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This end user license agreement (or "EULA") is a legal agreement between the person, company or
("YOU") and Visual Thinking Inc. (“VTI”), with a principal place of business at 607 NE 32nd
Avenue, Portland, Oregon,
97232, USA, related to YOUR purchase of a podcast or podcast bundle, a VTI LICENSE to use one or
several eLearning modules or eLearning systems, and any like item ("PRODUCT"). By purchasing such
completing the purchasing process. If YOU do not agree to be bound by these terms, then do not
purchase the PRODUCT.
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.
2.1. 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.
3.1. This VTI LICENSE shall terminate if YOU:
3.1.1. Fail to comply with the requirements, restrictions, and limitations of YOUR VTI
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.
4.1. 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
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
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
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
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
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
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
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.
REVISION: MARCH 31, 2015