Terms of Use

Last Modified: January 29, 2013

Please read this document carefully before using this website and related services or purchasing any products or services from think2perform tm inc. And/or its affiliates and partners.

These Terms and Conditions of Use constitute a legal agreement between you (and, as applicable, the business, entity or person on whose behalf you are acting) and Think2PerformTM Inc. (“Company” or “our” or “us” or “we”) in accessing and using our website, http://www.think2perform.com. By using the Website or any of our data feeds, products or software, and any services provided to you on, from or through the Website or any other application or interface (collectively, the “Website”), you signify your agreement to and acceptance of (1) these Terms and Conditions of Use (“Agreement”) and (2) the Company’s Privacy Policy.

Your access to and use of the Website is subject to this Agreement. If you use the Website on behalf of a business, entity or other person, you represent to the Company that you have the authority to bind that business, entity or other person to this Agreement, and your acceptance of this Agreement will be considered as acceptance of that business, entity or other person. By using the Website, you are agreeing to comply with and be bound by the terms and conditions of this Agreement and any operating rules, regulations, policies, and procedures that may be modified from time-to-time on the Website.

If you do not understand and agree to any of the terms of this agreement or the privacy policy, please do not use the website. Any violation of these terms may result in the suspension or termination of your access to or use of the website or such other action permitted in accordance with the applicable agreement then in effect.

Access To and Use of the Website

1. Overview. The Company helps employees and employers to live in alignment with the goal of improving their business’ culture and productivity. The Website is therefore interactive, allowing you to identify your primary values in order to improve your decision making skills. The Website also allows you to sign up to receive e-mail newsletters, participate in webinars and purchase exclusive products. You can subscribe to different levels of membership geared toward improving your decision making skills, goal setting and living in alignment.
2. Access. Subject to this Agreement, we may offer to provide certain services and content, which are selected by you. The Website shall include, but not be limited to, the services we perform for you, as well as the offering of any materials to you for use or purchase, displayed or performed on the Website, including, but not limited to, audio clips, images, illustrations, interactive media, graphics, photographs, text and video clips (collectively, the “Content”). You understand that Content is the sole responsibility of the person from whom such Content originated. We may change, suspend or terminate your Account, including any Content, without prior notice for any reason, at any time, including instances where a particular piece of Content creates too large a demand on the Website. We may also impose limits on certain features and services or restrict your access to parts or all of the Website e without notice or liability. You acknowledge that all Content that you access using the Website is at your own risk and that you will be solely responsible for any damage to any party resulting therefrom.
3. Access to Password Protected/Secure Areas. Access to and use of password protected and/or secure areas of the Website is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Website may be subject to prosecution.
4. Services Offered by the Company. When you enroll to obtain services from the Company, you accept the specific terms and conditions applicable to such services in accordance with the then applicable Service Agreement. Except as provided in the Service Agreement, we do not warrant that any service description or content contained in the Website is accurate, current, reliable, complete or error-free.
5. Adults Only and Legal Use. (A) You certify that you are at least 18 years of age. If you are under 18, you may use the Service only with the involvement of a parent, guardian, or teacher. In accordance with U.S. Federal Children’s Online Privacy Protection Act of 1998, Company will never knowingly solicit, nor will it accept, “personally identifiable information” from any person known to be under 13 years of age. (B) You certify that it is legally permitted for you to access and use the Website, and that you take full responsibility for access of the Website and the selection and use of any services you obtain from us. (c) This Agreement is void where prohibited by law, and the right to access the Website is revoked in such jurisdictions.
6. License. Company hereby grants you for the subscription period chosen a limited, terminable, nonexclusive, nontransferable license to access and use the Website and Content in accordance with this Agreement.
7. Enforcement. Company reserves the right and has absolute discretion to enforce this Agreement. Company may, in its sole discretion, immediately terminate or suspend: (i) the Website; (ii) access to the Website; and/or (iii) a Service Agreement if it determines in its sole discretion that your services, offerings or activities violate this Agreement or upon receipt of claims or allegations from third parties or authorities relating to Content. Without limitation, Company also reserves the right to report any activity (including the disclosure of appropriate data or merchant information) that it suspects may violate any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Company also may cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct. If you wish to report any violations of these guidelines, please email us at: abuse@thinktoperform.com. You agree that the Company is not responsible or liable to you or to any third party for termination of your access to the Website.
8. No Unlawful or Prohibited Uses. The Website may only be used for lawful purposes. As a condition of your access to and use of the Website or the Content, you warrant that you will not use the Website for any purpose that is unlawful or prohibited by this Agreement. Activities including, but not limited to, tampering with the Website, misrepresenting the identity of a user, using buying agents or conducting fraudulent activities on the Website are strictly prohibited. Without limiting the generality of the foregoing, you are prohibited from violating or attempting to violate the security of the Website or the Content, including, without limitation:
   • Accessing data not intended for you or logging onto a server or an account that you are not authorized to access;
   • Using the Website for unintended purposes or trying to change the behavior or functionality of the Website;
   • Attempting to probe, scan or test the vulnerability of a system or network or breach security or authentication measures without proper authorization;
   • Attempting to interfere with service to any user, host or network, including without limitation via means of submitting malware to the Website or by overloading, “flooding,” “spamming,” “mailbombing” or “crashing” the Website;
   • Forging any header or any part of the header information in any e-mail or posting; orForging communications on behalf of the Website (impersonating the Website) or to the Website (impersonating another user). Sending unsolicited and unauthorized email on behalf of the Company, including promotions and/or advertising of products or services, is expressly prohibited.

You agree not to use any device, software or routine or data to interfere or attempt to interfere with the proper working of the Website or any activity being conducted on the Website. You agree not to use or attempt to use any engine, software, tool, agent, data or other device or mechanism including without limitation “browsers,” “spiders,” “robots,” “avatars,” “intelligent agents” or “offline readers” to navigate or search the Website (other than the search engine and search agents provided by the Company or those that are generally considered publicly available browsers (i.e., a conventional on-line web browser). Violations of system or network security may result in civil or criminal liability. Further, you will not, by way of example only and not by limitation:

• • • Post, transmit, or otherwise make available in connection with the Website:
      • Anything that is or may be considered (i) threatening, harassing, degrading, hateful or intimidating; (ii) defamatory; (iii) fraudulent; (iv) obscene, indecent, pornographic or otherwise objectionable; or (v) protected by copyright, trademark, trade secret, right of publicity or other proprietary right, without the express prior consent of the owner of such right;
      • Any material that would give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offense; or that encourages or provides instructional information about illegal activities or activities such as “hacking,” cracking,” or “phreaking”; or
      • Any material, non-public information about a company without the proper authorization to do so;
    • Use the Website to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others’ privacy rights or rights of publicity, or to harvest or collect personally identifiable information about other users of the Website;
    • Impersonate any person or entity, including without limitation any representative of the Company; falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Website; or express or imply that we endorse any statement you make;
    • Restrict or inhibit any other person from using the Website (including without limitation by hacking or defacing any portion of the Website);
    • Use the Website to advertise or offer to sell or buy any goods or services without the Company’s express prior written consent;
    • Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Website;
    • Modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Website;
    • Remove any copyright, trademark or other proprietary rights notice from the Website or the Content;
    • Frame or mirror any part of the Website without our express prior written consent; or
    • Create a database by systematically downloading and storing Website content.

Modifications to the Website

Company reserves the right to amend this Agreement and to modify or discontinue all or part of the Website, temporarily or permanently, with or without notice, and is not obligated to support or update the Website. The amended Terms of Use shall automatically become effective immediately after they are initially posted on this Website. Your continued use of the Website after the posting of the amended Terms of Use on the Website constitutes your affirmative: (a) acknowledgment of the Terms of Use and its modifications; and (b) agreement to abide and be bound by the Terms of Use, as amended. Should you object to any modifications of the Terms of Use, your only recourse is to immediately: (a) terminate use of the Website; and (b) notify us of your termination.

Registration & Purchases

1. Registration. As a condition to using certain components of the Website, you may be required to establish an account (“Account”) with us for a subscription period of your choosing. You will never let others use your Account unless your Account allows for multiple users. You agree to provide us with accurate, complete, and updated registration information for your Account (“Account Information”). Failure to do so shall constitute a breach of this Agreement, resulting in the immediate termination of your Account. We reserve the right to refuse registration of, or cancel an Account, in our discretion. If you are under the age of 13, your parent, guardian, or teacher should establish your Account so that your personally identifiable information is not provided to the Company.
2. Security. You are responsible for maintaining the confidentiality and security of your Account Information and for all activities that occur on or through your Account, and you agree to immediately notify the Company of any security breach of your Account. To report a matter of security, please e-mail us at: security@think2perform.com. Company shall not be responsible for any losses arising out of the unauthorized use of your Account.
3. Fees. Some portions or versions of the Website, including your Account and the Content, require payment of fees. All currency references are to U.S. Dollars. We reserve the right to change the fees charged for your enjoyment of the Website or for any Content you purchase through or in connection with Website and to institute new charges at any time. We do not provide price protection or refunds in the event of a price reduction or promotional offering.
4. Payment. You agree to pay all applicable fees, as described on the Website, in connection with the purchases, services or subscriptions you select. You agree that the Company may charge your credit or debit card or other payment account for all applicable fees (including any taxes and late fees, as applicable). YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING THE COMPANY WITH A VALID CREDIT OR DEBIT CARD OR OTHER PAYMENT ACCOUNT INFORMATION FOR PAYMENT OF ALL FEES. You authorize us, directly or through third parties, to make any inquiries we consider necessary to validate the information you submit to us.
5. Cancellation and Refund. We shall be entitled to rely on any cancellation request that appears legitimate and cancel your purchases or subscriptions on that basis. Our responsibility for improper cancellation is limited to reinstating your purchases or subscriptions upon your request. At the Company’s sole discretion, you’re Account Information, and Content you have purchased by means of your Account, including a terminated or suspended account, may be archived or purged. You agree that Company is not responsible or liable to you or to any third party for the deletion or failure to store, serve, or process any Content or for termination of your access to the Website as a result of cancellation.

Links to Third Party Sites

To enhance the user experience, some pages of the Website contain clickable words, phrases or images that navigate to a new document, page or section within the Website (“Internal Hyperlinks”) or to external, third-party websites or web pages (“External Hyperlinks”). While the Company creates and monitors the functionality of Internal Hyperlinks, the Company does not provide quality control of or otherwise monitor in any way the content on external, third-party websites or webpages to which External Hyperlinks take you (“Outside Content”). For purposes of this Agreement, “Outside Content” also includes by implication the content of third-party websites or webpages that link to the Website. The Company has not reviewed, cannot be reasonably expected to review and therefore does not assume any duty or obligation to review — or otherwise screen — Outside Content. Please be aware that the Company does not control, guarantee or influence the accuracy, appropriateness, availability, lawfulness, relevance, timeliness or thoroughness of Outside Content. Therefore, the Company disclaims any responsibility for Outside Content, including any commission, omission, submission, transmission or emission that may occur there, including matters that may be prohibited by law or that may infringe upon the rights of others. You are solely responsible for the consequences of, and assume all the risk for, interaction with Outside Content, being ever mindful that such content may violate the privacy or publicity rights, or infringe the proprietary, including intellectual property, rights of others and further that the act of copying, downloading, emailing or forwarding Outside Content may be subject to others’ terms and conditions of use, stated or unstated, or readily available only upon your request. When interacting with Outside Content, you are also solely responsible for taking necessary precautions to protect your technology systems from Malicious Code and any other industry-related device, software or routine, including those which implement reverse look-ups or traces on any information of any visitor to websites or webpages. You should not consider any hyperlink to or from a third-party website or web page as the Company’s endorsement of any such website or web page unless the Company expressly states so, as such hyperlinks are only provided for your convenience and in a good faith effort to enhance the user experience of the Service. You are advised to verify the privacy practices of all providers of Outside Content. The Company will not be responsible for the manner of use or misuse of information you specifically volunteer by entering information about yourself while accessing Outside Content, and information generally made available by your act of accessing Outside Content, including browser type and language, beacons, clickstream data, cookies, date/time stamp, IP address, ISP information, GPS position and any other technologies that inventory, log, reveal or otherwise track your interaction with Outside Content. The Company encourages you not to provide personal information at third-party websites and webpages without first familiarizing yourself with their privacy policies and taking such other action as you deem appropriate to prevent the accidental or unintentional disclosure of information about you.

Intellectual Property Rights

1. Ownership. The Website is proprietary to Company. All the text, graphics, images, marks, logos and other content of the Website (“Site Content”) contained in the Website, including but not limited to the arrangement, coordination, design, expression, look and feel, selection and structure of Site Content, is proprietary to Company or to third parties from whom Company has obtained permission. The Site Content is owned, controlled, or licensed by or to Company and is protected by trade dress, copyright, patent, and trademark laws, and various other intellectual property rights.
2. Prohibited Use. Except as otherwise expressly provided in this Agreement or by the applicable Service Agreement or otherwise permitted by law, the Site Content may not be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed, publicly performed by means of a digital audio transmission, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for publication or distribution or any commercial enterprise or purpose without the Company’s express prior written consent. Without limiting the generality of the foregoing, the Company authorizes you to view, download, and print the Site Content only on the following limited conditions: (I) you may only do so for your own personal and non- commercial use; (ii) you may not copy, publish or redistribute any Site Content; (iii) you may not modify Site Content; and (iv) you may not remove any copyright, trademark, or other proprietary notices that appear in the Site Content. You represent and warrant that your use of Site Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties.

Limitation of Liability

The company expressly disclaims any liability or loss arising from or related to the website (however arising, including negligence), including without limitation, liability or loss associated with unauthorized access to any server, merchant interfaces, websites, facilities, or your data or your customer data (including credit card numbers and other personally identifiable information) due to accident, illegal or fraudulent means, including hacking, or devices used by any third party, or other causes beyond the company’s reasonable control.You expressly agree that the company shall not be liable for any loss arising from infiltration of the website by means of software viruses, trojan horses, worms, time bombs, or any other software programs, or technology designed or intended to disrupt, damage, intercept or expropriate data from the website. As a condition of use of the website, you agree that neither company, nor any officer, affiliate, director, shareholder, agent, contractor or employee of company will be liable to you or any third party for any direct, indirect, incidental, special, punitive, or consequential loss of profits, loss of earnings, loss of business opportunities, damages, expenses, or costs resulting directly or indirectly from, or otherwise arising in connection with the website. The limitations set forth in this section apply to the acts, omissions, negligence, and gross negligence of company and its affiliates, parents, subsidiaries, contractors, subcontractors, officers, directors, shareholders, managers, employees, and agents, which, but for this provision, would give rise to a course of action in contract, or any other legal doctrine.

Disclaimer of Warranty & Limitation

The website and the content are provided on an “as is” and “as available” basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, merchantable quality, fitness for a particular purpose, non-infringement, title or any warranty or condition arising by usage or trade, course of dealing or course performance. Company makes no warranty that (a) the website will meet your requirements; (b) the website will be uninterrupted, timely, secure or error-free; (c) any products, sites, information, or other material whether in tangible or intangible form, purchased or obtained by you through the website will meet your expectations or any standard of quality; and (e) any defects in the operation or functionality of the website will be corrected. Some states do not allow limitations on how long an implied warranty lasts, so these limitations may not apply to you. No advice, representation, or information, whether oral or written, obtained by you from company or through the website shall create any warranty not expressly stated in the agreement. Except as otherwise limited, our liability and the liability of our parent, subsidiaries, officers, directors, employees and agents to you or any third parties in any circumstances under these terms shall be limited to the lesser of (a) the amount you pay us in the 30 days prior to the action giving rise to liability or (b) $100.

Idemnification

You agree to indemnify, defend and hold harmless Company, its parents, subsidiaries, affiliates, directors, officers, shareholders, agents, contractors and employees, from any claim or demand, including reasonable attorneys’ fees and court costs, made by any third party due to, arising from or out of: (a) your use of the Website; (b) your breach or alleged breach of any representation, warranty or other obligation; (c) your violation or alleged violation of any federal, state, international or local law and any and all regulations, rules or ordinances; (d) the negligence or willful misconduct by you or your employees or agents; (e) any violation of this Agreement; (f) your infringement of any intellectual property or other legal right of any person or entity; or (g) your advertising, marketing, promotion, sale, or distribution of any products or services. In the event you cause fines and/or penalties to be charged to the Company by the Credit Card Associations or any other entity, you agree to reimburse us immediately for said fines and/or penalties.

Disclosure

Certain statements that are not historical fact contained in the Site Content may constitute forward- looking statements. Such statements include, without limitation, statements about future financial and operating performance of the Company, as well as the Company’s plans, strategies, partnerships, products, service markets, growth prospects, successes, cost-effectiveness and security of new products or services, objectives, expectations, intentions or other statements that are not historical fact. Such statements are based on the then current beliefs and expectations of the Company’s management and are subject to significant risks and uncertainty and actual results may vary. Company undertakes no obligation to update any forward-looking statements. Nothing contained in the Site Content constitutes an offer to sell or solicitation of an offer to buy any of the Company’s securities.

Privacy Policy

Information collected by the Website will be treated in accordance with our Privacy Policy, the terms of which are incorporated herein by this reference. Our Privacy Policy is located at www.think2perform.com/privacy-policy.

Force Majeure

Company shall not be liable for any losses arising out of the delay or interruption of its performance of obligations due to any acts of God, acts of civil or military authorities, civil disturbances, terrorism, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions by a third party, infiltration or disruption of the Website by a third party, or other catastrophes or occurrences that are beyond Company’s reasonable control.

General Terms

1. Governing Law. This Agreement shall be governed in all respects by the laws of the State of Minnesota as they apply to agreements entered into and to be performed entirely within Minnesota between Minnesota residents, without regard to conflict of law provisions. Both parties agree that any claim or dispute between them must be resolved exclusively by a state or federal court situated in Minnesota, except as otherwise agreed by the parties. Both parties agree to submit to the personal jurisdiction of the courts located within Minnesota for the purpose of litigating all such claims or disputes, and hereby waive all claims of forum non conveniens.
2. Entire Agreement. Both parties agree that this Agreement constitutes the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.
3. Dispute Resolution. In the event of any controversy or dispute between the Company and you arising out of or in connection with your use of the Website, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If the parties are unable to resolve any such dispute within a reasonable time (not exceeding sixty (60) days), then either party must submit such controversy or dispute to mediation in Minnesota. If the dispute cannot be resolved through mediation, then the parties will be free to pursue any right or remedy available to them under applicable law.
4. Statute of Limitations. You and Company agree that any cause of action arising out of or related to the Website must commence within one (1) year after the cause of action accrues, regardless of any statute or law to the contrary.
5. Survival of Certain Provisions. All provisions of this Agreement, unless otherwise indicated herein, which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
6. No Waiver. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
7. Severability. If any portion of this Agreement is found to be unenforceable or contrary to law, it shall be modified to the least extent necessary to make it enforceable and the remaining portions of this Agreement shall remain in full force and effect.
8. No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to confer upon any person other than the parties and their respective successors or permitted assigns, any rights, remedies, obligations or liabilities whatsoever.
9. Relationship of the Parties. The performance by us of our duties and obligations under this Agreement shall be that of an independent contractor, and nothing herein shall create or imply an agency relationship between the parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the parties.
10. No Assignment. You may not assign, transfer or sublicense your obligations under this Agreement except with our prior written consent. We may transfer, assign or delegate this Agreement and our rights and obligations hereunder without consent.

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