End-User License Agreement (“Agreement”)
Last updated: (01.15.2017)
Please read the following carefully.
This End User License Agreement (“Agreement”) constitutes a valid and binding agreement between Talented, LLC of North Carolina (together with its affiliates, successors and assigns “Talented”) and you (“you,” or “your”) for the use of Talented’s Micro-Learning Platform and Services (‘Talented Software’), as those terms are defined below. You must enter into this agreement in order to install, access and use such Talented Software.
BY INSTALLING AND USING THE TALENTED SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, ACCESS OR USE THE TALENTED SOFTWARE.
The Talented Software and the Services are not intended for use by or availability to persons under the age limit of any jurisdiction which restricts the use of Internet-based applications and services according to age.
IF YOU RESIDE IN SUCH A JURISDICTION AND ARE UNDER THAT JURISDICTION’S AGE LIMIT FOR USING INTERNET-BASED APPLICATIONS OR SERVICES, YOU MAY NOT DOWNLOAD, INSTALL, OR USE THE TALENTED SOFTWARE AND YOU MAY NOT ACCESS THE SERVICES.
1. License Grant
Subject to the terms of this Agreement, Talented hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to download, install and use the Talented Software, including Talented Micro-Learning Platform, any online or enclosed documentation, courses, data distributed to your computer for processing and any future programming fixes or updates provided to you (collectively, the “Talented Software”) onto a single computer; OR install and store the Software on a storage device, such as a network server, used only to utilize the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run for your sole use to install, interact with and utilize the Talented Software, including the content and features contained therein and the services and the Network related thereto (“Services”). The Talented Software may only be used in connection with the Services. As used herein, the term “Network” means the universe of computers connected to the Internet that are operating the Talented Software.
2. License Restrictions
a) Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the Services, Talented Software or any copy thereof; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling or disassembling or hacking of the Talented Software, the Services or the Network; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Talented Software or Services, including, without limitation, through sublicense, to any other entity without the prior written consent of IE; (iv) export or re-export the Talented Software in violation of United States or United Kingdom export laws; (v) use the Talented Software or Services for any commercial purpose or the benefit of any third party or charge any person for the use of the Talented Software; or (vi) use the Talented Software or Services to, or in any way that would violate any applicable law, regulation or ordinance; (vii) collect any information or communication about the Network or users of the Talented Software or Services by monitoring, interdicting or intercepting any process of the Talented Software or the Network; and (viii) use any type of bot, spider virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access or that are designed to distort, delete, damage or disassemble the Talented Software, the Services or the Network. Furthermore, you may not use the Talented Software or Services to develop, generate, transmit or store information that: (A) infringes any third party’s intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Talented Software or Services, (D) performs any unsolicited commercial communication not permitted by applicable law; (E) is harassment or a violation of privacy or threatens other people or groups of people; and (F) impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
(b) The Talented Software and Services contain confidential and trade secret information owned or licensed by Talented, and you agree to take reasonable steps at all times to protect and maintain the confidentiality of such information.
(c) The Talented Software and Services may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to Talented to enforce any of your rights. All modifications or enhancements to the Talented Software and Services remain the sole property of Talented. You understand that Talented, in its sole discretion, may modify or discontinue or suspend your right to access any of its Services or use any of the Talented Software at any time, and may at any time suspend or terminate any license hereunder and disable any Talented Software you may already have accessed or installed without prior notice. Talented reserves the right to add additional features or functions to the Talented Software. When installed on your computer, the Talented Software periodically communicates with Talented servers. You acknowledge and agree that Talented has no obligation to make available to you any subsequent versions of its software applications.
(d) If you have subscribed to Talented’s periodic eNewsletters, you further have a non-exclusive license to disseminate or modify and disseminate modified Talented’s eNewsletters exclusively to an UNLIMITED number of your employees and partners.
3. Permission to Utilize.
In order to receive the benefits provided by the Talented Software, you hereby grant permission for the Talented Software to utilize the processor and bandwidth of your computer, smartphone or tablet for the limited purpose of facilitating the operation of Talented Software. You understand that the Talented Software will protect the privacy and integrity of your processor and bandwidth resources and ensure the unobtrusive utilization of your computer resources to the greatest extent possible.
4. Proprietary Rights.
The Talented Software and Services contain proprietary and confidential information of Talented, including copyrights, trade secrets and trademarks contained therein, which are protected by international copyright laws. Title to and ownership of the Talented Software, including without limitation all intellectual property rights therein and thereto, are and shall remain the exclusive property of Talented and its suppliers, and except for the limited license granted to you, Talented reserves all right, title and interest in and to the Talented Software. You shall not take any action to jeopardize, limit or interfere with Talented’s ownership of and rights with respect to the Talented Software and Services. You acknowledge that any unauthorized copying or unauthorized use of the Talented Software or Services is a violation of this Agreement and copyright laws and is strictly prohibited.
5. Term; Termination.
Talented, LLC may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice.
This Agreement will terminate immediately, without prior notice from Talented, LLC, in the event that you fail to comply with any provision of this Agreement. You may also terminate this Agreement by deleting the Application and all copies thereof from your mobile device or from your personal computer.
Upon termination of this Agreement, you shall cease all use of the Application and delete all copies of the Application from your mobile device or from your personal computer.
7. Your Representations and Warranties.
(a) You represent and warrant that (i) you possess the legal right and ability to enter into this Agreement and to comply with its terms, (ii) you will use the Talented Software and Services for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (iii) you will not attempt to decompile, reverse engineer or hack the Talented Software or the Network or to defeat or overcome any encryption and/or other technical protection methods implemented by Talented with respect to the Talented Software and/or data transmitted, processed or stored by Talented or other users of the Talented Software, (iv) you will not take any steps to interfere with or in any manner compromise any of Talented’s security measures, any other individual’s or entity’s computer on the Network and/or otherwise sharing Services, (v) you will always provide and maintain true, accurate, current and complete information as requested by Talented, and (vi) you will only use the Talented Software and Services on a device on which such use is authorized by the device’s owner.
(b) You agree that you will not use any automatic or manual device or process to interfere or attempt to interfere with the proper working of the Talented Software, Network or Services, except to remove the Talented Software from a device of which you are an owner or authorized user in a manner permitted by this Agreement. You may not violate or attempt to violate the security of the Talented Software, Network or Services. Talented reserves the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations.
(c) If Talented has reasonable grounds to suspect that your representations, warranties or promises are inaccurate or breached, Talented may terminate this license, deny any or all use of the Talented Software and/or Services, and pursue any appropriate legal remedies.
You agree to indemnify, hold harmless and defend Talented and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents and network service providers at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by Talented arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, or (b) use or misuse of the Talented Software and/or Services.
9. Disclaimer of Warranties.
(a) THE TALENTED SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY TALENTED, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE TALENTED SOFTWARE OR SERVICES, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. TALENTED FURTHER DOES NOT REPRESENT OR WARRANT THAT THE TALENTED SOFTWARE OR ANY SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE, OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES TALENTED WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE TALENTED SOFTWARE OR THE SERVICES.
(b) YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE TALENTED SOFTWARE AND SERVICES REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(c) THE TALENTED SOFTWARE IS UTILIZED AND DISTRIBUTED BY THIRD PARTIES WHICH ARE UNRELATED TO TALENTED. YOU ACKNOWLEDGE THAT INSTALLATION OF THE TALENTED SOFTWARE WILL ALLOW THIRD PARTIES WHO ARE NOT AFFILIATED WITH TALENTED THE ABILITY TO COMMUNICATE WITH YOUR COMPUTER (“OUTSIDE PARTIES”). YOU AGREE THAT TALENTED WILL NOT BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES AS STATED IN PARAGRAPH 9(a) ABOVE, RESULTING FROM ANY ACTIONS OR OMISSIONS OF THE OUTSIDE PARTIES.
(d) As some jurisdictions do not allow some of the exclusions set forth in this Section 9, some of these exclusions may not apply to you.
10. Limitation of Liability.
(a) IN NO EVENT SHALL TALENTED, ITS AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR NETWORK SERVICE PROVIDERS BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE TALENTED SOFTWARE OR THE SERVICES, EVEN IF TALENTED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) YOUR ONLY RIGHT WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE TALENTED SOFTWARE AND/OR SERVICES IS TO UNINSTALL AND CEASE USE OF SUCH TALENTED SOFTWARE AND SERVICES.
(c) As some jurisdictions do not allow some of the exclusions set forth in this Section 10, some of these exclusions may not apply to you.
11. Electronic Signatures and Agreements.
You acknowledge and agree that by downloading the Talented Software Android Mobile App from Google Play that you accept the terms and conditions of this Agreement and that you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE TALENTED SOFTWARE OR SERVICES. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
12. General Provisions.
Talented reserves all rights not expressly granted herein. Talented may modify this Agreement at any time by providing such revised Agreement to you or posting the revised Agreement on its website located at www.talentedapp.com. Your continued use of the Talented Software and/or Services shall constitute your acceptance of such revised Agreement. You may not assign this Agreement or any rights hereunder. Nothing in this Agreement shall constitute a partnership or joint venture between you and Talented. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect. The failure of Talented at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, United States without regard to its conflict of law rules. Any legal proceeding arising out or relating to this Agreement will be subject to the exclusive jurisdiction of any State or Federal court sitting in Durham County and you irrevocably consent to the jurisdiction of such courts. The terms set forth in this Agreement, including terms and conditions posted on our website, and any related service agreements constitute the final, complete and exclusive agreement with respect to the Talented Software and Services and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement or any consistent additional terms. Talented may at its sole discretion assign this Agreement to a subsidiary or sister company, without giving prior notice.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE TALENTED SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO TALENTED THE RIGHTS SET FORTH HEREIN.