These are the terms pursuant to which Expert Witness Profiler®, LLC, (“EWP” or “we”) provides you with a copy of the EWP Report (“Report”). You must pay the required fees and comply with all terms, conditions, notices and disclaimers set out below ("Terms"). You must pay the required fees and comply with all terms, conditions, notices and disclaimers set out on the following screens ("Terms"). If you agree with what you read, double-click the "ACCEPT" button on each page. If you do not agree with what you read below do not proceed any further.
Single User. EWP provides you with one Report solely for the use of one individual user. If additional users want to use a Report, EWP requires the purchase of additional copies.
Use of Information. EWP provides reports solely for informational purposes. It is not a consumer reporting agency as defined in the Fair Credit Reporting Act (“FCRA”). Its reports are not intended and you may not use them to determine eligibility for consumer credit, to decide whether to hire, retain, or promote employees, to decide whether to underwrite insurance for a consumer, or for any other purpose set forth in section 1681b of the FCRA.
1. RIGHT TO USE THE REPORTS
a. Access. EWP grants Customer the right to download and copy the Report for the sole use of one individual user. The rights granted in this Agreement are personal, non-transferable and may not be sublicensed.
b. Use of the Reports. Customer may use the Report solely for informational purposes to learn about the history, qualifications, achievements, and views of expert witnesses or providers of other professional services. Customer may not use the Report to determine eligibility for consumer credit, to decide whether to hire, retain, or promote employees, to decide whether to underwrite insurance, or for any other purpose set forth in section 1681b of the FCRA.
c. Redistribution. The Report is solely for the use of the individual specified in the Report as the authorized recipient of the Report. Customer may not disclose, copy, redistribute, lend, license, sell publicly display or otherwise provide the Report or any portion of the Report to any third party unless expressly permitted by EWP, and Customer will use commercially reasonable efforts to protect the report from inadvertent disclosure or distribution to third parties.
a. Terms. Customer will pay to EWP the fees specified in the order form. Unless otherwise agreed by EWP, payment will be by credit card. Prices are subject to change from time to time without prior notice.
3. DISCLAIMER OF WARRANTIES
a. Disclaimer THE REPORT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE REPORTS AND THE TIMELINESS, ACCURACY, OR RESULTS OBTAINED FROM THE REPORT, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY EWP, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE, TO THE MAXIMUM EXTENT ALLOWED BY LAW, HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
b. Limitation. Customer acknowledges that (i) the Report may not satisfy all of Customer's requirements; (ii) the Report may not be error-free; and (iii) the original source material from which EWP compiles the Report may contain errors or omissions. Customer further acknowledges that (i) the prices and other charges contemplated under these Terms are based on the limited remedies, warranty, disclaimer and limitation of liability specified in Sections 3, 4, 5, and 6 and (ii) such charges would be substantially higher if any of these provisions were unenforceable. The warranties and remedies specified in this Section will not apply if the deficiencies in the Report are due to extrinsic causes, such as (i) factors outside of EWP's reasonable control; (ii) any actions, inaction, error or omission of Customer or any third parties (including third party providers of information from which the report are compiled); or (iii) Customer's equipment or software and/or third party equipment (not within the sole control of EWP).
4. TRANSACTION RISK AND RELEASE
a. Independent Judgment. The use of the Report should not be considered a substitute for independent investigation, due diligence regarding experts, or sound technical and business judgment. EWP compiles the information in the Reports from a wide variety of publicly available sources (“Third Party Information”). Although EWP uses commercially reasonable efforts to accurately summarize and report the Third Party Information, you acknowledge that: (i) EWP does not independently verify the Third Party Information, and, as a result, the Reports may duplicate any errors or omissions from the Third Party Information; (ii) EWP does not perform independent research regarding the accuracy of the qualifications or disciplinary status of any professional; (iii) EWP cannot be and is not responsible for and does not warrant the quality, accuracy, qualifications, skills, or effectiveness of any expert you retain or for the acts or omissions of such experts; (iv) You are best qualified to determine the qualifications of experts and whether it is appropriate to engage such persons in your case or matter; and (v) You are exercising your independent judgment in engaging such persons and in managing their work and are not relying on any statements made by EWP in reaching such determinations. Although EWP updates its information sources regularly, the information in the Reports is not provided in real time.
The providers of the Third Party Information may not update their records on a timely basis or may have updated their records since EWP last updated the report or since you downloaded it. The information provided in the Report should not be construed to constitute legal advice or provide a substitute for reviewing the qualifications of experts independently.
b. Release. In the event of any dispute regarding any Report or any case or expert engagement with respect to which Customer consults the Report (including between Customer and any third party), Customer releases EWP, its agents and employees from any claims and damages of every nature (including, without limitation, actual, special, incidental and consequential), known and unknown, disclosed and undisclosed, arising out of or in any way connected with such dispute. If Customer is a California resident, then Customer waives California Civil Code S.1542 which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor”.
Customer will indemnify EWP against any damage, loss, liability or expense (including reasonable attorneys' fees) that EWP may incur (i) with respect to any negligent act or omission by, or willful misconduct of, Customer's employees, agents, or contractors; (ii) as a result of any breach by Customer or its employees, agents, or contractors of these Terms; or (iii) as a result of any action by Customer that violates any law or regulation. This Section will not be construed to limit or exclude any other claims or remedies which EWP may assert under these Terms or by law.
a. No Consequential Damages. UNDER NO CIRCUMSTANCES WILL EWP BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CUSTOMER, ITS APPOINTEES OR ITS OR THEIR CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF GOODWILL, CLAIMS FOR USE OF OR RELIANCE ON THE REPORT, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY THAT EWP MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE GREATER OF THE TOTAL AMOUNT ACTUALLY PAID TO EWP BY CUSTOMER FOR THE REPORT OR US$100. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS SECTION 6 WILL NOT APPLY ONLY IF AND TO THE EXTENT THAT THE LAW OR A COURT OF COMPETENT JURISDICTION REQUIRES LIABILITY UNDER APPLICABLE LAW BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.
a. Ownership. All intellectual property rights (including patents, copyrights, trade secrets, trademarks, moral rights, and similar rights of any type under the laws of any governmental authority, or unfair competition law domestic or foreign) in or related to the Report ("EWP Intellectual Property") are and will remain the exclusive property of EWP or its suppliers, whether or not specifically recognized or perfected under applicable law. Customer will not take any action that jeopardizes EWP's proprietary rights, or acquire any right in the EWP Intellectual Property, except the limited rights specified in these Terms. EWP will own all rights in any copy, translation, modification, adaptation or derivation of the EWP Intellectual Property. At EWP's request, Customer will obtain the execution of any instrument (including from its employees, agents, contractors, consultants or representatives) that may be appropriate to assign these rights to EWP or perfect these rights in EWP's name.
a. Independent Parties. Neither these Terms, nor any terms and conditions contained herein, will be construed as creating a partnership, joint venture, agency relationship or granting a franchise between the parties.
b. Notices. All notices and requests in connection with these Terms will be deemed given as of the day they are received either by receipted, nationwide overnight delivery service, or in the U.S. mails, postage prepaid, certified or registered, return receipt requested, to the addresses and attention of the representatives specified in the Registration Form, or as designated from time to time.
c. Assignment. Customer may not assign these Terms or any of its rights or obligations without EWP's prior written approval. Any attempt to do so without EWP's approval will be void. EWP may assign these Terms or any of its rights or obligations, upon notice to Customer, to (i) an affiliated company or (ii) any other company or entity pursuant to a merger, acquisition, sale, corporate reorganization or other similar transaction.
d. Interpretation. These Terms will be governed by and interpreted in accordance with the laws of Illinois, excluding its conflict of law principles. The parties consent to the jurisdiction of the state and federal courts sitting in Illinois, waiving any objection to forum non conveniens. Except as otherwise provided above, any waiver, amendment or other modification of these Terms will not be effective unless in writing and signed by the party against whom enforcement is sought. If any provision of these Terms is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of these Terms. These Terms and the Registration Form constitute the complete and entire statement of all terms, conditions and representations of the agreement between EWP and Customer with respect to its subject matter and supersedes all prior writings or understanding.
The provisions of Sections 3, 4, 5, 6, 7, 8, and 9 will survive any expiration or termination of these Terms.