PinchCoach.com Terms and Conditions
PinchCoach.com (“PinchCoach”) provides services
(the "Services")
to you ("you or the "User") at www.pinchcoach.com ("Site"). Your use of the site
indicates your consent to this contract formed between you and FairPlay Solutions, Inc.
("FairPlay" or "FairPlay Solutions") for the use of PinchCoach.com's services, according to the following
Terms of Use ("Terms"). Unless expressly stated otherwise, these Terms of Use shall apply
to any use of the PinchCoach website, the Services, and any service, application,
plug-in, component, functionality or program created or made available by
PinchCoach or FairPlay.
By visiting, registering with or using the PinchCoach Site, you represent and
warrant that you have read, understand and have the legal capacity to, and hereby
agree to be legally bound by these terms of use. This agreement forms a contract
between you and FairPlay Solutions, Inc. for the use of the content, software
and services made available on the PinchCoach site.
Certain PinchCoach Services may require you to download software or content
and/or to agree to additional terms and conditions. Unless otherwise
provided by the additional terms and conditions applicable to FairPlay Solutions
in which you choose to participate, those additional terms are herby incorporated into
this agreement.
A. MODIFICATIONS TO THIS AGREEMENT.
We reserve the right, at our sole discretion, to
change, modify or otherwise alter these Terms of Use at any time. What
constitutes a “material change” shall be at the sole and exclusive discretion of
FairPlay Solutions, Inc. We encourage you to periodically review these
Terms of Use at www.pinchcoach.com/termsofuse.
Any modifications to these Terms shall become effective immediately
upon the posting thereof. Therefore, we encourage you to check the date of our
Terms of Use whenever you visit PinchCoach.com to check if they have been
updated. You must review this agreement on a regular basis to keep yourself
apprised of any changes. If you do not agree to the revised Terms of Use, your
sole recourse is to immediately stop all use of the Services. Your continued use
of the Services following the posting of modifications will constitute your
acceptance of the revised Terms of Use. Should you have any questions regarding
the use of our site, please contact us at: support@pinchcoach.com.
B. YOUR REGISTRATION OBLIGATIONS.
We provide the Services for your personal use. You may not use the Services
to conduct business without a separate written contract with FairPlay.
To obtain and use the Services, you will be required to register with PinchCoach
by completing a registration form and designating a username and password. When
registering with PinchCoach you agree to: (a) provide true, accurate, current and
complete information about yourself as prompted by the Service’s registration
form (such information being the “Registration Data”) and (b) maintain and
promptly update the Registration Data to keep it true, accurate, current and
complete. If you provide any information that is untrue, inaccurate, not current
or incomplete, or we have grounds to suspect that such information is untrue,
inaccurate, not current or incomplete, we may suspend or terminate your account
and refuse any and all current or future use of the Services (or any portion
thereof).
You may not authorize any third party to access or use the Services on your
behalf. You are responsible for maintaining the confidentiality of the username
and password, and are fully responsible for all activities that occur under your
username or password. You agree to immediately notify FairPlay of any unauthorized
use of your username or password or any other breach of security. FairPlay cannot
and will not be liable for any loss or damage arising from any unauthorized use
of your account.
C. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION.
By registering with PinchCoach, you understand that we may send you
communications or data from FairPlay regarding the Services, including but not
limited to (i) notices about your use of the Services, including any notices
concerning violations of use, (ii) updates, and (iii) promotional information
and materials regarding FairPlay Solutions' products and services, via electronic mail.
D. USER CONDUCT/ACCEPTABLE USE POLICY.
You may not use the Services in any way that violates applicable federal,
state, or international law, or for any unlawful purpose. You may not use the
Services to send, receive, or download messages or materials that are
inappropriate or violate the intellectual property rights of FairPlay Solutions or others.
To the extent that the Services provide Users an opportunity to post, store
and exchange articles, information, materials, data, files, programs,
photographs, concepts, communications, footage, ideas and opinions (“User
Content”), you agree to and hereby do grant, and you represent and warrant that
you have the right to grant, FairPlay, its contractors, and the users of the
PinchCoach Site an irrevocable, perpetual, non-exclusive, royalty-free, fully
sublicensable, fully paid up, worldwide license to use, copy, publicly perform,
digitally perform, publicly display, and distribute such content and to prepare
derivative works of, or incorporate into other works, such content, including a
User’s likeness. This license does not grant FairPlay Solutions the right to sell User
Content or otherwise distribute it outside of FairPlay’s Services. FairPlay does not
claim any ownership rights in any User Content; you continue to retain all
ownership rights in such User Content.
Content posted by users and other non-FairPlay Solutions
contributors are generally not reviewed by FairPlay. FairPlay shall have the right,
but not the obligation, to reject, refuse to post, or otherwise monitor all
content displayed by users, and may remove or require users to remove all
content that FairPlay, in its sole discretion, deems to be (a) inconsistent with
FairPlay’s strategic mission and vision (including but not limited to content that
contains undesirable images of or links or references to tobacco and alcohol
products, profanity, pornography, violence or prejudicial content) and/or these
Terms of Use; or (b) possibly in violation of applicable law. In addition,
FairPlay has the right to remove any content if FairPlay has reason to believe that
displaying such content may infringe the rights of a third party or subject
FairPlay to expense or liability. Please notify us at support@pinchcoach.com of any content that you
believe might violate applicable law or your intellectual property rights or
contain undesirable images of or links or references to tobacco and alcohol
products, profanity, pornography, violence, prejudicial content, or content that
is obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable.
FairPlay reserves the right, in its sole discretion, to determine whether and
what action to take in response to each such notification, and any action or
inaction in a particular instance shall not dictate or limit FairPlay’s response
to a future complaint. You acknowledge and agree that FairPlay shall not assume or
have any liability for any action or inaction by FairPlay with respect to any User
Content. Users shall remain solely responsible for User Content, and any
material or information transmitted to other Users for interaction with other
Users.
Additionally, FairPlay reserves the right to terminate your access to and use
of the Services, if, in our view, your conduct fails to meet any of the
following guidelines for User conduct:
Use of the Site and The Services for commercial purposes is not permitted.
FairPlay reserves the right, at any time, in its sole and absolute discretion and
for any reason or no reason, to delete any User Content that is commercial in
nature (any such User Content being "Commercial Content") or to terminate access
to and use of the Services by any User who posts Commercial Content. The Site
and the Services may from time to time include features available for Commercial
Content, and FairPlay reserves the right, at any time, in its sole and absolute
discretion and for any reason or no reason, to change, add, remove or
selectively allow or require the use of any such features by any User who
desires to post Commercial Content, as well as to amend these Terms of Use to
include provisions to regulate such Commercial Content and the conduct of Users
who post Commercial Content.
- You may not attempt to harm, disrupt, or otherwise engage in activity that
diminishes or degrades, the PinchCoach Site, computer systems and network, or the
Services.
- You may not attempt to interfere with any other person’s use of the
Services.
- You may not misrepresent your identity or impersonate any person, or use the
account, username, or password of another User at any time.
- You may not attempt to gain access to any account, computers or networks
related to the Services without authorization.
- You may not attempt to obtain any data through any means from the Services,
except if we intend to provide or make it available to you.
- You may not attempt to charge others to use the Services either directly or
indirectly.
- You may not cover or obscure advertisements on any page of the PinchCoach Site.
- You may not use the Services to participate in commercial activities and/or
sales without our prior written consent such as contests, sweepstakes, barter,
advertising, pyramid schemes or chain letters.
- You may not engage in any illegal or unauthorized copying of another
person’s copyrighted or copyrightable work, including, but not limited to, (1)
pirated computer programs or links to them, (2) information which circumvents
manufacturer-installed, copy-protect devices, (3) pirated music or links to
pirated music files, or (4) otherwise violates another person’s proprietary
rights.
- You may not provide instructional information about illegal activities such
as making or buying illegal weapons, violating someone’s privacy, or providing
or creating computer viruses.
- You may not use the Services to send, either directly or indirectly, any
unsolicited bulk e-mail or communications or unsolicited commercial e-mail or
communications.
- You may not use the Services to exploit people in a sexual or violent
manner.
- You may not use the Services to solicit personal information from anyone
under 18.
- You may not use the Services to solicit passwords or personal identifiable
information for commercial or unlawful purposes.
- You may not use the Services for defaming, abusing, harassing, stalking,
threatening or otherwise violating the legal rights (such as rights of privacy
and publicity) of others.
- You may not use the Services to send or otherwise make available, any
material protected by intellectual property laws unless you own or control the
rights to such material or have received all necessary consents.
- You may not use the Services to send or otherwise making available any
material that contains viruses, Trojan horses, worms, corrupted files, or any
other similar software that may damage the operation of another’s computer or
property.
- You may not use the Services to download any material sent by another User
of the Services that you know, or reasonably should know, cannot be legally
distributed in such manner.
- You may not use the Services to violate any code of conduct or other
guidelines which may be applicable to the Services or the Site.
- You may not use the Services to harvest or otherwise collect information
about others.
- You may not attempt to modify, translate, adapt, edit, copy, decompile,
disassemble, or reverse engineer any software used or provided by FairPlay in
connection with the PinchCoach Site or Services.
All judgments concerning the applicability of these
guidelines shall be at the sole and exclusive discretion of FairPlay. Should your
access to and use of the Services be terminated, you have the right to appeal
such termination by writing to support@pinchcoach.com.
E. INTELLECTUAL PROPERTY RIGHTS AND NOTICES.
All contents of the PinchCoach Site and Services including but not limited to
design, text, software, technical drawings, configurations, graphics, other
files, and their selection and arrangement (“Content”) are: Copyright © 2009
FairPlay Solutions, Inc. and/or the proprietary property of FairPlay Solutions, Inc.’s suppliers,
affiliates, or licensors. Content may not be reproduced, modified, derivative
works created from, displayed, performed, published, distributed, disseminated,
broadcasted or circulated to any third party (including, without limitation, the
display and distribution of the material via a third party Web sites or other
networked computer environment) without the express prior written consent of
FairPlay and/or its suppliers, affiliates, or licensors. All rights reserved.
PinchCoach, PinchCoach.com, the PinchCoach logo, FairPlay Solutions, Inc.,
and FairPlay are
including without limitation, either trademarks, service marks or registered
trademarks of FairPlay Solutions, and may not be copied, imitated, or used, in whole or in
part, without FairPlay’s prior written permission or that of our suppliers or
licensors. Other product and company names may be trade or service marks of
their respective owners.
FairPlay may have patents, patent applications, trademarks, copyrights, or
other intellectual property rights covering subject matter in its site that are
part of the Services. Unless we have granted you licenses to our intellectual
property in these Terms of Use, our providing you with such Web pages does not
give you any license to our intellectual property. Any rights not expressly
granted herein are reserved.
F. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
FairPlay respects copyright law and expects Users to do the same.
If you believe that your work has been copied in a way that constitutes
copyright infringement, please provide FairPlay’s Agent for Notice of claims of
copyright or other intellectual property infringement (“Agent”) the written
information specified below: (1) An electronic or physical signature of the
person authorized to act on behalf of the owner of the copyright interest; (2) A
description of the copyrighted work that you claim has been infringed upon; (3)
A description of where the material that you claim is infringing is located on
the Web site; (4) Your address, telephone number, and e-mail address; (5) 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; (6) A statement by
you, made under penalty of perjury, that the above information in your notice is
accurate and that you are the copyright owner or authorized to act on the
copyright owner’s behalf.
FairPlay's Agent can be reached at:
G. THIRD PARTY CONTENT, SITES AND SERVICES.
The Services contain features and functionalities that may link you or
provide you with certain functionality and access to third party content,
including Web sites, directories, servers, networks, systems, information and
databases, applications, software, programs, products or services, and the
Internet as a whole. We may also provide some content to you as part of the
Services. We are not responsible for any third party content you access with the
Services, and you irrevocably waive any claim against us with respect to such
sites and third-party content. You should make whatever investigation you feel
necessary or appropriate before proceeding with any online or offline
transaction with any of these third parties. You are solely responsible for your
dealings with any third party related to the Services, including the delivery of
and payment for goods and services.
H. PRIVACY.
You acknowledge and agree that FairPlay Solutions may disclose
your personal information if required to do so by law or in the good faith
belief that such preservation or disclosure is reasonably necessary to comply
with legal process, to enforce these Terms of Use, or, in its sole discretion,
to protect the rights, property, or personal safety of FairPlay, its employees,
users and third parties, and the public.
I. FAIRPLAY MAKES NO WARRANTIES.
FairPlay intends for the information contained on its Site and Services to be
accurate and reliable; however, errors sometimes may occur. In addition, FairPlay
may make changes and improvements to the information provided herein at any
time.
FAIRPLAY PROVIDES ITS SITE AND SERVICES “AS IS,” “WITH ALL FAULTS” AND “AS
AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE,
ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, FAIRPLAY SOLUTIONS, ITS AFFILIATES, RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND/OR
SUPPLIERS (EACH, AN “FAIRPLAY PARTY,” AND COLLECTIVELY, THE “FAIRPLAY PARTIES”) MAKE
NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. THE FAIRPLAY
PARTIES DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND
IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY,
TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2)
WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE,
AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE WEB SITES WILL BE
UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR
EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS
MAY NOT APPLY TO YOU. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF
THIS CONTRACT.
J. LIABILITY LIMITATION; YOUR EXCLUSIVE REMEDY.
IN NO EVENT WILL ANY FAIRPLAY PARTY BE LIABLE FOR ANY DAMAGES, INCLUDING
WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE
DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS CONTRACT OR YOUR USE OF
THE SOFTWARE OR SERVICE, EVEN IF SUCH FAIRPLAY PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER SECTION J IS
INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS
OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS
AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH
OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF
ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY
APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY
TO YOU. IF YOU ARE DISSATISFIED WITH THE SERVICE, YOU DO NOT AGREE WITH ANY PART
OF THIS CONTRACT, OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST ANY
FAIRPLAY PARTY WITH RESPECT TO THIS CONTRACT OR THE SERVICE, THEN YOUR SOLE AND
EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE.
K. CHANGES TO THE SERVICE; ADDITIONAL LIABILITY LIMITATION.
WE MAY CHANGE THE SOFTWARE AND SERVICE OR DELETE FEATURES AT ANY TIME AND FOR
ANY REASON. WITHOUT LIMITING THE GENERAL NATURE OF SECTIONS I AND J, THE FAIRPLAY
PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT
LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING,
OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY
CONDUCT, TRANSMISSIONS OR DATA. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF
SECTIONS I AND J, FAIRPLAY IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR
OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE SOFTWARE AND
SERVICES, (2) ANY INCOMPATIBILITY BETWEEN THE SOFTWARE AND SERVICES AND OTHER
WEB SITES, SERVICES, SOFTWARE AND HARDWARE, (3) ANY DELAYS OR FAILURES YOU MAY
EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR
TRANSACTIONS IN CONNECTION WITH THE SOFTWARE AND SERVICES IN AN ACCURATE OR
TIMELY MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY
WAY CONNECTED WITH YOUR USE OF ANY SOFTWARE AND SERVICES AVAILABLE FROM THIRD
PARTIES THROUGH LINKS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS
MAY NOT APPLY TO YOU.
L. INDEMNIFICATION.
You agree to indemnify, defend and hold harmless, FairPlay, its affiliates, and
their respective officers, directors, employees, agents, licensors,
representatives, and third party providers, to and from and against all losses,
expenses, damages and costs, including reasonable attorneys’ fees, resulting
from any violation of these Terms of Use by you. FairPlay reserves the right to
assume, at its sole expense, the exclusive defense and control of any matter
subject to indemnification by you, in which event you will fully cooperate with
FairPlay Solutions in asserting any available defenses.
M. UNITED STATES EXPORT CONTROLS.
Software available in connection with the PinchCoach Services is further subject
to United States export controls. No software may be downloaded from the PinchCoach
Services or otherwise exported or re-exported in violation of United States
export laws. Downloading or using the Software is at your sole risk.
N. TERMINATION OF SERVICE.
We may terminate or suspend your access to the Services at any time, in our
sole discretion, without cause and/or without notice. Upon termination, your
right to use the Services stops immediately. ONCE THE SERVICES ARE CANCELLED OR
SUSPENDED, ANY DATA YOU HAVE STORED ON PINCHCOACH’S SYSTEMS MAY NOT BE RETRIEVED
LATER. This provision does not apply, however, to data stored by users under the
age of 13 in the event that a parent of that child is requesting retrieval
and/or deletion of that information.
O. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES.
These Terms of Use shall be governed by and construed in accordance with the
laws of the State of Texas, excluding its conflicts-of-law principles.
Please note that your use of the Services may be subject to other local, state,
national, and international laws. You expressly agree that exclusive
jurisdiction for any claim or dispute with FairPlay or relating in any way to your
use of the Services resides in the courts of Texas and you further agree
and expressly consent to the exercise of personal jurisdiction in the courts of
Texas in connection with any such dispute including any claim involving
PinchCoach or its affiliates, subsidiaries, employees, contractors, officers,
directors, telecommunication providers and content providers.
P. NOTICES TO FAIRPLAY SOLUTIONS.
You may notify us by e-mail at support@pinchcoach.com
Q. OTHER TERMS.
If any part of these Terms of Use are determined to be invalid or
unenforceable pursuant to applicable law including, but not limited to, the
warranty disclaimers and liability limitations set forth above, then the invalid
or unenforceable provision will be deemed superseded by a valid enforceable
provision that most closely matches the intent of the original provision, and
the remainder of the Agreement shall continue in effect. A printed version of
these Terms of Use and of any notice given in electronic form shall be
admissible in judicial or administrative proceedings based upon or relating to
these Terms of Use to the same extent and subject to the same conditions as
other business documents and records originally generated and maintained in
printed form. All rights not expressly granted herein are reserved.
R. MISCELLANEOUS.
FairPlay may assign this contract, in whole or in part, at any time with or
without notice to you. You may not assign this contract, or any part of it, to
any other party. Any attempt by you to do so is void. ANY CLAIM RELATED TO THIS
CONTRACT OR THE SOFTWARE AND SERVICE MUST BE BROUGHT WITHIN ONE YEAR. THE
ONE-YEAR PERIOD BEGINS ON THE DATE WHEN THE CLAIM FIRST COULD BE FILED. IF IT IS
NOT, THEN THAT CLAIM IS PERMANENTLY BARRED. THIS APPLIES TO YOU AND YOUR
SUCCESSORS. IT ALSO APPLIES TO US AND OUR SUCCESSORS AND ASSIGNS. The failure of
FairPlay to exercise or enforce any right or provision of the Terms of Use shall
not constitute a waiver of such right or provision. The section titles in the
Terms of Use are for convenience only and have no legal or contractual
effect.
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