End User License Agreement
PLEASE REVIEW THIS END USER LICENSE AGREEMENT (THIS “EULA”) CAREFULLY AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “USER”) AND YOUTH DIGITAL, INC. (“WE” OR “YOUTH DIGITAL”). BY DOWNLOADING, INSTALLING, OPERATING, ACCESSING, RUNNING AND/OR USING (AS APPLICABLE) A SOFTWARE INSTALLER FOR A COURSE (AS DEFINED BELOW) (EACH, AN “INSTALLER”), YOU AGREE (OR IF YOU PURCHASED RIGHTS TO ACCESS AND USE A COURSE AND AGREED TO YOUTH DIGITAL’S TERMS OF SERVICES, YOU HEREBY RATIFY YOUR AGREEMENT) TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ANY SUCH TERM OR CONDITION, YOU MAY NOT DOWNLOAD, INSTALL, RUN, OPERATE, OR USE THE INSTALLER.
In connection with your purchase of rights to access and use a Course, you understand and acknowledge you are not purchasing from Youth Digital a license to use the Installer(s), all of which are available to you free of charge. You only purchase from Youth Digital the rights to access and use the Courses and the Course Materials (as defined below) and the support and instruction appurtenant thereto.
For purposes hereof:
“Course(s)” means each educational or instructional course developed by Youth Digital comprising a series of classes, in each case, as is set forth in, and taught by Youth Digital and/or its authorized licensee according to, the Course Materials.
“Course Materials” means all Youth Digital owned or controlled text, images, graphics, logos, illustrations, photographs, audio, video, assets, and other content associated and provided to you in conjunction with a Course, excluding Installers and content embedded or incorporated in Installers.
“Sites” means www.youthdigital.com, my.youthdigital.com, and/or any other website owned or controlled by Youth Digital.
“YD Property” means the Courses, the Course Materials and the Sites.
1. LICENSES. Subject to the terms and conditions set forth in this EULA, we hereby grant you a personal, limited, non-exclusive, revocable, non-sublicensable, non-assignable, non-transferable royalty-free license to download, install, operate, run and use the Installer solely in conjunction with the Course; and, in each case, if and to the extent applicable, subject to any agreements governing the provision of the Course and/or the use of the Course Materials. Youth Digital may modify the terms and conditions set forth in this EULA from time to time which modifications will become effective once posted at: http://www.youthdigital.com/eula.html, and your participation in the Course after such post constitutes your agreement with such modification. If you do not agree with the modification, you must immediately stop accessing and using the Course. We reserve the right to stop offering any or all of the Courses at any time either permanently or temporarily, at which point this EULA will terminate automatically. If we stop offering any Course, you understand and acknowledge we will not be required to provide refunds, benefits, or other compensation to you in connection with such a discontinuation.
2. RESTRICTIONS ON USE. Subject to the terms and conditions set forth in licenses described in Section 6 below, you hereby agree you will not, under any circumstance: (i) use or design cheats, exploits, automation software, bots, hacks, mods, or any unauthorized third party software designed to modify or interfere with the Installer; (ii) attempt to gain unauthorized access to accounts registered to other users or to our computers, servers, or networks; (iii) use the Installer in furtherance of any illegal or unlawful purpose; (iv) use the Installer with any service, technology, or product not provided or approved by Youth Digital; (v) use the Installer to disseminate any false, defamatory, or libelous information; (vi) use the Installer after any termination or expiration of this EULA; (vii) use the Installer to perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded, or downloaded by, Youth Digital any software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or to diminish the quality of, interfere with the performance of, or impair the functionality of the Course Materials or the Installer; or (viii) use the Installer in order to: (A) design or build a commercial product or service that competes with the Course or the Installer or to create a software modding course; (B) build a product using similar ideas, features, functions, or graphics as the Course or the Installer; or (C) copy any ideas, features, functions or graphics of the Course or the Installer. Any intellectual property you develop in violation of any term or condition set forth in this EULA is owned solely and exclusively by Youth Digital. Accordingly, you hereby assign, will assign, and upon the conception thereof automatically assign, to Youth Digital all of your right, title and interest in and to such intellectual property.
3. USE OF DATA. You understand Youth Digital collects certain information about you and other users, which may include, but is not limited to, contact information inputted during Account registration; information which identifies your CPU, application software and peripheral hardware; and information related to usage. You hereby consent to Youth Digital’s use and disclosure of such information in connection with: (i) Youth Digital’s provision of the Installer and the YD Property and enforcement of its rights hereunder; (ii) Youth Digital’s delivery to you of marketing communications and customer and technical support information; and (iii) the creation of benchmarking, statistical, research and marketing analyses, surveys, reports and studies, but only in aggregate, blinded, non-personally identifiable formats that do not identify, reference, or imply an association with you. For the purposes set forth in subsection (iii) hereof, you hereby grant Youth Digital a non-exclusive, perpetual, worldwide, fully-paid up, royalty-free license. You understand and agree Youth Digital has the right to access your CPU for the purposes of: (a) servicing, maintaining and updating the Installer; (b) extracting data for use in accordance with this Section 3; and (c) verifying your compliance with the terms and conditions set forth in this EULA.
4. NO OBLIGATION TO SUPPORT. We have no obligation to provide maintenance or installation services of any kind, hard-copy documentation, support, telephone assistance, error corrections, bug fixes, patches, updates, or other modifications to the Installer or the YD Property (“Support”). In the event that we provide any Support to User, such Support will be subject to the terms and conditions set forth herein.
5. PROPRIETARY RIGHTS. Subject to the terms and conditions set forth in the licenses described in Section 6 below, as between you and Youth Digital, you understand the Installer and the software embedded in the YD Property, including the design and layout thereof (the “Software”) are and shall remain the sole and exclusive property of Youth Digital and/or its licensors. You agree not to take any actions inconsistent with Youth Digital’s ownership of each of Youth Digital’s rights in and to the Software. Except as otherwise expressly granted in this EULA, you will not have or acquire any rights or interest in or to the Software. You acknowledge the Software contains proprietary information and trade secrets of Youth Digital. Subject to the terms and conditions set forth in the licenses described in Section 6 below, you agree you will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this EULA; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to, or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; (v) possess or use the Software in any format other than machine-readable format; or (vi) take any act to remove, obscure, interfere with, or modify the presentation or functionality of any aspect of the Software. Any breach or suspected breach of any term or condition set forth in this Section 5 will result in the immediate termination of the license granted hereunder. Except to the extent expressly set forth herein, you do not have any rights in, to, or under the Software, or under any of the intellectual property rights associated therewith. If you use the Software in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
6. THIRD PARTY SOFTWARE. In connection with the Courses, you may access and install: (a) open source software and assets (the “Open Source Software”), the source of which, and the terms and conditions governing the use of which (collectively, the “Open Source Licenses”), are posted at youthdigital.com/open-source-software; and (b) software owned and controlled by third parties (the “Third Party Software”), the terms and conditions governing the use of which can be accessed at http://www.youthdigital.com/third-party-software.html (collectively, the “Third Party Software Licenses”). By accepting this EULA, you agree to the terms and conditions set forth in the Open Source Licenses governing the Open Source Software, and in the Third Party Software Licenses governing the Third Party Software, that you access, install and use in conjunction with a Course. Except as otherwise may be set forth in the applicable Open Source License or Third Party Software License, as the case may be, the Open Source Software or the Third Party Software governed thereby is provided “as is,” without representation or warranty of any kind. Youth Digital makes no representation, warranty, or guaranty with respect to the Open Source Software or the Third Party Software. You hereby acknowledge and agree that you are responsible solely for ensuring that your use thereof: (a) complies with all applicable foreign, federal, and state laws and regulations; and (b) does not violate any term, condition, rule, procedure, policy, or other guideline published by a third party or Youth Digital.
7. DISCLAIMER OF WARRANTIES. THE INSTALLER AND THE YD PROPERTY ARE PROVIDED “AS IS,” AND “AS AVAILABLE,” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUTH DIGITAL AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT. THE REPRESENTATIVES DO NOT WARRANT THAT THE INSTALLER OR THE YD PROPERTY WILL MEET USER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE INSTALLER OR THE YD PROPERTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THE INSTALLER AND THE YD PROPERTY RELY UPON THIRD PARTY SOFTWARE FOR CERTAIN FUNCTIONS, AND YOUTH DIGITAL MAKES NO REPRESENTATION, WARRANTY, PROMISE, OR GUARANTEE TO THE USER THAT SUCH SOFTWARE WILL BE ERROR FREE, ACCOMPLISH A SPECIFIED PURPOSE, OR PERFORM IN ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL, OR METRIC, AND YOUTH DIGITAL WILL NOT BE LIABLE FOR ANY FAILURE THEREOF TO THE USER. YOU ACKNOWLEDGE THAT YOUTH DIGITAL DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE INSTALLER AND THE YD PROPERTY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ACCORDINGLY, YOUTH DIGITAL WILL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OR ANY ISSUE OUTSIDE OF YOUTH DIGITAL’S REASONABLE CONTROL.
8. LIMITATION OF LIABILITY. In no event will Youth Digital be liable to User for any direct, indirect, lost profits, incidental, consequential, punitive, special, cover, or exemplary damages (even if Youth Digital has been advised of the possibility of such damages) arising from this EULA, the Installer or the YD Property, including, but not limited to, loss of revenue or anticipated profits or lost business, loss of data, or loss of use. IN NO EVENT WILL YOUTH DIGITAL’S TOTAL CUMULATIVE LIABILITY FOR CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY, OR OTHERWISE, FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RELATED TO THIS EULA OR THE INSTALLER OR THE YD PROPERTY, EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) AND AMOUNTS ACTUALLY PAID BY USER FOR THE RIGHTS OF ACCESS AND USE WITH RESPECT TO THE COURSE FROM WHICH SUCH LIABILITY AROSE. NO CLAIM MAY BE ASSERTED BY USER AGAINST YOUTH DIGITAL MORE THAN TWELVE (12) MONTHS AFTER THE DATE OF THIS EULA TERMINATES. CERTAIN THIRD PARTY SOFTWARE MAY BE USED IN CONJUNCTION WITH THE INSTALLER AND/OR THE YD PROPERTY. NOTHING SET FORTH HEREIN SHOULD BE CONSTRUED TO MEAN THE USE OF THE INSTALLER AND/OR YD PROPERTY WITH SUCH THIRD PARTY SOFTWARE IS PERMITTED UNDER THE TERMS OF AGREEMENTS THAT GOVERN THE USE OF SUCH SOFTWARE. USER IS RESPONSIBLE FOR REVIEWING SUCH AGREEMENTS IN ORDER TO AVOID ANY BREACH THEREOF, AND YOU USE THE INSTALLER AND THE YD PROPERTY IN CONJUNCTION WITH SUCH THIRD PARTY SOFTWARE AT YOUR OWN RISK. IN NO EVENT IS YOUTH DIGITAL LIABLE TO USER FOR ANY USE OF THE INSTALLER AND/OR THE YD PROPERTY IN CONJUNCTION WITH SUCH THIRD PARTY SOFTWARE.
The Sites are accessible in countries around the world and may contain references to products and services that are not available in your country. These references do not imply that Youth Digital intends to announce the availability of such products and services in your country. The Sites are controlled and offered by Youth Digital from its facilities in the United States. Youth Digital makes no representations or warranties the Sites or such products and services are appropriate or available for use outside of the United States. If you access a Site from outside of the United States, you do so at your own risk and agree you solely are responsible for compliance with local law.
9. INDEMNIFICATION. At your sole cost and expense, you hereby agree to defend and hold harmless Youth Digital and its affiliates, subsidiaries, officers, managers, members, employees, consultants, representatives, agents, successors, and assigns (the “Indemnitees”) in any action or claim, and to indemnify Youth Digital and the Indemnitees from and against any and all losses, liabilities, sums of money, damages, expenses, and costs (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claims”) arising from such action or claim and related to: (i) your breach of any term, condition, representation or warranty set forth in this EULA; (ii) your infringement or misappropriation of any intellectual property, privacy or other rights of any third party; (iii) your breach of any term or condition set forth in an Open Source License and/or a Third Party License; and/or (iv) your violation of applicable law. Youth Digital reserves the right, at your expense, to assume the exclusive defense and control of any Claim for which you are required to indemnify us, and you agree to cooperate with our defense of this Claim. We will use reasonable efforts to notify you of any Claim upon becoming aware of it.
10. TERM. The term of this EULA will commence on the earlier of the date that you download, install, operate, run, or use the Installer, and/or access or use a Course, and ends on the earlier of the date that: (i) you uninstall or remove the Installer from your computer (if applicable); (ii) you complete the Course and/or your right to access the Course Materials terminates as determined by Youth Digital; or (iii) you breach any term or condition, or any representation or warranty set forth in this EULA. AMONG OUR OTHER AVAILABLE LEGAL AND EQUITABLE REMEDIES, WE MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE YOUR ACCOUNT IF YOU ARE, OR IF WE SUSPECT YOU ARE, FAILING TO COMPLY WITH ANY TERM OR CONDITION SET FORTH IN THIS EULA, WITH OR WITHOUT NOTICE TO YOU.
11. GOVERNING LAW AND DISPUTE RESOLUTION. This EULA is governed by, and interpreted in accordance with, the laws of the State of North Carolina except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. Any dispute or controversy arising under, out of, or in connection with this EULA shall be resolved by binding arbitration under then current Commercial Rules of Arbitration of the American Arbitration Association (including the expedited procedures and optional rules for emergency measures of protection thereunder) before a single arbitrator. Any such arbitration shall be conducted in Durham, North Carolina. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties hereto or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, Youth Digital has the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of North Carolina, to which jurisdiction, for such purpose, you hereby irrevocably consent. If you bring a legal action or claim against us in contravention of this Section 11, you agree you will reimburse us for our costs and expenses incurred in connection with contesting such action or claim; provided that we notified you in writing of the improperly filed claim, and you failed to promptly withdraw the claim. Any arbitration award granted hereunder will be enforceable under the applicable terms and conditions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the New York Convention), as amended to date. The parties expressly agree this EULA will not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
12. FORCE MAJEURE. We will not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, without limitation, any failure to perform hereunder due to unforeseen circumstances such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
13. OTHER AGREEMENTS. In conjunction with the Courses, you may enter into certain other agreements with Youth Digital, including, without limitation, the Youth Digital’s terms of service (the “Other Agreements”). While each of the Other Agreements constitutes a separate legal agreement between you and Youth Digital, such agreements may address subject matter related to this EULA. In the event of any conflict between any term or condition set forth in this EULA and in any of the Other Agreements, the term or condition which most favors Youth Digital, as determined in Youth Digital’s sole discretion, will prevail.
Youth Digital’s address, phone number, and email contact information to which User may address questions, complaints, or claims with respect to the YD Property or the Installer are as follows:
Youth Digital, Inc.
P.O. Box 51309
Durham, NC 27717
[email protected]
PLEASE REVIEW THIS END USER LICENSE AGREEMENT (THIS “EULA”) CAREFULLY AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “USER”) AND YOUTH DIGITAL, INC. (“WE” OR “YOUTH DIGITAL”). BY DOWNLOADING, INSTALLING, OPERATING, ACCESSING, RUNNING AND/OR USING (AS APPLICABLE) A SOFTWARE INSTALLER FOR A COURSE (AS DEFINED BELOW) (EACH, AN “INSTALLER”), YOU AGREE (OR IF YOU PURCHASED RIGHTS TO ACCESS AND USE A COURSE AND AGREED TO YOUTH DIGITAL’S TERMS OF SERVICES, YOU HEREBY RATIFY YOUR AGREEMENT) TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ANY SUCH TERM OR CONDITION, YOU MAY NOT DOWNLOAD, INSTALL, RUN, OPERATE, OR USE THE INSTALLER.
In connection with your purchase of rights to access and use a Course, you understand and acknowledge you are not purchasing from Youth Digital a license to use the Installer(s), all of which are available to you free of charge. You only purchase from Youth Digital the rights to access and use the Courses and the Course Materials (as defined below) and the support and instruction appurtenant thereto.
For purposes hereof:
“Course(s)” means each educational or instructional course developed by Youth Digital comprising a series of classes, in each case, as is set forth in, and taught by Youth Digital and/or its authorized licensee according to, the Course Materials.
“Course Materials” means all Youth Digital owned or controlled text, images, graphics, logos, illustrations, photographs, audio, video, assets, and other content associated and provided to you in conjunction with a Course, excluding Installers and content embedded or incorporated in Installers.
“Sites” means www.youthdigital.com, my.youthdigital.com, and/or any other website owned or controlled by Youth Digital.
“YD Property” means the Courses, the Course Materials and the Sites.
1. LICENSES. Subject to the terms and conditions set forth in this EULA, we hereby grant you a personal, limited, non-exclusive, revocable, non-sublicensable, non-assignable, non-transferable royalty-free license to download, install, operate, run and use the Installer solely in conjunction with the Course; and, in each case, if and to the extent applicable, subject to any agreements governing the provision of the Course and/or the use of the Course Materials. Youth Digital may modify the terms and conditions set forth in this EULA from time to time which modifications will become effective once posted at: http://www.youthdigital.com/eula.html, and your participation in the Course after such post constitutes your agreement with such modification. If you do not agree with the modification, you must immediately stop accessing and using the Course. We reserve the right to stop offering any or all of the Courses at any time either permanently or temporarily, at which point this EULA will terminate automatically. If we stop offering any Course, you understand and acknowledge we will not be required to provide refunds, benefits, or other compensation to you in connection with such a discontinuation.
2. RESTRICTIONS ON USE. Subject to the terms and conditions set forth in licenses described in Section 6 below, you hereby agree you will not, under any circumstance: (i) use or design cheats, exploits, automation software, bots, hacks, mods, or any unauthorized third party software designed to modify or interfere with the Installer; (ii) attempt to gain unauthorized access to accounts registered to other users or to our computers, servers, or networks; (iii) use the Installer in furtherance of any illegal or unlawful purpose; (iv) use the Installer with any service, technology, or product not provided or approved by Youth Digital; (v) use the Installer to disseminate any false, defamatory, or libelous information; (vi) use the Installer after any termination or expiration of this EULA; (vii) use the Installer to perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded, or downloaded by, Youth Digital any software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or to diminish the quality of, interfere with the performance of, or impair the functionality of the Course Materials or the Installer; or (viii) use the Installer in order to: (A) design or build a commercial product or service that competes with the Course or the Installer or to create a software modding course; (B) build a product using similar ideas, features, functions, or graphics as the Course or the Installer; or (C) copy any ideas, features, functions or graphics of the Course or the Installer. Any intellectual property you develop in violation of any term or condition set forth in this EULA is owned solely and exclusively by Youth Digital. Accordingly, you hereby assign, will assign, and upon the conception thereof automatically assign, to Youth Digital all of your right, title and interest in and to such intellectual property.
3. USE OF DATA. You understand Youth Digital collects certain information about you and other users, which may include, but is not limited to, contact information inputted during Account registration; information which identifies your CPU, application software and peripheral hardware; and information related to usage. You hereby consent to Youth Digital’s use and disclosure of such information in connection with: (i) Youth Digital’s provision of the Installer and the YD Property and enforcement of its rights hereunder; (ii) Youth Digital’s delivery to you of marketing communications and customer and technical support information; and (iii) the creation of benchmarking, statistical, research and marketing analyses, surveys, reports and studies, but only in aggregate, blinded, non-personally identifiable formats that do not identify, reference, or imply an association with you. For the purposes set forth in subsection (iii) hereof, you hereby grant Youth Digital a non-exclusive, perpetual, worldwide, fully-paid up, royalty-free license. You understand and agree Youth Digital has the right to access your CPU for the purposes of: (a) servicing, maintaining and updating the Installer; (b) extracting data for use in accordance with this Section 3; and (c) verifying your compliance with the terms and conditions set forth in this EULA.
4. NO OBLIGATION TO SUPPORT. We have no obligation to provide maintenance or installation services of any kind, hard-copy documentation, support, telephone assistance, error corrections, bug fixes, patches, updates, or other modifications to the Installer or the YD Property (“Support”). In the event that we provide any Support to User, such Support will be subject to the terms and conditions set forth herein.
5. PROPRIETARY RIGHTS. Subject to the terms and conditions set forth in the licenses described in Section 6 below, as between you and Youth Digital, you understand the Installer and the software embedded in the YD Property, including the design and layout thereof (the “Software”) are and shall remain the sole and exclusive property of Youth Digital and/or its licensors. You agree not to take any actions inconsistent with Youth Digital’s ownership of each of Youth Digital’s rights in and to the Software. Except as otherwise expressly granted in this EULA, you will not have or acquire any rights or interest in or to the Software. You acknowledge the Software contains proprietary information and trade secrets of Youth Digital. Subject to the terms and conditions set forth in the licenses described in Section 6 below, you agree you will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this EULA; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to, or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; (v) possess or use the Software in any format other than machine-readable format; or (vi) take any act to remove, obscure, interfere with, or modify the presentation or functionality of any aspect of the Software. Any breach or suspected breach of any term or condition set forth in this Section 5 will result in the immediate termination of the license granted hereunder. Except to the extent expressly set forth herein, you do not have any rights in, to, or under the Software, or under any of the intellectual property rights associated therewith. If you use the Software in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
6. THIRD PARTY SOFTWARE. In connection with the Courses, you may access and install: (a) open source software and assets (the “Open Source Software”), the source of which, and the terms and conditions governing the use of which (collectively, the “Open Source Licenses”), are posted at youthdigital.com/open-source-software; and (b) software owned and controlled by third parties (the “Third Party Software”), the terms and conditions governing the use of which can be accessed at http://www.youthdigital.com/third-party-software.html (collectively, the “Third Party Software Licenses”). By accepting this EULA, you agree to the terms and conditions set forth in the Open Source Licenses governing the Open Source Software, and in the Third Party Software Licenses governing the Third Party Software, that you access, install and use in conjunction with a Course. Except as otherwise may be set forth in the applicable Open Source License or Third Party Software License, as the case may be, the Open Source Software or the Third Party Software governed thereby is provided “as is,” without representation or warranty of any kind. Youth Digital makes no representation, warranty, or guaranty with respect to the Open Source Software or the Third Party Software. You hereby acknowledge and agree that you are responsible solely for ensuring that your use thereof: (a) complies with all applicable foreign, federal, and state laws and regulations; and (b) does not violate any term, condition, rule, procedure, policy, or other guideline published by a third party or Youth Digital.
7. DISCLAIMER OF WARRANTIES. THE INSTALLER AND THE YD PROPERTY ARE PROVIDED “AS IS,” AND “AS AVAILABLE,” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUTH DIGITAL AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT. THE REPRESENTATIVES DO NOT WARRANT THAT THE INSTALLER OR THE YD PROPERTY WILL MEET USER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE INSTALLER OR THE YD PROPERTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THE INSTALLER AND THE YD PROPERTY RELY UPON THIRD PARTY SOFTWARE FOR CERTAIN FUNCTIONS, AND YOUTH DIGITAL MAKES NO REPRESENTATION, WARRANTY, PROMISE, OR GUARANTEE TO THE USER THAT SUCH SOFTWARE WILL BE ERROR FREE, ACCOMPLISH A SPECIFIED PURPOSE, OR PERFORM IN ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL, OR METRIC, AND YOUTH DIGITAL WILL NOT BE LIABLE FOR ANY FAILURE THEREOF TO THE USER. YOU ACKNOWLEDGE THAT YOUTH DIGITAL DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE INSTALLER AND THE YD PROPERTY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ACCORDINGLY, YOUTH DIGITAL WILL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OR ANY ISSUE OUTSIDE OF YOUTH DIGITAL’S REASONABLE CONTROL.
8. LIMITATION OF LIABILITY. In no event will Youth Digital be liable to User for any direct, indirect, lost profits, incidental, consequential, punitive, special, cover, or exemplary damages (even if Youth Digital has been advised of the possibility of such damages) arising from this EULA, the Installer or the YD Property, including, but not limited to, loss of revenue or anticipated profits or lost business, loss of data, or loss of use. IN NO EVENT WILL YOUTH DIGITAL’S TOTAL CUMULATIVE LIABILITY FOR CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY, OR OTHERWISE, FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RELATED TO THIS EULA OR THE INSTALLER OR THE YD PROPERTY, EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) AND AMOUNTS ACTUALLY PAID BY USER FOR THE RIGHTS OF ACCESS AND USE WITH RESPECT TO THE COURSE FROM WHICH SUCH LIABILITY AROSE. NO CLAIM MAY BE ASSERTED BY USER AGAINST YOUTH DIGITAL MORE THAN TWELVE (12) MONTHS AFTER THE DATE OF THIS EULA TERMINATES. CERTAIN THIRD PARTY SOFTWARE MAY BE USED IN CONJUNCTION WITH THE INSTALLER AND/OR THE YD PROPERTY. NOTHING SET FORTH HEREIN SHOULD BE CONSTRUED TO MEAN THE USE OF THE INSTALLER AND/OR YD PROPERTY WITH SUCH THIRD PARTY SOFTWARE IS PERMITTED UNDER THE TERMS OF AGREEMENTS THAT GOVERN THE USE OF SUCH SOFTWARE. USER IS RESPONSIBLE FOR REVIEWING SUCH AGREEMENTS IN ORDER TO AVOID ANY BREACH THEREOF, AND YOU USE THE INSTALLER AND THE YD PROPERTY IN CONJUNCTION WITH SUCH THIRD PARTY SOFTWARE AT YOUR OWN RISK. IN NO EVENT IS YOUTH DIGITAL LIABLE TO USER FOR ANY USE OF THE INSTALLER AND/OR THE YD PROPERTY IN CONJUNCTION WITH SUCH THIRD PARTY SOFTWARE.
The Sites are accessible in countries around the world and may contain references to products and services that are not available in your country. These references do not imply that Youth Digital intends to announce the availability of such products and services in your country. The Sites are controlled and offered by Youth Digital from its facilities in the United States. Youth Digital makes no representations or warranties the Sites or such products and services are appropriate or available for use outside of the United States. If you access a Site from outside of the United States, you do so at your own risk and agree you solely are responsible for compliance with local law.
9. INDEMNIFICATION. At your sole cost and expense, you hereby agree to defend and hold harmless Youth Digital and its affiliates, subsidiaries, officers, managers, members, employees, consultants, representatives, agents, successors, and assigns (the “Indemnitees”) in any action or claim, and to indemnify Youth Digital and the Indemnitees from and against any and all losses, liabilities, sums of money, damages, expenses, and costs (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claims”) arising from such action or claim and related to: (i) your breach of any term, condition, representation or warranty set forth in this EULA; (ii) your infringement or misappropriation of any intellectual property, privacy or other rights of any third party; (iii) your breach of any term or condition set forth in an Open Source License and/or a Third Party License; and/or (iv) your violation of applicable law. Youth Digital reserves the right, at your expense, to assume the exclusive defense and control of any Claim for which you are required to indemnify us, and you agree to cooperate with our defense of this Claim. We will use reasonable efforts to notify you of any Claim upon becoming aware of it.
10. TERM. The term of this EULA will commence on the earlier of the date that you download, install, operate, run, or use the Installer, and/or access or use a Course, and ends on the earlier of the date that: (i) you uninstall or remove the Installer from your computer (if applicable); (ii) you complete the Course and/or your right to access the Course Materials terminates as determined by Youth Digital; or (iii) you breach any term or condition, or any representation or warranty set forth in this EULA. AMONG OUR OTHER AVAILABLE LEGAL AND EQUITABLE REMEDIES, WE MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE YOUR ACCOUNT IF YOU ARE, OR IF WE SUSPECT YOU ARE, FAILING TO COMPLY WITH ANY TERM OR CONDITION SET FORTH IN THIS EULA, WITH OR WITHOUT NOTICE TO YOU.
11. GOVERNING LAW AND DISPUTE RESOLUTION. This EULA is governed by, and interpreted in accordance with, the laws of the State of North Carolina except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. Any dispute or controversy arising under, out of, or in connection with this EULA shall be resolved by binding arbitration under then current Commercial Rules of Arbitration of the American Arbitration Association (including the expedited procedures and optional rules for emergency measures of protection thereunder) before a single arbitrator. Any such arbitration shall be conducted in Durham, North Carolina. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties hereto or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, Youth Digital has the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of North Carolina, to which jurisdiction, for such purpose, you hereby irrevocably consent. If you bring a legal action or claim against us in contravention of this Section 11, you agree you will reimburse us for our costs and expenses incurred in connection with contesting such action or claim; provided that we notified you in writing of the improperly filed claim, and you failed to promptly withdraw the claim. Any arbitration award granted hereunder will be enforceable under the applicable terms and conditions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the New York Convention), as amended to date. The parties expressly agree this EULA will not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
12. FORCE MAJEURE. We will not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, without limitation, any failure to perform hereunder due to unforeseen circumstances such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
13. OTHER AGREEMENTS. In conjunction with the Courses, you may enter into certain other agreements with Youth Digital, including, without limitation, the Youth Digital’s terms of service (the “Other Agreements”). While each of the Other Agreements constitutes a separate legal agreement between you and Youth Digital, such agreements may address subject matter related to this EULA. In the event of any conflict between any term or condition set forth in this EULA and in any of the Other Agreements, the term or condition which most favors Youth Digital, as determined in Youth Digital’s sole discretion, will prevail.
Youth Digital’s address, phone number, and email contact information to which User may address questions, complaints, or claims with respect to the YD Property or the Installer are as follows:
Youth Digital, Inc.
P.O. Box 51309
Durham, NC 27717
[email protected]