Terms and Conditions
EULA and Customer Purchase Agreements
GENERAL NOTICE OF COPYRIGHT AND LICENSE RIGHTS AND ENFORCEMENT
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END USER LICENSE AGREEMENT
This end user license agreement (or “EULA”) is a legal agreement between the person, company or organization
(“YOU”) and Visual Thinking Inc. (“VTI”), with a principal place of business at 607 NE 32nd Avenue, Portland, Oregon,
1. VTI LICENSE GRANT
1.1. The VTI LICENSE that YOU purchased is non-exclusive, limited, non-transferable, shall be in effect for one year (365 days) from the date of purchase, and permits one login into the PRODUCT at a time, no matter the device, with a subsequent concurrent login replacing (or bumping out) the existing login.
1.2. VTI may, at its sole option, update or change the content of the PRODUCT as it sees fit.
2. AUTHORIZED PURCHASER
2.1. As the purchaser of the VTI LICENSE, YOU certify, affirm, and warrant that: a) YOU are at least 18 years of age and otherwise competent to enter into this EULA; b) if YOU are accepting this EULA on behalf of an organization, YOU have the actual authority to bind said organization and its users to the terms of this EULA.
3. VTI LICENSE TERMINATION AND RENEWAL
3.1. This VTI LICENSE shall terminate if YOU:
3.1.1. Fail to comply with the requirements, restrictions, and limitations of YOUR VTI LICENSE.
3.1.2. Do nothing when YOUR VTI LICENSE expires.
3.1.3. Do not purchase a renewal of YOUR VTI LICENSE.
3.2. VTI shall have the right to terminate YOUR VTI LICENSE for reasonable cause.
4. COPYRIGHT, SERVICE MARK AND OTHER INTELLECTUAL PROPERTY CONSIDERATIONS
4.1. OWNERSHIP. Title, ownership rights, and intellectual property rights in and to the PRODUCT shall remain with VTI, the primary world-wide VTI LICENSE holder of the PRODUCT, which PRODUCT is protected by US and international copyright treaties and conventions.
4.2. RESTRICTIONS. Under US and international copyright laws and conventions and except to the extent that specific applicable laws explicitly prohibit such restriction, it is illegal for YOU or any other entity, individual, viewer or user, whether an employee of YOUR corporation or not, to: a) Copy, duplicate, reproduce, modify, translate, reverse engineer, decompile or disassemble any part of the PRODUCT, whether by video, screen or audio capture or recording, photography, or any other copying process of any kind; b) Modify or remove any proprietary notices or labels which are on or in the PRODUCT; and c) Derive or create material based on the intellectual material found in the PRODUCT.
5. DISCLAIMER OF WARRANTY. The PRODUCT is provided on an AS IS basis, without warranty of any kind, including, without limitation, the warranties of merchantability, fitness for a particular purpose, title, and non-infringement. The risk arising out of use or performance of the PRODUCT remains with YOU.
6. DAMAGES. VTI IS NOT RESPONSIBLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, INCLUDING BUT
NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER PECUNIARY LOSS.
7. BINDING EFFECT. This EULA is binding on and inures to the benefit of the parties and their respective heirs, personal representatives, and successors.
8. ASSIGNMENT. Neither this EULA, nor any of the rights, interests, or obligations under this EULA, may be assigned by
YOU without the prior written consent of VTI.
9. NO THIRD-PARTY BENEFICIARIES. Nothing in this EULA, express or implied, is intended or may be construed to confer on any person, other than the parties to this EULA, any right, remedy, or claim under or with respect to this EULA.
10. MODIFICATION. VTI reserves the right to modify, amend, revise, augment or delete any and all terms of this EULA at any time without notice.
11. CONSTRUCTION. The headers used in this EULA are provided for convenience only and shall not affect the meaning or interpretation of any provision of this EULA. All words used in this EULA shall be construed to be of such gender or number as the circumstances require. Whenever the words “include” or “including” are used in this EULA, they shall be deemed to be followed by the words “without limitation.”
12. TIME OF ESSENCE. Time is of the essence with respect to all dates and time periods set forth or referred to in this
13. WAIVER. Any provision or condition of this EULA may be waived at any time by VTI. Waiver of any breach of any provision shall not be a waiver of any succeeding breach of the provision or a waiver of the provision itself or any other provision.
14. GOVERNING LAW. This EULA shall be governed by and construed in accordance with the laws of the state of Oregon, without regard to conflict-of-laws principles.
15. ATTORNEY FEES. If any arbitration, suit, or action is instituted to interpret or enforce the provisions of this EULA, to rescind this EULA, or otherwise with respect to the subject matter of this EULA, the party prevailing on an issue shall be entitled to recover with respect to such issue, in addition to costs, reasonable attorney fees incurred in the
preparation, prosecution, or defense of such arbitration, suit, or action as determined by the arbitrator or trial court, and, if any appeal is taken from such decision, reasonable attorney fees as determined on appeal.
16. INJUNCTIVE AND OTHER EQUITABLE RELIEF. YOU agree that the remedy at law for any breach or threatened breach of this EULA may, by its nature, be inadequate, and that in addition to damages, VTI shall be entitled to a restraining order, temporary and permanent injunctive relief, specific performance, and other appropriate equitable relief, without showing or proving that any monetary damage has been sustained.
17. NOTICES. Notice to a party to This Agreement, as may be required, shall be given through routinely-accepted business practices, including proof of delivery, and sent to the respective authorized persons at the addresses below.
VISUAL THINKING INC.
607 NE 32nd Avenue
Portland, Oregon 97232
To the person and at the address of the person who purchased the VTI LICENSE covered in this EULA
18. DEFICIENCIES AND PROBLEMS. If VTI determines that a term of this EULA has been breached or is not being satisfactorily fulfilled, VTI shall advise YOU in writing of the nature the deficiency or problem and allow YOU thirty (30) calendar days after receipt of such notice to correct such problem.
18.1. If VTI determines that such deficiency or problem is not corrected to its satisfaction within the above- mentioned 30-calendar-day period, VTI may require and demand mandatory mediation (“Mediation”), the venue for which shall be set by VTI and the expense for which shall be equally shared by both Parties. Mediation shall be triggered by a written notice from VTI and shall be heard not later than 60 (sixty) calendar days after the receipt of the notice by the other Party.
18.2. YOU agree that mediation and arbitration are the only avenue for dispute resolution and YOU waive any and all right to initiate a law suit in State or Federal Courts.
19. ARBITRATION. In the event that Mediation does not produce a resolution or settlement to the dispute within
30 (thirty) calendar days after such Mediation begins, the Parties agree that any such unresolved controversy or claim shall move to mandatory, private, and binding arbitration for resolution or settlement, conducted by the American Arbitration Association (“Arbitration”) in the State of Oregon.
19.1. Arbitration shall be triggered by a written notice from the aggrieved Party and shall be heard not later than 60 (sixty) calendar days after the receipt of the notice by the other Party, with the selection of the Arbitrator at VTI’s sole discretion.
19.2. Both Parties shall share equally the upfront fees and costs of such Arbitration, and the prevailing Party shall recover its share of those fees and costs from the losing Party. The prevailing Party in Arbitration shall be entitled to an award of reasonable attorneys’ fees and costs.
20. SEVERABILITY. If any provision of this EULA is deemed to be invalid or unenforceable in any respect for any reason, the validity and enforceability of such provision in any other respect and of the remaining provisions of this EULA shall not be impaired in any way.
21. ENTIRE AGREEMENT. This EULA (including the documents and instruments referred to in this EULA) constitutes the entire EULA and understanding of the parties with respect to the subject matter of this EULA and supersedes all prior understandings and EULAs, whether written or oral, among the parties with respect to such subject matter.
VISUAL THINKING INC.
607 NE 32nd Avenue
Portland, Oregon USA 97232
REVISION: MARCH 31, 2015