Last updated: April 25, 2019
1. Introduction, Definitions, Modifications and Acceptance
“Device” refers to the handheld or tablet device onto which you downloaded an Application.
“Digipom” refers to Digipom Inc., a duly incorporated company in the province of Quebec, Canada. Where the present TOU refers to “Digipom”, it may refer to Digipom and / or its employees, officers, directors, subcontractors, agents or representatives, depending on the context. In these TOU, the respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns of Digipom and its affiliates may be collectively referred to as “Representatives”. Any reference to “we”, “our”, or “us” in these TOU shall also refer to Digipom. In these TOU, a Website visitor or Services user may be referred to as “you”.
“Services” are all of the services provided by Digipom, whether any Application, a Website, or any other service provided by Digipom over the internet from time to time, whether for free or for purchase.
“Website” refers to either of the websites located at http://www.digipom.com or http://www.learnopengles.com/ which are owned and operated by Digipom, and includes all their respective subdomains, present and future.
In the context of an Application, these TOU may also be referred to as, and are equivalent to, an “End User License Agreement” or “EULA”.
Digipom reserves the right, at any time and without prior notice, to modify or replace any of the TOU. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of a Website and / or Application following the posting of any changes to the TOU constitutes acceptance of those changes. If there are any significant changes to the TOU that materially affect your relationship with us, you may be notified via email or upon visiting a Website or opening an Application for the first time after these changes.
If you have any questions about the TOU, please contact:
Digipom Legal Services
2. General Code of Conduct for Use of the Services
By using the Services in any way, whether visiting a Website or downloading and using an Application, you agree to:
- Not use the Services in any manner that in any way violates these TOU;
- Not use the Services in any manner that violates any intellectual property rights of Digipom or any third party;
- Not use the Services in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
- Not use the Services in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to Digipom or a third party, or to damage or obtain unauthorized access to any system, data, or other information (whether Personal Information or not) of Digipom, other Services users, or any other third party;
- Not: (1) take any action that imposes or may impose (as determined by Digipom in its sole discretion) an unreasonable or disproportionately large load on Digipom’s (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Services or any activities conducted through the Services; (3) bypass any measures Digipom may use to prevent or restrict access to the Services or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of a Website or an Application; or (5) harvest or scrape any content from a Website or an Application in an unreasonable manner;
- Not interfere with any third party’s use or enjoyment of the Services;
- Not encourage conduct that would constitute a criminal offence or give rise to civil liability;
- Not attempt to do any of the foregoing prohibitions;
- Use the Services in good faith, and in compliance with all applicable local, provincial, national, and international laws.
3. Use of an Application
- The Applications are licensed, not sold. Digipom grants you the non-exclusive, non-transferable, non-sublicensable, limited right and license to install and use an Application solely and exclusively for your personal use on the Device, or the use of any other third party with access to the Device that you control and with your permission, and as permitted by the Usage Rules set forth in the App Store Terms and Conditions for an iOS Application or the Google Play Terms of Service for an Android Application. The iOS App Store or Google Play or any other distributor for apps may be referred to in these TOU as a “Third-Party Application Distributor”.
- You may not use an Application in any manner that could damage, disable, overburden, or impair an Application (or servers or networks connected to an Application), nor may you use an Application in any manner that could interfere with any other party’s use and enjoyment of an Application (or servers or networks connected to an Application).
- You agree that you are solely responsible for (and that Digipom has no responsibility to you or to any third party for) your use of an Application, any breach of your obligations under the TOU, and for the consequences (including any loss or damage, direct or indirect, which Digipom may suffer) of any such breach. Where a third party uses an Application on your Device with your permission, you are solely responsible for conforming to these TOU and any breach thereof shall be your responsibility. Where a third party gains control of your Device without your permission, we strongly suggest taking action (especially a remote wipe or other procedure to lock out your Device) as Digipom cannot be held responsible for any misuse of, or damage to, your Device (whether caused by an Application or not) in such circumstances.
- You agree that you shall be the sole owner of the end products of your use of EVR or EVR Pro (“Recordings”). You agree that you shall not use the Application to make Recordings in violation of any applicable criminal or civil law, including but not limited to copyright law. Digipom shall in no way be responsible for your use of EVR or EVR Pro or the Recordings (whether in violation of an applicable law or not) and specifically disclaims any responsibility thereto.
- By installing, accessing or using an Application or visiting a Website, you consent to those information collection and usage terms, including (where applicable) the transfer of data into a country outside of Canada.
5. Accessing and Downloading an iOS Application from the Apple iTunes Store, and Related Acknowledgements
- You acknowledge and agree that (i) these TOU are concluded between you and Digipom only, and not Apple, and (ii) Digipom, not Apple, is solely responsible for an Application and content thereof. Your use of an Application must comply with the Apple App Store Terms and Conditions, which you are responsible to review from time to time.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to an Application.
- Apple will have no warranty obligation whatsoever with respect to an Application. As between Digipom and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Digipom, or as further specified and limited hereinafter.
- You and Digipom acknowledge that, as between Digipom and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to an Application or your possession and use of an Application, including, but not limited to: (i) product liability claims; (ii) any claim that an Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This exception does not apply to In-App Purchases, as described herein below in section 7 of these TOU.
- You and Digipom acknowledge that, in the event of any third-party claim that an Application or your possession and use of an Application infringes that third party’s intellectual property rights, Digipom, not Apple, shall be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim, as specified in section 3 above and elsewhere in these TOU.
- You and Digipom acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these TOU as related to your license of an Application, and that, upon your acceptance of these TOU, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOU as related to your license of an Application against you as a third-party beneficiary thereof.
- You acknowledge that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Without limiting any other of these TOU, you must comply with all applicable third-party terms of agreement when using an Application.
- You acknowledge that updates to an iOS Application are subject to the approval of Apple, and Digipom, its affiliates, and their respective Representatives shall not be held responsible for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from any delay in the approval of updates by Apple.
- Digipom may be compensated as a result of this advertising. Digipom makes absolutely no guarantees or warranties with regard to the products and / or services offered by these third parties, and expressly denies any responsibility for any damages whatsoever resulting from your purchase and / or use of these products or services. We encourage you to research any such products and / or services and these third parties prior to making any purchase.
7. In-App Purchases and Purchases of EVR Pro and OpenGL ES Books
- Certain of our Applications allow for purchases to be made from within the Application (an “In-App Purchase”). When you make an In-App Purchase in an Application you acknowledge and agree that: (i) In-App Purchases are purchased from, and billed by, Apple iTunes (for an iOS Application) or Google Play (for an Android Application), not Digipom; (ii) for an iOS Application, all billing and refund inquiries must be directed to Apple iTunes, not Digipom; (iii) Digipom has no access to your purchase history or any of your Apple (for an iOS Application) or Google (for an Android Application) account information, so if you want to verify your purchases please refer to your Apple iTunes or Google Play account history; (iv) you must be 18 years of age or the age of majority in your jurisdiction to make an In-App Purchase; and (v) generally, any In-App Purchase is governed by the financial terms and conditions of the Apple Media Services Terms and Conditions (for an iOS Application In-App Purchase) or the Google Play Terms of Service (for an Android Application In-App Purchase).
- When you purchase EVR Pro you acknowledge and agree that: (i) the purchase is made from, and billed by, Google Play or other Third-Party Application Distributor, not Digipom; (ii) all billing and refund inquiries must be directed to the Third-Party Application Distributor, not Digipom; (iii) Digipom has no access to your purchase history or any of your Third-Party Application Distributor account information, so if you want to verify your purchases please refer to your Third-Party Application Distributor account history; (iv) you must be 18 years of age or the age of majority in your jurisdiction to purchase EVR Pro; and (v) generally, your purchase is governed by the financial terms and conditions of the Google Play Terms of Service, or Terms of the other Third-Party Application Distributor where you made the purchase.
8. Proprietary Rights
You acknowledge that: (i) the Applications and Websites contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and (ii) Digipom and/or third parties own all right, title and interest in and to the Applications and Websites and content that may be presented or accessed through an Application or the Websites, including without limitation all Intellectual Property Rights therein and thereto.
Any Application is being licensed to you and you hereby acknowledge that no title or ownership in an Application is being transferred or assigned and these TOU should not be construed as a sale of any rights in an Application. All rights not specifically granted under these TOU are reserved to Digipom and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, whether registered or not.
With the exception of the License granted to you further in this section, you agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, an Application or Website, or content that may be presented or accessed through an Application or Website for any purpose, unless otherwise permitted; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in an Application or Website; or (iii) remove, obscure, or alter Digipom’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through an Application or Website.
The content, arrangement and layout of the Websites and Applications, including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and Computer Code are proprietary to Digipom, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of Digipom, or as permitted by the functionality of the Services or these TOU. Any unauthorized use of the content, arrangement or layout of the Websites or an Application, Computer Code, images, logos, videos, audio or trademarks found in a Website or an Application or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and Digipom may take action accordingly.
The content (i.e. text) of the Website at http://www.learnopengles.com/ is licensed under the Creative Commons CC-BY-SA 3.0 license (the “License”). You are hereby granted, in perpetuity, the right to copy, distribute, transmit, and / or remix the content of that Website freely, as per the conditions of the License, which include notably the requirement of attribution.
If you choose to communicate to Digipom (via any means) suggestions for improvements to a Website or an Application, or any idea related to Digipom or its businesses or the Services generally (collectively, “Feedback”), Digipom shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to Digipom and waive in favour of Digipom, its successors and assigns all your moral rights in the Feedback and agree to provide Digipom such assistance as Digipom may require to document, perfect, and maintain Digipom’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to Digipom, you are not entitled to any compensation or reimbursement of any kind from Digipom under any circumstances.
Apple and iOS are registered trademarks of Apple Inc. Android is a registered trademark of Google Inc.
9. Interruption of Service
From time to time, the Services or portions thereof may be unavailable for brief periods of time for maintenance and / or modifications to the Services. While we will endeavour to make this unavailability as brief as possible, Digipom and its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Services, and disclaims any responsibility thereto.
10. Termination of the Websites or Services and the TOU
Digipom may also, in its sole discretion and at any time, discontinue providing the Services, or any portion thereof, with or without notice. You agree that Digipom shall not be liable to you or any third party for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from termination of your access to the Services, or from Digipom’s termination of the Services, or any portion thereof.
Termination of the Services or your access to the Services shall terminate the present TOU as between you and Digipom. All provisions of these TOU which by their nature should survive termination of these TOU shall survive termination, including without limitation, intellectual property provisions, disclaimers, indemnity and limitations of liability.
11. External Links
In no way will Digipom or its Representatives be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from a Website or an Application or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.
12. Disclaimer of Warranties
You expressly understand and agree that your use of the Services, the information thereon (whether provided by Digipom or third parties) or any activity arising from your use of the Services or the information thereon or the materials downloaded therefrom is at your sole risk. The Services, any materials downloaded therefrom, or any third party materials, are provided on an “as is” and “as available” basis, and you will be solely responsible for any damage to your computer or Device or loss of data that results from the download, stream or access of any material obtained through the use of the Services or any other functionalities of the Services, or losses or damages (pecuniary or otherwise) resulting from (i) your use of the Services, the information thereon, any materials downloaded therefrom, or (ii) any activity arising from the use of the Services, the information thereon or any materials downloaded therefrom.
The information or resources provided through the Services, written or produced by Digipom staff, freelance writers or other subcontractors are known to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Services is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur, and Digipom shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on a Website or in an Application.
Digipom expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Services, the information thereon or any materials downloaded therefrom, and any third-party materials will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. Digipom, and its directors, officers, employees, agents, suppliers, partners and subcontractors do not warrant that: (i) theServices will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content or software available at or through the Services is free of viruses or other harmful components; or (iv) the results of using the Services, or any activity arising therefrom or any content downloaded therefrom will meet your requirements.
13. Limitation of Liability
Digipom shall not be liable and assumes no responsibility for any loss or damages arising from or in relating to the information on the Services or downloaded therefrom, the use of the Services, activities arising from your use of the Services, or any third-party materials on a Website or available through the Services.
To the maximum extent permitted by law, in no event will Digipom or it Representatives: (i) be liable for any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages (including, without limitation, loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of or relating to the Services or your use, misuse or inability to use the Services or any portion thereof, even if Digipom has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in contract, warranty, tort, negligence, strict liability or under any other legal theory.
Notwithstanding anything to the contrary in the TOU, in no event will Digipom’s aggregate liability for any claims in connection with your use of the Services exceed CAD$ 100.
15. Governing Laws and Jurisdiction
These TOU, and your use of the Services shall be governed by and construed in accordance with the laws of the Province of Quebec in force at the time without regard to conflict of law provisions. You agree that any legal action or proceeding between you and Digipom shall be brought exclusively in the courts located in the Judicial District of Montreal, Quebec, Canada. Notwithstanding the foregoing, Digipom shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by the Montreal court will, or may not be, enforced by the jurisdiction in which you reside or are located; or (iii) to enforce in your jurisdiction a judgment obtained against you in the Montreal court.
16. Miscellaneous Provisions
- Digipom shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond Digipom’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation, or any force majeure event.
- The rights granted in these TOU may not be assigned or transferred by either you or Digipom without the prior written approval of the other party. Where a third party uses an Application installed on your Device with your permission, you are legally responsible for that third party’s use and are bound by these TOU. Neither you nor Digipom are permitted to delegate their responsibilities or obligations under these TOU without the prior written approval of the other party.
- You hereby agree that if these TOU are not specifically enforced, Digipom will be irreparably damaged, and therefore you agree that Digipom shall be entitled, without bond, other security or proof of damages, to all appropriate equitable or similar remedies, including injunctive relief, with respect to your breach of any of the terms of these TOU, in addition to any other available remedies.
- The failure of Digipom to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to Digipom.
© Digipom Inc. 2018