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INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF BRANCHPOINT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
BRANCHPOINT'S TOTAL LIABLITY FOR ANY DIRECT DAMAGES TO YOU, OR ANY THIRD PARTY CLAIMING
THROUGH YOU, SHALL NOT EXCEED THE AMOUNT PAID FOR THE SOFTWARE OR FIVE DOLLARS ($5.00),
WHICHEVER IS HIGHER.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION(S) MAY NOT APPLY TO YOU. IN SUCH
STATES AND JURISDICTIONS, BRANCHPOINT'S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT
PERMITTED BY LAW. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
7. INDEMNIFICATION
The Software is not intended to replace the skill and judgment of a qualified medical practitioner and should only
be used by people that have been appropriately trained in the functions, capabilities and limitations of the
Software. You agree to hold harmless, indemnify and defend Branchpoint, its licensors, officers, directors and
employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs)
arising out of or relating to your use of the Software. THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE
SOFTWARE AND DOCUMENTATION REMAINS WITH YOU.
8. TERMINATION
This Agreement will automatically terminate at the end of the license period or if you fail to comply with any term
hereof including failure to make any required payment when due. No notice shall be required from Branchpoint
to effect such termination. You may also terminate this Agreement at any time by notifying Branchpoint in
writing of termination. Without prejudice to any other rights, upon any termination of this Agreement, you shall
immediately discontinue use of the Software and Documentation and shall within three (3) days return to
Branchpoint, or certify destruction of, all full or partial copies of the Software, Documentation and related
materials.
9. MISCELLANEOUS
This Agreement shall constitute the complete and exclusive agreement between the Parties, notwithstanding any
variance with any other written instrument submitted by you, whether formally rejected by Branchpoint or not.
Failure or delay on the part of Branchpoint to exercise any right, power, privilege, or remedy will not constitute a
waiver of, or bar the later exercise of, that or any other right, power, privilege, or remedy of Branchpoint. The
terms and conditions contained in this Agreement may not be modified except in a writing duly signed by you
and an authorized representative of Branchpoint. This Agreement is personal to you, and may not be assigned,
sublicensed or transferred without Branchpoint's express written consent. Any such attempted assignment,
sublicense, or transfer will be null and void. Branchpoint may terminate this Agreement in the event of any such
attempted assignment, sublicense, or transfer. If any provision of this Agreement is held to be unenforceable for
any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such
decision shall not affect the enforceability of such provision under other circumstances, or of the remaining
provisions hereof under all circumstances. The parties specifically acknowledge and agree that this Agreement
be drafted and fully enforceable as written in the English language. This Agreement shall be governed by the
laws of the State of California, without regard to conflicts of law provisions. Any dispute between you and
Branchpoint regarding this Agreement will be subject to the exclusive jurisdiction of the state and federal courts
sitting in Orange County, California. Your remedies in this Agreement are exclusive. Any claim brought by you
must be brought within one year of the date the cause of action has accrued or be forever waived. To the extent
that you have breached or have indicated your intention to breach this Agreement in any manner which violates
or may violate Branchpoint's or its licensors' intellectual property rights, or may cause continuing or irreparable
harm to Branchpoint or its licensors (including, but not limited to, any breach that may impact Branchpoint's or
its licensors' intellectual property rights, or a breach by reverse engineering), Branchpoint or its licensors may
seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. To that extent,
Branchpoint's licensors shall be third party beneficiaries under this Agreement. This Agreement will not be
governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of
which is hereby expressly excluded. No rule of strict construction shall apply against or in favor of either party in
the construction and interpretation of this Agreement.
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