1. The Program
The Program consists of a proprietary written manual, training DVD resource, illustrations and formats for use in developing, implementing, and monitoring a physical stretching program designed as an injury prevention resource for employers. EWSS is the exclusive owner of the Program and all copyrights, trademarks, service marks, trade secrets and other rights therein. The Program includes all copies in all media and all forms and are licensed (not sold) to the User.
EWSS grants to the User a perpetual, nonexclusive, nontransferable license to use the Program in accordance with this Agreement and at the location identified below the User\'s signature on this Agreement. The User agrees to use the Program for the User\'s own business only and shall not transfer, sell, sublicense, distribute, or lease the Program to any third party or allow any third party to use or have access to any portion of the Program. Third parties, for this purpose, include any parent company, subsidiary company, affiliated company, or any other person or entity. If the User wishes to use the Program at more than one location, one or more additional copies must be licensed from EWSS. The User may make one archival copy of the software portion of the Program, if any, for back-up purposes, but shall have no right to make any other copies of any portion of the Program for any purpose. The User shall not modify or prepare derivative versions or works from any portion of the Program and shall not transmit any portion of the Program or any summaries, abstracts, or outlines of the Program in written form or electronically in a manner which would permit unauthorized disclosure or use. The User agrees to keep the contents of the Program confidential. Any unauthorized copying or transmission of the Program will constitute a copyright infringement for which EWSS may be entitled to recover statutory damages, attorneys\' fees and injunctive relief, as well as actual damages.
3. User Responsibilities; Indemnification
The User shall maintain all portions of the Program at the location where the Program will be used, for review and reference on a continuous basis during implementation. The User shall be solely responsible for compliance with any applicable federal or state employment and workplace safety laws or regulations and shall be solely responsible for meeting all requirements with respect to informed consent forms and procedures, informed refusal forms and procedures, and for maintaining policies and procedures that assure the health and safety of employees and other participants during implementation of the Program. Responsibility for the health and safety of any employee or other participant in any activity conducted by User involving the Program shall be solely that of the User and not of EWSS. EWSS shall not be liable to the User nor to any employee, participant, insurer, or other third party for any personal injury, death, property damage, or other loss, claim, cost, damage, judgment, fine, settlement or expense of any kind, with respect to any activity conducted by the User involving the Program. To the fullest extent permitted by applicable law, the User shall indemnify, defend and hold EWSS harmless from and against any such liabilities and expenses (including reasonable attorneys\' fees and disbursements).
4. Limited Warranty
EWSS represents and warrants that any diskette on which any computer software portion of the Program is contained will be free from defects in materials and workmanship for a period of 90 days from the date of shipment. Any diskette which is defective will be replaced at no charge during the warranty period. EWSS does not warrant the content of the computer software, if any, or any other portions of the Program does not warrant that such content will be error free. The content of the Program, in any media, is furnished "as is" and without warranty as to the performance or results the User or any participants may obtain by using the Programs. The entire risk as to the results and performance of the Program is assumed by the User. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In no event shall EWSS be liable to the User for consequential, special, or incidental damages (including, without limitation, lost profits or lost revenues), resulting from the User\'s use or inability to use the Program, even if EWSS has been notified of the possibility of such damages. Under no circumstances shall the liability of EWSS to the User exceed the amounts paid by the User to EWSS for the license to use the Program.
5. User Price
In consideration of the license granted to the User hereunder, the User agrees to pay to EWSS the amount set forth on the attached Exhibit (the "User Price"). The Single Employer Site User Price covers use of the Program only at the location identified below; use at any other location shall be permitted only upon payment of additional amounts as may be agreed upon by EWSS and the User.
The User shall not assign its rights or interests in this Agreement to any other party nor transfer as part of a sale of all or any portion of the User's business, or pursuant to any merger, exchange, or reorganization, without the prior written consent of EWSS.
This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to choice of law principles thereof. No amendment or modification to this Agreement shall be effective unless in writing signed by both EWSS and the
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly
authorized representatives as of the date first above stated.