:: Terms & Conditions ::
Please read this agreement carefully before accessing and using the CoachingSource.com Site.
If you do not accept this Agreement, do not access and use the CoachingSource.com Site. We may revise this agreement at any time without notice by updating this Agreement. You should review the agreement periodically. Your use of the CoachingSource.com Site will be deemed an acceptance of this Agreement at that time. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
TERMS AND CONDITIONS OF USE
These Terms and Conditions ("Agreement") are made as of the Effective Date by and between CoachingSource, Inc., a Texas corporation with offices located at 13747 Montfort, Drive, Suite 300, Dallas, Texas 75240, ("CoachingSource ") and You the ("User"), as defined hereunder.
WHEREAS, CoachingSource has developed and owns that certain CoachingSource.com Site (as defined hereinafter) for use and access by User via the Internet; and
WHEREAS, User desires to access and use the CoachingSource.com Site in accordance with the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, User and CoachingSource hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals:
The above recitals and identification of parties are true and correct.
Section 1.02 -- Definitions:
The following definitions shall apply:
The term "access" and variants thereof (including, without limitation, "accessing" and "accessible") shall mean to store data in, retrieve data from or otherwise approach, display, reproduce, frame, establish a Link to, or make use of (directly or indirectly) through electronic means or otherwise.
(2) CoachingSource Marks:
The term "CoachingSource Marks" shall mean trademarks, trade names, service marks and trade dress of CoachingSource and parent companies, subsidiaries and affiliates of CoachingSource, including, without limitation, the CoachingSource.com.
(3) CoachingSource System:
The term "CoachingSource System" shall mean computer systems and communication equipment used for hosting the CoachingSource.com Site and providing User access to the CoachingSource.com Site, including CoachingSource Technology used, stored or transmitted through the CoachingSource System.
(4) CoachingSource Technology:
The term "CoachingSource Technology" shall mean any and all Technology developed by or for CoachingSource.
(5) CoachingSource.com Site:
The term "CoachingSource.com Site" shall mean that certain Web Site referred to as the CoachingSource.com Site, which is located on the Internet at www.coachingsource.com together with it's related websites or channels, including any and all Corporation Technology used, incorporated, stored or accessible therein, as implemented on the CoachingSource System and made accessible to User through the Internet.
The term "Content" shall mean CoachingSource Technology incorporated into the CoachingSource.com Site and CoachingSource Technology used, stored on or transmitted through the MTL System.
(7) Effective Date:
The term "Effective Date" shall mean the date the User accesses the CoachingSource.com Site.
The term "Internet" shall mean that certain global network of computers commonly referred to as the Internet, including (without limitation) the world wide web.
(9) Licensed Content:
The term "Licensed Content" shall mean third party information, data, communications, text, graphics, images, visuals, video, audio, computer software, coding, script and other materials incorporated in whole or part into the CoachingSource.com Web Site.
The term "Link" shall mean that certain text, icon or graphic in the CoachingSource.com Web Site (visible or transparent) that upon selection or search, links or associates CoachingSource.com Web Site to an off-screen or third party Web Site, document, text, image, sound or video.
(11) Privacy Statement:
The term "Privacy Statement" shall mean those certain written statements of policies (in printed or electronic form) concerning access to the CoachingSource.com Site as may be adopted by CoachingSource and as modified by CoachingSource from time-to-time.
The term "Restatements" shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act and 18 U.S.C. §1839.
The term "You/Your/User" shall mean the individual or entity accessing or visiting the CoachingSource.com Site collectively and/or individually as the context admits.
The term "Technology" shall mean (i) evaluation, technical, scientific, engineering, marketing, financial and business reports, plans, studies, diagrams, or flow charts; (ii) all forms and types of scientific, technical, economic, business, or engineering information and data; and (iii) computer software, source code, object code, executable code, software libraries, improvements, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interpreters, interfaces, interface designs, trade dress, interface specifications, codes, classes, categories, screen displays, sound recordings, visual works, graphic images, audio, sound recordings, video, patterns, plans, compilations, program devices, formulas, designs, prototypes, methodologies, techniques, ideas, solutions, concepts, processes, procedures, programs, adaptations, derivative works, computers, hardware, networks, products, machines, compositions of matter and articles of manufacture, whether tangible or intangible, and whether stored, compiled, or memorialized (without limitation) physically, electronically, graphically, photographically, or in writing.
The term "Term" shall mean a period of time starting on the Effective Date and ending on the date either party cancels their Access to the CoachingSource.com Site as provided hereunder.
(16) Unauthorized Access:
The term "Unauthorized Access" shall mean any access to the CoachingSource.com Site except for access during the Term for the exclusive purpose of viewing, browsing, retrieving, uploading and posting information on and ordering products through the CoachingSource.com Site using the Password on behalf of User in accordance with this Agreement.
(17) Unauthorized User:
The term "Unauthorized User" shall mean any individual who accesses the CoachingSource.com Site except for User and employees and agents of User authorized by User to access the CoachingSource.com Site for purposes of viewing, browsing, retrieving, uploading and posting information on and ordering products through the CoachingSource.com Site during the Term using the Password on behalf of User in accordance with this Agreement.
(18) Web Site:
The term "Web Site" shall mean that certain multimedia interactive product which is a compilation of data, information, computer software, graphics, audiovisual, components and coding formatted for use on the world-wide-web of the Internet and commonly referred to as a web site.
ARTICLE II: SCOPE OF USE
Section 2.01 -- Access:
CoachingSource hereby grants User a non-exclusive, non-transferable and revocable license to access the CoachingSource.com Site, during the Term, solely for viewing, browsing, retrieving, uploading and posting information, and ordering products on or through the CoachingSource.com Site, subject to the terms and provisions of this Agreement.
Section 2.02 -- Privacy Statement:
During the Term, User shall comply with the Privacy Statement. CoachingSource may modify the Privacy Statement from time to time at the exclusive discretion of CoachingSource. It is the policy of CoachingSource to respect the privacy of its Users. We will not monitor, edit, or disclose any personal information about you or your use of the CoachingSource.com Site, including its contents, without your prior permission unless CoachingSource has a good faith belief that such action is necessary to: (i) conform to legal requirements or comply with legal process; (ii) protect and defend the rights or property of CoachingSource; (iii) enforce this Agreement; or (iv) act to protect the interests of its members or others.
CoachingSource does provide certain User information in aggregate form to third parties, including its advertisers, for demographics. In addition, your Internet Protocol address is transmitted with each message sent from your account. Some personal information you provide to CoachingSource may be stored outside of the country in which you reside. You agree that CoachingSource may access your account, including its contents, as stated above or to respond to service or technical issues.
Section 2.03 -- UserName and Password:
User hereby accepts responsibility for, and shall be liable for, all access to the CoachingSource.com Site in connection with the UserName and Password. User shall be responsible for the confidentiality of the UserName and Password. Modification of the UserName and Password shall be subject to the approval of CoachingSource.
User certifies to CoachingSource that User is not a minor, i.e., that User is at least eighteen (18) years of age; provided, however, that a minor's parent or legal guardian may authorize a minor to use his/her account(s) under supervision of the parent or guardian.
Section 2.04 -- Unauthorized Access:
User shall prevent Unauthorized Users from accessing the CoachingSource.com Site. User shall prevent Unauthorized Access to the CoachingSource.com Site.
Section 2.05 -- User Behavior:
User recognizes that User is solely responsible for the content of any information User makes available by means of the CoachingSource.com Site, including, without limitation, by posting on the CoachingSource.com Site or in e-mail, or in a bulletin board service. CoachingSource has the right to monitor the content which Users submit by means of the CoachingSource.com Site, but shall have no obligation to do so. User agrees not to submit to the CoachingSource.com Site content that is unlawful, fraudulent, racist, sexist, offensive, obscene, defamatory, threatening, harmful, pornographic or otherwise objectionable. CoachingSource has the right and the sole discretion to deem any content made available unacceptable, but not the obligation, to remove or deny access to such content. User expressly agrees that CoachingSource shall not be liable to User for any action CoachingSource takes to remove or restrict access to such material, nor for any action taken to restrict access to material posted 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. CoachingSource has the right to take all reasonable actions to remove or restrict access to any such material, including restriction, suspension or termination of User's access privileges and/or deletion of the objectionable material.
Section 2.06 -- Termination:
In addition to any other rights of the parties set forth herein, either User or CoachingSource may terminate this Agreement at any time upon notice. CoachingSource also reserves the right to restrict, suspend or terminate the Services in whole or in part, without notice, with respect to any breach or threatened breach of Article II or III, or based on a breach of any of User warranties set forth in this agreement. If CoachingSource terminates User membership pursuant herein, CoachingSource reserves the right to deny access to the CoachingSource.com Site in whole or in part, including, without limitation, removing Users' UserName and its related data from the CoachingSource.com Site and server, and to refuse to provide access to the CoachingSource.com Site to User following such termination. Nor shall CoachingSource, its affiliates or any third party be liable to User in any manner for any reason with regard to the termination. Any User submissions to the CoachingSource.com Site shall perpetually maintain their terms the User granted CoachingSource at the time of the submissions.
ARTICLE III: INTELLECTUAL PROPERTY
Section 3.01 -- Ownership and Title:
Title to the CoachingSource.com Site (excluding Licensed Content), including ownership rights to any and all patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of CoachingSource and shall remain at all times vested in CoachingSource.
Section 3.02 -- Unauthorized Use:
User shall not copy or download the CoachingSource.com Site without the prior written consent of CoachingSource. User shall not access, broadcast, transmit, modify, reverse engineer, reproduce, republish, display, perform or distribute, including (without limitation) by framing or similar means, the CoachingSource.com Site without the prior written consent of CoachingSource excepts as is strictly necessary for Users' own personal non-commercial use. User shall not (directly or indirectly) promote, advertise, market or provide any Web Site similar to or competitive with the CoachingSource.com Site.
Section 3.03 -- Trademarks:
CoachingSource shall retain all rights, title and ownership interests in the Corporation Marks and goodwill associated therewith. User acknowledges that, excepting the Corporation Marks, all other product, service and company names mentioned in the CoachingSource.com Site may be trademarks of their respective owners.
Section 3.04 -- Proprietary Information:
User shall hold Corporation Technology in strict confidence and shall not access or disclose Corporation Technology except as otherwise permitted under this Agreement. User hereby acknowledges and agrees that the Corporation Technology derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements.
Section 3.05 -- No Contest:
User shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of CoachingSource in connection with the CoachingSource.com Site.
Section 3.06 -- User Submissions:
Any Technology (except the UserName and Password and ordering information) uploaded, posted or submitted by User on the CoachingSource.com Site shall be deemed non-confidential. User hereby grants CoachingSource an irrevocable, worldwide, perpetual, nonexclusive license, royalty free, to access, use, reproduce, modify, adapt, release, perform, display, distribute, sell and disclose such Technology, in whole or in part, in any manner and for any purpose whatsoever, and to have and authorize others to do so. User represents and warrants that User possesses all necessary rights, title and interests to rightfully grant CoachingSource the foregoing license, free and clear of any encumbrances, third party interests and restrictions. User also represents and warrants that all information provided by User in connection with the CoachingSource.com Site and this Agreement is true, complete and accurate.
ARTICLE IV: WARRANTY AND INDEMNIFICATION
Section 4.01 -- Express Warranties:
User hereby acknowledges and agrees that CoachingSource (including officers, employees, agents, directors and independent contractors of CoachingSource) has not made or granted to User any express warranties concerning the CoachingSource.com Site or any products and services offered through the CoachingSource.com Site. User hereby acknowledges that the CoachingSource.com Site does not constitute grant of an express warranty concerning any products and services offered through the CoachingSource.com Site and User hereby waives any and all claims of warranty based on the CoachingSource.com Site.
Section 4.02 -- Warranty Limitation:
The CoachingSource.com Site is provided "AS IS" without warranty of any kind. CoachingSource, to the fullest extent permitted by law, hereby disclaims and User hereby waives all warranties by CoachingSource, express or implied, including, but not limited to, all implied warranties of fitness for a particular purpose, all implied warranties of merchantability and warranties of non-infringement of third party rights in connection with the CoachingSource.com Site and products and services offered through the CoachingSource.com Site. CoachingSource does not warrant and User hereby waives any warranty that use of or access to the CoachingSource.com Site by User will be uninterrupted or error free. CoachingSource does not make any warranty and User hereby waives any and all warranties as to the results obtained from use of the CoachingSource.com Site or as to the accuracy, completeness, timeliness or reliability of the CoachingSource.com Site. User hereby acknowledges and agrees that use of the Internet and the CoachingSource.com Site shall be at the sole and exclusive risk of User and subject to the restrictions, terms and conditions, rules, regulations, policies, applicable laws and codes of conduct governing the Internet and the CoachingSource.com Site.
Section 4.03 -- Inaccuracies:
User hereby acknowledges that the CoachingSource.com Site may contain errors, inaccuracies and omissions. User shall assume any and all risk of loss, harm or damage associated with User access to and use of the CoachingSource.com Site.
Section 4.04 -- Limitation Of Liability:
CoachingSource shall not be liable for any lost profits or consequential, exemplary, incidental or punitive damages (including, without limitation, in connection with (i) Use, performance or operation of the CoachingSource.com Site; (ii) Use, performance or operation of the Internet or use of the Internet by User; (iii) Loss of data; and (iv) Products and Services offered through the CoachingSource.com Site, regardless of the form of action, whether in contract or in tort, including negligence, and regardless of whether CoachingSource has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable.
Section 4.05 -- Limitation Of Damages:
The sole remedy of User for any reason and for any cause of action whatsoever in connection with this agreement, the CoachingSource.com Site, and products and services offered through the CoachingSource.com Site, regardless of the form and action, whether in contract or in tort, including negligence, shall be modification of the CoachingSource.com Site, as determined by CoachingSource.
Section 4.06 -- Indemnification:
User shall release, defend, indemnify and hold harmless CoachingSource (including its officers, directors, employees, affiliates, contractors and agents) from and against any expense, loss, cost or liability (including, without limitation, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use by User of the Internet, CoachingSource.com Site or products or services offered through the CoachingSource.com Site (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the CoachingSource.com Site; (iii) User's negligence or any tortious acts (or failures to act) of User; (iv) products or services offered through the CoachingSource.com Site; and (v) any breach by User of the obligations of User under this Agreement.
Section 4.07 -- Export Assurance:
User shall not perform any act in conflict with or in violation of the export laws and regulations of the United States of America, including (without limitation) the Export Administration Act, 50 U.S.C. §2401, et seq., the Export Administration Regulations, 15 C.F.R. Parts 730-774, the Arms Export Control Act, 22 U.S.C. §2751, and the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130, as amended.
Section 4.08 -- Links:
User hereby acknowledges that the CoachingSource.com Site may contain Links to third party Web Sites. Any such Links are provided solely as a convenience to User and do not constitute an endorsement by CoachingSource of such Web Sites and the third party content therein.
ARTICLE V: MISCELLANEOUS
Section 5.01 -- Entire Agreement:
This Agreement contains the entire understanding of the parties relating to the subject matter hereof and supersedes all previous verbal and written agreements between CoachingSource and User relating to the subject matter hereof.
Section 5.02 -- Amendments and Modifications:
Excepting modifications made to the Policy Statement by CoachingSource and modifications made to this Agreement by CoachingSource, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by an authorized representative of CoachingSource
Section 5.03 -- Severability:
If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
Section 5.04 -- Captions:
The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
Section 5.05 -- Governing Law:
This Agreement shall be governed by the laws of the state Dallas, Texas USA, without regard to any rules of conflict or choice of laws which may require the application of laws of another state, and venue shall be Dallas, Texas USA.
Section 5.06 -- User Notice:
All notices to User shall be in writing. Notices to User shall be deemed delivered when posted conspicuously on the CoachingSource.com Site or when delivered to User electronically, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested - or by hand. Notices to User shall be deemed given when dispatched. Notices posted conspicuously on the CoachingSource.com Site or delivered to User electronically (including, without limitation, electronic mail) shall be deemed written notices.
Section 5.07 -- Corporation Notice:
All notices to CoachingSource shall be in writing. Notices to CoachingSource shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested - or by hand to the address set forth below for CoachingSource. Notices to CoachingSource shall be deemed given on the date notice is received by CoachingSource (as evidenced in the case of Certified or Registered Mail by Return Receipt).
13747 Montfort Drive, Suite 300,
Dallas, Texas 75240
Section 5.08 -- Pronouns/Gender:
Pronouns and nouns shall refer to the masculine, feminine, singular or plural as the context shall require.
Section 5.09 -- Remedies:
All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. The parties hereby acknowledge and agree that damages at law will be an inadequate remedy to CoachingSource In addition to remedies at law and other rights which may be available, CoachingSource shall have the right of specific performance, injunction or other equitable remedy (including, without limitation, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by User.
Section 5.10 -- Waiver:
Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
Section 5.11 -- Survival:
The terms and provisions of Sections 2.04 and 2.05 and Articles I, III, IV and V of this Agreement shall survive cancellation of the Password.
Section 5.12 -- Public Announcements:
All public announcements concerning the CoachingSource.com Site or the relationship of User and CoachingSource shall be subject to the prior written approval of CoachingSource.
Section 5.13 -- Arbitration:
Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules (excluding Expedited Procedures) of the American Arbitration Association in the city of Dallas, Texas. The American English language shall be the applicable and controlling language of the arbitration. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof, unless either Distributor or CoachingSource under this Section 5.12 has filed a subsequent request for reconsideration. Three qualified arbitrators shall be appointed in accordance with the Commercial Arbitration Rules (excluding Expedited Procedures) of the American Arbitration Association and this Agreement. Such qualified arbitrators shall be members of the bar of any State in the United States of America and shall have at least five years of experience in computer law matters. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. A stenographer shall be present at the arbitration proceedings and the stenographic record shall be the official record of the proceeding. The arbitration award shall be in writing and shall include findings of fact and conclusions of law. Each party shall have the right to appeal any decision of the arbitrators by filing a request for reconsideration of such decision with the American Arbitration Association within ninety days of receiving such decision. Upon receiving such request for reconsideration, the American Arbitration Association shall reconsider the matter de novo using a different panel of three appellate arbitrators and the foregoing procedures. Such panel of appellate arbitrators shall be selected using the same procedures as used to select the original arbitrators. Each party shall pay an equal share of the fees and expenses of the arbitrators and administrative fees and expenses of the arbitration.
Section 5.14 -- Litigation Expense:
In the event of litigation or arbitration arising out of or relating to this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).