Terms of Use

THESE SHARP PERFORMANCE TERMS OF SERVICE (THESE “TERMS OF SERVICE”) CREATE A LEGALLY BINDING AGREEMENT BETWEEN THE PERSON CLICKING TO AGREE TO THESE TERMS OF SERVICE (“YOU” OR “YOUR”) AND SHARP PERFORMANCE, INC. (“SHARP PERFORMANCE”) AND GOVERNS THE USE OF THE COACHING SOFTWARE-AS-A-SERVICE PLATFORM OFFERED BY SHARP PERFORMANCE (THE “PLATFORM”).

BY CLICKING THE “CONTINUE” BUTTON, YOU CONFIRM THAT YOU: (A) HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE; (B) YOU REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THESE TERMS OF SERVICE AND AGREES TO BE LEGALLY BOUND BY ITS TERMS.

1. Grant of Rights
   
   1. Access Rights. Subject to the terms and conditions of these Terms of Service, Sharp Performance hereby grants You during the Term, a limited, nonexclusive, non-transferrable, non-sublicensable right to access and use the Platform during the Term solely for coaching, training, and accessing available resources to permit You to access and use the Platform in accordance with the Documentation (the “Access Right”). You may access and use the Platform only through access credentials provided by Sharp Performance. Access credentials are unique to You and You may not share or distribute them without the prior written consent of Sharp Performance.
   2. Your Data. You grant to Sharp Performance a perpetual, royalty free, fully paid up, world-wide, irrevocable right and license to reproduce, distribute, transmit, display, reformat, modify, create derivative works of, and otherwise use any: (a) Your Data in order to perform Sharp Performance’s obligations under these Terms of Service; and (b) metadata, telemetry data and usage data collected in connection with Your use of the Platform in order to improve Sharp Performance’s products and services. You will obtain, at its sole expense, all consents, rights, licenses, permissions and clearances (and provide all notices) required under applicable laws for Sharp Performance to use Your Data for the purposes contemplated by these Terms of Service. You represent and warrant to Sharp Performance that You have all rights in Your Data necessary to grant the license to Sharp Performance set forth in this Section 1.2
   3. Anonymized Data. In addition to Section 1.2, You hereby grant to Sharp Performance a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license to anonymize, aggregate, and create the Anonymized Data. You hereby unconditionally and irrevocably assign and agree to assign to Sharp Performance all right, title, and interest in and to the Anonymized Data, including all intellectual property rights relating thereto.
   4. Third-Party Materials. Sharp Performance may from time to time make Third-Party Materials available to You or use services within Third-Party Materials to provide the Platform. You acknowledge that such Third-Party Materials are subject to their own terms and conditions and that in the case of conflict between these Terms of Service and such terms and conditions, the third party terms and conditions will control.
2. ‍Free Services. From time to time, Sharp Performance may (i) offer features related to the Platform that are not generally available to all of its customers or the public; and (ii) release or offer products or features including or relating to the Platform that are identified as beta, preview, pilot, limited release, free trial or similar designation (collectively, “Free Services”). Free Services are provided for evaluation, informational or testing purposes only, may contain bugs or errors, and may not be as reliable as other features of the Platform. The Free Services are provided “as-is,” with no warranty whatsoever. Your use of Free Services may include additional rules or restrictions and is at Your sole risk. Sharp Performance may discontinue Free Services at any time in its sole discretion, and may decide not to make Free Services generally available. For the avoidance of doubt, Free Services are a part of the Sharp Performance Materials. IN NO EVENT WILL SHARP PERFORMANCE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO FREE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED FIVE HUNDRED DOLLARS ($500.00).
3. Availability, Control & Service Management.
   1. Service and System Control. Except as otherwise expressly provided in these Terms of Service, as between the parties: (a) Sharp Performance has and will retain sole control over the operation, provision, maintenance, and management of the Sharp Performance Materials; and (b) You have and will retain sole control over the operation, maintenance, and management of, and all access to and use of, Your computer, Internet and connectivity systems, and sole responsibility for all access to and use of the Sharp Performance Materials by any person or entity by or through the Your systems or any other means controlled by You, including any: (i) information, instructions, or materials provided by any of them to the Platform or Sharp Performance; (ii) results obtained from any use of the Sharp Performance Materials; and (iii) conclusions, decisions, or actions based on such use. Sharp Performance reserves the right, from time to time, to modify, add to, or replace the Platform.
   2. Suspension. In addition to any other remedies, Sharp Performance may suspend or otherwise deny You use of all or any part of the Sharp Performance Materials, without incurring any resulting obligation or liability: (a) if Sharp Performance receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Sharp Performance to do so; or (b) if Sharp Performance believes that: (i) You have failed to comply with any term of these Terms of Service, or have accessed or used the Sharp Performance Materials beyond the scope of the rights granted or in any manner that does not comply with the Documentation; (ii) You have been, or may be involved in, any fraudulent, misleading, or unlawful activities; (iii) suspension is necessary to protect the Sharp Performance Materials; or (c) these Terms of Service expire or are terminated.
4. Restrictions
   1. Sharp Performance Restrictions. Sharp Performance agrees: (a) not to disclose, or make available or accessible, Your Data to any third party or other unauthorized person or entity, except as permitted under these Terms of Service; (b) not to access Your Data for any use other than as permitted hereunder; (c) to restrict use of Your Data only to authorized personnel, to take reasonable precautions to protect Your Data from unauthorized disclosure, and to abide by all applicable laws related to Your Data; (d) to anonymize Your Data to produce the Anonymized Data; (e) to notify You promptly if it learns of any unauthorized use or breach of security of the Sharp Performance operating environment; and (f) to restrict the access to, and use of Your Data only to authorized personnel within Sharp Performance’s organization.
   2. By You. You will not and will not permit any other person or entity to access or use Sharp Performance Materials except as expressly permitted by these Terms of Service and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, You will not, except as these Terms of Service expressly permit: (a) copy, modify, translate or create derivative works or improvements of Sharp Performance Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Sharp Performance Materials; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any Sharp Performance Materials; (d) bypass or breach any security device or protection used by the Platform; (e) input, upload, transmit, or otherwise provide to or through the Platform or Sharp Performance’s Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (f) access or use Sharp Performance Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any third-party intellectual property right or applicable law; (g) access or use Sharp Performance Materials for purposes of competitive analysis of Sharp Performance Materials, the development, provision, or use of a competing software service or product or any other purpose that is to Sharp Performance’s detriment or commercial disadvantage; or (h) otherwise access or use Sharp Performance Materials beyond the scope of the authorization granted under these Terms of Service.
5. ‍Term and Termination.
   1. Term. The term of these Terms of Service will be the term purchased by the organization that employs you or through which you have been provided access to the Platform (the “Term”). These Terms of Service will expire on the expiration of the Term unless earlier terminated pursuant to the express provisions of these Terms of Service.
   2. Termination for Cause. Either party will have the right to terminate these Terms of Service if the other party commits a material breach of these Terms of Service and such breach remains uncured thirty (30) days after written notice thereof. Either party may terminate these Terms of Service, effective immediately upon written notice to the other party, if the other party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   3. Effect of Termination. Upon termination or expiration of these Terms of Service:
      
      1. all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate (except for those that expressly survive by their terms) and Sharp Performance may disable Your access to the Sharp Performance Materials;
      2. Sharp Performance will immediately cease all use of any of Your Data or Your Confidential Information and (i) at Your written request if received within thirty (30) days of the expiration or termination of this Agreement, destroy all documents and tangible materials to the extent containing, reflecting, incorporating, or based on Your Data provided, however, that Sharp Performance’s obligations under this Section 5.3(b) do not apply to any Anonymized Data; and
      3. You will immediately cease all use of the Sharp Performance Materials and (i) within thirty (30) days return to Sharp Performance, or at Sharp Performance’s written request destroy, all documents and tangible materials to the extent containing, reflecting, incorporating, or based on any Sharp Performance Materials or Sharp Performance’s Confidential Information, and (ii) certify the same in writing.
   4. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in these Terms of Service that, by its nature, should survive termination or expiration of these Terms of Service, will survive any expiration or termination of these Terms of Service: Sections 1.2, 1.3, 1.4, 2, 4.2, 5.3, 7, 8, 9,10, 11 and 12.
6. ‍Security
   1. Security; Subcontractors. Sharp Performance will employ reasonable administrative, physical and technical safeguards to prevent access to, and disclosure of, Your Data in breach of these Terms of Service. Sharp Performance will, during the Term, maintain and comply with a commercially reasonable data breach plan and will implement the procedures required under such plan on the occurrence of a data breach (as defined in that plan). Sharp Performance may use contractors and consultants in performance of its obligations under these Terms of Service.
7. ‍Confidentiality
   1. Definitions. From time to time during the Term, Sharp Performance may disclose or make available to You information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that is: (a) in the public domain at the time of disclosure or subsequently falls into the public domain through no fault of You; (b) known to You at the time of disclosure; (c) rightfully obtained by You on a non-confidential basis from a third party without confidentiality obligations to Sharp Performance; (d) Anonymized Data; or( e) independently developed by You.
   2. Obligations. You will not disclose Sharp Performance’s Confidential Information to any person or entity, except to Your employees, agents, affiliates, or subcontractors who have a need to know the Confidential Information for You to exercise Your rights or perform Your obligations hereunder. Notwithstanding the foregoing, You may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that You will first (to the extent permitted by law) have given written notice to Sharp Performance and, at the request and expense of Sharp Performance, have made a reasonable effort to obtain a protective order; or (b) to establish Sharp Performance’s rights under these Terms of Service, including to make required court filings. Your obligations of non-disclosure with regard to Confidential Information are effective as of the date of disclosure of such Confidential Information and will expire five (5) years from the termination or expiration of these Terms of Service; provided, however, with respect to any Confidential Information that constitutes a trade secret under applicable law, Your obligations will continue for as long as such item of Confidential Information constitutes a trade secret under applicable law.
8. ‍Intellectual Property Rights.
   1. Sharp Performance Materials. As between You and Sharp Performance, all right, title, and interest in and to the Sharp Performance Materials, including all intellectual property rights therein, are and will remain with Sharp Performance. The applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials. You have no right, license, or authorization with respect to any of the Sharp Performance Materials except as expressly set forth in Sections 1.1 and 1.2 or the applicable third-party license, in each case subject to Section 4.2.
   2. Feedback. If You send or transmit any communications or materials to Sharp Performance by mail, email, telephone, through the Platform, or otherwise, suggesting or recommending changes to the Sharp Performance Materials, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Sharp Performance is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. You hereby assign to Sharp Performance on Your behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Sharp Performance is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Sharp Performance is not required to use any Feedback.
   3. Your Data. As between You and Sharp Performance, You are and will remain the sole and exclusive owner of all right, title, and interest in and to all Your Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted herein.
9. ‍Disclaimer of Warranties. THE SHARP PERFORMANCE MATERIALS ARE PROVIDED “AS IS.” SHARP PERFORMANCE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, DATA ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER.
10. ‍Indemnification. You will indemnify and hold harmless, Sharp Performance from and against any losses resulting from any third-party claim based on: (a) Your breach of these Terms of Service; (b) Your gross negligence or willful misconduct; or (c) Your violation of any applicable laws.
11. ‍Limitations of Liability.
    1. Limitation of Liability. IN NO EVENT WILL SHARP PERFORMANCE BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SHARP PERFORMANCE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. Cap on Liability. IN NO EVENT WILL SHARP PERFORMANCE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO SHARP PERFORMANCE BY YOU TO SHARP UNDER THESE TERMS OF SERVICE, OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.
12. ‍Miscellaneous.
    1. Further Assurances. On a party’s reasonable request, the other party will, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to these Terms of Service.
    2. Relationship of the Parties. Nothing contained in these Terms of Service will be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor its agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
    3. Notices. Each party will deliver all notices, requests, consents, claims, demands, waivers, and other communications under these Terms of Service (each, a “Notice”) in writing and addressed to You at the email address you provided when creating an account and to Sharp Performance at sharp_admin@sharpperformance.tech. Each party will deliver all Notices via email. Except as otherwise provided in these Terms of Service, a Notice is effective only upon receipt by the receiving party and is deemed received upon delivery if not rejected or returned.
    4. Entire Agreement. These Terms of Service and any other documents incorporated herein by reference, constitute the sole and entire agreement of the parties with respect to the subject matter of these Terms of Service, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter of these Terms of Service.
    5. Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Sharp Performance. Subject to the foregoing, these Terms of Service will bind and insure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section will be null and void.
    6. Force Majeure. Neither party will be liable for any failure to perform any of its obligations under these Terms of Service due to unforeseen circumstances or causes beyond the party’s reasonable control, including acts of God, riot, embargoes, acts of governmental authorities, fire, earthquake, epidemics or pandemics, flood, acts of terror, computer attacks or malicious acts (such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility) and accidents.
    7. No Third-Party Beneficiaries. These Terms of Service are not intended to confer any benefit on any person or entity not a party to these Terms of Service.
    8. Amendment and Modification; Waiver. No amendment or modification of any provision of these Terms of Service will be effective unless in writing and signed by a duly authorized signatory of Sharp Performance and You. The waiver by either party of a breach of or a default under any provision of these Terms of Service, will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of these Terms of Service, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
    9. Severability. If any term or provision of these Terms of Service is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon determination that any term or provision is invalid, illegal or unenforceable, the court may modify these Terms of Service to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    10. Governing Law; Submission to Jurisdiction. These Terms of Service are exclusively governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of California. Any action at law, suit in equity, or judicial proceeding arising out of these Terms of Service will be instituted and maintained only in the Superior Court for the County of Alameda or the United States District Court for the Northern District of California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such claim or action. Notwithstanding the foregoing, prior to and as a condition of either party’s filing suit in state or federal court, the parties will engage in non-binding mediation conducted under the auspices of JAMS or other mutually agreeable dispute resolution service and in accordance with the California Rules of Court. The parties will mediate in good faith until settlement is reached or an impasse is declared by the mediator.
    11. Counterparts. These Terms of Service may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same Terms of Service. A signed copy of these Terms of Service delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of these Terms of Service.
13. ‍Definitions
    1. “Anonymized Data” means Your Data collected by Sharp Performance from which all personally-identifying information has been anonymized to provide a generic aggregate database for Sharp Performance’s internal business use, including, without limitation, future testing, development, improvement, sales, and marketing efforts.
       
    2. “Documentation” means the technical specification documentation that Sharp Performance makes available to its customers with regard to the Platform.
       
    3. “Sharp Performance Materials” means the Platform, Documentation and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports (generated by the Platform or otherwise), that are provided or used by Sharp Performance or any subcontractor in connection with the Platform or otherwise comprise or relate to the Platform. For the avoidance of doubt, Sharp Performance Materials include Anonymized Data and any information, data, or other content derived from Sharp Performance’s monitoring of Your access to or use of the Platform, but do not include Your Data.
       
    4. “System” means the information technology infrastructure used by or on behalf of either You or Sharp Performance in performing or relating to, the Platform, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by You or Sharp Performance (as applicable) or through the use of third-party services.
       
    5. “Third-Party Materials” means materials, products, services, and information, in any form or medium, including any open-source or other software, software-based services, documents, data, content, specifications, products, equipment, or components of or relating to the Platform that are not proprietary to Sharp Performance.
       
    6. “Your Data” means any data made available to Sharp Performance by You and licensed to Sharp Performance or otherwise uploaded, provided, or deposited by You into the Platform. For the avoidance of doubt, Your Data does not include Anonymized Data, or any metadata, telemetry data, usage data or other information reflecting the access or use of the Platform by or on behalf of You.

For questions about these Terms, contact us at:
Sharp Performance, Inc.
2659 State St #100, Carlsbad, CA 92008
Email: security@sharpperformance.tech