Cathy Bernatt and Jennifer Jones-Patulli
PowerPlay LLC
DPI Coach Terms and Conditions
1. ACCEPTANCE OF TERMS
These DPI Coach Terms and Conditions (these “Terms”) govern your access to and use of the Diamond Power Index® (“DPI” or the “Tool”), the related assessment platform and website (the “Website”), reports generated by your use of the Tool and Website (“Reports”), and any other related products and services offered by PowerPlay LLC. The Tool, Website, Reports, and related products and services are referred to herein as the “Services.”
These Terms take effect when you click an “I Accept” button or check box presented with these Terms or when you access or use any of the Services (the “Effective Date”). Please read these Terms carefully before accessing or using the Services. If you do not agree to these Terms, you may not access or use the Services on behalf of yourself or any other party. For purposes of these Terms, “we” or “Company” means PowerPlay LLC and “you” or “Customer” means you and the entity you represent.
2. GRANT OF LICENSES
2.1 License. Subject to these Terms and your payment of applicable fees, Company hereby grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Services solely for the purpose of conducting assessments and generating Reports and otherwise interacting with your clients and potential clients in your capacity as a Diamond Power Index® Coach (“DPI Coach”).
2.2 Reports. Reports contain the compilation and interpretation of the results of the assessment using the Tool. Company hereby grants you a limited, non-exclusive, non-transferable license to access, download, and reproduce Reports for the sole purpose of coaching your DPI clients. Reports contain sensitive personal information of DPI clients and must be treated confidentially. You agree to comply, and will ensure that your clients and any other third parties with access to your Reports comply, with all additional terms and instructions provided by Company with respect to the use and disclosure of Reports.
2.3 Trademark License. Subject to these Terms, Company hereby grants you a non-exclusive, non-transferable license to use Company’s trademarks as they appear in the Reports or as they are otherwise provided to you through the Website or by the Company (“Company Trademarks”). You may use Company Trademarks solely in your capacity as a DPI Coach for the purposes of using and marketing the Tool and Website and communicating with clients and potential clients.
2.4 Support; Professional Services. Subject to these Terms, Company may provide you with reasonable technical support services and other professional services in accordance with Company’s standard practice in effect at the time. All such services are included in the definition of “Services” for purpose of these Terms.
2.5 Updates. Company may make updates and modifications to the Services at any time, as we deem appropriate, and in our sole discretion. You use of all such updates and modifications are subject to these Terms.
2.6 No Other Rights. You acknowledge and agree that nothing in these Terms gives you any right, title or interest in the Services or Company Trademarks other than the right to use or access the Services and Company Trademarks in accordance with these Terms.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Customer Responsibilities. You understand and agree that you: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of your use of the Services, and will obtain all necessary consents and permissions with respect to the information you provide to or through the Services; (ii) will prevent unauthorized access to or use of the Services, and will notify Company promptly after becoming aware of any such unauthorized access or use; and (iii) will ensure that all of your clients, employees, contractors, or other agents who have access to the Services are notified of and comply with these Terms as if they were party to these Terms. Any breach of these Terms by any such parties will be deemed to be a breach by you.
3.2 Reports. You are not permitted to upcharge Reports. If you invoice a third party for Reports, invoices must be itemized so individual Report prices are visible to the third party. Prices for each Report must not exceed prices set by Company. To comply with data privacy regulations, Company regularly deletes data you provide and Reports you generate through the Website. Except as otherwise set forth herein, Reports are available for download for a minimum of six months after the first date of availability. You are responsible for downloading Reports within that time period.
3.3 License Restrictions. You will not, directly or indirectly: (i) use the Services or Company Trademarks for any purpose other than your DPI Coach activities; (ii) disclose the contents of, or afford any person access to, the Services except as expressly permitted under these Terms or post, display, or perform the Services in any format that makes them accessible to anyone other than as expressly permitted under these Terms; (iv) modify, translate, or create derivative works based on the Services other than as expressly permitted under these Terms or otherwise expressly authorized by Company in writing; (v) remove any proprietary notices or labels from the Services, including Company Trademarks or any copyright notices; (vi) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Services; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in the Services; or (viii) sell, lend, lease, rent, assign, sublicense, or transfer the Services to a third party, except as expressly permitted herein.
3.4 Representations and Warranties. You represent, covenant, and warrant that: (i) you are lawfully able to enter into these Terms; (ii) if you are entering these Terms on behalf of an entity, you have the legal authority to bind that entity; (iii) you are a certified DPI Coach and your certification is currently active and has not been terminated or revoked; (iv) none of the materials you provide to or through the Services will violate any applicable law, or will infringe or misappropriate the proprietary rights (including intellectual property or privacy rights) of any third party; and (v) you will use the Services and Company Trademarks only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations.
3.5 Equipment and Account. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modern modems, computer hardware, software, operating systems, and the like (collectively, “Equipment”). You are also responsible for maintaining the security of the Equipment, your account, passwords, and files, and for all uses of your account or the Equipment with or without your knowledge or consent.
3.6 Suspension. Company reserves the right to suspend your access to all or part of the Services at any time for any reason, including in connection with a known or suspected violation of these Terms.
3.7 Indemnification. You hereby agree to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of these Terms or otherwise from your use of the Services or Company Trademarks.
4. OWNERSHIP
4.1 Acknowledgement of Ownership. You acknowledge that Company is the owner of all right, title, and interest in and to the Services and Company Trademarks. Your use of the Services and Company Trademarks, and all goodwill accruing therefrom, will inure solely to the benefit of Company. You hereby assign to Company all right, title, and interest that you may acquire to derivative works or other modifications to the Services made by you or on your behalf. At Company’s request, you agree to execute and deliver additional documents and perform additional actions as necessary or appropriate to confirm or document Company’s ownership of such materials.
4.2 Enforcement. You will promptly notify Company in writing of any actual, suspected, or threatened infringement, dilution, or other conflicting use of the Services or Company Trademarks by any third parties. Company has the sole right, in its discretion, to bring any action or proceeding with respect to any such infringement, dilution, or other conflict, and to control the conduct of any action or proceeding (including any settlement). You will provide Company with all assistance that Company may reasonably request, at Company’s expense, in connection with any such action or proceeding. Company will be entitled to retain any monetary recovery resulting from any such action or proceeding (including any settlement).
5. QUALITY CONTROL
5.1 Quality Standards. You acknowledge and are familiar with the high standards and reputation for quality of the Services, which is symbolized by Company Trademarks. You must, at all times, use the Services and Company Trademarks in a manner at least consistent with such quality standards and reputation.
5.2 Use of Company Trademarks. You will comply with Company’s guidelines and specifications regarding the style, appearance, and use of Company Trademarks and will ensure that all use of Company Trademarks under these Terms complies with all applicable laws. You will make any changes to your usage of Company Trademarks requested by Company within 10 days of a written request from Company. Your failure to comply with Company’s requests will be deemed a material breach of these Terms.
5.3 Quality Control. Company has the right to exercise quality control over all uses of the Services and Company Trademarks under these Terms. For the purpose of monitoring your compliance with Company’s quality standards, (a) Company or its designee may inspect your facilities on reasonable notice and during normal business hours; and (b) you will, upon request, submit to Company representative samples of your use of the Services or Company Trademarks for Company’s review and approval.
5.4 Failure to Meet Quality Standards. If, in Company’s sole discretion, you fail to meet quality standards applicable to use of the Services or Company Trademarks, Company may at its option (i) require you to take such corrective action as deemed appropriate by Company, or (ii) terminate these Terms and/or your DPI Coach certification as provided in Section 8.
6. CONFIDENTIALITY; DATA USE; FEEDBACK
6.1 Confidential Information. All non-public, confidential or proprietary information of Company (“Confidential Information”), including, but not limited to, information regarding features, functionality, and performance of the Tool and other Services, and Company’s business operations, service methodologies, pricing, and the content of these Terms is confidential, solely for your use in exercising your rights under these Terms, and may not be disclosed, copied, or used unless permitted in these Terms or otherwise authorized by Company in writing. You will take reasonable precautions to protect Confidential Information and will promptly notify Company in writing in the event of any unauthorized disclosure of or access to Confidential Information. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of your breach of this License; (b) is obtained by you on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; or (c) you establish by written evidence, was in your possession prior to Company’s disclosure to you. Upon Company’s request, you will promptly return all documents and other materials containing Confidential Information.
6.2 Data Use. Notwithstanding anything in this agreement to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of the Services and related systems and technologies (including, without limitation, data you provide in connection with your use of the Services and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to perform its obligations under these Terms, (ii) improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Company offerings, and (iii) disclose such data solely in aggregate or other de-identified form in connection with its business, including in scholarly and marketing-focused publications and presentations.
6.3 Feedback. Company will have the right to use, act upon, and freely exploit any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Customer, without any remuneration, fee, royalty, or expense of any kind, and Company will hereby own all right, title, and interest in any such suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Customer.
7. PAYMENT OF FEES
Customer will pay Company the then applicable fees described in the order form for the Services (“Order Form”), including any mutually-agreed professional services, in accordance with the terms therein (the “Fees”). Once purchased, assessments cannot be returned, exchanged, or refunded. An assessment is considered purchased once the invitation to the participant is sent. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the payment due date. Inquiries should be directed to Company’s customer support department.
Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received before Company furnishes Services, unless otherwise mutually agreed by the parties. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
8. TERM AND TERMINATION
8.1 Term. These Terms are effective as of the Effective Date and will remain in force until terminated pursuant to this Section.
8.2 Termination for Convenience. Either party may terminate these Terms at any time by providing at least 30 days’ prior written notice to the other party.
8.3 Termination for Breach. Company may terminate these Terms upon written notice to you if you materially breach these Terms and fail to cure such breach within 10 days after Company provides you with written notice of the breach.
8.4 Effect of Termination. Upon termination of these Terms, all rights granted in these Terms will expire and you will immediately: (i) cease all use of the Services and Company Trademarks and (ii) return or destroy (at Company’s option) all copies of Confidential Information in your possession. In the event of termination for your breach of these Terms, Company may, in its sole discretion, revoke your DPI Coach certification and access to the Tool, including any Reports purchased prior to termination of the Terms. Termination of these Terms does not entitle you to a refund of any Fees paid under these Terms, or any other costs or expenses. This Section 8 does not exclude any other legal remedies that Company may have in the event of your breach of these Terms. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Reports available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Reports.
8.5 Survival. The following sections of these Terms survive termination: Section 3 (Restrictions and Responsibilities); Section 4 (Ownership); Section 6 (Confidentiality); and Sections 8 – 13.
9. WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY
9.1 Warranty. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform any support and professional services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice of any scheduled service disruption.
9.2 Disclaimer. Except for those warranties expressly set forth in these Terms, the Services (including Company Trademarks) are provided “as is”. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. The Services are intended for informational and educational purposes only and Company does not guarantee compliance with any federal, state, or local laws or regulations.
9.3 Limitation of Liability. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, EXCEPT FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, COMPANY AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY CLAIMS ARISING UNDER OR RELATED TO THESE TERMS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS, INACCURACY, DESTRUCTION, OR CORRUPTION OF DATA OR FAILURE TO STORE DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE AMOUNT OF FEES AND CHARGES PAID BY CUSTOMER TO COMPANY UNDER THESE TERMS IN THE SIX (6) MONTHS PRECEDING THE CLAIM.
10. INFRINGEMENT REMEDIES
If the Services are held by a court of competent jurisdiction to infringe the intellectual property rights of a third party, the Company may, at its option and expense: (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for Customer a license to continue using the Services, or (iii) if neither of the foregoing is commercially practicable, terminate these Terms and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services. This remedy does not apply to infringement due to information or materials provided by Customer or any third party.
11. DISPUTE RESOLUTION
11.1 U.S. Customers. The exclusive jurisdiction for any action to interpret or enforce these Terms will be Multnomah County, Oregon, or, subject to applicable jurisdiction requirements, the United States District Court for the District of Oregon, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to such venue.
11.2 Non-U.S. Customers. All disputes between you and Company related to these Terms will be exclusively resolved by final and binding arbitration by and in accordance with the rules of the American Arbitration Association’s International Centre for Dispute Resolution. The language of the arbitration will be English, and, unless the parties agree otherwise in writing, the location of the arbitration will be Portland, Oregon, U.S.A. Judgment may be entered on the award rendered by the arbitrator in any court having jurisdiction. While this provision provides the exclusive means of dispute resolution, seeking injunctive relief in a court of law will not be prohibited.
11.3. Injunctive Relief. You acknowledge that, in the event of an unauthorized use of the Services (including Company Trademarks), the damages incurred by Company may be difficult if not impossible to ascertain, and that Company may seek injunctive relief in a court of competent jurisdiction.
12. NOTICE
The address of each party as set forth in Company’s then-current records will be the appropriate address for notices. All notices will be sent certified or registered mail, with a copy sent by email, and will be deemed received when actually received. Either party may change their notice address by written notice to the other.
13. MISCELLANEOUS
The licenses granted to you herein are personal and may not be assigned or otherwise transferred without the prior written consent of Company. The validity, interpretation, and enforcement of these Terms shall be governed by the laws of the state of Oregon (without reference to the principles of conflict of laws thereof). These Terms constitute the entire agreement between the parties related to their subject matter. These Terms may not be amended except in a writing signed by both parties. If any provision of these Terms is found to be illegal or unenforceable in any way, it will be enforced to the maximum extent possible, and all other provisions of these Terms will remain in full force and effect.