User agreement

Last updated on May 15, 2020

Applicability of this user agreement

Execute to Win, LLC (“ETW”), provides certain professional services, such as installation, training and custom workshop services (collectively, the “Professional Services”) and web-based management services (“ETW Platform”), which Professional Services and ETW Platform are purchased from ETW by a customer (the “Customer”) for use by that Customer’s authorized users (each a “User” and collectively, the “Users”). Users may or may not be employees of the Customer. This User Agreement is a legally binding contract between ETW and you, the prospective user reading these words. Even though you are accessing the ETW Platform pursuant to rights purchased by the Customer who authorized you to access the ETW Platform, you must agree to comply with this User Agreement if you access or use the ETW Platform. If you have any questions over this document or what legal terms apply to your use of the Professional Services or ETW Platform, please contact ETW at support@etw.com.

Acceptance and modification to this user agreement

By accessing or using the ETW Platform, or by clicking to accept or agree to the User Agreement when this option is made available, you acknowledge that you have read, understand, and agree, without limitation or qualification, to be bound and abide by the User Agreement, which include our Privacy Policy, incorporated herein by reference. If you do not wish to agree to the User Agreement or the Privacy Policy, you must not access or use the ETW Platform. The ETW Platform is offered and available to users who are eighteen (18) years of age or older. By using the ETW Platform you represent and warrant that you are of legal age to form a binding contract with ETW. Also, please note that we may revise and update this User Agreement from time to time in our sole discretion. All changes are effective immediately when posted and apply to all access to and use of the ETW Platform thereafter. Your continued use of the ETW Platform following the posting of changes means that you accept and agree to the changes. It is your responsibility to check this User Agreement periodically for changes, as these changes are binding on you.

Notice regarding dispute resolution

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.

Our rights and obligations

This User Agreement contains provisions that govern the resolution of claims between you and ETW. It also includes an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration. Unless you opt out, you will only be able to pursue claims against ETW on an individual basis, not as part of any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

Privacy policy

We value your privacy and understand your privacy concerns. Please review our Privacy Policy, which also governs your access to and use of the ETW Platform, so that you may understand our privacy practices. All information we collect is subject to our Privacy Policy, and by using the ETW Platform, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. You further understand that any information collected by ETW may be transferred to the United States and/or other countries for storage, processing and use by ETW and its affiliates.

Your use is controlled by a customer

An organization or other third party that we refer to in this User Terms as a Customer has invited you to use the ETW Platform and join one or more of that Customer’s account. For example, if you are joining one of your employer’s accounts, then the Customer would be your employer.

The Customer who invited you to use the ETW Platform has separately agreed to our Customer Agreement, which permits that Customer to create and configure user accounts so that you and others may join as authorized Users. The Customer Agreement contains terms concerning ETW’s provision of the Professional Services and ETW Platform to Customer, who may then invite authorized Users, such as your, to join. When a User, such as you, submits any content or information to the ETW Platform (“Customer Data”), you acknowledge and agree that the Customer Data is owned by the Customer and the Customer Agreement provides the Customer with choices and control over that Customer Data. These choices and controls may result in the access, use, disclosure, modification or deletion of Customer Data.

AS BETWEEN ETW AND CUSTOMER, YOU AGREE THAT CUSTOMER IS SOLELY RESPONSIBLE TO (A) INFORM USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY ETW PLATFORM SETTINGS THAT MAY IMPACT ON THE HANDLING OF CUSTOMER DATA; (B) OBTAIN ANY RIGHTS, PERMISSIONS, OR CONSENTS FROM USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF CUSTOMER DATA AND THE OPERATION OF THE ETW PLATFORM, AND (C) RESPOND TO AN RESOLVE ANY DISPUTE WITH A USER RELATED TO OR BASED ON CUSTOMER DATA, THE ETW PLATFORM OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS. ETW MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE ETW PLATFORM OR THE PROFESSIONAL SERVICES AND ALL RELATED COMPONENTS AND INFORMATION, ALL OF WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. ETW EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. YOU ACKNOWLEDGE THAT ETW DOES NOT WARRANT THAT THE PROFESSIONAL SERVICES OR ETW PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.

Acceptable uses

To help ensure a safe and productive environment, all Users must comply with the following acceptable use standards when using the ETW Platform, as well as promptly report any inappropriate behavior or content to the Customer and ETW.

Acceptable uses. You agree to undertake the following:

  1. Comply with all applicable laws and government regulations, including, without limitation, privacy laws, intellectual property laws, export control laws, labor and employment laws, tax laws, and regulatory requirements.
  2. Upload and distribute only Customer Data to which Customer owns all required rights under law and under contractual and fiduciary relationships and do so only in compliance with all applicable laws and governmental regulations.
  3. Provide accurate information and update it as necessary.
  4. Use commercially reasonable efforts to prevent unauthorized access to our use of the ETW Platform.
  5. Protect passwords and access to sensitive personal information and other information that is confidential in nature.
  6. Keep everyone accountable. Assign action items and due dates to help everyone keep their promises to the team.
  7. Monitor and control activities conducted through your account.
  8. Promptly notify Customer and us of you are aware of or suspect any illegal or unauthorized activity or security breach, including any loss, theft or unauthorized disclosure or use of a user name or password.
  9. Regularly review and comply with this User Agreement.
  10. Regularly review and comply with our Privacy Policy.
  11. Review and comply with notices sent by ETW concerning the ETW Platform, and Use the ETW Platform in a professional manner.

Unacceptable uses. 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.
  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 ETW Platform.
  7. Rent, lease, loan, trade, sell/re-sell access to the ETW Platform 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 or the ETW Platform.
  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 the ETW Platform for purposes of monitoring ETW’s availability, performance or functionality for any competitive purpose, including for purposes of building a similar or competitive product or service or to copy any ideas, features, functions or components of the ETW Platform.
  11. Access the ETW Platform for purposes of monitoring ETW’s availability, performance or functionality for any competitive purpose, including for purposes of building a similar or competitive product or service or to copy any ideas, features, functions or components of the ETW Platform.
  12. Attempt to or actually access the ETW Platform by any means other than through the interfaces provided by ETW.
  13. Attempt to or actually override any security component included in or underlying the ETW Platform.
  14. Use the ETW Platform in a manner that may harm minors or that interacts with or targets people who are under the age of eighteen.
  15. 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 the ETW Platform, or transmitting or activating computer viruses through or on the ETW Platform.
  16. Interfere with or disrupt ETW or the ETW Platform, including, but not limited to, any servers or networks connected to ETW.

Your use rights and termination of such rights

This User Agreement remains in effect until your Customer’s subscription for you expires or is terminated, or your access to the ETW Platform has been terminated by the Customer or ETW. Please contact your Customer if you at any time wish to terminate your use of the ETW Platform, including due to any disagreement with this User Agreement.

Limitation of liability

If ETW believes that there is a violation of the Customer Agreement or this User Agreement, or any of our other polices that may be remedied by Customer’s removal of Customer Data or terminating a User’s rights, ETW will usually ask the Customer to take this action rather than intervening directly. However, ETW may take action when ETW believes it is appropriate and take action (such as suspending your User account) if Customer does not take appropriate action or ETW believes that there is a credible risk of harm to ETW, the ETW Platform, Users or any third parties.

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 US $100, 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 Professional Services or ETW Platform, 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:

  1. 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
  2. Not apply to any damage that ETW may cause you intentionally in violation of this User Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this User Agreement.

Notices and service of process

Notices to ETW shall be sent to 25 S. Arizona Place, Ste. 510, Chandler, AZ 85225.

Except as expressly provided for otherwise in this User Agreement, ETW shall provide all notices to you under this User Agreement by email, although we may instead choose to provide notice to you through the ETW Platform. For purposes of messages and notices about the ETW Platform applicable to all users, ETW may place a banner notice across the ETW Platform to alert you. 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 ETW Platform.

No informal waivers, agreements or representations

Our failure to act with respect to a breach of this User Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. 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.

Severability

In the event that any provision of this User Agreement is unenforceable or invalid under any applicable law, such unenforceability or invalidity shall not affect the other provisions of this User Agreement and this User Agreement shall be construed as if such unenforceable or invalid provision had never been contained herein.

Assignment and delegation

You may not assign or delegate any rights or obligations under this User Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under this User 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 User Agreement.

Dispute resolution

Except as set forth below, ANY DISPUTE OR CLAIM ARISING UNDER THIS USER AGREEMENT, INCLUDING THE PRIVACY POLICY INCORPORATED HEREIN BY REFERENCE, OR RELATING IN ANY WAY TO YOUR USE OF THE PROFESSIONAL SERVICES AND ETW PLATFORM WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT; provided, however, that the following are exceptions to our agreement to arbitrate our disputes:

  1. Any claim that qualifies as a small claim in a court of limited subject matter jurisdiction must be brought in such court; and
  2.  Any claim for injunctive relief may be brought in a court of competent jurisdiction to enjoin intellectual property infringement or misuse.

You may begin an arbitration proceeding by following the American Arbitration Association’s (AAA’s) filing requirements and mailing a request for arbitration and description of your claim to us at 25 S. Arizona Place, Ste. 510, Chandler, AZ 85225. The AAA’s Rules of Commercial Arbitration will apply (available at www.adr.org or by calling 1-800-778-7879). The arbitrator will have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of this agreement to arbitrate. Notwithstanding any of the foregoing, THE ARBITRATOR WILL NOT BE EMPOWERED AND DOES NOT HAVE THE AUTHORITY TO HEAR OR DECIDE ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO AWARD PUNITIVE OR EXEMPLARY DAMAGES OR TO AWARD ATTORNEYS’ FEES TO THE PREVAILING PARTY.

You may opt out of this agreement to arbitrate by providing written notice of your intention to do so to ETW within 60 days of the earlier of your first use of the ETW Platform or your registration with the ETW Platform.

By receiving the ETW Professional Services or using the ETW Platform, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Arizona, without regard to principles of conflict of laws, will govern this User Agreement (including the Privacy Policy incorporated herein by reference) and any dispute or claim of any sort that might arise between you and ETW. The prevailing party in any judicial action to enforce this arbitration agreement shall be entitled to a judgment that includes all fees and costs incurred in such action.

Any cause of action or claim you may have arising out of or relating to the User Agreement or the ETW Platform must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.

Entire Agreement

You agree that this User Agreement, including the documents incorporated herein by reference such as the Privacy Policy, constitutes the entire, complete and exclusive agreement between you and us regarding the Professional Services and ETW Platform 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.