End User License Agreement
SKILL CAPPED, LLC
END USER LICENSE AGREEMENT
© 2010-2011 Skill Capped, LLC
All rights reserved
PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY AND PRINT THIS AGREEMENT FOR YOUR RECORDS BEFORE USING THE CONTENT ON THIS WEBSITE. THE CONTENT SHALL INCLUDE BUT NOT BE LIMITED TO VIDEOS, DOWNLOADS, AND FILES (THE "CONTENT"). BY USING THE CONTENT, EVEN FOR REVIEW AND CONSIDERATION, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
The Content is provided by Skill Capped, LLC ("Company") to its registered and authorized users. By clicking the "I agree to the Skill-Capped.com EULA" checkbox and using the Content you agree to the following terms and conditions ("Agreement"). If you do not agree with these terms and conditions, do not click the "I agree to the Skill-Capped.com EULA" checkbox and do not use the Content.
1. License. Subject to the terms and conditions of this Agreement and in consideration of your use of the Content, Company grants you a limited, nontransferable, and nonexclusive license to access and use the Content. This is a license only to use the Content for its specific and intended purpose and it is not a transfer of title. You are responsible for providing all equipment necessary to access the Content. This license does not allow you to re-produce, copy or post the Content to any third party, including but not limited to the public generally and does not allow you to show the Content to any third party.
2. Passwords. Your membership, unique user name and password are non-transferable and non-assignable. You agree to promptly advise Company of any unauthorized use of your unique user name and password or any other breach of security. You are responsible and liable for any unauthorized use of the Content unless and until you provide notification to Company concerning the alleged unauthorized use. You agree to indemnify Company concerning all activities conducted through or on your account.
3. Termination of Use. Without limiting its other rights or remedies, Company has the right, in its sole discretion, to suspend or terminate this Agreement and your access to and use of the Content, with or without prior notification, if Company believes you have breached this Agreement or breached an intellectual property right of Company.
4. Changes to the Content and this Agreement. Company may, at any time, revise this Agreement or modify, enhance or upgrade the Content. Your continued use of the Content following changes to the Content or this Agreement constitutes and shall be deemed your acceptance of such changes.
5. Intellectual Property Rights
(a) Ownership. You acknowledge that Company is the sole owner of all intellectual property rights in and to the Content and that you have no intellectual property rights in the Content. You shall only use the Content for its intended purpose. Company reserves all rights in the Content not expressly granted under this Agreement.
(b) Proprietary Rights. You acknowledge that Company protects the source code of the Content as its trade secret. You shall not, directly or indirectly, and shall not permit others to (a) create or attempt to create the source code from the Content licensed under this Agreement; (b) decompile, reverse compile, translate, change or modify the Content or create derivative works from them; or (c) reverse engineer or attempt to reverse engineer the Content. You shall not remove or alter any proprietary notices on the Content, including without limitation copyright notices, and shall not permit any third party to do so. In the event you breach or attempt to breach any of the provisions of this paragraph, Company shall have the right, in addition to such other remedies that may be available to it, to injunctive relief enjoining such breach or attempt to breach, it being acknowledged that legal remedies are inadequate.
(c) Intellectual Property Rights and Remedies. Nothing in this Agreement is intended to waive or limit rights and remedies otherwise available to Company to protect its proprietary interest in the Content, including, without limitation, those rights and remedies under U.S. Copyright Law, the Berne Convention or other international treaties, or applicable national copyright and intellectual property laws of the countries in which Company may license the Content.
6. Compatibility. You understand that the introduction by Company of various technologies may not be consistent or operational across all platforms, e.g., Windows or Macintosh. You understand that new operating systems introduced by Microsoft or Macintosh may contain bugs causing interference with the Content. Company provides its services on a commercially reasonable basis and does not guarantee that you will be able to access the Content at a given time or location of your choosing.
7. Disclaimer of Warranty. THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. COMPANY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NONINFRINGEMENT AND ALL OTHER WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTIES THAT THE CONTENT, OR ANY USE THEREOF, WILL BE UNINTERRUPTED, SECURE, VIRUS FREE OR ERROR FREE. YOU AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CONTENT, COMPANY’S WEBSITE OR WEBSITE LINKS IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF SUCH MATERIAL AND/OR DATA.
8. Limitation of Liability. COMPANY’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO COMPANY FOR THE USE OF THE CONTENT. IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OF OR INABILITY TO USE THE CONTENT, THE FAILURE TO PROVIDE SUPPORT SERVICES, THE BREACH OF ANY WARRANTY OR OF THIS AGREEMENT, ANY CLAIM MADE AGAINST YOU BY ANY OTHER PARTY, ANY ACT OR FAILURE TO ACT RELATING TO THIS AGREEMENT, OR OTHERWISE, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, LOST PROFITS, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION, OR ANY OTHER MONETARY OR OTHER LOSS, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
9. Indemnity. You shall at your own expense defend against, and indemnify and hold Company harmless from, any and all claims, suits, losses, damages, costs, fees and expenses, including without limitation any reasonable attorney’s fees incurred by Company in connection therewith, resulting from any claim or suit made or brought against Company that arise from (i) any modifications to the Content or components thereof by you which infringes any patent or copyright of any third party or misappropriates any trade secret of a third party; (ii) any statements made by you relating to the Content or any component thereof not approved by Company in advance in writing; or (iii) any use of the Content contrary to the terms of this Agreement.
10. Legal Compliance. You shall conform to all applicable domestic and international laws, statutes, ordinances, and regulations regarding use of the Content.
11. No Agency Relationship. Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture or formal business entity of any kind between Company and you; and the rights and obligations of the parties shall be limited to those expressly set forth herein.
12. Notice. Any notice required to be given under this Agreement shall be provided by e-mail to a functioning e-mail address of the party to be noticed, or by delivery by a nationally recognized commercial carrier, such as Federal Express. Either party may change the address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.
13. Force Majeure. Company shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including, but not limited to: acts of God, fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or Content, for so long as such event continues to delay Company performance.
14. General Provisions.
(a) Entire Agreement. You agree that this Agreement is the complete and exclusive statement of the Agreement between Company and you, which supersedes any proposal or prior agreement, oral or written, and any other communications between you and Company relating to the subject matter of this Agreement.
(b) Governing Law. You and Company agree that this Agreement is, and shall be, governed by and interpreted in accordance with the laws of the Commonwealth of Virginia.
(c) Rights to Injunctive Relief. You and Company acknowledge and agree that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
(d) Choice of Forum. You and Company agree that the exclusive forum or venue for all actions relating in any manner to this Agreement shall be the state or federal courts located in the City of Roanoke, Virginia.
(e) Limitations Period. You and Company agree that the statute of limitations for causes of actions for suits at law or claims in equity arising from a breach of this Agreement or pertaining to a claim under this Agreement is one (1) year from the date the action accrues.
(f) Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be. Your rights under this Agreement may not be assigned, transferred, or sublicensed.
(g) Severability. If any provision of this Agreement shall be held illegal, void, or unenforceable, the remaining portions shall remain in full force and effect.
(h) Attorneys’ Fees. You shall pay all reasonable attorney fees and expenses incurred by Company as a result of any breach by you of this Agreement or incurred by Company in connection with the enforcement of its rights under this Agreement regardless of whether or not a judgment is entered by a court.
(i) No Waiver. No waiver by Company shall be deemed a waiver of any subsequent default of the same provision of this Agreement.
(j) Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.