eCoach, LLC

Terms of Use

eCoach, LLC

Effective date: March 1, 2015

Welcome to http://ecoach.coach/ and our related mobile applications and services. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at coach@ecoach.coach.

These Terms of Use (the “Terms”) are a binding contract between you and eCoach, LLC (referred to herein as “eCoach,” “we,” “our,” and “us”). You must agree to and accept all of the Terms, or you don’t have the right to use the Services. Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document, as well as those in our Privacy Policy.

In some situations you may choose to purchase products or services from us through our website or other technology services. Those transactions will be subject to additional Services Agreements. You can view those agreements at http://ecoach.coach/.

Will these Terms ever change?

We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, and if we do, we will try (but will not guarantee) to bring it to your attention by placing a notice on the http://ecoach.coach/ website, by sending you an email or other communication, or by some other means.

If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.

Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.

What about my privacy?

We take the privacy of our users very seriously. For our current Privacy Policy, please visit: http://ecoach.coach/.

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13. If you are a child under 13, you are not permitted to use our app or website, attempt to register for the Services, or send any personal information about yourself to us, so please do not attempt to do so. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at coach@ecoach.coach.

What are the basics of using eCoach apps and services?

You will likely be required to sign up for an account, and select a password, user name, and/or other information (generally referred to herein as a “eCoach User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your eCoach User ID or profile name a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.

You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

You will only use the Services for your own internal or personal use, and not on behalf of or for the benefit of any third party and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.

You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.

Your use of the Services is subject to the following additional restrictions:

You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:

(a) Infringes or violates the intellectual property rights or any other rights of anyone else (including eCoach);
(b) Violates any law or regulation;
(c) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) Jeopardizes the security of your eCoach account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) Attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) Violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) Copies or stores any significant portion of the Content;
(j) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.

A violation of any of the foregoing is grounds for termination of your right to use or access the Services.

Payment Processing; Order Fulfillment

Our web site is or maybe hosted by third parties, which also assists in the processing of our orders. When you input your credit card information as payment for an order, such third-party may directly and securely transmits that information to its third party payment processor, who verifies the credit card and remits the payment to us. Neither we, nor our representatives, ever store your credit card image or number. Sales and use taxes, as applicable by law, will be based on your location and our location and, purchase prices are inclusive of taxes. You will be responsible for paying any applicable taxes relating to your payments and will indemnify and hold harmless eCoach and its authorized representatives from your failure to pay any and all taxes, including sales tax, based incorrect information provided by you. If you believe you are entitled to a refund of any taxes, you are solely responsible for such determination.

eCoach and its authorized representative also fulfill all orders for digitally distributed content by making that content available for viewing. It will inform you of the device and system requirements for accessing this content. You are responsible for completing the digital download, and for all risk of loss of the content after download. You acknowledge that the resolution and quality of the content received will depend on a number of factors, including the type of device on which it is streamed and available bandwidth. While we strive to provide a high quality viewing experience, neither we, nor any authorized representative or service provider of eCoach, make any guarantee as to the resolution or quality of the content.

Acceptable Use

You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses our web site in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. You agree to comply with all applicable laws in your use of our website.

What are my rights in eCoach?

We make materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, video, illustrations and so forth (all of the foregoing, the “eCoach Content”) are protected by copyright, trademark, patent and/or other intellectual property laws.

You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any eCoach Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any eCoach Content not owned by you, (i) without the prior consent of the owner of that eCoach Content or (ii) in a way that violates someone else’s (including eCoach’s) rights.

You understand that eCoach owns the Services. You won’t modify, publish, reverse engineer, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), creative derivative works based on, or otherwise exploit any of the Services.

The Services may allow you to copy or download certain eCoach Content or other content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!

What about Content and Proprietary Rights?

Through our web site, we offer, sell, and digitally distribute videos, audiovisual combinations, music, sounds, graphics, photos, and other content, as well as sell products related to that content. We are the owner or authorized licensee of all information, materials, functions and other content contained on our web site, and you acknowledge that you are only receiving a limited right to access or use this content. No content from our web site may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of our web site.

We also own any information and data collected by us from you, including without limitation any data regarding your use and viewing of our web site and its content. We may use such information and data for benchmarking and other service enhancements. We will handle and treat any information we collect from you in compliance with our current Privacy Policy.

The name “eCoach” and our graphics, logos, designs, page headers, button icons, scripts, and service names are registered and/or common law trademarks, trade names, or trade dress of eCoach in the U.S. and/or other countries. These trademarks, trade names, and trade dress may not be used in connection with any product or service in any manner that is likely to cause confusion. We reserve all rights in or to such trademarks, trade names, or trade dress.

We respect the intellectual property rights of others and expect our users to do the same. It is our policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the intellectual property rights of others.

Do I have to grant any licenses to eCoach or to other users?

Our Business Services Agreements can be found at http://ecoach.coach/ and contain information on our rights to user submitted content. The provisions of those agreements control if you submit content under one or more of them.

In general, when you upload, add, contribute, or otherwise bring your content into the Services, you are giving us the right to use the content to provide our Services and to use the content to market and publicize our Services and eCoach.

For purposes of this Agreement, anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission.” Some User Submissions are viewable by other users and business partners of eCoach. In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions.

For all User Submissions, you hereby grant eCoach a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below.

You grant eCoach the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services.

You grant eCoach a license to display, perform, and distribute your User Submission for the sole purpose of making that User Submission accessible to other users or businesses if, in providing the Services, it is necessary to do so. Also, you grant such other specified users and businesses a license to access that User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.

You agree that the licenses you grant are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide, provided that when you delete your eCoach account, we may stop displaying your User Submissions to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from eCoach’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.

You understand and agree that eCoach, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

Finally, eCoach has the right to use the data from all uses of the Service for our purposes in an aggregated manner. This may include providing the aggregate information to business partners or clients.

Please note that all of the above licenses are subject to our Privacy Policy at http://ecoach.coach/ to the extent they relate to User Submissions that are also your personally-identifiable information.

These are licenses only – your ownership in User Submissions is not affected.

What if I see something on the Services that infringes my copyright?

You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like eCoach, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, go to www.ecoachsports.com To learn more about the DMCA, go to http://www.copyright.gov/legislation/dmca.pdf

Who is responsible for what I see and do on the Services?

Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the content or what actions you may take as a result of having been exposed to the content, and you hereby release us from all liability for you having acquired or not acquired content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.

You are responsible for all content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services. Do not post or publish any content (including photos or video) that you do not have the right to post or publish.

The Services may contain links or connections to third party websites or services that are not owned or controlled by eCoach. When you access third party websites or use third party services, you accept that there are risks in doing so, and that eCoach is not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.

eCoach has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, eCoach will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.

Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that eCoach shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.

If there is a dispute between participants on this site, or between users and any third party, you agree that eCoach is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release eCoach, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."

Who is responsible if I get hurt?

You are. eCoach is designed to improve sports performance through providing a place to connect with coaches and content and the software tools for coaches to enhance their coaching businesses and athletes and parents the tools to gain digital access to coaches. The activities and sporting endeavors contemplated by use of the Services are dangerous and may result in injury.

Do you guarantee or certify coaches or other particiapnts?

We do not. eCoach provides an opportunity for athletes and coaches to interact. All participants are independent contractors and are not certified, employed, or insured by eCoach. You are responsible for your relationship to a coach or athlete. We provide no warranties.

Will eCoach ever change the Services?

We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.

Does eCoach cost anything?

Yes. For information on paid Services and products go www.ecoachsports.com.

What if I want to stop using eCoach?

You’re free to do that at any time. Please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.

eCoach is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. eCoach has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.

Account termination may result in destruction of any content associated with your account, so keep that in mind before you decide to terminate your account.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.

I use the eCoach App available via the Apple App Store – should I know anything about that?

These Terms apply to your use of all the Services, including the iPhone and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:

(a) Both you and eCoach acknowledge that the Terms are concluded between you and eCoach only, and not with Apple, and that Apple is not responsible for the Application or the Content;
(b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(c) You will only use the Application in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) You acknowledge and agree that eCoach, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, eCoach, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both you and eCoach acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
(j) Both you and eCoach acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.

What else do I need to know?

Warranty Disclaimer. eCoach does not make any representations or warranties concerning any content contained in or accessed through the Services or third party services (such as coaching or drills), and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from eCoach or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ECOACH BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO ECOACH IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold eCoach, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims by you or any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without eCoach’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the Commonwealth of Kentucky, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in Lexington, Fayette County, Kentucky, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Lexington, Fayette County, Kentucky.

Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the eCoach may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and eCoach agree that these Terms are the complete and exclusive statement of the mutual understanding between you and eCoach, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all modifications to these Terms must be in a writing signed by both parties (except as otherwise provided herein). No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind eCoach in any respect whatsoever. Except as expressly set forth in the section above regarding the Apple Application, you and eCoach agree there are no third party beneficiaries intended under these Terms.

eCoach, our software platforms, and the Services are protected by copyright, trademark, and other intellectual property rights.

eCoach, LLC

Business User Services Agreement

Effective Date: March 1, 2015

PLEASE READ THIS SERVICE AGREEMENT (AGREEMENT) CAREFULLY. IT CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN ECOACH, LLC (COMPANY) AND YOU (TOGETHER WITH ANY ENTITY OR ORGANIZATION FOR WHICH YOU REGISTER, ACCESS OR USE THE SERVICE, (CUSTOMER), REGARDING ACCESS AND USE OF THE SERVICE. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS AND ON BEHALF OF CUSTOMER. BY SELECTING THE “ACCEPT” BUTTON OR BY ACCESSING OR USING THE SERVICE (ACCEPTANCE), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.

1. Definitions.

Analytics means statistics, metrics and other analyses that are based on or derived from the Service or Results, which are developed in the aggregate with other data or results or in a manner that does not disclose Customer's identity or Customer Data.

Content: means Customer information, documents, tutorials, videos, photos, or any other items uploaded by Customer to their account or onto the Platform as part of use of the Service.

Customer Data means Customer information and data directly provided by Customer during Registration or profile completion. Customer Data does not include any other information or data provided by Customer while using the Service, which may be stored, analyzed, processed and used by the Service.

Documentation means any user instructions, help information and other documentation regarding the Service that is provided by Company to Customer in electronic or other form.

Platform means the technology platform (which terms includes but is not limited to and any means by which it is accessed e.g. native apps, websites, enterprise websites, mobile web apps, etc.) developed and/or used by Company in providing the Service (including all related ideas, concepts, inventions, systems, hardware, software, interfaces, tools, utilities, content, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information), and including all corrections, improvements and extensions thereto.

Registration means the process by which Customer registers, signs up, trials, or temporarily gains access to, and use of, the Service.

Results means the work products resulting from the Service that are made available by Company to Customer, which are based on processing the Customer Data (such as, for example, query responses and reports).

Service means that certain Internet-accessed business application(s) identified during Registration, which is hosted (in a cloud environment), branded and provided on a software-as-a-service basis by Company, from time to time.

2. Company Service.

Service. Subject to all terms and conditions in this Agreement, Company grants Customer (without right to sublicense) a nonexclusive, nontransferable right and license to (a) access and use the Service and Results, only through a web-based interface and solely for Customer's internal business purposes, and (b) use the Documentation solely in connection with Customer's authorized access and use of the Service. Customer may make a reasonable number of copies of the Documentation only for inactive backup purposes. Customer's access and use of the Service shall comply with all other conditions set forth herein or during Registration (such as, for example, any requirements regarding data formats, number or identity of authorized users, size limits, time limits or prohibited uses).

Access Credentials. Upon Acceptance, Customer will be provided with a process for creating access credentials for the authorized users specified during Registration. Customer is solely responsible for maintaining the confidentiality of its access credentials and other account information, and will be solely liable for any and all activities under its account. Customer shall be responsible for keeping all account information up-to-date. Customer agrees to notify Company immediately of any unauthorized use of Customer's account or any other breach of security.

Customer Data. Customer bears all responsibility and liability for the accuracy and completeness of the Customer Data and Company's access, possession and use as permitted herein. Other than Registration data, Company has no obligation to backup, retain or deliver any Customer Data. During the term of this Agreement, Customer hereby grants Company a nonexclusive, royalty-free, worldwide right and license to access, copy, store, process, distribute, transmit and otherwise use the Customer Data for the purposes of providing the Service (and support services) to Customer.

Systems. At its sole cost and expense, Customer is responsible for providing all (a) rights, licenses and permissions necessary for Company to receive and use the Customer Data, (b) modems, servers, devices, storage, software, databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the Service from Customer's facility and (c) corresponding backup, recovery, network security and maintenance service (collectively, Customer Systems). Customer is responsible for ensuring that Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation.

Limitations. Company will use commercially reasonable efforts to make the Service available to Customer at all times, subject to downtimes for scheduled maintenance, upgrades, repairs and emergency outages. Company will not be responsible or liable for any failure in the Service.

Support. Company will use commercially reasonable efforts to provide Customer with technical support for the Service in accordance with its standard practices. Customer agrees that Company may charge in accordance with its then current policies for any support service resulting from problems, errors or inquiries related to the Customer Data or Customer Systems.

Security. Company will use commercially reasonable efforts to maintain security in accordance with its policies in effect from time to time. Customer acknowledges and agrees that the Service is provided using cloud-computing resources, which are remote from and not owned or controlled by Company, and that no storage device or data transmission over the Internet can be guaranteed to be 100% secure. Accordingly, Company cannot promise the security of any Customer Data or Results, and Customer hereby agrees that all Customer Data and Results are provided at Customer's own risk.

Privacy. Company's current Privacy Policy is available at http://ecoach.coach/ and is incorporated herein by reference. Company will not intentionally disclose, distribute, transmit or use any Customer Data except (a) as reasonably necessary for Company (or its contractors) to provide the Service, (b) as authorized by Customer or as otherwise expressly permitted under this Agreement or (c) as required by court order, law or regulation, or if Company reasonably believes that such action is necessary to conform or comply with any legal, regulatory, law enforcement or similar requirement or investigation, to protect or defend the rights or property of Company or any third party or to enforce this Agreement. This provision does not apply to Content.

Changes. Company reserves the right, at its sole discretion and at any time, to modify or discontinue the Service and/or to modify the terms and conditions of this Agreement (in whole or in part), by giving notice to Customer. Change notices may be communicated via the Service, electronic mail or other permitted notice. Following any such notice, continued use of the Service after the effective date of the change constitutes Customer's acceptance of that change.

3. Payments.

Fees . The fees, revenue shares, and expenses for using the Service and the terms upon which payment must be made can be found at http://ecoach.coach/ and/or as provided to Customer. Company reserves the right to increase, modify, or update this information at any time. If Customer does not agree to increased payments or changes, then Customer is free to cease using the Service. Continued use of the Service is a binding agreement to comply with any increases, modifications, or updates.

4. Confidentiality.

Scope. Company disclaims and does not accept any submissions or information from Customer as Confidential Information or any kind which would be protected by these provisions. The term Confidential Information means all trade secrets, know-how, patents, inventions, developments, software and other financial, business or technical information disclosed by or for Company in relation to this Agreement, but not including any information the receiving party can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such information. The Platform, Documentation, Analytics and pricing information are Company's Confidential Information.

Confidentiality. Except for the specific rights granted by this Agreement, Customer shall not access, use or disclose any of the Confidential Information without Company's written consent, and shall use reasonable care to protect the Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to the restrictions in this Agreement. Customer shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the Company's request at any other time), Customer shall return all of the tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom.

Compelled Disclosure. Nothing herein shall prevent Customer from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, prior to any such disclosure, Customer shall use reasonable efforts to (a) promptly notify Company in writing of such requirement to disclose and (b) cooperate with Company in protecting against or minimizing any such disclosure or obtaining a protective order.

5. Proprietary Rights.

Customer. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Customer Data and Content. Notwithstanding the forgoing, Customer, by uploading Content, hereby grants Company a nonexclusive, royalty-free, sub-licensable, and transferable worldwide right and license to access, copy, store, process and otherwise use Customer Content in connection with (a) developing, improving, extending and testing the Platform and Service, (b) delivering the Service to Customer for the anticipated uses of the Platform and (c) marketing, in all forms and mediums, and publicizing the Company, the Platform, and the Services.

Company. Except for the limited rights and licenses to access and use the Service and Documentation expressly granted hereunder, no other license is granted, no other use is permitted and Company (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Documentation, Platform, Service and Analytics.

Restrictions. Customer shall not, directly or indirectly (a) use any Company Confidential Information to create any software, platform, service or documentation that is similar to the Platform, Service or Documentation, (b) attempt to access any Platform or Service component or to disassemble, decompile, reverse engineer or otherwise discover any source code or underlying organization, structures, ideas or algorithms of the Platform or Service, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use the Platform or Service in any time-share or service bureau arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify the Platform, Service or Documentation, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to do any of the foregoing.

General Learning. Customer hereby grants Company a nonexclusive, royalty-free, worldwide right and license to access, copy, store, process and otherwise use Customer Data in connection with (a) developing, improving, extending and testing the Platform and Service and (b) designing, developing and producing Analytics. Customer agrees that Company is free to use and disclose the Analytics and aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Service under this Agreement (including without limitation, that which it could have acquired performing the same or similar service for another customer).

6. Limited Warranty, Disclaimers, Assumption of Risk, and Representations.

Customer. Customer represents and warrants to Company that it owns all rights, title and interest in and to the Customer Data and Content, or that Customer has otherwise secured all necessary rights in the Customer Data as may be necessary to permit the access, use and processing thereof as contemplated by this Agreement.

Customer represents, warrants, and agrees that it will not contribute or upload any Content or otherwise use the Services or interact with the Services in a manner that:

(a) Infringes or violates the intellectual property rights or any other rights of anyone else (including Company);
(b) Violates any law or regulation;
(c) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) Jeopardizes the security of any user accounts (such as allowing someone else to log in to the Services using Customer’s credentials);
(e) Attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) Violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) Copies or stores any significant portion of the Content, other than as owned by Customer;
(j) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.

A violation of any of the foregoing is grounds for termination of Customer’s right to use or access the Services, in addition to all other legal remedies.

Insurance and Legal Compliance. Customer is responsible for maintaining all licenses or other legal requirements for its business, operations, or other actions as related to the Service and will maintain personal liability and business insurance in relation to all activities involved in using the Platform and Services. Customer represents and warrants that it will operate in compliance with all applicable laws in relation to all activities involved in using the Platform and Services.

Assumption of Risk. The activities and sporting endeavors contemplated by use of the Platform and Services are dangerous and may result in injury.

Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICE AND RESULTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. COMPANY DOES NOT WARRANT ANY COACHES OR OTHER CUSTOMERS WHO MAY BE INTERACTED WITH DURING THE SERVICE. COMPANY DOES NOT WARRANT THAT THE SERVICE OR RESULTS WILL MEET CUSTOMER'S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE AND RESULTS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

7. Indemnification.

Customer. Customer agrees to defend Company against any demand, suit, action or other claim by a third party that is related to any (i) use of the Services, (ii) Customer Data or Content, or (iii) breach of Customer's warranties, and to indemnify Company for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of any such claim.

Conditions. The indemnifying party's obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnified party may participate in the defense at its sole cost and expense. The indemnifying party will not enter into any settlement that adversely affects the indemnified party's rights or interest without its prior written approval, not to be unreasonably withheld. The indemnifying party shall not be responsible for any settlement it does not approve in writing.

8. Limitation of Liability.

EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY (OR ITS LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COST TO PROCURE SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (C) AGGREGATE DAMAGES IN EXCESS OF THE AMOUNT PAID TO COMPANY FOR THE SERVICE, IF ANY, DURING THE PRIOR 12 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

9. Term and Termination.

Term. This Agreement shall commence upon Acceptance and continue in effect for the time period specified during Registration or, if no such time period was specified, then until either party elects to terminate this Agreement at any time, for any reason or no reason.

Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and (b) the provisions of Sections 3, 4, 5, 6, 7, 8, 10 and this portion of Section 9.

10. General Provisions.

Entire Agreement. This Agreement (including any Security Policy, Privacy Policy, general Terms of Use, SLA and Registration records) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Company’s general Privacy Policy and Terms of Use found at www.ecoach.coach and http://ecoach.coach/ are incorporated herein by reference. To the extent that there is a conflict between the Privacy Policy and/or Terms of Use and this Agreement, this Agreement controls. Except as expressly provided herein, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.

Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky, USA, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Unless waived by Company in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in California, and both parties consent to the jurisdiction of such courts with respect to any such action.

Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.

Publicity. Customer hereby consents to inclusion of its name, logos, and Content in customer lists that may be published as part of Company's marketing and promotional efforts.

Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, Company may subcontract performance of all or any part of the Service, and either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

ACKNOWLEDGMENT

CUSTOMER ACKNOWLEDGES THAT (A) IT HAS READ AND UNDERSTANDS THIS AGREEMENT, (B) IT HAS HAD AN OPPORTUNITY TO HAVE ITS LEGAL COUNSEL REVIEW THIS AGREEMENT, (C) THIS AGREEMENT HAS THE SAME FORCE AND EFFECT AS A SIGNED AGREEMENT, (D) COMPANY REQUIRES IDENTIFICATION OF THE CUSTOMER BEFORE ISSUING THIS LICENSE TO ACCESS AND USE THE SERVICE AND RESULTS AND (E) ENTERING INTO THIS AGREEMENT DOES NOT CONSTITUTE GENERAL PUBLICATION OF THE PLATFORM, ANALYTICS OR DOCUMENTATION.

(updated 3-26-16)