NOTE: YOU ARE ENTERING INTO A LEGALLY-BINDING AGREEMENT.
Execute to Win, LLC (ETW) provides web-based employee performance evaluation services (Services).
B. Scope and Intent.
2. YOUR OBLIGATIONS.
A. Applicable laws and this Agreement
B. Payment of Fees
You agree to the payment of fees incurred in connection with your use of the Services, including recurring monthly charges based upon the number of employees retained by you from time to time during each month. A description of such fees can be found here: http://www.etw.com/en/fees we reserve the right to modify the amount of and basis for charging fees in our discretion. You may also agree to retain us to provide additional consulting services, including for installation and intial set-up of the Services for you; such consulting services shall be provided and paid for pursuant to separate written agreement.
You agree to ETW storing your payment card, direct deposit, or or other payment transfer information. You also agree to pay the applicable fees for the Services (including, without limitation, periodic fees) as they become due plus all related taxes, and to reimburse us for all collection costs and interest for any overdue amounts. Your obligation to pay fees continues through the end of the subscription period during which you cancel your subscription. You may cancel your Services here: http://www.etw.com/en/cancel.
C. Warranty for your submissions to ETW.
You own the information you provide in connection with your use of the Services under this Agreement, and may request its deletion at any time. Any information you submit to us is at your own risk of loss as noted in Sections 2 and 3 of this Agreement. By providing information to us, you represent and warrant that you are entitled to submit the information and that the information is accurate, and not in violation of any contractual restrictions or other third party rights. It is your responsibility to keep your information accurate and updated.
D. Service Eligibility.
To be eligible to use the Services, you represent and warrant that you: (1) are not a competitor of ETW or are not using the Services for reasons that are in competition with ETW; (2) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (3) will not violate any rights of ETW, including intellectual property rights such as copyright or trademark rights; and (4) agree to provide at your cost all equipment, software, and internet access necessary to use the Services.
E. Sign-In Credentials.
You agree to: (1) keep your password secure and confidential; (2) not permit others to use your account; (3) refrain from using other subscriber’s accounts; (4) refrain from selling, trading, or otherwise transferring your ETW account to another party; and (5) refrain from charging anyone for access to any portion of ETW’s website or Services, or any information therein. Further, you are responsible for anything that happens through your account until you close down your account or prove that your account security was compromised due to no fault of your own. To close your account, please visit ETW’s customer service site.
You indemnify and hold harmless us and our authorized consulstants for, from and against all damages, losses, claims, liabilities, expenses and costs (including, but not limited to, reasonable attorneys’ fees and costs) related to all third party claims, charges, and investigations, caused by (1) your failure to comply with this Agreement, including, without limitation, your submission of content that violates third party rights or applicable laws, (2) any content you submit to the Services, and (3) any activity in which you engage on or through ETW.
G. Notify us of acts contrary to the Agreement.
If you believe that you are entitled or obligated to act contrary to this Agreement under any mandatory law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least 30 days before you act contrary to this Agreement, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.
H. Notifications and Service Messages.
For purposes of service messages and notices about the Services to you, ETW may place a banner notice across its pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from ETW to an email address associated with your account, even if we have other contact information. You also agree that ETW may communicate with you through your ETW account or through other means including email, mobile number, telephone, or delivery services including the postal service, about your ETW account or services associated with ETW. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Service.
J. Export Control.
Your use of ETW Services, including our software, is subject to export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department's Office of Foreign Assets Control. You shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving US origin products, including services or software. You consent to having your personal data transferred to and processed in the United States.
K. Contributions to ETW
By submitting ideas, suggestions, and/or proposals ("Contributions") to ETW through its suggestion or feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) ETW is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) ETW shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) ETW may have something similar to the Contributions already under consideration or in development; (e) you irrevocably assign to ETW all rights to your Contributions; and (f) you are not entitled to any compensation or reimbursement of any kind from ETW under any circumstances.
3. YOUR RIGHTS.
On the condition that you comply with all your obligations under this Agreement, including, but not limited to, those listed in Section 10, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access the Services, through a generally available web browser, view information and use the Services that we provide on ETW webpages and in accordance with this Agreement. Any other use of ETW Services contrary to our purpose is strictly prohibited and a violation of this Agreement. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in ETW and all related items, including any and all copies made of the ETW website.
4. OUR RIGHTS AND OBLIGATIONS.
A. Services Availability.
For as long as ETW continues to offer the Services, ETW shall provide and seek to update, improve and expand the Services. As a result, we allow you to access ETW’s website and Services as it may exist and be available on any given day and have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, or change and modify prices for all or part of the Services for you or for all our users in our sole discretion. All of these changes shall be effective upon their posting on our site or by direct communication to you unless otherwise noted.
B. Disclosure of User Information.
You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in our opinion to: (1) comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures; (2) enforce this Agreement; (3) respond to claims of a violation of the rights of third parties, whether or not the third party is a User, individual, or government agency; (4) respond to customer service inquiries; or (5) protect the rights, property, or personal safety of ETW, our Users or the public.
WE PROVIDE THE PLATFORM FOR ETW AND ALL INFORMATION AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. ETW DOES NOT CONTROL USER-GENERATED CONTENT. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. IF YOU ARE DISSATISFIED OR HARMED BY ETW OR ANYTHING RELATED TO ETW, YOU MAY CLOSE YOUR ETW ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7 (“TERMINATION”) AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.
ETW DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO OR ACCESSING ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY USERS; THEREFORE, ETW DISCLAIMS ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR INFORMATION.
ETW DOES NOT GUARANTEE THAT THE SERVICES IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. ETW DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, ETW DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE ETW SITE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
6. LIMITATION OF LIABILITY.
Neither ETW nor any of our affiliated companies, employees, agents, consultants, contractors, members, or managers ('ETW Affiliates') shall be cumulatively liable for (a) any damages in excess of five times the most recent monthly fees that you paid for Services, or US $100, whichever amount is greater, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Services, or any of the content or other materials on, accessed through or downloaded from ETW. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
A. Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
B. Not apply to any damage that ETW may cause you intentionally in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this Agreement.
A. Mutual rights of termination.
You may terminate this Agreement, for any or no reason, at any time, with notice to ETW pursuant to Section 9.C. This notice will be effective upon ETW processing your notice. ETW may terminate the Agreement and your account for any reason or no reason, at any time, with notice. This cancellation shall be effective immediately or as may be specified in the notice. Termination of your ETW account includes disabling your access to ETW’s website and Services.
B. Misuse of the Services.
ETW may restrict, suspend or terminate the account of a User who abuses or misuses the Services. Misuse of the Services includes using the Services commercially without ETW’s authorization, infringing any intellectual property rights, violating any of the provisions listed in Section 10, or any other behavior that ETW, in its sole discretion, deems contrary to its purpose.
C. Effect of Termination.
Upon the termination of your ETW account, you lose access to the Services. The terms of this Agreement shall survive any termination, except Sections 3 (“Your Rights”) and 4 (“Our Rights and Obligations”).
8. DISPUTE RESOLUTION
This Agreement or any claim, cause of action or dispute (“claim”) arising out of or related to this Agreement shall be governed by the laws of the State of Arizona regardless of your state or country of origin or where you access ETW or its Services, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. You and ETW agree that all claims arising out of or related to this Agreement must be resolved exclusively by a state or federal court located in Maricopa County, Arizona. You and ETW agree to submit to the personal jurisdiction of the courts located within Maricopa County, Arizona, for the purpose of litigating all such claims. Notwithstanding the above, you agree that ETW shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
9. GENERAL TERMS.
If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
C. Notices and Service of Process.
In addition to Section 2.h. (“Notices and Service Messages”), we may notify you via postings on http://www.etw.com/en/. You may contact us at http://www.etw.com/en/contact, or via mail or courier at 2920 East Chambers Street, Phoenix, Arizona 85040. ETW accepts service of process at this street address. Any notices that you provide without compliance with this section on Notices shall have no legal effect.
D. Entire Agreement.
You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Services and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services, including consulting services.
E. Amendments to this Agreement.
F. No informal waivers, agreements or representations.
Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Agreement, no representations, statements, consents, waivers or other acts or omissions by any ETW Affiliate shall be deemed legally binding on any ETW Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of ETW.
G. No Injunctive Relief.
In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services or exploitation of the Services or any content or other material used or displayed through the Services.
H. Assignment and Delegation.
You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, effective upon notice to you, ETW for any third party that assumes our rights and obligations under this Agreement.
I. Potential Other Rights and Obligations.
You may have rights or obligations under local law other than those enumerated here if you are located outside the United States.
10. ETW USER CONDITIONS
As a condition to access ETW, you agree to this User Agreement and to strictly observe the following:
A. You agree to undertake the following:
1. Comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, export control laws, labor and employment laws, tax laws, and regulatory requirements;
2. Provide accurate information and update it as necessary;
3. Protect passwords and access to sensitive personal information and other information that is confidential in nature;
5. Review and comply with notices sent by ETW concerning the Services; and
6. Use the Services in a professional manner.
B. You agree not to do the following:
1. Publish or input inaccurate information;
2. Use or attempt to use another's account without authorization from ETW, or create a false identity on ETW;
3. Upload, post, transmit or otherwise make available any content that: (a) is unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable; (b) includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships; (c) infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights; or (d) contains software viruses, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment of ETW or any User of ETW.
4. Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof.
5. Utilize or copy information, content or any data you view on and/or obtain from ETW to provide any service that is competitive, in ETW’s sole discretion, with ETW;
6. Adapt, modify or create derivative works based on ETW or technology underlying the Services;
7. Rent, lease, loan, trade, sell/re-sell access to ETW’s website or Services or any information therein, or the equivalent, in whole or part;
8. Remove any copyright, trademark or other proprietary rights notices contained in or on ETW website;
9. Infringe or use ETW’s brand, logos and/or trademarks, including, without limitation, using the words “Execute to Win” in any business name, email, or URL, except as expressly permitted by ETW;
10. Access ETW for purposes of monitoring ETW’s availability, performance or functionality for any competitive purpose;
11. Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of ETW’s website;
12. Attempt to or actually access ETW by any means other than through the interfaces provided by ETW;
13. Attempt to or actually override any security component included in or underlying ETW;
14. Engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on ETW’s infrastructure, including, but not limited to, attempting to gain unauthorized access to ETW, or transmitting or activating computer viruses through or on ETW;
15. Interfere with or disrupt ETW or the Services, including, but not limited to, any servers or networks connected to ETW.