Cyber Anatomy Corporation dba Vived Learning (“Vived”) is pleased to provide you its mobile downloadable applications (each, a “Vived Product”, and collectively, the “Vived Products”). PLEASE READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ANY Vived PRODUCTS, for this End-User License Agreement governs your use of the Vived Products and how we provide our Vived Products. We have recently updated our policies and we are in the process of translating it into several languages. If you do not have an appropriate language option and you have any questions please contact us via the methods described below.
This End-User License Agreement (“EULA”) is a legal agreement between you and Cyber Anatomy Corporation dba Vived (“Vived”, “we”, “us” or “our”) for the Vived Products. By installing or otherwise using the Vived Products, you: (a) agree to be bounded by the terms of this EULA, (b) you are the owner or an authorized user of the computer or mobile device in which the Vived Product will be installed, and (c) you represent and warrant that you have the right, authority and capacity to enter into this agreement and to abide by all its terms and conditions, just as if you had signed it. The terms of this EULA also apply to any Vived Product updates, supplements, and services. If you do not agree to the terms of this EULA, do not install or use the Vived Products. Vived may amend these terms from time to time. If you do not agree with any amendment, you must discontinue using the Vived Products.
If you have any questions or concerns regarding the terms herein, please email Vived at sales@Vivedlearning.com. Do not use the Vived Products until your questions and concerns have been answered to your satisfaction and you agree to abide by the EULA.
Notice to consumers: Depending on the laws of the jurisdiction where you live, you may have certain rights that cannot be waived through this agreement, are in addition to the terms of this agreement, and/or certain provisions of this agreement may be unenforceable as to you. To the extent that any term of this agreement is unenforceable, the remainder of the agreement shall remain in full force and effect. If you have questions regarding your rights under your local consumer protection laws, please consult with your government’s consumer protection agency or a local consumer advocacy group. By downloading a Vived Product, you will be installing a software application.
2. Age Requirement
You must be 13 years of age or older to install or to use the Vived Products. If you are at least 13 but not yet 18 years of age, please have your parent or legal guardian review this EULA with you, discuss any questions you might have, and install the Vived Products for you.
NOTICE TO PARENTS AND GUARDIANS: By granting your child permission to download and access a Vived Product, you agree to the terms of this EULA on behalf of your child. You are responsible for exercising supervision over your children’s online activities. If you do not agree to this EULA, do not let your child use the Vived Products or associated features. If you are the parent or guardian of a child under 13 and believe that he or she is using the Vived Products, please contact us at sales@Vivedlearning.com.
3. Grant of License
Subject to your compliance with the terms and conditions of this EULA, Vivid grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license, to access, download and install the most current generally available version of the Vived Products (including all updates thereto) solely for your lawful, personal, and non-commercial use.
4. Description of Other Rights and Limitations
A) Restricted Use. You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single copy for your own backup purposes), or in any way transfer the Vived Products or use the Vived Products for the benefit of any third party. You may not install the Vived Products on any computer without permission from the owner of that computer. You agree that you will not use any robot, spider, other automatic or manual device or process to interfere or attempt to interfere with the proper working of the Vived Products, except to remove our Vived Products from a computer of which you are an owner or authorized user. You may not violate or attempt to violate the security of our services. You may not modify, reverse-engineer, decompile, disassemble, or otherwise tamper with any Vived Products, or attempt to do so for any reason. You may not access, create or modify the source code of any Vived Products in any way. You do not have the right to and may not create derivative works of any Vived Products. All modifications or enhancements to a Vived Products remain the sole property of Vived.
B) Vived Products Updates. We reserve the right to add or remove features or functions to existing Vived Products. When installed on your computer, the Vived Products periodically communicates with our servers. We may require the updating of the Vived Products on your computer when we release a new version of the Vived Products, or when we make new features available. This update may occur automatically or upon prior notice to you and may occur all at once or over multiple sessions. You understand that we may require your review and acceptance of our then-current EULA before you will be permitted to use any subsequent versions of the Vived Products. You acknowledge and agree that we have no obligation to make available to you any subsequent versions of the Vived Products.
C) Mobile Usage. If you access a Vived Product through a mobile network, your network or roaming provider’s messaging, data and other rates and fees may apply. Downloading, installing or using certain Vived Products may be prohibited or restricted by your network provider and not all Vived Products may work with your network provider or device.
5. Registration and Passwords
A) Registration. Most Vived Products will not require a registration: however, some Vived Products may permit or require you to create an account to participate or access additional features or functionalities (“Registration”). If such Registration is required, it will be made known to you when you attempt to participate or access such additional features or functionalities, associate website or specific service.
B) Passwords. You are the sole and exclusive guardian of any password and ID combination issued or chosen by you. Maintaining the confidentiality and security of your Password(s) and ID(s) is solely your responsibility. You are fully responsible for all transactions undertaken by means of any account opened, held, accessed or used via your password and ID. You shall notify us immediately and confirm in writing any unauthorized use of accounts or any breach of security, including without limitation any loss, theft or unauthorized use of your password(s), and/or ID(s) or any related account. If we have reasonable grounds to suspect that the security of your Password and/or ID has been compromised, we may suspend or terminate your account, refuse any and all current or future use of the services, and pursue any appropriate legal remedies. We shall not be responsible for any losses incurred in connection with any misuse of any Password or ID.
C) Provided Information. If you provide any information in connection with a Registration, you must provide and maintain accurate, complete and current information. If we have reasonable grounds to suspect that your information is inaccurate, not current or not complete, we may suspend or terminate your use of the Vived Product, and pursue any appropriate legal remedies. You agree that we shall have the right to use the information you provide to us for the purposes described in this EULA and in furtherance of your use of our services.
7. Intellectual Property
The Vived Products, including all code, content, protocols, software, and documentation provided to you by Vived are Vived’s property, and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. “Intellectual Property Rights” means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral or similar rights. You may not delete, alter, or remove any copyright, trademark, or other proprietary rights notice we have placed on the Vived Products. All rights not expressly granted hereunder are expressly reserved to Licensor and its licensors.
The Vived name, logos and affiliated properties, are the exclusive property of Vived. All other trademarks appearing on any Vived Products are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through a Vivid Product. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained herein should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
A) Copyright Protection of content you display using our services. You are solely responsible for any Content you contribute, submit or display on or through your use of the Vived Product(s). It is your obligation to ensure that such content, including photos, text, video and music files, is not violating any copyright. You must either own or have a license to use any copyrighted content that you contribute, submit or display.
B) Vived respects and expects its users to respect the rights of copyright holders. On notice, Vived will act appropriately to remove content that infringes the copyright rights of others.
You understand that Vived, in its sole discretion, may modify or discontinue or suspend your right to access any of our services or use of any Vived Products at any time. Further, Vived, with or without any reason, may at any time suspend or terminate any license hereunder and disable the Vived Products or any of its component features. You agree that Vived shall not be liable to you or any third-party for any termination or disabling of the Vived Products.
10. Disclaimer of Warranty
ALL Vived PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOU USE THEM AT YOUR SOLE RISK. Vived EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY OTHER WARRANTY ARISING UNDER THE UNIFORM COMMERCIAL CODE, USAGE OF TRADE, COURSE OF CONDUCT OR OTHERWISE. WITHOUT LIMITATION, Vived MAKES NO WARRANTY THAT THE Vived PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE Vived PRODUCTS WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF THE Vived PRODUCT OBTAINED WILL MEET YOUR EXPECTATIONS.
THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF A Vived PRODUCT REMAINS SOLELY WITH YOU.
Vived EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO PRODUCTS AND/OR SERVICES PROVIDED BY THIRD PARTY PARTNERS.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH JURISDICTIONS, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU INSOFAR AS THEY RELATE TO IMPLIED WARRANTIES.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
11. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Vived SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Vived HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE Vived PRODUCT; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (IV) ANY OTHER MATTER RELATING TO THE Vived PRODUCT. IN NO EVENT SHALL VIVID’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING A Vived PRODUCT.
IF ANY OF THE EXCLUSIONS SET FORTH IN THIS SECTION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ALL SUCH EXPRESS, IMPLIED AND STATUTORY WARRANTIES SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE DATE ON WHICH YOU FIRST ACCESS THE Vived PRODUCT, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS Vived AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND AGENTS FROM ANY AND ALL THIRD PARTY CLAIMS, LIABILITY, DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES) ARISING FROM YOUR USE OF THE Vived PRODUCTS, YOUR VIOLATION OF THE EULA OR YOUR INFRINGEMENT, OR INFRINGEMENT BY ANY OTHER USER OF YOUR ACCOUNT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. YOU AGREE TO IMMEDIATELY NOTIFY Vived OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU.
13. Export Controls
The Vived Products and the underlying information and technology may not be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) any country to which the U.S. has currently embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Vived Product, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws.
14. Notice to Government End Users
Any Vived Products installed for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with Restricted Rights as “commercial Items,” as that terms is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Pursuant to Federal Acquisition Regulation 12.212 (48 C.F.R. §12.212), the U.S. Government shall have only those rights specified in the license contained herein. The U.S. Government shall not be entitled to (i) technical information that is not customarily provided to the public or to (ii) use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except as specified herein. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
15. Governing Law and Other Miscellaneous Terms
The substantive laws of the State of Iowa in the United States of America, without regard to conflict of laws principles, shall govern all matters relating to or arising from this EULA, and the use (or inability to use) the Vived Products. You hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located in Johnson County, Iowa, with respect to all matters arising out of or relating to this EULA.
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