Terms of Service
Last Updated: June 28, 2017
Welcome to PowerForward — a leadership development platform by PowerForward, Inc., a Delaware corporation (“PowerForward,” “we,” “us” or “our”) that provides you case-based learning materials to help you become the leader your company needs.
These Terms of Service (“Terms”) apply to your access and use of our websites, including www.gopowerforward.com and courses.gopowerforward.com (collectively, the “Site”), our interactive case studies and other online products and services (collectively with the Site, the “Service”).
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THESE TERMS INCLUDE A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH POWERFORWARD. PLEASE READ IT CAREFULLY.
ACCEPTING THESE TERMS
BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY ALL OF THE TERMS BELOW.
Please read all of the terms before you use the Service. If a term does not make sense to you, please let us know. If you don’t agree to all of the terms below, you may not use the Service.
We reserve the right to change or revise these Terms by providing you 30-day prior notice. If we make material changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Service or updating the “Last Updated” date at the beginning of these Terms. The revised terms and conditions will become effective 30 days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. We encourage you to review these Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Service.
When you create an account you must maintain the security of your password and accept all risk that someone may access your account without your permission. If you discover or suspect any Service security breaches, please let us know as soon as possible. You represent and warrant to us that all information that you provide in connection with your account is accurate, truthful, current and complete. PowerForward reserves the right to deny any account at our discretion.
RIGHT TO USE THE SERVICE
On the condition that you fully comply with these Terms, PowerForward grants you a limited, non-exclusive, non-transferable and revocable license to access and use the Service for your own personal, non-commercial use.
Except as expressly authorized by these Terms, you may not (a) modify, disclose, alter, translate or create derivative works of the Service, (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Service, (c) disassemble, decompile or reverse-engineer any of the software components of the Service, (d) copy, frame or mirror any part of the Service, (e) interfere with or disrupt the integrity or performance of the Service, or (f) attempt to gain unauthorized access to the Service or its related systems or networks.
PROHIBITED USE OF THE SERVICE
You may not post or otherwise make available on or through the Service any of the following:
Your use of the Service is at your own risk. PowerForward is not responsible or liable for the conduct of, or your interactions with, any other users (whether online or offline), or for any related damage or harm. As a provider of interactive services, PowerForward is not liable for the content of any user’s posts. Although we have no obligation to screen, edit or monitor user content, we reserve the right, and have the discretion, to screen, edit or remove any user content at any time, for any reason and without notice.
USER INFORMATION AND CONTENT
You understand that by providing personal information and content on the Service, this information may be visible to other users and PowerForward. By providing this information and content, you grant PowerForward a royalty-free, world-wide, perpetual, irrevocable license to use, excerpt, translate, reformat, reproduce, process, adapt, modify, publish, transmit, display and distribute this information and content in the connection with our Service.
You understand and acknowledge that you are solely responsible for all information or content that you post or submit through our Service including their legality, reliability, appropriateness, originality and copyright. PowerForward make no guarantees regarding any information or content posted or submitted through the Service by other individuals or users of the Service. PowerForward makes no warranties regarding the correctness, completeness, or accuracy of such user-submitted information and cannot verify or otherwise ascertain the accuracy, authenticity, or anything else about such user-submitted information.
POWERFORWARD’S INTELLECTUAL PROPERTY RIGHTS
All aspects of the Service, including, without limitation, the design of website and component parts of the Service (including the software application and platform), created text, scripts, graphics, interactive features and the like, the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to PowerForward and subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. PowerForward reserves all rights not expressly granted in and to the Service. You agree to not engage in the use, copying, or distribution of any of the Service or Marks from PowerForward, other than expressly permitted herein, including any use, copying, or distribution of information about other users obtained through the Service for any commercial purposes.
DMCA; REPEAT INFRINGER POLICY
PowerForward users may report content to PowerForward that they think violates these Terms, and PowerForward may remove such content, suspend or terminate the account of the user who posted or otherwise made available such content and/or take additional action to enforce these Terms against such user.
Also, in accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, PowerForward has adopted a policy of terminating, in appropriate circumstances and at PowerForward’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. PowerForward may also at its sole discretion limit access to the Service or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Service infringes upon any copyright that you own or control, you may file a notification with PowerForward’s Designated Agent as set forth below:
Designated Agent: Christine Gorman
Address of Designated Agent: 135 Bowery, 2nd Floor, New York, NY 10002.
Email Address of Designated Agent: [email protected]
Phone number of Designated Agent: 888-659-3375
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying on such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
As between you and PowerForward, all information, materials and content of the Service, including text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms and other content is owned by PowerForward or is used with permission. When you create, share, link to, or otherwise make available any content on the Service, you grant us a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content throughout the world in any manner or media, on or off the Service. PowerForward reserves all rights not expressly set forth in these Terms. You hereby irrevocably waive in favor of PowerForward any and all moral rights that you may possess in or to any content.
Any suggestions, comments or other feedback you give us about the Service (the “Feedback”) will constitute our confidential information. We are free to use, disclose, reproduce, license, distribute and exploit this Feedback as we see fit, without compensation to you or any obligation or restriction because of any intellectual property rights or otherwise.
DISCLAIMER OF WARRANTIES
POWERFORWARD PROVIDES THE SERVICE “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT POWERFORWARD DOES NOT REPRESENT OR WARRANT TO YOU THAT: (i) YOUR USE OF THE POWERFORWARD SERVICE WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE POWERFORWARD SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (iii) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE POWERFORWARD SERVICE WILL BE ACCURATE OR RELIABLE; AND (iv) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS A PART OF THE POWERFORWARD SERVICE WILL BE CORRECTED. POWERFORWARD SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM POWERFORWARD SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
LIMITATIONS OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL POWERFORWARD BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROPERTY, PHYSICAL LOSSES, DEATH OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICE, AND/OR THIRD-PARTY SERVICES OR MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF POWERFORWARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
FOR ANY LOSS OR DAMAGE THAT IS NOT EXCLUDED UNDER THESE TERMS, THE TOTAL LIABILITY OF POWERFORWARD AND ITS DIRECTOR, EMPLOYEES, AGENTS, AFFILIATES AND INVESTORS WILL NOT EXCEED THE FEE TO ACCESS THE SERVICE (IF ANY).
You will defend us from and against any actual or threatened suits, actions, proceedings (at law or in equity), and claims, and indemnify us for any and all damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees, costs, penalties, interest, and disbursements) arising from or related to any of your conduct with respect to the Service or your violation (or alleged violation) of these Terms or the rights of any third party by you or any person using your PowerForward account.
CHANGES TO THE SERVICE
PowerForward reserves the right in our discretion to review, improve, change or discontinue, temporarily or permanently, the Service and/or any features, information, materials or content on the Service with or without providing notice to you. PowerForward will not be liable to you or any third party for any changes or discontinuance of the Service or any part of the Service.
PowerForward reserves the right to charge for the Service or any portion thereof and/or to modify the pricing of the Service.
CONSENT TO ELECTRONIC COMMUNICATIONS
By using the Service, you agree that we may communicate with you electronically regarding your use of the Service and that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent from receiving electronic notice, please notify us at [email protected].
SUSPENSION AND TERMINATION
PowerForward may suspend or terminate your rights to access or use the Service for any reason or for no reason at all and with or without notice at PowerForward’s discretion. All of the terms of these Terms (excluding the license grant) will survive any termination or suspension.
RESOLUTION OF DISPUTES – MANDATORY ARBITRATION AND CLASS ACTION WAIVER
We offer the following process to help you resolve a complaint or Dispute (as defined below) that you may have with PowerForward or the use of the Service. Please read this section carefully. Our Customer Service Department, which you can reach at [email protected], can help you resolve most of your concerns. If our Customer Service Department is unable to resolve your complaint or Dispute, you agree to take the following steps to resolve any Dispute you may have with us.
Step 1. Notice of Dispute
You must first try to resolve any complaint or Dispute with us through our Notice of Dispute process. You begin by submitting a “Notice of Dispute” with any supporting documents or other information by U.S. Mail to:
Attention: Notice of Dispute
New York, NY 10002
A “Notice of Dispute” is a written form in which you provide your name, address, contact information, email address, the facts regarding your Dispute, and the relief you are requesting from us. Once we receive your Notice of Dispute, you and we will attempt to resolve any Dispute through informal negotiation within forty-five (45) days from the date the Notice of Dispute is received by us. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, you or we may initiate an arbitration proceeding or small claims action as described below.
You agree that the term “Dispute” in these Terms will have the broadest meaning possible. It applies to any dispute, action, or other controversy between you and us relating to the Site, the Service, these Terms (or any breach thereof) – whether in contract, warranty, tort, laws or regulation. The term also applies to any dispute over the validity, enforceability, or scope of this arbitration provision.
Step 2: Arbitration
If your Dispute is not resolved to your satisfaction within 45 days from when we received your Notice of Dispute, you and we agree to arbitrate all Disputes between us. As explained below, you and we also may also have the right to bring an individual action before a Small Claims Court for certain claims. You agree that arbitration or a small claims action will be your sole and exclusive remedy to resolve any Dispute with us. The Federal Arbitration Act applies to these Terms.
By agreeing to arbitrate, you are giving up the right to litigate (or participate in as a party or class member) any and all Disputes in a court before a judge or jury (except Small Claims Court). Instead, a neutral arbitrator will resolve all Disputes.
To read more about arbitration, visit www.adr.org. The American Arbitration Association (“AAA”) will conduct any arbitration under its Consumer Arbitration Rules in effect at that time. You can review the Consumer Arbitration Rules here. You may begin an arbitration with us by completing a Demand for Arbitration form, available by clicking here. The completed form(s) should be returned directly to the AAA. The AAA will assign someone to manage your case. You will be contacted with instructions for continuing the arbitration process. Be sure to keep a copy of everything you send to the administrator of your arbitration or us. If, for any reason, the AAA is unavailable, the parties shall mutually select another arbitration forum which will be governed by the AAA Consumer Arbitration Rules. The AAA rules will determine whether the arbitration will take place through written submissions by you and us, by telephone, or in person.
Class Action Waiver
Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.
If you initiate an arbitration with the AAA, we will promptly reimburse you for any standard filing fee you may have been required to pay by the AAA, once you have notified us in writing and provided a copy of the arbitration demand. However, if we are the prevailing party in the arbitration, we will be entitled to seek and recover our attorneys’ fees and costs, subject to the arbitrator’s determination and applicable law.
Small Claims Option
You may also litigate any Dispute in Small Claims Court in the County of New York, New York, if the Dispute meets all requirements to be heard in the small claims court. You can learn more about the Small Claims Court in the County of New York by clicking here. However, if you initiate a Small Claims case, you are responsible for all your court costs.
Choice of Law and Forum Selection
You agree that the laws of the State of New York govern these Terms and any claim or Dispute or issues arising from it, without regard to New York’s conflict of laws rules. Unless you and we agree otherwise, in the event that the arbitration provision above is found not to apply to you or to a particular claim or Dispute as a result of a decision by the arbitrator or a court order, you agree that any Disputes or claims that you may have against us reside in and will be resolved by a state or federal court located in the County of New York in the State of New York and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
Enforcement of these Terms is solely at PowerForward’s discretion. Failure to enforce any part of these Terms in some instances does not constitute a waiver of our right to enforce the same or other part of these Terms in other instances. If any provision of these Terms is or becomes unlawful, void or otherwise unenforceable (including the warranty disclaimers and liability limitations above), then that provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remaining provisions of these Terms will continue in full force and effect. The section headings of these Terms are for reference purposes only and will not affect the meaning or interpretation of these Terms. PowerForward may assign these Terms without your prior written consent. These Terms will be binding and inure to the benefit of such assignees, transferees and other successors in interest of the parties in the event of an assignment or other transfer made consistent with the provisions of these Terms.
These Terms (and the other policies and terms referred to above) make up the entire agreement between you and us regarding the Service, and they supersede any prior agreements that may have been made.
If you have any questions about these Terms, please email us at [email protected] or send a letter to:
135 Bowery, 2nd Floor
New York, NY 10002
NOTICE FOR CALIFORNIA USERS
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms. Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.