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END USER AGREEMENT
This End User Agreement (the "Agreement") should be read in its entirety.
The Courseware is being provided to you (the "User") by Apex Innovations LLC ("Apex"), subject to the terms and conditions set forth herein, for the User's personal use and solely upon an "AS IS" basis. Except as specifically set forth herein, this Agreement governs User's use of the Apex server ("Server"), and any and all programs, intellectual property and/or other proprietary materials contained therein or residing thereon ("Courseware").
The Courseware runs from a remote computer owned and operated by Apex. The Courseware will be made available to the User, under the terms set forth in this Agreement. The User will identify himself/herself to the Courseware via a unique User name ("User name") as well as by and through a unique and secret password ("Password") known only to the User.
The Courseware is protected by copyright laws and international copyright treaties, as well as other applicable intellectual property laws and treaties.
GRANT OF ACCESS. Subject to the terms and conditions of this Agreement, Apex grants the User the limited right to run the Courseware on any computer for which it was explicitly designed. The User may only use the Courseware to connect to the Server.
NO WARRANTIES. Apex disclaims any warranty for the Courseware. The Courseware and any related documentation is provided "AS IS" without warranty of any kind, either express or implied, including, without limitation, the implied warranties or merchantability, fitness for a particular purpose, or non-infringement. The entire risk arising out of use or performance of the Courseware remains with the User. User expressly assumes any and all risk associated therewith.
PROHIBITED USES. The User may not attempt to modify, decompile, reverse-engineer or disassemble the Courseware in any manner. A failure by User to comply with this prohibition shall constitute a material breach of this Agreement including, without limitation, the User's access hereunder. Since Users are given the ability to communicate with Apex through The Courseware, Users will conduct themselves in a professional manner in all communications. You agree not to distribute in any medium any part of the Website without Apex Innovations's prior written authorization. Failure to do so, may limit access to the Courseware or a User account, solely at the discretion of Apex.
LIMITATION OF LIABILITY. Under no circumstances, including, but not limited to, ordinary negligence, shall Apex and its affiliates be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of or in connection with the use (or misuse) of the Courseware by the User. Apex entire liability to User or any other party for any claim, demand or action arising from or related to this Courseware or Users use of any Apex product or service, (whether in contract, warranty, tort, including negligence), product liability, patent or copyright infringement or any other theory whatsoever) and User's exclusive remedy shall be expressly limited to a refund of user fees paid to APEX hereunder.
SECURITY. The User agrees that he/she is solely responsible for all use of the Courseware through his/her Username and Password. The User is obliged to keep his/her User name and Password secret and confidential. Any unauthorized use of the User name or Password shall be the sole responsibility of the User and shall be deemed as his/her use. Any liability there from shall exclusively be that of the User.
PERSONAL USE. Commercial use of Courseware is strictly prohibited. The User hereby agrees that his/her use of the Courseware in accordance with this access is for personal use only and the User is strictly prohibited from using the Courseware in any professional or business capacity, without express written consent from Apex.
TERMINATION. Without prejudice to any other rights, Apex may terminate this Agreement at any time if User fails to comply with the terms and conditions of this Agreement. In the event of termination of this Agreement for any reason, User agrees to immediately destroy all copies of the Courseware.
AMENDMENT AND APPLICABLE LAW. Apex reserves the right to change this Agreement and the terms and conditions hereof from time to time, without warning to User, for any reason in its sole discretion.. This Agreement shall in all respects be governed, interpreted and construed in accordance with the laws of the State of Louisiana without giving effect to principles of comity or conflicts of laws thereof. If any provision or part of this Agreement is determined to be invalid by a tribunal of competent jurisdiction, the same shall be construed as though it did not contain that provision or part; and the rights and liabilities of the parties to this Agreement shall be construed and enforced in accord with the remainder hereof. In construing this Agreement, Apex shall not have any term or provision hereof construed against it solely by reason of such party having drafted this Agreement.
LIMITATION OF LICENSE. No immunity, privilege or other right is granted by implication or otherwise with respect to any copyright, trademark, or patent or the application therefore, other than that limited access which is hereby granted by Apex to the User.
ATTORNEY FEES. In the event of any dispute arising out of the subject matter of this Agreement, Apex shall be entitled to recover, in addition to any other damages assessed or relief afforded, its attorneys' fees and litigation costs as may be incurred in litigating or otherwise settling or resolving any such dispute hereunder.
INJUNCTIVE AND EQUITABLE RELIEF. The User hereby acknowledges and further agrees that any breach of this Agreement will cause damage to Apex and its affiliates and in an amount that may be extremely difficult or impossible to ascertain. In addition to any other relief to which Apex and its affiliates may be entitled, it shall be entitled to such temporary and/or permanent injunctive relief without the necessity of posting a bond and without the necessity of proving actual damages, as may be ordered by a tribunal of competent jurisdiction, including, but not limited to, an injunction restraining any violation hereof. Each of the several rights and remedies as provided in this Agreement, or by law, or in equity shall be cumulative, and no one of them shall be exclusive of any other right or remedy, and the exercise of any one of such rights or remedies shall not be deemed a waiver of, or election to exercise, any other such right or remedy.
INDEMNITY. The User hereby agrees to defend, indemnify, and hold Apex and its affiliates, including, without limitation, its officers, directors, agents, employees, and representatives harmless from and against all costs, expenses, and losses (including, but not limited to, reasonable attorney fees and costs) incurred through any claims of a third party against Apex based on any breach by the User under this Agreement, and for any claims made by any third party alleging that the User has infringed its intellectual property rights.
FORCE MAJEURE. Apex will not be liable for, or be considered to be in breach of or in default under this Agreement on account of, any delay or failure to perform as may be required by this Agreement as a result of any causes or conditions that are beyond Apex's reasonable control and that Apex is unable to overcome through the exercise of reasonable diligence. If any force majeure event occurs, Apex will use commercially reasonable efforts to minimize the impact, if any, of the event on User.
AGREEMENT BINDING ON SUCCESSORS. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
ASSIGNABILITY. The User may not assign this Agreement or the rights and obligations thereunder to any third party except without the prior and express written approval and explicit consent of Apex.
INTEGRATION. This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements, if any, between the Parties and is intended as a final expression of their Agreement with respect to the subject matter herein. It shall not be modified or amended except in writing signed by the Parties hereto. Notwithstanding anything to the contrary contained herein, in the event that User executes a written Product Access Agreement with Apex (or is otherwise subject to any such written Master Agreement), and any terms or conditions of such Product Access Agreement conflict with the terms of this Agreement, then the terms of such written Product Access Agreement shall take precedence and be controlling.
