NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY CONTENT THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF SKILLPLAN'S CONTENT.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
"Content" means the audio, video and related content for which Licensee is purchasing a license, as expressly set forth in the Order Form.
"Documentation" means downloadable Content in human-readable document form.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Subscription Basis Period" means the time period(s) for which a Subscription Fee (as defined below) is paid by Licensee, whether monthly or annually.
"Subscription Fee" means the license fee(s), including all taxes thereon, paid or required to be paid by you for the license granted under this Agreement.
"Order Form" means the Website-based order form filled out and submitted by Licensee through the Website, and accepted by SkillPlan, for Licensee's purchase of the license subscription for the Content granted under this Agreement.
"Website" means the SkillPlan’s Adaptive™ website through which the Content and Documentation are provided.
2. License Grant and Scope. Subject to the terms of this Agreement, SkillPlan hereby grants to you a non-exclusive, non-transferable, non-sublicensable limited license during the Term (as defined in Section 9 below) to (i) access and view the Content through the Website, and (ii) download and print a reasonable number of copies of Documentation provided in conjunction with such Content, in each case for personal, non-commercial purposes (“Content Subscription”). If we make such options available through your user account, you may change your Content Subscription by selecting the Content that you wish to access, and your Content selection and associated change in Subscription Fees will apply from the time of your selection to the end of the Term.
3. Content Availability. We may terminate or temporarily suspend access to any Content or Documentation immediately without notice: (i) if the Content or Documentation owner terminates its license to us, (ii) if the Content or Documentation is subject to any claim or demand of intellectual property infringement, (iii) to protect the security and operation of the Website, or (iv) for Website maintenance. We may discontinue providing, or may modify or update, any Content or Documentation upon reasonable notice to you. If we terminate access to, or discontinue providing, any Content, then we will refund the Subscription Fees paid for access to such terminated or discontinued Content.
4. Third-Party Materials and Platforms. The Content may include content, data, or other materials, including related documentation, that are owned by third parties, and may be provided to you through content distribution platforms owned or controlled by third party service providers. Your access to and use of the Content is subject to control by such third parties, and subject to availability of such content distribution platforms.
5. Use Restrictions. You will not directly or indirectly: (i) use the Content or Documentation beyond the scope of the license granted under Section 2; (ii) provide any third party with access to or use of the Content or Documentation; (iii) modify, distribute, publish, broadcast, record, perform, translate, adapt, or otherwise, make derivative works of the Content or Documentation or any part thereof; (iv) combine the Content or any part thereof with, or incorporate the Content or any part thereof in, any other materials; (v) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Content or Documentation, including any copy thereof; or (vi) use the Content or Documentation in violation of any law, regulation, or rule.
6. Compliance Measures. The Content may contain technological copy protection or other security features designed to prevent unauthorized use of the Content, including features to protect against any use of the Content that is prohibited under Section 5. You will not, and will not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
7. Intellectual Property Rights. You acknowledge and agree that the Content and Documentation are provided under license, and not sold, to you. You do not acquire any ownership interest in the Content or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. SkillPlan and its SkillPlans and service providers reserve and will retain their entire right, title, and interest in and to the Content and Documentation, and all Intellectual Property Rights arising out of or relating to the Content and Documentation, except as expressly granted to the Licensee in this Agreement.
8. Subscription Fees and Payment.
(a) The Subscription Fee is set out on the Order Form for the initial Subscription Basis Period. SkillPlan may increase the Subscription Fee for subsequent Subscription Basis Periods upon thirty (30) days’ prior written notice to you. If you change your Content Subscription through your account settings, then the associated Subscription Fees may also change and apply from the time of your selection to the end of the Term
(b) All Subscription Fees are payable in advance in US Dollars for each Subscription Basis Period in the manner set forth in the Order Form and are non-refundable except as expressly provided herein. At the beginning of each Subscription Basis Period or when you change your Content Subscription, you authorize us to withdraw an amount equal to the applicable Subscription Fee from the bank or credit card account number associated with your account. You also authorize us to withdraw an amount equal to any chargeback or fee for insufficient funds. This Agreement is also authority for SkillPlan, Inc. to debit such bank or credit card account each Subscription Basis Period until this Agreement is terminated. You further authorize us to adjust the amount debited from your bank or credit in order to pay the then-current Subscription Fee.
9. Term and Termination.
(a) This Agreement and the license granted hereunder will remain in effect until terminated as provided herein (the "Term").
(b) You may terminate this Agreement through your account settings.
(c) We may terminate this Agreement, effective upon written notice to you, if you materially breach this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured seven (7) days after we provide written notice thereof. We may suspend access to any Content or Documentation until you cure such breach.
(d) Upon termination of this Agreement, the license granted hereunder will also terminate, and you will cease using and destroy all copies of the Content and Documentation. No expiration or termination will entitle you to any refund. Section 5 (Use Restrictions), Section 6 (Compliance Measures), Section 7 (Intellectual Property Rights), this Section 9 (Term and Termination), Section 10 below (Warranty Disclaimer), Section 11 below (Limitation of Liability) and Section 12 below (Miscellaneous) will survive termination of this Agreement.
10. Warranty Disclaimer. THE CONTENT AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SKILLPLAN, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE SKILLPLANS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE CONTENT AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE SKILLPLAN PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE WEBSITE, LICENSED CONTENT OR DOCUMENTATION WILL BE AVAILABLE AT ALL TIMES OR AT ANY PARTICULAR TIME, MEET THE LICENSEE'S REQUIREMENTS, BE COMPATIBLE, OR BE ACCESSIBLE WITH EVERY BROWSER, SYSTEM, OR SERVICE, PLAY WITHOUT INTERRUPTION, OR BE ERROR FREE.
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL SKILLPLAN OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE SKILLPLANS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO ACCESS, VIEW OR USE THE WEBSITE, CONTENT OR DOCUMENTATION; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM WEBSITE, SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE SKILLPLAN WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL SKILLPLAN'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE SKILLPLANS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE SKILLPLAN PURSUANT TO THIS AGREEMENT FOR THE CONTENT THAT IS THE SUBJECT OF THE CLAIM.
(c) THE LIMITATIONS SET FORTH IN SECTION 10(a) AND SECTION 10(b) WILL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
(a) All matters arising out of or relating to this Agreement will be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby will be instituted in the courts of the State of Texas or the federal courts of the United States, in each case located in the City of San Antonio and County of Bexar, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
(b) SkillPlan will not be responsible or liable to Licensee, or deemed in default or breach hereunder, by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to circumstances or causes beyond SkillPlan's reasonable control.
(c) All notices, requests, consents, claims, demands, waivers, and other communications hereunder will be in writing and will be deemed to have been given: (i) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (ii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iii) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Communications to Licensee will be sent to the address set forth on the Order Form. Communication to SkillPlan will be sent to the address provided on the Website.
(d) This Agreement, together with the Order Form, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and SkillPlan with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(e) Licensee will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without SkillPlan's prior written consent, which consent SkillPlan may give or withhold in its sole discretion. Any purported assignment, delegation, or transfer in violation of this Section 11(e) is void. SkillPlan may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(h) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.