Terms and Conditions

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, 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 PRODUCT, YOU agree to the terms of this EULA. Read the Terms of Use below carefully before completing the purchasing process. If YOU do not agree to be bound by these terms, then do not purchase the PRODUCT.

TERMS OF USE

1. VTI LICENSE GRANT.

1.1. The VTI LICENSE that YOU purchased is: a) non-exclusive, limited, non-transferable; b) shall be in effect for one year (365 days) from the date of purchase; and c) 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 be terminated if YOU:
a. Fail to comply with the requirements, restrictions, and limitations of YOUR VTI LICENSE.
b. Do nothing when YOUR VTI LICENSE expires.
c. 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. AT-A-DISTANCE COACHING SESSIONS. If your purchase includes the VTI PRODUCT known as At-A-Distance Coaching, which is packaged in sets of three sessions each ( SESSION ): a) such SESSIONS must be utilized at one a month across the first ninety business days after purchase, depending on the availability of the VTI coach; and b) VTI must receive any agreed-upon photographs or other homework materials not less than seventy-two hours prior to the associated SESSION or that SESSION shall be cancelled without reschedule or refund.

5. COPYRIGHT, SERVICE MARKS, AND OWNERSHIP.

5.1. OWNERSHIP. Unless specifically cited otherwise in writing, the content contained in the PRODUCT is a work of
original authorship, created by Gwendolyn Galsworth ( GALSWORTH ). Title, ownership, and intellectual property rights in and to the PRODUCT and associated service marks shall remain with GALSWORTH and with VTI, the exclusive and primary world-wide license holder of the PRODUCT, unless specifically cited otherwise in writing.
5.2. 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 do any of the following, or ask or allow any other individual or entity to do: 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.
5.2.1. If YOUR PRODUCT contains a component known as a Resource Folio, YOU may customize a file or form found in it if: a) that file or form is in a Microsoft Word format, and not in a PDF format, and b) YOU do not modify or remove any copyright and service mark notice found on such file or form.

6. LIMITATION OF WARRANTY AND LIABILITY. VTI expressly disclaims any and all warranties and representations, either expressed or implied, by operation of law or otherwise, with respect to the PRODUCT, or any part thereof including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. VTI shall not be liable for special, exemplary, punitive, indirect or consequential damages of any kind whatsoever.

7. DAMAGES. VTI SHALL NOT BE 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.

8. 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 ( DEFICIENCY ) and allow YOU thirty-five (35) calendar days after the date of such notice to correct such problem (Correction-Period ).

9. MEDIATION AND ARBITRATION. If VTI determines that a DEFICIENCY is not corrected to its satisfaction within the Correction-
Period ), VTI may require and demand mandatory mediation ( Dediation ), 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 date of the notice to the other Party.

9.1. 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 VTI’s choice.
9.1.1. 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.
9.1.2. Both Parties shall share equally the upfront fees and costs of such Arbitration; 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.
9.2. YOU agree and accept that Mediation and Arbitration are the sole avenues for dispute resolution under this EULA, and, thereby, waives any and all right to initiate a law suit in any State or Federal Court.

10. ASSIGNMENT AND BINDING EFFECT. 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 and such rights, interests, and obligations shall inure to the benefit of the Parties and their respective heirs, assigns, representatives, and successors.

11. 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.

12. NOTICES. Notice to a Party to this EULA, 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 on Page 1 of this document.

13. 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.

14. WAIVER. 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.

15. CHOICE OF LAWS AND JURISDICTION. This EULA shall be governed by and construed in accordance with the laws of the State of Oregon in the United States of America, exclusive of conflicts of law provisions and except in the case of service mark or copyright infringement in either of which case the proper United States federal jurisdiction shall apply.

16. 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.

17. 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.

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