Performance eSource, Inc. Internet Services Agreement
READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES DESCRIBED BELOW. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE THESE SERVICES. YOUR CLICKING ON THE BUTTON MARKED "I ACCEPT" AND YOUR CONTINUED USE OF THE SERVICES INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS AND CONDITIONS.
This Internet Services Agreement (the "Agreement") is between you and PERFORMANCE ESOURCE, INC., doing business as quick2coach a corporation organized and existing under the laws of Washington and with a principal place of business at 20 South Bellflower Road, Suite 101 Bothell, Washington 98012. Use of the Services signifies your agreement to the terms and conditions of use set forth in this Agreement.
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Your agreement with PERFORMANCE ESOURCE, INC. includes any terms of any Legal Notices with respect to any services, if applicable. Your agreement also includes any written contracts signed between you and PERFORMANCE ESOURCE, INC. quick2coach.. If there is any contradiction between this agreement and with these other terms, the other terms shall control.
1. Grant of Rights.
PERFORMANCE ESOURCE, INC. grants you a non-exclusive, non-transferable, limited right to access, use, display and print the Internet access services provided by PERFORMANCE ESOURCE, INC., including, without limitation, "Quick2Coach", "S.M.A.R.T. Choices" and any other services which PERFORMANCE ESOURCE, INC. may offer (collectively, the "Service") on any machine(s) of which you are the primary user. A Service account may not be transferred to another party or entity without prior written approval from PERFORMANCE ESOURCE, INC., and any such transfer of a Service account is subject to any limits established by PERFORMANCE ESOURCE, INC.
2. Passwords.
Access to PERFORMANCE ESOURCE, INC.'s websites; (quick2coach, er4hr) for use of the Service is restricted to you by means of assigned password(s). The USER(s) will create Passwords(s) for their exclusive use. You shall hold the Password(s) in strict confidence and shall not disseminate or disclose the Password(s) to any third party. You shall use reasonable efforts to prevent inadvertent or unauthorized disclosure or use of the Password(s) by any third party. A violation of this Section by you will result in the termination of Service without notice.
3. Intended Audience.
These website quick2coachare intended for adults only. These websites is not intended for any children under the age of 13.
4. Content.
You recognize that you are solely responsible for the content of any information you provide to use the Service, including, without limitation, by filing in forms, entering text into "free form text boxes", or in answering any questions posed by the Service. PERFORMANCE ESOURCE, INC. has the right to monitor the content which you or other users make by means of the Service, but shall have no obligation to do so. You agree that if PERFORMANCE ESOURCE, INC. in its sole discretion deems any content made available by you to be unlawful, fraudulent, unacceptable, offensive, obscene or otherwise objectionable, PERFORMANCE ESOURCE, INC. has the right, but not the obligation, to remove or deny access to such content. You expressly agree that PERFORMANCE ESOURCE, INC. shall not be liable to you for any action PERFORMANCE ESOURCE, INC. takes to remove or restrict access to such material, nor for any action taken to restrict access to material provided in violation of any law, regulation or rights of a third party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. PERFORMANCE ESOURCE, INC. has the right to take all reasonable actions to remove or restrict access to any such material, including restriction, suspension or termination of your access privileges and/or deletion of the objectionable material.
5. Proprietary Materials.
Material accessible to you through the PERFORMANCE ESOURCE, INC. Service may be the subject of intellectual property rights, including, without limitation, patents, copyrights, trademarks and trade secrets. Except as expressly permitted by PERFORMANCE ESOURCE, INC., you may not reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, any such material, including "coaching conversations", or any other script or coaching tool provided by the Service. You may not decompile, disassemble, reverse engineer, copy, create a derivative work, or display the Software code in human readable form, or otherwise use the Services (which includes its software and documentation) except as explicitly provided for in this agreement.
6. Prohibited Uses
You expressly agree not to use the PERFORMANCE ESOURCE, INC. Service in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation. You acknowledge that prohibited conduct includes, but is not limited to, violation of any State or Federal Labor or Employment statute or other rule of Law, using the Service to violate the security of the Service; or allowing a direct competitor access to the Service.
7. Charges and Payment
(a). You are responsible for all charges associated with connecting to the Service, including, without limitation, all internet access lines and computer equipment necessary to access the Service.
(b). You are responsible for all activities and charges resulting from use of the PERFORMANCE ESOURCE, INC. Service. You agree to pay all fees, surcharges, applicable taxes and other charges you incur regarding the Service.
(c). In the event of a breach of security, you will remain liable for any unauthorized use of your account with the Service until you notify PERFORMANCE ESOURCE, INC. by calling PERFORMANCE ESOURCE, INC. Customer Service at 425.775.7673.
(d). PERFORMANCE ESOURCE, INC. reserves the right to increase fees, and/or surcharges, and to institute new fees at any time upon thirty (30) days prior notice. PERFORMANCE ESOURCE, INC. may reduce these fees at any time without notice to you. In the event that your account is terminated or canceled, online time credited to your account is not convertible to cash or other form of credit. If PERFORMANCE ESOURCE, INC. does not receive the full amount of your Service account balance within thirty (30) days of the invoice date or billing date, the lesser of an additional 10% or the highest percentage allowed by law, of the outstanding balance will be added to your bill as a late charge each month and shall be due and payable. You shall also be liable for all attorney and collection fees arising from PERFORMANCE ESOURCE, INC.'s efforts to collect any unpaid balance of your account(s).
8. User Information
(a). You certify to PERFORMANCE ESOURCE, INC. that you are not a minor, i.e., that you are at least eighteen (18) years of age; and may legally contract in your State of residence.
(b). For purposes of identification, billing and marketing, you agree to provide PERFORMANCE ESOURCE, INC. with accurate, complete, and updated information required by the registration to the Service (Registration Data), including your legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). You agree to notify PERFORMANCE ESOURCE, INC. within thirty (30) days of any changes in your Registration Data. Failure to comply with this provision may result in immediate suspension or termination of your right to use the Service.
(c). You are solely responsible for maintaining the confidentiality of your passwords, and agree that PERFORMANCE ESOURCE, INC. will have no obligations with regard thereto.
(d) PERFORMANCE ESOURCE, INC. reserves the right to reveal any Registration Data or other information in its possession regarding users of the Services in cooperation with a request or investigation by any governmental body or governmental agency.
(e) PERFORMANCE ESOURCE, INC. will not store or provide access to any previously created quick2coach sessions. The USER(s) will accept responsibility for completing and storing quick2coach or S.M.A.R.T. Choices sessions on their equipment. If the USER(s) aborts a quick2coach session prior to completing and saving a specific session, the previously filed information will be lost. Once the USER(s) begins a session, it must be completed and saved on the USERS computer system.
9. Warranty and Indemnification.
You represent and warrant to PERFORMANCE ESOURCE, INC. that your use of the Service will at all times comply with all applicable laws, rules, and regulations. You hereby agree to indemnify, defend and hold harmless PERFORMANCE ESOURCE, INC. and its employees, licensors, independent contractors, providers, subsidiaries and affiliates (collectively, the "Affiliates"), from and against any and all liability and costs incurred by the Affiliates in connection with any claim arising out of any breach by you of the foregoing representations, warranties and covenants, including, without limitation, attorneys' fees and costs. You shall cooperate as fully as reasonably required in the defense of any claim. PERFORMANCE ESOURCE, INC. reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of PERFORMANCE ESOURCE, INC.
10. Disclaimer of Warranty
THE SERVICE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) IS PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, PERFORMANCE ESOURCE, INC. MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE SERVICES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, PERFORMANCE ESOURCE, INC.'S NEGLIGENCE.
11. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL PERFORMANCE ESOURCE, INC. BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, EVEN IF PERFORMANCE ESOURCE, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL PERFORMANCE ESOURCE, INC.'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED $100.00 DOLLARS.
12. Termination.
In addition to any other rights of the parties set forth herein, either you or PERFORMANCE ESOURCE, INC. may terminate this Agreement at any time upon notice. PERFORMANCE ESOURCE, INC. also reserves the right to restrict, suspend or terminate the Services in whole or in part, without notice, with respect to any breach of any of your warranties set forth in this agreement, or if you fail to pay any invoice within sixty (60) days of the date such invoice is sent. If PERFORMANCE ESOURCE, INC. terminates your license pursuant to this Section 12, PERFORMANCE ESOURCE, INC. reserves the right to deny access to the Service in whole or in part, and to refuse to provide the service to you following such termination.
13. Modifications to Agreement.
PERFORMANCE ESOURCE, INC. has the right to modify this Agreement. Any modification is effective immediately upon either a posting on the quick2coach Home Page (http://www.quick2coach.com), or upon notice by electronic mail, or U.S. mail. Your continued use of the PERFORMANCE ESOURCE, INC. Service following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of PERFORMANCE ESOURCE, INC. in providing the Services, including, without limitation, (i) any change in the content of the Services, or (ii) any change in the amount or type of Service Fees, is to terminate licensing by delivering notice to PERFORMANCE ESOURCE, INC.. Such notice will be effective upon receipt by PERFORMANCE ESOURCE, INC..
14. General.
This Agreement constitutes the entire agreement between you and PERFORMANCE ESOURCE, INC. with respect to the PERFORMANCE ESOURCE, INC. Service and supersedes all prior agreements between you and PERFORMANCE ESOURCE, INC. Failure by PERFORMANCE ESOURCE, INC. to enforce any provision of this agreement shall not be construed as a waiver of any provision or right. Interpretation and enforcement of this agreement shall be governed by the laws of the state of Washington (excluding its choice of law rules). You consent to personal jurisdiction in the federal courts of the Western District of Washington and the state courts of Snohomish County, Washington for any action arising out of or relating to your use of the PERFORMANCE ESOURCE, INC. Service. The federal courts of the Western District of Washington and the state courts of Snohomish County, Washington shall have exclusive jurisdiction over all such actions. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including, but not limited to, its costs, both taxable and non-taxable, and reasonable attorney's fees. In the event that any portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect.
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