Effective March 1, 2015
Welcome to Positive Performance, located at my.positiveperformancetraining.com (the “Website”), which is owned and operated by Positive Performance, Inc. (“Positive Performance”, “we,” or “us”). Positive Performance offers a series of services and software for individual athletes and coaches, high school and college atheletic teams and clubs, and college atheltic programs through the Website (the Website, services, software and related features and tools are collectively referred to as the “Service”).
- Service Overview
The Service is an online and mobile service that allows athletes, coaches, teams, clubs and athletic programs at the high school and college level (collectively, “Users”) to learn, measure, assess, and track mental preparedness. The Service further assists in boosting individual and team athletic performance by providing a consistent and structured training environment that enforces individual growth and accountability.
- Eligibility to Use the Service
- Creating and Maintaining an Account
- Your License to Use the Service
This license does not include the right (i) to collect or use information contained on the Website or the Service for purposes prohibited by Positive Performance; (ii) to compete with Positive Performance; (iii) to create derivative works of the Service; or (iv) to create reproductions of the Service (other than page caching).
- Permissible Uses of the Service
You may only use the Website and the Service as expressly permitted by Positive Performance. Your right to access and use the Website and the Service is personal to you (unless your team, club or program have enrolled in any group or team component of the Service) and is not transferrable by you to any person or entity. You may only use the Website and the Service for lawful purposes. In using the Service, you agree that you will not do any of the following:
(i) Use any robot, spider, script, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithm or methodology to access, acquire, copy or monitor any portion of the Website or the Service without Positive Performance’s prior written consent, which consent may be withheld for any reason;
(ii) Use the Website or the Service in any manner that could damage, disable, overburden, disrupt or impair any Positive Performance server, the network(s) connected to any Positive Performance server, or interfere with any other party’s use and enjoyment of the Website or the Service;
(iii) Upload content on the Service on behalf of another or permit, enable, induce or encourage any third party to post content for you;
(iv) Upload content on the Service using any automated means or develop, offer, market, sell, distribute or provide an automated means to perform any step of the uploading and sharing process (in whole or in part);
(v) Disobey any applicable policies or regulations of networks connected to the Website or the Service;
(vi) Modify, adapt, translate or reverse engineer the Website or the Service;
(vii) Frame or reformat the Website or the Service in any way;
(viii) Collect information from third parties (not including your team, club or program) by using the Service; or
(ix) Register to use the Service or create an account on the Website using any automated means or under false pretenses.
- Positive Performance Retains All Intellectual Property Rights in the Service
The Website and the Service contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Website and the Service are protected by copyright as a collective work under the United States copyright laws. Positive Performance owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content of the Website, in whole or in part. You may download, print, and/or save copyrighted material for your personal use only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express permission of Positive Performance or the copyright owner is permitted. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
By sending or submitting messages to Positive Performance about the Service or the Website, including but not limited to images, feedback, suggestions, ideas, or any other content you have generated, you automatically grant, and you represent and warrant that you have the right to grant, to Positive Performance an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, copy, publicly perform, publicly display and distribute such information and content and to prepare derivative works of, or incorporate into other works, the Website, or the Service, such information and content, and to grant and authorize sublicenses of the foregoing.
Positive Performance, Positive Performance Training and Positive Perforamcen Mental Training Zone are trademarks of Positive Performance, Inc. Other product names, logos, brands, and trademarks featured or referred to within the Website or the Service are the property of their respective trademark holders.
- Modification of the Service
Positive Performance reserves the right to modify the content, organization or structure of the Service or the Website, and may change, suspend, or discontinue any aspect of the Service at any time either at no cost or subject to additional fees, in Positive Performance’s sole discretion. Positive Performance shall have complete discretion over the features, functions, and other terms and conditions on which the Service is offered. Notwithstanding anything else contained in this Agreement, Positive Performance will have no obligation to continue making the Service available or to produce or release new versions of the Service or any updates thereto, or to continue offering any portion of the Service at a certain price or free of charge.
- Payment for Service
Currently, there are no fees charged to visit the Website which provides limited access and use of some parts of the Website; however, if you elect to access any paid component of the Service, such as becoming a subscriber of one of the available Positive Performance plans, you agree to pay all fees and charges associated with your selected plan as described and posted on the Website. All such fees and charges (including any taxes and late fees, as applicable) will be charged on the credit card you provide to us at the time of registration. By submitting your credit card information to Positive Performance, you are authorizing Positive Performance to charge your credit card the fees associated with the plan you have selected. Positive Performance will use secure socket layer (SSL) encryption that permits your sensitive payment information to be securely collected and transmitted. Positive Performance retains the rights to add new services for additional fees and charges, or to amend fees and charges for existing services, at any time in its sole discretion.
- Copyright Infringement
The Digital Millennium Copyright Act of 1998 (the “DMCA“) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any content made available in connection with the Service infringes your copyright, you (or your agent) may send us a notice requesting that the content be removed, or access to it blocked. Notices and counter notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details). Notices and counter notices with respect to the Service should be sent to:
Positive Performance, Inc.
Attn: DMCA Agent
1053 S. Snoqualmie St.
- Representations and Warranties
- Limitation of Liability
- Indemnification Under Certain Circumstances
Positive Performance, Inc.
Attn: DMCA Agent
1053 S. Snoqualmie St.
If Positive Performance provides notice to you, Positive Performance will use the contact information provided by you to Positive Performance. All notices will be deemed received as follows: (i) if by delivery by U.S. Mail, five (5) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no “system error” or other non-delivery notice is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy the requirement.
- Dispute Resolution
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Seattle, Washington before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
18.2 Class Action Waiver
Any dispute resolution proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action, unless both you and Positive Performance specifically agree to do so in writing following initiation of arbitration. This provision is not applicable to the extent such waiver is prohibited by law.
18.3 Right to Opt Out of Class Action Waiver and Binding Arbitration
IF YOU DO NOT WISH TO BE BOUND BY THE CLASS ACTION WAIVER OR INDIVIDUAL ARBITRATION PROVISIONS IN THIS SECTION 18, YOU MUST NOTIFY POSITIVE PERFORMANCE IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY LAW. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO POSITIVE PERFORMANCE, INC., ATTN: ARBITRATION, 1053 SOUTH SNOQUALMIE STREET, SEATTLE, WASHINGTON 98108, OR SENT TO [email protected], WITH “ARBITRATION” AS THE SUBJECT LINE AND MUST INCLUDE: (i) YOUR NAME, (ii) YOUR ADDRESS, (iii) YOUR POSITIVE PERFORMANCE USER NAME, IF YOU HAVE ONE, AND (iv) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH POSITIVE PERFORMANCE THROUGH INDIVIDUAL ARBITRATION.
- Third Party Services
- Comments and Questions
If you have any comments or questions, you may address them to Positive Performance, Inc., 1053 S. Snoqualmie St., Seattle, WA 98108, or via email at [email protected]