MACDONALDLAW CONTENT USERS AGREEMENT

 

1.             Overview and Consent. I understand this agreement governs my use of the MacDonaldlaw.com site and any spreadsheet or other software downloaded from the MacDonaldlaw.com domain, including, without limitation, the Restructuring Toolkit (“RT”) (collectively, the "Sites" or the "Services"). I understand that this User Agreement is between me and MacDonald + MacDonald, P.C. ("MacDonald"). My use of any of the Services constitutes my acceptance of this Agreement. If I do not agree with the terms of the User Agreement, I understand I may not use the Services. I also understand that this Agreement between me and MacDonald states the terms and conditions of my use of the RT. I acknowledge that in making RT available to me, MacDonald is relying on my agreement to be bound by the provisions set forth in this Agreement. I agree to use RT only in accordance with this Agreement.

 

2.     Source and Ownership.  I agree that the Sites and the RT are the proprietary property of MacDonald. Information available through RT, including the calculator and chart formats, are protected by applicable copyright law and is the property of MacDonald or applicable licensors.  Content is the property of MacDonald or applicable licensors. Applicable copyright and trademark laws protect Content and my use of the Content is subject to those laws. I understand that independent companies that are not affiliated with MacDonald may administer the Sites, the Content, or RT in whole or in part.

 

3.     Service Overview & Purpose of Content.  I understand the Services provide access to certain information, commentary, interactive tools, and data (collectively "Content"). Content is provided for informational and/or educational purposes and is not intended to provide tax, legal or investment advice and should not be construed as an offer to sell, a solicitation of an offer to buy, or a recommendation for any security by MacDonald.  Furthermore, I acknowledge that use of the Content does not create an attorney-client relationship between myself and MacDonald.  I acknowledge that my requests for Content are unsolicited. To the extent that any of the Content constitutes investment advice, such information is either statistical information containing no expression of opinion or is impersonal advice not intended to meet the objectives or needs of specific individuals or accounts. I understand that I alone am responsible for determining whether any investment, security or strategy is appropriate or suitable for me and that MacDonald has not made any determination that any recommendation, investment, or strategy in any Content is suitable or appropriate for me based on my investment objectives and financial situation Although Content may be continuously supplied or otherwise made available, it is only valid as of the date published and may become unreliable because of subsequent market conditions or other reasons.

 

I understand that any information accessible through RT is for information purposes only and should not be used or construed as an offer to sell, a solicitation of an offer to buy, or a recommendation for any security. I understand MacDonald does not confirm the information and does not endorse any security or investment recommendation or strategy contained in or implied from the information. I represent that my requests for information are unsolicited and shall neither constitute nor be construed as tax, financial, investment or legal advice by MacDonald to me. I understand that neither the suitability or potential value of any particular investment or information source is guaranteed. Past performance of any security is not a guarantee of future performance. I agree not to rely solely on the analysis provided through RT in making my investment decisions.  I understand that downloading and/or using RT does not create an attorney-client relationship between myself and MacDonald.

 

4.            Frequency of Data Updates.  I understand that MacDonald may update certain information available in the Sites from time to time but shall have no obligation to do so.

 

5.             Customizing RT.  I understand that I may set certain preferences within RT. I understand I am not required to accept my set preferences. Rather, I am free to override the preferences I set at any time but that I am responsible for any preferences I set.

 

6.             Security.  To the extent that the Services uses Internet, wireless or related electronic or telephonic services to transport data or communications, MacDonald will take reasonable security precautions, but MacDonald disclaims any liability for interception of any such data or communications. MacDonald shall not be responsible for, and makes no warranties regarding, the access, speed or availability of such services. 

 

MacDonald may provide users the opportunity to download information, via electronic transmission, to a personal computer and display the information within a third party software product or on-line service.  MacDonald makes no warranties regarding, and will not be responsible for, the operation of the third party software or service, or how such data will be calculated, manipulated or displayed. Data which has been transmitted by MacDonald and received by the third party product or service becomes the sole responsibility of the user.

 

User is responsible for protecting the computer on which the MacDonald Restructuring Toolkit and company specific data resides.  Some general safe computing practices include:

 

-         Keep up to date on all security patches that pertain to your computer's operating system and browser.

 

-         Limit the number of users allowed into your computer.

 

-         Use anti-virus software and keep up to date with the latest virus definitions.

 

-         Use a personal firewall on your computer, especially if you have a cable modem, digital subscriber line or other "always on" Internet connection.

 

7.             Disclaimers of Warranties and Limitation of Liability.

 

THERE IS NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, TITLE, NON-INFRINGEMENT OR OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE CONTENT OR ANY ASPECT OF THE SERVICES. THE CONTENT AND SERVICES ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS. THERE IS NO WARRANTY THAT THE SERVICES WILL MEET MY NEEDS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY SECURE OR ERROR-FREE; NOR DOES MACDONALD OR ANY THIRD PARTY PROVIDER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THAT DEFECTS IN THE SERVICES USED BE CORRECTED. CONTENT IS ONLY VALID AS OF THE DATE PUBLISHED AND MAY BECOME UNRELIABLE BECAUSE OF SUBSEQUENT MARKET CONDITIONS OR OTHER REASONS.

 

IN NO EVENT WILL MACDONALD BE LIABLE TO ME OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, TRADING LOSSES OR DAMAGES THAT RESULT FROM USE OR THE LOSS OF THE USE OF THE SERVICES, INCONVENIENCE OR DELAY), EVEN IF MACDONALD OR THE THIRD PARTY PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. MacDonald shall not be liable for any loss resulting from a cause over which MacDonald does not have direct control, including but not limited to failure of electronic or mechanical equipment, or communications lines (including telephone, cable and internet), unauthorized access, theft, operator errors, severe or extraordinary weather (including flood, earthquake, or other act of God), fire, war, insurrection, riot, labor dispute and other labor problems, accident, or action of government.

 

8.             Indemnification.  I agree to indemnify and hold MacDonald and the Third Party Providers harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys' fees) arising from my use of the Services or violation of this Agreement or any third party's rights, including but not limited to copyright, proprietary and privacy rights.

 

9.            Changes to Services.  I agree that MacDonald may discontinue or modify the Services, in whole or in part, at any time, and that MacDonald may modify, change or limit the terms of the Services, in whole or in part, at any time without prior notice to me. If MacDonald notifies me of a modification, my use of the Services after the effective date of such notice will indicate my acceptance of the modification.

 

10.            Termination and Assignment.  I understand that MacDonald reserves the right to terminate my access to the Services in its sole discretion, without notice and without limitation. This Agreement may not be assigned by either MacDonald or me without the written consent of the other party. The provisions of Sections 9, 10 of this Agreement shall survive its termination.

 

11.   Entire Agreement & Governing Law.  I acknowledge that this Agreement constitutes the entire agreement between MacDonald and me with respect to its subject matter and supersedes all prior agreements. This Agreement and its enforcement shall be governed by the laws of the State of Texas, except with respect to conflicts of law, and shall inure to the benefit of MacDonald's successors and assigns, whether by merger, consolidation, or otherwise. If a court of competent jurisdiction shall deem any provision unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions will remain in full force and effect.

 

12.   Modification/Termination.  I agree that MacDonald may discontinue the Content, including RT in whole or in part, at any time, and that MacDonald may modify or change the terms of this Agreement, in whole or in part, at any time and from time to time. I agree that MacDonald may immediately terminate my access to Content if I breach this Agreement, if I have jeopardized the proper and efficient operation of the Sites or related electronic products, services or systems, or if I no longer meet MacDonald's Eligibility Criteria as and when such criteria are established. Any unauthorized use of Content, whatsoever, shall result in automatic termination of this Agreement.

 

13.   Notices.  All notices shall be in writing. MacDonald may send notices by U.S. mail, via electronic broadcasts such as email, or through other means, to inform me of changes to MacDonald, RT or the terms and conditions of RT. All notifications to MacDonald pertaining to this Agreement shall be directed to:

 

MacDonald + MacDonald, P.C.

325 North St. Paul Street, Suite 2400

Dallas, Texas 75201

 

14.             MacDonald License Agreement.

 

This portion of the agreement grants you (either an individual or an entity), the end user, a license with respect to your use of certain software products relating to Corporate Restructuring and/or Reorganization ("SOFTWARE"), such as the Restructuring Toolkit ("APPLICATION") which may be downloaded from the Sites or otherwise provided by MacDonald. If you do not agree to the terms of this Agreement, promptly disengage your use of the APPLICATION or return the disk package of the SOFTWARE and accompanying items (including written materials and binders or other containers) to the place you obtained them.

 

a.     GRANT OF LICENSE.  This MacDonald License Agreement ("License") permits you to use one copy of the specified version of SOFTWARE or access the APPLICATION/SOFTWARE from each computer in your household, and a single computer at your workplace, in the United States in exchange for your providing certain registration information to MacDonald through the Sites. This License is subject to your compliance with the terms of this agreement and any MacDonald security procedures established for Application users. You may not rent, lease or transfer your rights to access the APPLICATION.

 

If you have multiple Licensees for the SOFTWARE, then at any time you may have as many copies of the SOFTWARE in use as you have Licenses. The SOFTWARE is "in use" on a computer when it is loaded into the temporary memory (i.e., RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that computer, except that a copy installed on a network server for the sole purpose of distribution to their computers is not "in use". If the anticipated number of users of the SOFTWARE will exceed the number of applicable Licenses, then you must have a reasonable mechanism or process in place to assure that the number of persons using the SOFTWARE does not exceed the number of Licenses.

 

b.             COPYRIGHT.  The APPLICATION/SOFTWARE is owned by MacDonald or its suppliers and is protected by United States copyright laws and international treaty provisions. Therefore, you must treat the APPLICATION/SOFTWARE like any other copyrighted material (e.g., a book or musical recording) except that you may either (a) copy or download APPLICATION information or make one copy of the SOFTWARE solely for backup or archival purposes, or (b) transfer the APPLICATION/SOFTWARE information to a single hard disk provided you keep the original solely for backup or archival purposes. You may not copy any written materials accompanying the SOFTWARE or distribute the APPLICATION's on-line contents in anyway, without explicit written notice from MacDonald.

 

c.     NO WARRANTY.  MacDonald makes no warranties regarding the APPLICATION or SOFTWARE.  MacDonald and its suppliers disclaim all warranties, either express or implied, including but not limited to implied warranties of merchantability, accuracy, and fitness for a particular purpose, with respect to the APPLICATION/SOFTWARE and the accompanying online materials.

 

The entire risk as to results of use of the APPLICATION/SOFTWARE is assumed by you. In no event shall MacDonald or its suppliers be liable for any damages whatsoever (including, without limitation, damages for loss of profits, business interruption, loss of information, consequential, cover, loss of goodwill, work stoppage, computer failure or malfunction, indirect or special damages, or other pecuniary loss) arising out of the use of or inability to access the APPLICATION/SOFTWARE, even if MacDonald has been advised of the possibility of such damages.

 

MACDONALD MAKES NO REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN RESPECT OF APPLICATION/SOFTWARE OR ANY INFORMATION, PROGRAMS OR PRODUCTS OBTAINED FROM, THROUGH, OR IN CONNECTION WITH APPLICATION/SOFTWARE. THE APPLICATION/SOFTWARE MAY CONTAIN TECHNICAL AND OTHER ERRORS AND LIMITATIONS AND ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. MACDONALD CANNOT AND DOES NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, SECURITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF APPLICATION/SOFTWARE AND ALL INFORMATION MADE AVAILABLE THROUGH APPLICATION/SOFTWARE. THE ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE APPLICATION/SOFTWARE IS ASSUMED BY ME. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO ME. I MAY HAVE ADDITIONAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.

 

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT OR OTHERWISE, SHALL MACDONALD OR ANYONE ELSE INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE APPLICATION/SOFTWARE BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS ARISING OUT THE USE, RESULTS OF USE, OR INABILITY TO USE THE PRODUCT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMIT MAY NOT APPLY TO ME.

 

d.     TERM.  This license is effective until terminated. You may terminate it by notifying MacDonald in writing that you no longer wish to access the APPLICATION, or destroying the SOFTWARE and documentation and all copies thereof. The license will also terminate if you fail to comply with any condition of this Agreement, and you agree upon such termination to halt access of the APPLICATION and online documentation or to destroy all copies of the SOFTWARE and documentation.

 

e.     OTHER RESTRICTIONS.  This MacDonald License Agreement is your proof of license to exercise the rights granted herein. You may not rent or lease the SOFTWARE, but you may transfer your rights under this MacDonald License Agreement for use of the SOFTWARE on a permanent basis provided you transfer this License Agreement, the SOFTWARE, and all accompanying written materials and retain no copies, and the recipient agrees to the terms of this Agreement. You may not reverse engineer, decompile, or disassemble or create derivative works from the SOFTWARE or APPLICATION. Any transfer of the SOFTWARE must include the most recent update and all prior versions.

 

f.            INDEMNIFICATION.  I agree to indemnify and hold harmless MacDonald from and against any and all claims, demands, actions, losses, damages, liability, or costs, charges, counsel fees, and expenses of any nature ("Losses") arising from my use of any aspect of the APPLICATION/SOFTWARE, violation of this Agreement, or violation of any third party’s rights, including but not limited to copyright, proprietary and privacy rights. This indemnification and hold-harmless obligation will survive the termination of the Agreement.

 

g.              MODIFICATION AND TERMINATION. I agree that MacDonald may discontinue the APPLICATION/SOFTWARE in whole or in part, at any time, and that MacDonald may modify, change, or limit the terms of this Agreement, in whole or in part, at any time and from time to time. Any unauthorized use of the APPLICATION/SOFTWARE, whatsoever, shall result in automatic termination of your License to use the APPLICATION/SOFTWARE.