing contained in these Terms shall assign or transfer any Intellectual Property and Other Rights to any User.
(Disclaimer of Warranties)
Article 7. THE DATA IS PROVIDED "AS IS", WITH ALL FAULTS, AND THE COMPANY, ON BEHALF OF THE DEVELOPERS, HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE DATA OR ANY RESULTS OF ITS USE WILL MEET THE USER'S OR ANY OTHER PERSON'S REQUIREMENTS OR WILL BE ACCURATE, COMPLETE, OR ERROR FREE. THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUALITY, USEFULNESS, COMMERCIAL UTILITY, ADEQUACY, OR COMPLIANCE WITH ANY LAW, DOMESTIC OR FOREIGN, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
2. In furtherance of the foregoing, the Company, for itself and on behalf of the other Developers, further disclaims all guarantees, representations, or warranties that the Data or the Face Shields will prevent the spread of the novel coronavirus or any other disease, virus, or bacteria.
Article 8. The User shall indemnify, defend, and hold harmless the Company and the other Developers and their respective directors, officers, shareholders, affiliates, employees, contractors, and agents (collectively, the "Company Party") from and against any and all losses, damages, liabilities, or costs, including without limitation attorney fees (collectively, the "Losses") resulting from any direct or third-party claim, suit, proceeding, or cause of action based on, in relation to, or arising from (i) use or misuse of any Data, (ii) the manufacture, sale, distribution, or use of the Face Shields, (iii) any patent, trademark, design, or other infringement claim relating to the Data or Face Shields, (iv) any physical injury (including death) or property damage that occurs during the User's use of the Data or Face Shields, and (v) the User's negligence, willful misconduct, or violation of applicable laws; provided that the User may not settle any third-party claim against the Company Party unless such settlement completely and forever releases the Company Party from all liability with respect to such third-party claim or unless the applicable Company Party provides written consent to such settlement, and further provided that the Company Party shall have the right, at its option, to defend itself against such third-party claim or to participate in the defense thereof by counsel of its own choice.
(Limitation of Liability)
Article 9. IN NO EVENT WILL THE COMPANY OR ANY OF THE COMPANY PARTY BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, IN EACH CASE REGARDLESS OF WHETHER (A) THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR (B) SUCH LOSSES WERE OTHERWISE FORESEEABLE.
(Assumption of Risk)
Article 10. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE USER ASSUMES ALL RISK AND LIABILITY ARISING FROM THE USE OF THE DATA AND FACE SHIELD, AND FOR THE RESULTS OBTAINED BY THE USE OF THE DATA IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY THE COMPANY, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE DATA OR FACE SHIELD.
Article 11. The Company may, at its sole discretion, discontinue to make available the Data on the Website without notice, for any reason or no reason at all. The Company shall not be liable for any Losses or other negative outcomes due to such discontinuation.
2. These Terms shall automatically terminate (a) without notice, in the event the (i) User commences, or has commenced against it, proceedings under bankruptcy, insolvency, or debtor's relief laws or similar laws in any other jurisdiction, which proceedings are not dismissed within 60 days, (ii) the User makes a general assignment for the benefit of its creditors, or (iii) the User ceases operations or is liquidated or dissolved; or (b) upon notice to the User, in the event the User violates any provision under these Terms.
3. Upon termination of these Terms by the Company pursuant to the foregoing subsection, the licenses set forth herein shall terminate automatically and the User shall refrain immediately from all further use of the Data or Modified Data.
4. The parties' rights and obligations set forth in the following Articles shall survive the termination of these Terms: Article 6 (Intellectual Property Ownership), Article 7 (Disclaimer of Warranties), Article 8 (indemnification), Article 9 (Limitation of Liability), Article 10 (Assumption of Risk), this Article 11, Subsection 4, and Article 15 (Miscellaneous).
(Discretion of the Company)
(Governing Law and Jurisdiction)
Article 15. If any term or condition or part of these Terms is held invalid, the remaining terms and conditions of these Terms shall not be affected thereby. These Terms constitute the entire agreement between the Company and the User and supersede any and all prior or contemporaneous oral or written agreements, correspondence, or understandings heretofore in force between the parties relating to the use of the Data or Face Shield. There are no agreements between the Company and the User with respect to such subject matter, except those specifically set forth in and made part of these Terms.
2. Any failure by the Company to enforce at any time any term or condition hereof shall not be considered a waiver of the Company's right thereafter to enforce the same or any other term or condition.
3. Neither these Terms nor any of the rights, interests, or obligations hereunder may be assigned or delegated, in whole or in part by the User without the prior written consent of the Company, which consent may be granted or withheld in the Company's sole discretion. Any purported assignment or delegation in contravention of the foregoing sentence shall be null and void.