Services Description: The Service includes a platform connecting people seeking life-coaching services (“Clients”) to our community of talented, professional independent life coaches (“Coaches”) (Clients and Coaches are collectively referred to as “Users”) to obtain online (through video conference or otherwise)life coaching services (“Consultations”). PERFORMANCE PROTOCOL is not a healthcare provider. Our Coaches are not healthcare providers, counselors, or social workers. PERFORMANCE PROTOCOL and its Coaches will not provide any form of treatment, advice, consultation, or other services relating to any medical, psychiatric, therapeutic, or related discipline. If you require healthcare, mental health services, counseling, therapy, or social services, you are advised to contact an appropriate licensed professional.
Relationship of Users: All Users acknowledge and understand that PERFORMANCE PROTOCOL is not a provider of healthcare, counseling or social services to, nor is it an employer, broker, agent or insurer of,any Users of the Service. PERFORMANCE PROTOCOL’s acceptance of a Coach to the Service should not be construed as or otherwise deemed an endorsement or promotion of such Coach, and such acceptance is in reliance on the Coach’s representation and warranty to PERFORMANCE PROTOCOL of the accuracy of information submitted by such Coach. As the Service solely provides a platform and tools for Users to communicate with potential transaction partners, any such transactions are made by all Users at each User’s own risk.
Independent Contractor Relationship: Notwithstanding anything to the contrary herein, each Coach is an independent contractor and is not an employee, agent, partner or joint venturer of PERFORMANCE PROTOCOL or any other User Coaches have no authority to, and shall not bind nor attempt to bind PERFORMANCE PROTOCOL or any other User to any contract. Nothing in these Terms shall be interpreted or construed as creating or establishing a relationship of employer and employee between PERFORMANCE PROTOCOL and any Coach, or between PERFORMANCE PROTOCOL and any user. As an independent contractor, each Coach is solely responsible for which Client Consultations such Coach will choose to accept and the manner in which such Consultations are ultimately performed by the Coach. PERFORMANCE PROTOCOL will provide no supervision over any Consultations performed by a Coach. Further, except for the Software, each Coach must provide all equipment, tools, material and labor that may be necessary to perform the Consultations. PERFORMANCE PROTOCOL will not provide a Coach with any equipment, tools, material or labor to perform the Consultations and will only (subject to the terms and condition stated herein) provide Coaches and Clients with access to the PERFORMANCE PROTOCOL platform for purposes of enabling Coaches to schedule and accept (if a Coach so chooses) Client Consultations and engage in incidental, related activities (if a Coach so chooses). Clients and Coaches shall not be eligible to participate in any employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs offered by PERFORMANCE PROTOCOL. PERFORMANCE PROTOCOL shall not provide disability insurance, Social Security or unemployment compensation coverage or any other statutory benefit to Coaches.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify PERFORMANCE PROTOCOL of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. PERFORMANCE PROTOCOL will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service: PERFORMANCE PROTOCOL reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that PERFORMANCE PROTOCOL will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that PERFORMANCE PROTOCOL may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on PERFORMANCE PROTOCOL’s servers on your behalf. You agree that PERFORMANCE PROTOCOL has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that PERFORMANCE PROTOCOL reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that PERFORMANCE PROTOCOL reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device and (ii) the ability to browse the Service and the Site from a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree and are consenting to be contacted by PERFORMANCE PROTOCOL about the Services and its other services and products by telephone (on a recorded line), automated calling, pre-recorded calling, text message, email, fax, telephone or other means, even if you have opted in to the National Do Not Call List, any state equivalent Do Not Call List or the internal Do Not Call List of any company. You do not have to agree to receive such communications as a condition of getting any services or products from PERFORMANCE PROTOCOL. You always have the option to opt-out of receiving communications from PERFORMANCE PROTOCOL. In the event you no longer want to receive communications from PERFORMANCE PROTOCOL, you agree to notify us directly. You can opt-out of various contact methods by contacting us at firstname.lastname@example.org
Users acknowledge and agree that a substantial portion of the compensation PERFORMANCE PROTOCOL receives for making the Site available to you is collected through the PERFORMANCE PROTOCOL Fee described in the Payment Terms section below. PERFORMANCE PROTOCOL only receives this PERFORMANCE PROTOCOL Fee when a Client and a Coach pay and receive payment through the Service. Therefore, during the time period you are a User of the Site and for six (6) months thereafter (the “Non-Circumvention Period”), you agree to use the Site as your exclusive method to request (if you are a Coach), make (if you are a Client), and receive (if you are a Coach) all payments for Services and work directly or indirectly for the specific Clients and Coaches you have engaged through the Service (as applicable); provided, however, that if you are in an existing business relationship with such Client or Coach (as applicable) that was formed prior to your first use of the Service, you may continue this business relationship. You may opt-out of this obligation with respect to each Client-Coach relationship only if you and the applicable Client or Coach pay PERFORMANCE PROTOCOL an “Opt-Out Fee” of $25,000 USD total for each such relationship (to be divided among Client and Coach at their discretion).
To pay the Opt-Out Fee, Users must request instructions by sending an email message to email@example.com. Except if you pay the Opt-Out Fee, you agree not to circumvent the Payment Terms (described below) for the Service.
You agree to notify PERFORMANCE PROTOCOL immediately if another User improperly contacts you or suggests making or receiving payments outside of the Service.
In addition to the foregoing, during the time period you are a User of the Site, you agree not to create or develop a product or service that is directly competitive to the Service (including the Site and Mobile Services).
As a Coach, you agree to provide PERFORMANCE PROTOCOL with the necessary information requested in order for PERFORMANCE PROTOCOL to match you to a Client, such as information on your background, experience and skills, contact details and your photo. PERFORMANCE PROTOCOL reserves the rights to use, reproduce, republish and/or modify your uploaded photos for PERFORMANCE PROTOCOL marketing and advertising purposes.
In order for PERFORMANCE PROTOCOL to provide its Services and to facilitate Consultations, you agree to also provide PERFORMANCE PROTOCOL with up-to-date, complete and accurate information regarding the days and times you are available to provide Consultations and agree to ensure that such information remains accurate and current at all times. Notwithstanding the foregoing, PERFORMANCE PROTOCOL will not dictate the schedule or time of any Consultation of any Coach.
As a Coach, once a Client requests your services, you have the right to turn down the job or request, but PERFORMANCE PROTOCOL has sole discretion to determine if such refusal will harm your ability to be matched with Clients through the Service in the future. PERFORMANCE PROTOCOL has sole discretion as to which Coaches are accepted into the marketplace and we reserve the right to reject any potential Coach and remove any Coach from the marketplace for any reason. PERFORMANCE PROTOCOL may conduct background checks on Coaches.
Scope of Services: As a Coach, you are permitted to provide life coaching services only to Clients. You are prohibited from providingany form of healthcare, mental health services, counseling, therapy, or social services of any kind. You are prohibited from performing any service for which a license is required. If a Coach becomes aware that the nature of any advice or service requested by a Client would violate the scope of services stated above, the Coach agrees to immediately end the respective Consultation and, if reasonably necessary, refer the Client to an appropriate professional resource – such as a licensed counselor, social worker or healthcare provider. As a Coach you agree to only provide Consultations on topics you are qualified to provide based on your past experiences, certifications and performance during an interview with an PERFORMANCE PROTOCOL representative. Consultations may only take place on the Site using the video software provided by PERFORMANCE PROTOCOL. Coaches are prohibited from recording Consultations through audio, video or other means.
Coaches are responsible for obtaining their own technical equipment (computers smartphones, WiFi, etc.) and ensuring such equipment meets the requirements set forth in the Technical Manual www.hundredlifedesign.com/technicalmanual. Coaches are also responsible for obtaining their own insurance, if they choose to do so.
Reporting Duties: Coaches must comply with all applicable reporting obligations as required by law. Additionally, and as more fully set forth in the Reporting Duty (Exceptions to Confidentiality) document, Coaches are required to report: (1) any known or suspected child abuse, abandonment, neglect, or endangerment; and (2) any imminent and credible threat of physical danger to the Client or another person.
Coaches agree to read and follow the PERFORMANCE PROTOCOL manuals and guidelines www.performance-protcol.com/lifedesigners/manuals (collectively, the “PERFORMANCE PROTOCOL Manuals“): (1) the Operations Manual, (2) the Technical Manual, (3) the Presentation Manual, (4), and all updates to the foregoing, and similar documents provided by us by email. The PERFORMANCE PROTOCOL Manuals are hereby incorporated into these Terms by reference.
EACH COACH IS SOLELY RESPONSIBLE FOR OBTAINING ALL PERMITS, CERTIFICATIONS, AND OTHER PERMISSIONS REQUIRED TO OFFER OR PROVIDE CONSULTATIONS OR OTHER COACH-PROVIDED SERVICES AND PERFORMANCE PROTOCOL ASSUMES NO RESPONSIBILITY FOR A COACH’S FAILURE TO OBTAIN SUCH PERMITS, CERTIFICATIONS, OR PERMISSIONS OR OTHERWISE COMPLY WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS.
Date of Last Revision: August 09, 2021
Users acknowledge and agree that a substantial portion of the compensation Performance Protocol receives for making the Site available to you is collected through the Performance Protocol Fee described in the Payment Terms section below. Performance Protocol only receives this Fee when a and a Customer (agency) pays through the Platform.
Therefore, during the time period you are a User of the Performance Protocol Platform and for six (6) months thereafter (the "Non-Circumvention Period"), you agree to use the Site as your exclusive method to request (if you are a Coach), make *if you are a Customer), and receive (if you are a Coach) all payments for coaching services and work directly or indirectly for the specific Customers and Coaches you have engaged through the Service (as applicable).
However, if you are in an existing business relationship with such Customer or Coach (as applicable) that was formed prior to your first use of the Service, you may continue this business relationship.
General: Each Client agrees to pay all applicable fees for Consultations as set forth on the Site or through the Service (collectively, “Coach Fees”). All Coach Fees are payable in the currency specified on the Site or through the Service at the time of booking by the Client. Coach Consultation rates with Clients vary, subject to certain minimum requirements as provided by PERFORMANCE PROTOCOL to Coaches on the Site or through other reasonable means.
You shall be responsible for all taxes associated with the Services other than U.S. taxes based on PERFORMANCE PROTOCOL’s net income. You will promptly update your account information with any changes (for example, a change in your billing address) that may occur. You agree to pay PERFORMANCE PROTOCOL the amount that is specified on the Site or through the Service for Coach Fees and in accordance with the terms of such fees and purchases and these Terms of Service.
Coach Payment: PERFORMANCE PROTOCOL will facilitate monthly payment (on the date to be determined by PERFORMANCE PROTOCOL) to a Coach by way of Veem (www.veem.com) for the total Coach Fees accrued for the Consultations provided to a Client by such Coach during the preceding payment period. Each Coach agrees to accurately and completely fill out an W9 form, to be provided by PERFORMANCE PROTOCOL to each Coach, to facilitate the deposit of the Coach Fees into such Coach’s nominated bank account. The Refund and Cancellation Policy will determine payment in the event of a refund request or cancellation. PERFORMANCE PROTOCOL has sole discretion to act on behalf of the Client, and to not pay Coach Fees, if the Client reports that the Consultation(s) performed by a Coach was inadequately completed or not provided. This may include but is not limited to circumstances where a Coach did not arrive for a Consultation or if the Consultation was of insufficient quality. In such circumstances, PERFORMANCE PROTOCOL will independently review each such case, and PERFORMANCE PROTOCOL may (but is not required to) seek input from the Client and/or the Coach, and PERFORMANCE PROTOCOL may at its sole discretion decide to issue a refund to the Client.
Promo Codes & Discounts: PERFORMANCE PROTOCOL reserves the right to issue promo codes and discounts. Discounted pricing will apply to all Coaches unless otherwise specified. Coach agrees to accept the discounted price as part of one-time or short-term promotional programs to generate new business.
Cancellations and Refunds: All cancellations and refunds shall be processed in accordance with our Refund and Cancellation Policy.
The following cancellation fees shall apply to cancellation and refund requests made on the Site:
Please contact firstname.lastname@example.org for more information.
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by PERFORMANCE PROTOCOL. PERFORMANCE PROTOCOL reserves the right to investigate and take appropriate legal action against anyone who, in PERFORMANCE PROTOCOL’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
Special Notice for International Use; Export Controls: Software (as defined herein) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by PERFORMANCE PROTOCOL, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by PERFORMANCE PROTOCOL from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service (including the Site and Mobile Services) or distributed in connection therewith are the property of PERFORMANCE PROTOCOL, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by PERFORMANCE PROTOCOL.
The PERFORMANCE PROTOCOL name and logos are trademarks and service marks of PERFORMANCE PROTOCOL (collectively the “PERFORMANCE PROTOCOL Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to PERFORMANCE PROTOCOL. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of PERFORMANCE PROTOCOL Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of PERFORMANCE PROTOCOL Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will PERFORMANCE PROTOCOL be liable in any way for any content or materials of any third parties (including Users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that PERFORMANCE PROTOCOL does not pre-screen content, but that PERFORMANCE PROTOCOL and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, PERFORMANCE PROTOCOL and its designees will have the right to remove any content that violates these Terms of Service or is deemed by PERFORMANCE PROTOCOL, in its sole discretion, to be otherwise objectionable. You agree that you will evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other Users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein.
Clients may rate and review a Coach and their Consultation. Users may only leave a rating or submit a review once the services have been provided for the relevant Consultation. PERFORMANCE PROTOCOL can remove a rating or review at any time, in its sole discretion. Users agree to provide true, fair and accurate information in their reviews and ratings.
You acknowledge and agree that any reviews, ratings, questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to PERFORMANCE PROTOCOL are non-confidential and PERFORMANCE PROTOCOL will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that PERFORMANCE PROTOCOL may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of the Client, PERFORMANCE PROTOCOL, other Users,or members ofthe public at lage. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: PERFORMANCE PROTOCOL respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify PERFORMANCE PROTOCOL of your infringement claim in accordance with the procedure set forth below.
PERFORMANCE PROTOCOL will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to PERFORMANCE PROTOCOL’s Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
1305 W. Auto Drive | Tempe, AZ 85284
To be effective, the notification must be in writing and contain the following information
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, PERFORMANCE PROTOCOL will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, PERFORMANCE PROTOCOL has adopted a policy of terminating, in appropriate circumstances and at PERFORMANCE PROTOCOL’s sole discretion, Users who are deemed to be repeat infringers. PERFORMANCE PROTOCOL may also at its sole discretion limit access to the Service and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. PERFORMANCE PROTOCOL has no control over such sites and resources and PERFORMANCE PROTOCOL is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that PERFORMANCE PROTOCOL will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that PERFORMANCE PROTOCOL is not liable for any loss or claim that you may have against any such third party.
Whether you are a Client or a Coach, yourecognize and acknowledge that, by virtue of using our Services, you may have access to certain information of PERFORMANCE PROTOCOL or other Users, including Clients and Coaches, and whether through Consultations or otherwise, that is confidential and constitutes valuable, special and unique property of another party. You agree that you will not at any time disclose to others or use, copy or permit to be copied, without that other party’s express prior written consent, any confidential or proprietary information of the other party, including, but not limited to (as applicable), information about the identity of Users, the content of any Consultations, or other characteristics or information that by their nature are sensitive or confidential.
If you are a Coach, you will delete all data, documents, media, and other content received from or otherwise generated in performing the Services to a Client (collectively, “Content”) immediately upon Client’s request or within 30 days of termination of Services between you and such Client (whichever occurs first), and certify such destruction within 30 days of PERFORMANCE PROTOCOL’s request. Coaches will not make copies, electronic, paper, or otherwise, of any Content except as strictly necessary for delivering the Services. If a Coach is required to disclose Client information by applicable federal, state or local law or regulation, or a valid order issued by a court or governmental agency of competent jurisdiction (“Legal Order”) such Coach will immediately notify PERFORMANCE PROTOCOL and provide the Client to whom the Legal Order relates with (i) prompt written notice of such requirement so that such Client may seek a protective order or other remedy, and (ii) reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, such Coach remains subject to a Legal Order to disclose Content, such Coach may disclose, and, if applicable, may require its employees or other persons to whom such Legal Order is directed to disclose, no more than that portion of Content which, on the advice of such Coach’s legal counsel, such Legal Order specifically requires. If such Coach remains subject to a Legal Order to disclose Content, such Coach shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Content will be afforded confidential treatment.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES AS TO SERVICES OFFERED BY PERSONS LISTED ON THE SERVICES, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; (B)THE RELEASED PARTIES MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS AND, OR (V) ANY ERRORS IN THE SERVICE WILL BE CORRECT; AND (C) WE MAKE NO WARRANTY AS TO ANY INFORMATION OR MATERIALS PROVIDED BY CLIENT OR COACH.
THE QUALITY OF THE CONSULTATIONS PURCHASED THROUGH THE USE OF THE SERVICE IS ENTIRELY THE RESPONSIBILITY OF THE COACH WHO PROVIDES SUCH SERVICES TO CLIENT. CLIENT UNDERSTANDS AND AGREES THAT BY USING THE SERVICE, CLIENT MAY BE EXPOSED TO CONSULTATIONS THAT ARE POTENTIALLY UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT CLIENT’S USE OF THE SERVICE, AND ANY SUCH COACH AND CONSULTATION IS AT CLIENT’S OWN RISK.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE, INCLUDING BUT NOT LIMITED TO THE DISCLOSURE OF ANY INFORMATION PROVIDED BY OR RELATING TO THE CLIENT. IN NO EVENT WILL THE RELEASED PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID THE RELEASED PARTIES IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate: This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and PERFORMANCE PROTOCOL, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and PERFORMANCE PROTOCOL are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND PERFORMANCE PROTOCOL AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PERFORMANCE PROTOCOL AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute Resolution: PERFORMANCE PROTOCOL is always interested in resolving disputes amicably and efficiently, and most client concerns can be resolved quickly and to the client’s satisfaction by emailing client support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to PERFORMANCE PROTOCOL should be sent to 1305 W. Auto Drive, Tempe, AZ 85284 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If PERFORMANCE PROTOCOL and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or PERFORMANCE PROTOCOL may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by PERFORMANCE PROTOCOL or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or PERFORMANCE PROTOCOL is entitled.
Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless PERFORMANCE PROTOCOL and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, PERFORMANCE PROTOCOL agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration: Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, PERFORMANCE PROTOCOL will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, PERFORMANCE PROTOCOL will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, PERFORMANCE PROTOCOL will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability: If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
Future Changes to Arbitration Agreement: Notwithstanding any provision in these Terms of Service to the contrary, PERFORMANCE PROTOCOL agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a User of the Services, you may reject any such change by sending PERFORMANCE PROTOCOL written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that PERFORMANCE PROTOCOL, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if PERFORMANCE PROTOCOL believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. PERFORMANCE PROTOCOL may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that PERFORMANCE PROTOCOL may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that PERFORMANCE PROTOCOL will not be liable to you or any third party for any termination of your access to the Service. In the event that PERFORMANCE PROTOCOL terminates your account or your use of the Service, and you are a Coach that is owed undisputed Coach Fees (less the PERFORMANCE PROTOCOL Fee), PERFORMANCE PROTOCOL agrees to remit such undisputed amounts to you after such termination.
You agree that you are solely responsible for your interactions with any other User in connection with the Service and PERFORMANCE PROTOCOL will have no liability or responsibility with respect thereto. PERFORMANCE PROTOCOL reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User of the Service.
These Terms of Service (inclusive of any other document expressly incorporated herein) constitute the entire agreement between you and PERFORMANCE PROTOCOL and govern your use of the Service, superseding any prior agreements between you and PERFORMANCE PROTOCOL with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of Delaware without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and PERFORMANCE PROTOCOL agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New Castle County, Delaware. The failure of PERFORMANCE PROTOCOL to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of PERFORMANCE PROTOCOL, but PERFORMANCE PROTOCOL may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Under California Civil Code Section 1789.3, Users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at PERFORMANCE PROTOCOL, Inc., 1305 W. Auto Drive, Tempe, AZ 85284, or at (917) 444-9174.
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service, the Service, the Site or Mobile Services.