PRO PERFORMANCE TERMS OF USE

Effective Date: April 7, 2016

Thank you for choosing Pro Performance to assist in achieving increased mental toughness and for mentorship services.  Pro Performance is proud to partner with athletes around the world to INFORM, INSPIRE, AND IMPACT!

These Terms of Use (“Terms”) govern your use of the Pro Performance websites, any mobile application Pro Performance offers, or any other Internet site or service on which these Terms are presented (collectively, the “Pro Performance Services”).    Pro Performance LLC (“Pro Performance,” “we,” “us,” or “our”) offers the Pro Performance Services to you, subject to and conditioned on your acceptance of these Terms and the Pro Performance Privacy Policy, which is found at www.properformance.guru/privacy (“Privacy Policy”). 

By accessing, registering for,  browsing, clicking a box to signify your consent, or otherwise using the Pro Performance Services, you acknowledge that you have read, understood and agree to be bound by these Terms.  Pro Performance may, in its sole discretion, revise these Terms from time to time, with the revised terms taking effect on the date of posting.  Your continued use of the Pro Performance Services after the posting of such revisions constitutes your acceptance of the revised version of these Terms. You should review these Terms on a regular basis, as they are a legally binding agreement between you and Pro Performance.  READ ALL OF THESE TERMS PRIOR TO ACCESSING OR USING THE PRO PERFORMANCE SERVICES.  IF YOU DO NOT INTEND TO ACCEPT THESE TERMS OR ENTER INTO A LEGALLY BINDING AGREEMENT WITH PRO PERFORMANCE LLC, YOU MAY NOT USE THE PRO PERFORMANCE SERVICES.

1.              Eligibility for Use of the Pro Performance Services

The Pro Performance Services are intended for use only by persons located within the United States. Pro Performance makes no representation that the Pro Performance Services or any content available therein is appropriate for use in locations outside the United States.  Any information you provide to Pro Performance will be stored and managed as provided in our Privacy Policy and is subject to applicable United States laws and regulations.  You must be at least 14 years old to use the Pro Performance Services.

2.              Acknowledgment of Risks

Any mental toughness training or tips provided by the Pro Performance Services are for educational purposes only and are not intended as a substitute for medical advice from your health care provider.   Pro Performance is not a medical organization.   We understand that you may be purchasing the Pro Performance Services as part of a training program for fitness activities or sports.  You acknowledge that all fitness activities, present inherent risk of possible physical stress and injury, and you acknowledge and agree to assume this entire risk in purchasing and using the Pro Performance Services. Through your use of the Pro Performance Services, you may interact with mentors.  These mentors are independent contractors of Pro Performance, and their advice, guidance, and statements are not necessarily reflective of Pro Performance as a whole.  Pro Performance specifically disclaims any liability for the acts or omissions of its independent contractor mentors, and you acknowledge that Pro Performance will have no liability for the same. 

3.              Registration and Accounts on the Pro Performance Services

Some portions of the Pro Performance Services may permit or require you to create an account to participate or to secure additional benefits.  You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the "Registration Data"). You may not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password or other account information, or another person's name, likeness, voice, image or photograph. You also agree to promptly notify us at Jordan@properformance.guru of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to the Pro Performance Services.

We may suspend or terminate your account and your ability to use the Pro Performance Services or portion thereof for failure to comply with these Terms or any special terms related to a particular service, for infringing copyright, or for any other reason whatsoever.

4.     Purchases Through the Pro Performance Services

Certain features or functionality of the Pro Performance Services may allow you to purchase products or services.  You agree to pay for all products and services provided through Pro Performance that are ordered through your account.  You authorize Pro Performance to charge your credit card (or other payment instrument) for any products or services purchased and for any additional amounts (including any applicable taxes, late fees, and associated bank fees) that may be accrued by or in connection with your account.  You are responsible for the timely payment of all fees and for providing Pro Performance with a valid credit card or form of payment for all fees. All fees will be billed to the credit card you designate during the registration process. If you wish to designate a different credit card or form of payment, then you are solely responsible for changing such information online in your account setting.  All sales for products and services will be final.

You acknowledge your electronic submissions constitute an agreement and an intent to be bound by and pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on the Pro Performance Services, including notices of cancellation, policies, contracts, and applications. It is your sole responsibility to review and understand all policies, content, and agreements associated with the use of the Pro Performance Services or any products Pro Performance may supply.

5.              Disclaimer of Warranties

THE PRO PERFORMANCE SERVICES ARE PROVIDED: (1) WITH ALL FAULTS AS-IS AND AS-AVAILABLE; AND (2) WITHOUT ANY ASSURANCE, OR WARRANTY, CONDITION OR DUTY OF OR REGARDING: FUNCTIONALITY; PRIVACY; SECURITY; ACCURACY; AVAILABILITY; REPAIRS; LACK OF: NEGLIGENCE, INTERRUPTION, VIRUSES OR OF OTHER HARMFUL CODE OR TRANSMISSIONS; OR THE NATURE OR CONSEQUENCES OF AVAILABLE CONTENT SUCH AS (WITHOUT LIMITATION) WHETHER SOFTWARE OR OTHER CONTENT IS SUBJECT TO ANY PARTICULAR LICENSE, OR WHETHER IT IS SUBJECT TO ANY RESTRICTIONS OR CONSEQUENCES THAT MIGHT BE TRIGGERED BY ANY EXERCISE OF A RIGHT GRANTED UNDER THESE TERMS.  PRO PERFORMANCE, OUR AFFILIATES, LICENSORS, SUPPLIERS, AND ADVERTISERS MAKE NO WARRANTY AND HEREBY DISCLAIM, WHETHER IMPLIED OR STATUTORY, ANY WARRANTY, INCLUDING ANY WARRANTY OF TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK, IN CONNECTION WITH YOUR USE OF PRO PERFORMANCE SERVICES, AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.  YOU AGREE THAT YOU WILL OBTAIN (INCLUDING, WITHOUT LIMITATION, THROUGH DOWNLOAD) ANY CONTENT ENTIRELY AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING INFRINGEMENT, BREACH OF CONTRACT, CONSEQUENCE OR DAMAGE, INCLUDING (WITHOUT LIMITATION) BODILY INJURY, DEATH, DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA.

FOR AVOIDANCE OF DOUBT, YOU AGREE THAT YOU MAY NOT RELY, AND PRO PERFORMANCE WILL NOT BE LIABLE FOR YOUR RELIANCE, ON ANY INFORMATION OR OPINIONS EXPRESSED ON THE PRO PERFORMANCE SERVICES, INCLUDING ANY DECISIONS YOU MAKE ABOUT DIAGNOSIS OR TREATMENT. ANY OPINION OR INFORMATION PRESENTED ON THE WEBSITE IS FOR YOUR CONVENIENCE ONLY AND WILL NOT CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

6.              User Conduct and Usage Restrictions

By using or accessing the Pro Performance Services, you represent, warrant and agree that you will not:

·       do anything that could disable, overburden or impair the proper working of the Pro Performance Services, including any interference with the servers or networks used to make the Pro Performance Services available or any violation of the requirements, procedures, policies, or regulations of such networks;

·       restrict or inhibit any person from rightfully using the Pro Performance Services;

·       transmit, post to, or make available through the Pro Performance Services any virus, worm, Trojan Horse, easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment;

·       use any robot, spider, scraper or other automated means to access any portion of the Pro Performance Services;

·       reverse engineer, decompile, or disassemble any portion of the Pro Performance Services;

·       send spam or any other unauthorized advertisements or solicitations through or using the Pro Performance Services;

·       use an iFrame or offer web search functionality on the Pro Performance Services;

·       harvest, collect or use addresses, phone numbers or email addresses or other contact information of users of the Pro Performance Services;

·       solicit private information (including social security numbers, credit card numbers and passwords) from users of the Pro Performance Services;

·       impersonate any person or entity, including any moderator or any of our representatives, falsely stating or otherwise misrepresenting your affiliation with any person or entity in connection with the Pro Performance Services, or stating or implying that we endorse any statement you make;

·       transmit, post to, or make available through the Pro Performance Services any content that is threatening, hateful, racially or ethnically offensive, or that depicts nudity, pornography or graphic or gratuitous violence, or anything else that Pro Performance may consider offensive;

·       transmit, post to, or make available through the Pro Performance Services any addresses, phone numbers or email addresses or other contact information or private information of any third party or any content that violates the law or anyone’s rights, including intellectual property rights or other proprietary rights (such as rights of publicity and privacy);

·       transmit, post to, or make available through the Pro Performance Services any false, misleading or fraudulent information;

·       intimidate, harass, or violate the rights of any user or other person;

·       otherwise do anything that is illegal, infringing, fraudulent, malicious or could expose Pro Performance or users of the Pro Performance Services to harm or liability; or

·       attempt, encourage or facilitate any of the above.

Without limiting any of the foregoing, you may only use the Pro Performance Services for personal noncommercial and lawful purposes. You may not exploit any aspect of the Pro Performance Services for any commercial purpose without prior written and signed authorization from Pro Performance.  You must comply with all state, local, national and international laws, rules and regulations that apply to the Pro Performance Services, your use of the Pro Performance Services, and any products or services you learn about on the Pro Performance Services or access through the Pro Performance Services, including but not limited to, any laws governing the sale, use, or promotion of medications and controlled substances.

7.              Pro Performance’ Proprietary Rights

You acknowledge and agree that the Pro Performance Services and any necessary software used in connection with the Pro Performance Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws.  Except as expressly permitted by applicable law or as authorized by Pro Performance or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Pro Performance Services or the Software, in whole or in part.

 

Subject to your compliance with these Terms, Pro Performance grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Pro Performance Services. You agree not to access the Pro Performance Services by any means other than through the interface that is provided by Pro Performance for use in accessing the Pro Performance Services.

 

8.              User Content

“User Content” is any information, graphic, text, image, software, sound file, video, communication, data, metadata, photograph, compilation, work in any form or medium, technology (whether now known or later developed) and other materials that are uploaded, submitted, posted, transmitted, modified, linked, shared, stored or otherwise made available to or on the Pro Performance Services by you or other users of the Pro Performance Services.  You are responsible for all User Content that you upload, submit, post, transmit, modify, link, share, store or otherwise make available to the Pro Performance Services.  You represent and warrant that you own or otherwise control any and all rights in and to the User Content that you upload, submit, post, transmit, modify, link, share, store or otherwise make available and that public posting and use of that User Content by us will not infringe or violate the rights of any third party in any manner.

You acknowledge and agree that we may publish, transmit, perform, display, store, distribute, reproduce, modify, re-arrange, create derivative works from, and otherwise use all or any portion of User Content for the purpose of administering the Pro Performance Services and carrying on the business of Pro Performance.  You further acknowledge and agree that third parties who provide services to Pro Performance may have access to your User Content and use it in connection with their policies and practices and subject to any agreement they may have with Pro Performance.

You hereby grant us and our licensees, distributors, agents, representatives and other authorized users, a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such User Content, in whole or in part, in all media formats and channels now known or hereafter devised (including on the Pro Performance Services and third party web sites) for any and all purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the "User Content License").

By creating User Content, you represent and warrant that the User Content conform to the User Conduct guidelines set forth in these Terms and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such User Content in all manners contemplated by these Terms (including the User Content License). These Terms (including the User Content License) do not limit any past or future grant of rights, consents, agreements, assignments and waivers you may have made or make with respect to User Content.

You further acknowledge that aspects of the Pro Performance Services may be public and accessible by anyone who visits or uses the Pro Performance Services.  In addition to the rights granted to us and our service providers, your use of the Pro Performance Services may allow other users to have access to your User Content which they might copy, modify, distribute, or rely upon even without your express permission to engage in that conduct.  Further, you agree to evaluate, and bear all risks associated with, the use of any User Content, including reliance on the accuracy, completeness or usefulness of User Content and any risk that others may be able to identify you based on your User Content. 

9.              Right to Remove User Content or Block Access

Pro Performance generally does not monitor, approve or have any control over any User Content. Nevertheless, Pro Performance or its designees, at Pro Performance’ discretion, without any obligation and without notice at any time, may screen, filter, restrict, block, move, refuse, disable access to, remove, or modify User Content that does not meet the conduct guidelines described in these Terms or is otherwise objectionable.  Pro Performance may also block your access to the Pro Performance Services in the event that (a) you breach these Terms; (b) we are unable to verify or authenticate information you provide to Pro Performance; (c) we believe that your actions may cause financial loss or legal liability for you, Pro Performance users or us; or (d) we believe that blocking access is a reasonable business practice under the circumstances.

We do not guarantee that any content or information you share or access will not be removed, damaged, corrupted, lost, or unavailable. We recommend that you back up any User Content that you store or access using the Pro Performance Services.

10.           Third Party Content and Links

Pro Performance may make available links to websites operated by third parties, including advertisers. Making available any link to a website does not imply endorsement by Pro Performance of that website or the products or services available through that website; the link may be for your reference and convenience only.  Products, services, and content offered to through linked websites are subject to the terms and conditions made available by those respective websites, and the data collection practices of linked websites will be governed by the respective privacy policies of those websites, not by ours. Following links to any other websites or web-based services is at your own risk, and any claims you have with respect to products, services, or content accessed through linked websites are claims against third parties, not against Pro Performance.

Pro Performance also may post or otherwise provide access to websites, materials, or content of third parties (“Third Party Content”) as a service to those that might be interested in this information. Pro Performance does not guarantee, endorse or adopt the accuracy, completeness, legality, or innocuousness of any Third Party Content. Pro Performance is not responsible for updating or reviewing Third Party Content. You access and use Third Party Content at your own risk.

You agree that Pro Performance is not responsible for examining or evaluating the content or accuracy, and does not warrant and will not have any liability or responsibility for any Third Party Content.  You agree to not use any Third Party Content in a manner that would infringe or violate the rights of any other party and that Pro Performance is in no way responsible for any such use by you.

11.           Access to the Pro Performance Services

You may use the Pro Performance Services if and when it is available. Features may be unavailable or the experience may not be the same for every user at all times. Pro Performance does not guarantee availability of any aspect of the Pro Performance Services or any particular feature. We reserve the right to change, remove, delete, restrict or block access to, or stop providing all or any part of the Pro Performance Services (including reducing available storage capacity, if any, and removing any of the content contained in the Pro Performance Services) at any time without notice.

You agree that we may terminate your use of the Pro Performance Services if we reasonably believe that you have violated or acted inconsistently with the letter or spirit of these Terms, or violated the rights of Pro Performance or any third party, or for any other reason with or without notice to you.

12.           Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT WILL PRO PERFORMANCE, OUR AFFILIATES, LICENSORS, SUPPLIERS, OR ADVERTISERS BE LIABLE FOR, AND YOU CANNOT RECOVER,  ANY COSTS, DAMAGES AND EXPENSES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, PUNITIVE, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM (a) THE USE OR THE INABILITY TO USE THE PRO PERFORMANCE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PRO PERFORMANCE SERVICES; OR (e) ANY OTHER MATTER RELATING TO THE PRO PERFORMANCE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PRO PERFORMANCE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PRO PERFORMANCE WILL BE LIABLE TO YOU ONLY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED TEN U.S. DOLLARS ($10.00). THIS IS YOUR EXCLUSIVE REMEDY. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.

13.           Indemnification

You agree to release, discharge, defend, indemnify and hold harmless Pro Performance, its parents, subsidiaries, officers, directors, employees and agents, assigns, sponsors and supporting artists, licensors and suppliers from and against any claims, actions or demands, liabilities and settlements, including, without limitation, legal and accounting fees, related to or arising out of your use in any way of the Pro Performance Services, including any User Content (defined below) that you provide and your violation of any of these Terms.

14.           Copyrights and Claims of IP Infringement

Pro Performance and its licensors retain full ownership, rights and protection in all material contained on the Pro Performance Services (including all digital images, software, HTML code and other code, or business methods), including all intellectual property rights therein, with the exception of User Content.  Except as otherwise expressly provided in these Terms, you may not copy, distribute, transmit, display, perform, reproduce, publish, license, rewrite, create derivative works from, transfer or sell any material contained on the Pro Performance Services without the prior consent of Pro Performance or the copyright owner.

All content of the Pro Performance Services is copyright 2016 Pro Performance, LLC and its licensors. All rights reserved.

Pro Performance respects the intellectual property rights of all third parties.  If you are the owner of a United States copyright and you believe that your work has been copied on the Pro Performance Services in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our copyright agent the following information:

(A)   a physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

(B)   a description of the copyrighted work or other intellectual property that you claim has been infringed;

(C)   a description of where the material that you claim is infringing is located on Pro Performance Services;

(D)   your address, telephone number, and email address;

(E)    a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and

(F)    a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act in the copyright or intellectual property owner’s behalf.

Our agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:

By mail:           Jordan@properformance.guru

By email:        Jordan@properformance.guru

15.           Trademark Information

All trademarks, service marks and trade names of Pro Performance, its partners and licensors (including without limitation: Pro Performance, the Pro Performance logo, and the associated designs and logos) (collectively “Marks”) are trademarks or registered trademarks of Pro Performance or its affiliates, partners or licensors.  You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify the Marks in any way, including in advertising or publicity pertaining to distribution of materials on this Pro Performance Services, without Pro Performance’ prior written consent. The use of the Marks on any other website or networked computer environment is not allowed. You may not use the Marks as a “hot” link on or to any other website unless establishment of such a link is approved in advance by Pro Performance.

16.           Privacy Policy

Registration Data and certain other information about you are subject to our Privacy Policy, which is incorporated into these Terms by reference.  For more information, see the full Privacy Policy at www.properformance.guru/privacy. You understand that through your use of the Pro Performance Services you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Pro Performance and its affiliates or business partners.

17.           Notices

Pro Performance may deliver notice to you under these Terms by means of electronic mail, a general notice on the Pro Performance Services, or by written communication delivered by first class U.S. mail.

You may give notice to Pro Performance at any time by letter delivered by first-class postage prepaid U.S. mail or overnight courier to the following address:

920 E Boulder St, Colorado Springs CO, 80903

18.           Updates to these Terms

 

We reserve the right to update these Terms from time to time. When we do, we will revise the "Effective Date" at the top of these Terms.  We encourage you to check this page periodically for any updates. If you continue to use of the Pro Performance Services following the posting of an updated version of these Terms, we will treat your continued use as acceptance of the updated version.

 

19.           General Provisions

 

·       These Terms and your use of the Pro Performance Services are governed by the internal substantive laws of the State of Colorado, without regard to conflict of law principles.  You expressly agree that exclusive jurisdiction for any dispute with Pro Performance or in any way relating to your use of the Pro Performance Services (“Legal Action”) resides in the courts of El Paso County in the State of Colorado.  You further agree and expressly consent to the exercise of personal jurisdiction in the courts of El Paso County in the State of Colorado in connection with any such dispute. Any Legal Action that is subject to the jurisdiction of federal courts shall be instituted in a federal court in the District of Colorado.

·       If a court of competent jurisdiction holds any term, covenant or restriction of these Terms to be illegal, invalid or unenforceable, the remaining terms, covenants and restrictions will remain in full force and effect and will in no way be affected, impaired or invalidated.

·       The headings titles in these Terms are provided solely for convenience and have no legal or contractual significance.

·       No waiver of any provision of these Terms will be effective unless it is in a signed writing, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.   YOU AGREE THAT ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE PRO PERFORMANCE SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE DISPUTE, CLAIM OR CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH DISPUTE, CLAIM OR CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

·       Pro Performance will not be liable in any amount for failure to perform any obligation under these Terms if such failure is caused by the occurrence of any unforeseen contingency beyond its reasonable control, including, without limitation, Internet outages, communications outages, fire, flood, or war.

·       Pro Performance retains the right to assign its rights, privileges, responsibilities, and obligations, as identified in these Terms or in other documents, to a third party, in whole or in part, for administration, technical support, marketing, or any other purpose at any time without providing notice to you or other users through the Pro Performance Services or by any other means.