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USER AGREEMENT
YOUR AGREEMENT TO THE TERMS AND CONDITIONS OF THIS USER LICENSE AGREEMENT (“LICENSE AGREEMENT”) IS A CONDITION ON YOUR USE OF THE GHM INDUSTRIES, INC., MILLER LIFTING PRODUCTS (“MILLER/GHM” OR “US” OR “WE”) CAD MATERIALS, INCLUDING, 2D AND 3D DRAWINGS AND OTHER MILLER/GHM CAD MATERIALS (THE “MATERIALS”). ACCORDINGLY, BEFORE ACCESSING OR USING ANY PART OF THE MATERIALS, THE USER (“USER” OR “YOU”) SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS. BY OBTAINING THESE MATERIALS, WHETHER IN HARD COPY OR ELECTRONIC FORMAT, OR BY CHOOSING “I ACCEPT” OR BY INSTALLING, DOWNLOADING, ACCESSING, OR USING ANY PART OF THE MATERIALS, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, YOU UNDERSTAND ITS TERMS AND CONDITIONS AS A BINDING, LEGAL AGREEMENT, AND YOU AGREE TO BE BOUND LEGALLY BY THESE TERMS AND CONDITIONS.
License Grant. Conditioned on Your continued compliance with the terms and conditions of this License Agreement, this License Agreement provides You with a revocable, limited, non-exclusive, non-transferable license to use the Materials for Your internal business purposes only and solely in connection with Your own continuing education and training programs. Notwithstanding the foregoing, any rights granted hereby are licensed and not sold or otherwise transferred or assigned to You or any third party. References to “You” or “User” mean the corporate or individual licenses and user of the Materials and any permitted successor, assign, transferee, heir, or representative thereof.
License Grant Restrictions. Except as provided above, You may not modify, alter, translate, create derivative work(s) of, distribute, broadcast, transmit, reproduce, publish, license, sub-license, transfer, sell, exploit, rent, timeshare, outsource, provide on a service bureau basis, lease, grant a security interest in, assign or transfer any right(s) in, or otherwise use in any manner not expressly permitted herein the Materials or any part thereof. In addition, You may not remove or alter any proprietary notice on the Materials or use any portion of the Materials independently from the Materials as a whole. All rights not expressly granted to You herein are hereby reserved to Miller/GHM.
User Obligations. By installing, downloading, accessing, and/or using the Materials, You agree to abide by all applicable local, state, national, and international laws and regulations with respect to Your use of the Materials. You agree to assume all responsibility concerning Your use of the Materials, including providing any support and meeting any requirements of Your contracts with third parties. Miller/GHM assumes no responsibility or liability for any claims that may result directly or indirectly from the communications, agreements, or interactions You establish using the Materials.
Proprietary Rights. Miller/GHM retains all ownership right, title, and interest in and to all programs, procedures, information, and documentation associated with the Materials. The Miller Lifting Products name and all names, logos, and icons identifying Miller Lifting Products of GHM Industries, Inc. and its products and services are proprietary trademarks of Miller/GHM, and any use of such marks without the express written permission of Miller/GHM is strictly prohibited. Except as expressly provided herein, Miller/GHM does not grant any express or implied right to You or any other person under any intellectual or proprietary rights. Accordingly, unauthorized use of the Materials may violate intellectual property or other proprietary rights laws as well as other domestic and international laws, regulations, and statutes, including, but not limited to, United States copyright, trade secret, patent, and trademark law.
Confidentiality. You acknowledge and agree that the Materials contains unique proprietary materials and other and confidential information of Miller/GHM (the “Confidential Information”). You agree to secure and protect the confidentiality of this Confidential Information of Miller/GHM in a manner consistent with the maintenance of Miller/GHM’s rights therein, using at least as great a degree of care as You use to maintain the confidentiality of Your own confidential information of a similar nature, but in no event using less than reasonable efforts. You shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement.
Submissions. Miller/GHM welcomes Your feedback and suggestions about how to improve the Materials. You agree that Miller/GHM shall have the perpetual, royalty-free, and irrevocable right to use such feedback and suggestions in any manner it deems desirable without providing any consideration, attribution, or payment to you.
Warranty Disclaimer. You expressly acknowledge and agree that use of the Materials is at Your sole risk. The Materials and related documentation are provided “AS IS” and without warranty of any kind and Miller/GHM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Miller/GHM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MATERIALS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE MATERIALS WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE AND USE OF THE MATERIALS IS ASSUMED BY YOU. FURTHERMORE, Miller/GHM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS OR RELATED DOCUMENTATION IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Miller/GHM OR Miller/GHM’S AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. ACCORDINGLY, THE MATERIALS (INCLUDING ANY DATA, FORMULAS, EQUATIONS OR OTHER CALCULATIONS) ARE PROVIDED TO YOU AS-IS, AND YOU THEREFORE ASSUME ALL LIABILITY FOR THE USE OF ANY RESULTS PRODUCED OR NOT PRODUCED BY USING THE MATERIALS.
Limitation of Liability. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE, SHALL Miller/GHM, OR Miller/GHM’s DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO USER FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE OF THE MATERIALS OR RELATED INFORMATION, PROGRAMS, PRODUCTS, SERVICES, AND MATERIALS AVAIALBLE WITH OR THROUGH THE MATERIALS, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Miller/GHM’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT OF $1,000 (USD).
Indemnity. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS Miller/GHM AND ITS DISTRIBUTORS, AFFILIATES, EMPLOYEES, LICENSORS, AGENTS, DIRECTORS, OFFICERS, PARTNERS, REPRESENTATIVES, SHAREHOLDERS, ATTORNEYS, PREDECESSORS, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, DAMAGES, INJURIES, LIABILITIES, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND LITIGATION EXPENSES) RELATING TO OR ARISING FROM YOUR USE OR MISUSE, INCLUDING THAT OF YOUR EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, AND ITS AND THEIR AGENTS AND REPRESENTATIVES,OF THE MATERIALS AND ANY BREACH BY YOU OF THE LICENSE AGREEMENT. Miller/GHM RESERVES THE RIGHT, IN ITS SOLE DISCRETION, AND AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU. YOU AGREE TO COOPERATE AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM.
Governing Law. The License Agreement has been made in and will be construed and enforced solely in accordance with the laws of Massachusetts. Any dispute, controversy, or claim between the parties arising out of or in connection with the License Agreement as to its conclusion, existence, validity, interpretation, performance, or non-performance, breach, termination, and the assessment of damages including claims in tort whether arising before or after the termination of the License Agreement shall be resolved in accordance with the License Agreement. Accordingly, You agree that any action to enforce this License Agreement will be brought solely in the federal or state courts located in Boston, Massachusetts and all parties to this License Agreement expressly agree to be subject to the exclusive jurisdiction of such courts.
Term and Termination. This License Agreement and Your right to use the Materials will take effect upon the earliest of: (i) delivery of the Materials to You, (ii) at the moment You choose “I ACCEPT” or (iii) You install, download, access, or use the Materials, whichever occurs first, and is effective for a period of forty-eight (48) months unless earlier terminated as set forth below. This License Agreement will terminate automatically if You choose “I REJECT” or if You fail to comply with any of the terms and conditions described herein, including by exceeding the scope of the License. Termination or expiration of this License Agreement will be effective without notice. You may also terminate at any time by ceasing to use the Materials, but all applicable provisions of this Agreement will survive termination, as outlined below. The provisions concerning proprietary and intellectual property rights, submissions, confidentiality, indemnity, disclaimers of warranty and liability, termination, and governing law will survive the termination or expiration of the License Agreement for any reason.
Miscellaneous. The parties agree that this License Agreement is for the benefit of the parties hereto. Failure to insist on strict performance of any of the terms and conditions of this License Agreement will not operate as a waiver of that or any subsequent default or failure of performance. A printed version of this License Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this License Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. No joint venture, partnership, employment, alliance, or agency relationship exists between You and Miller/GHM as a result of this License Agreement or Your utilization of the Materials. Moreover, You may not bind Miller/GHM in any way or otherwise make any representations or statements for or on behalf of Miller/GHM without Miller/GHM’s separate, express, and written permission. This License Agreement represents the entire agreement between You and Miller/GHM with respect to use of the Materials, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between You and Miller/GHM with respect to the Materials. This License Agreement may not be assigned or transferred by You without the prior express written consent of Miller/GHM.