Terms and Conditions

1. Acceptance of Terms

The website, located at www.PerformNOW.com (the “Site”) was initially provided by Synchronous Technologies, Inc., a California corporation, dba PerformNOW® (hereinafter “PerformNOW®”).  It has since been redesigned by PerformNOW Inc. to any person or entity that accesses, browses, or otherwise uses the Site, either manually or via an automated device or program (hereinafter “User” or “Users”).  The Site is subject to User acceptance of the following Terms of Use (“Agreement”) which may be updated by PerformNOW® from time to time. By becoming a User of the Site, User agrees to be bound by all terms of this Agreement. If User has any questions about this Agreement, please contact PerformNOW® at [email protected] before using this Site.

2. Description of Services

PerformNOW® is an Internet networking service provider, utilizing web-based software, where people such as business owners, marketing professionals and group members can organize their groups, perform marketing functions, and manage corporate operations. As described above, anyone who takes advantage of the aforementioned software in any way, form, or fashion, shall be considered a User for purposes of this Agreement.

3. Conditions of Use

If a User chooses to register on the Site, such User must provide certain personally identifiable information, including but not limited to, name, address, and email address, (collectively “Registration Information”). Providing false Registration Information on the Site constitutes a material breach of this Agreement, to which PerformNOW® may immediately terminate User’s access to the Site.  If a User is registered though the use of a proxy, a league manager, or a team captain, that particular representative expressly represents that he, she, or it has the proper authority and permission to register such player or User on the Site.  Any false or misrepresentation of authority is cause for immediate termination of access to the Site.

A PerformNOW is not transferrable to a third party over a public exchange. PerformNOW and subsidiary product subscriptions can only be sold by Synchronous Technologies. A PerformNOW account is transferable within the original company or under certain acquisition circumstances with permission from PerformNOW. Any transfer of a PerformNOW account to a new entity is subject to adjustment to current published pricing and training / set up programs.

4. No Endorsement of Content or Businesses

PerformNOW® makes no representations, warranties, or endorsements, express or implied, regarding the quality, accuracy, reliability or condition of any content posted on the Site, regardless of who posted such content or when it was posted or for what purpose it was posted.  PerformNOW® does not control the quality, safety, truth or accuracy of the content that is posted on the Site and makes no representation thereof. PerformNOW® shall have no obligation to review the Site’s content and User understands this. All content provided by Users of the Site is the sole responsibility of the User, not PerformNOW®. User understands that by making any use of the Site whatsoever, User may be exposed to content that is inaccurate, misleading, or content that User may otherwise find objectionable. User hereby agrees that User shall evaluate and assume all risks and liability associated with the use of any content, and that under no circumstances will PerformNOW® or any of its affiliates, be liable for any loss or damage of any kind as a result of the use of any content or service providers posted, emailed or otherwise made available through the Site.

5. Acceptable and Lawful Use of Site

Any Registration Information, computer information, or other information User provides to PerformNOW® in connection with User’s use of the Site: (a) shall not be false, inaccurate, deceptive, deceitful, or misleading; (b) shall not be obscene or indecent; (c) shall not contain any viruses of any kind, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (d) shall not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (e) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing, invasive of another’s privacy, or harm minors in any way; (f) shall not create liability for PerformNOW® or cause PerformNOW® to lose (in whole or in part) the software products or PerformNOW®’s suppliers; and (g) shall not include personal or identifying information about another person who does not wish to be included. PerformNOW® reserves the right to deny access to our networks to any organizations or individuals who violate any of the above conditions. Users shall comply will all applicable laws, statutes, ordinances and regulations regarding use of the Site. PerformNOW® reserves the right to report any wrongdoing, if PerformNOW® becomes aware of it, to the applicable government agencies.  If User breaches any provision of this paragraph, PerformNOW® may not only immediately terminate User’s access to the Site, but User agrees that PerformNOW® shall bring any and all legal action against User allowed within the law for such tortious conduct. 

6. Acceptable and Lawful Use of Software

Any use, reproduction, redistribution of any products by User, software or otherwise, that are not in accordance with the intended use of the Site, are expressly prohibited by this Agreement, the law, and can result in severe civil and criminal penalties. PerformNOW® may, at its sole discretion, prosecute violators to the maximum extent of the law.

ANY COPYING, DISTRIBUTION, REPRODUCTION, REDISTRIBUTION, OR FURTHER REDISTRIBUTION OF THE SITE OR ANY SOFTWARE PRODUCTS TO ANY OUTSIDE LOCATION, OTHER SERVER, OUTSIDE PARTY, ENTITY, OR PERSON, IS EXPRESSLY PROHIBITED WITHOUT THE EXPRESS WRITTEN CONSENT OF PerformNOW®.

PerformNOW® complies with the EU-US Privacy Shield Framework (https://privacyshield.gov) as set forth by the US Department of Commerce regarding the collection, use, and retention of personal information from European Union member countries.  PerformNOW® has certified that it adheres to the Privacy Shield Principles of Notice, Choice, Accountability for Onward Transfer, Security, Data Integrity and Purpose Limitation, Access, and Recourse, Enforcement and Liability.  If there is any conflict between the policies in this privacy policy and the Privacy Shield Principles, the Privacy Shield Principles shall govern.  To learn more about the Privacy Shield program, and to view our certification page, please visit www.commerce.gov/privacyshield

All users of PerformNOW® and the Software agree to uphold the principles set by the EU-US Privacy Shield Framework.  Use of the PerformNOW® platform certifies that the user agrees to and takes responsibility for protecting any data gathered about citizens of the European Economic Area (EEA) in accordance with the EU-US Privacy Shield Framework.  Users accept liability for protecting and limiting distribution of data gathered to be in compliance with the EU-US Privacy Shield Framework.

7. License Granted

User grants PerformNOW® a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to exercise the copyright and publicity rights User has in the Registration Information provided to PerformNOW® by User, in any media, whether now known, or hereafter to become known.  PerformNOW® may only use Registration Information in accordance with its Privacy Policy.  User may find the PerformNOW® Privacy Policy at http://www.PerformNOW.com/privacy.html.

8. Relationship

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended to be created or in fact created by this Agreement between User and PerformNOW®. This Agreement is between the User and PerformNOW® and is not intended to be for the benefit of any third party. If there is a dispute between participants on this Site, or between User and any third party, User understands and agrees that PerformNOW® shall not be under any obligation to become involved. In the event that one User has a dispute with one or more other Users or third parties, both Users hereby expressly and unconditionally release PerformNOW®, PerformNOW®’s officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or services. User shall also fully indemnify PerformNOW®, its officers, employers, agents, successors and the like fully for any claims made by a third party, including claims for costs and attorneys fees.   

9. Posting on PerformNOW®

User represents and warrants that User completely owns or otherwise has full lawful rights and control over all of the rights to the content to which User has posted or will post, or use, and such content is of an accurate nature. PerformNOW® reserves the right, but not the obligation, to refuse to post or to remove any content or portions thereof, in any media worldwide if it contains or features any content PerformNOW®, in its sole discretion, deems inappropriate. With respect to content User submits or make available for inclusion on the Site, (“Content”), User grants PerformNOW® a world-wide, royalty-free, perpetual, irrevocable and fully sub-licensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed. This license means that PerformNOW®, its parent, subsidiary or affiliated companies have the unrestricted, perpetual and exclusive right to use, reproduce, modify, transmit, and distribute any and all materials and communications regarding and including submitted reviews, or portions thereof, in any media worldwide. Data collected, distributed, and used is still protected by our privacy policy, and we will not share your data with third parties without your permission.

10. Security

PerformNOW® utilizes reasonably secure servers to protect Users Registration Information. Users shall not disclose Registration Information to third parties. Users understand that they are fully responsible for all activities which occur under their Registration Information. User agrees to immediately notify PerformNOW® in writing of any unauthorized use of User’s own account. Anyone deemed a proxy, in charge of another User’s account, a league manager, or a team captain, agrees to refrain from disclosing Registration Information to third parties, unless written consent from PerformNOW® is obtained prior to such information is disclosed.

11. Privacy Statement; Email

Users have read and understand the terms of our Privacy Statement more fully described at http://www.PerformNOW.com/privacy.html which is hereby incorporated into this Agreement by reference as (Exhibit “A”). Users acknowledge that the Site may link to other sites on the World Wide Web which may not controlled by PerformNOW® and that the collection of a PerformNOW®’s data by these other sites may be outside the scope of PerformNOW®’s control. PerformNOW® reserves the right to monitor a User’s use of the Site in accordance with our Privacy Statement. Users acknowledge that by becoming a User, they consent to receipt of certain email messages from PerformNOW® in connection with the use of the Site and software, including without limitation newsletters, notifications by league managers, captains and other players and reminders of events, event schedules and attendance.

12. System Integrity

Users shall not use any device, software, or routine to interfere with the proper working of the Site. Users shall not use any method to intercept or expropriate any system data or information from the Site without the express written consent of PerformNOW®. Consent shall not take any action that imposes an unreasonable burden upon the infrastructure used to support the efficient operation of the Site including but not limited to unsolicited email or Spam. Users shall not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without the prior expressed written permission of PerformNOW®. Information on the Site is frequently updated and is proprietary or is licensed to PerformNOW®. Users shall not copy, reproduce, alter, modify, create derivative works, or publicly display any content from the PerformNOW® web site without the prior expressed written permission of PerformNOW® and the appropriate third party.

13. System Outages

PerformNOW® periodically schedules system downtime for maintenance and other purposes. Unplanned system outages also may occur. PerformNOW® shall have no liability whatsoever for the resulting unavailability of the Site or for any loss of data or transactions caused by planned or unplanned system outages or the resultant delay, mis-delivery, non-delivery of information caused by such system outages, or any third party acts or any other outages of web host providers or the Internet infrastructure and network external to the Site.

14. No Warranty

PerformNOW® provides this web site and the software products “as is” and without any warranty or condition, express, implied or statutory. PerformNOW® specifically disclaims, and User expressly waives, any implied warranties of title, merchantability, and fitness for a particular purpose, accuracy of informational content and non-infringement. User assumes total responsibility and risk for use of this site, use of any service providers obtained from this site, the software products, and hyperlinked web sites.

PerformNOW® makes no warranty that the site will meet User’s specific requirements or expectations, or that software products or services will be uninterrupted, timely, secure or error free, nor do we make any warranty as to the results that may be obtained from the use of the software products or as to the accuracy or reliability of any information obtained through the site or that any defects will be corrected. No advice or information, whether oral or written, obtained by a user from PerformNOW® shall create any warranty not expressly made herein. This disclaimer is made to the fullest extent permitted by law.

15. Other Limitations of Liability

PerformNOW®, its parent company, shareholders, affiliates, suppliers or their respective authorized representatives shall not be liable for any indirect, consequential, incidental, special, punitive or exemplary damages, or for any loss of profits or revenue, including but not limited to loss of sales, profit, revenue, goodwill, or downtime, (however arising in tort, contract, or otherwise) regardless of such party’s negligence or whether such party knew or should have known of the possibility of such damages. If any court of competent jurisdiction strikes the above clause down for whatever reason, PerformNOW®’s liability shall still be limited to the fullest extent permitted by law. Users understand and agree that the download and upload of any material through this site is done at User’s discretion and risk and that User’s will be solely responsible for any loss or damage to User’s computer system or loss of data that may result in the download or upload of any material. PerformNOW® neither assumes, nor does it authorize any other person to assume on its behalf, any other liability in connection with the provision of the site and software products. The limitations of liability provided in this Agreement inure to the benefit of PerformNOW®, our parent company, shareholders, affiliates and to all of our respective officers, directors, employees, attorneys and agents and, in each case, liability is limited to the fullest extent permitted by law.

16. Indemnification

User shall indemnify, defend and hold harmless PerformNOW®, its parent company, shareholders, subsidiaries, affiliates, officers, directors, employees, agents and advisors from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorneys’ fees and costs) resulting from User’s use of the Site or software products provided hereunder by PerformNOW® and Visitor’s or User’s breach of any provision of this Agreement or any intentional wrongdoing by Visitor or User.

17. Notices

Notices to User and PerformNOW® shall be by email or sent via certified mail, return receipt requested. Email to PerformNOW® shall be sent to info@PerformNOW®.com or, if by certified mail, to PerformNOW®, such notice shall be sent to: 249 S. Hwy 101, Suite 525, Solana Beach, San Diego, CA, 92075.  Email Notices sent to Users within the USA shall be sent to the email address contained in User’s Registration Information.  US Mail to User shall be sent to the address User provides.  If User fails to provide such an address then PerformNOW® shall not be under an obligation to locate or sent US Mail.   User is responsible for keeping User’s Registration Information current. PerformNOW® shall not be responsible for User’s failure to receive notice if User’s Registration Information is incomplete, not current, or otherwise inaccurate. Notice sent by email shall be deemed given twelve (12) hours after email message is sent. Users can modify email addresses and other Registration Information previously provided to us by emailing [email protected] or by updating their account information online.

18. Electronic Signatures

Any document or record, including this Agreement, which is transmitted or received by electronic transmission by either party shall be treated in all manner and respects as an original signed document where sufficient indicia of acceptance by the respective party exists. Accessing the Site constitutes acceptance of this Agreement by User.

19. Governing Law and Choice of Forum

This Agreement shall be governed by and construed in accordance with the laws of the State of California, exclusive of its choice of law rules and matters affecting copyrights, trademarks and patents under U.S. federal law. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees. Any suit relating to this Agreement, the Site or the software products shall be brought exclusively in the courts of San Diego, the Parties consent to the jurisdiction thereof.

20. Miscellaneous

In the event that one or more portions of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such validity, illegality or unenforceability shall not affect any other provision contained in this Agreement. The headings used throughout this Agreement are solely for the convenience of reference and are not to be used as an aid in the interpretation of this Agreement. The delay or failure of the Parties, at any time or times, to require performance of any provision hereof shall in no manner affect Party’s right at a later time to enforce such provision. No delay or failure of PerformNOW®’s right in exercising any right hereunder shall constitute a waiver of such right or any other rights hereunder. This Agreement and any documents expressly incorporated by reference, including but not limited to the Privacy Policy, constitute the entire agreement between the Parties, pertaining to the subject matter hereof. User understands and accepts that PerformNOW®, in its sole discretion, may unilaterally amend or modify this Agreement or any other documents referenced herein at any time by posting notice on the Site. Any amended or modified terms will be effective upon posting. Continued use of or visits to the Site constitutes acceptance of any modified terms and conditions. User shall regularly review the Agreement that is posted at http://www.PerformNOW.com/terms.html. PerformNOW® may, at any time, assign its rights or delegate its obligations hereunder without notice to User. No person or entity not an express Party to this Agreement is intended to be a beneficiary of this Agreement, and no person or entity, not expressly made a Party to this Agreement, shall have any right to enforce any terms of this Agreement.

21. Inquiries

The Site is offered by PerformNOW®. PerformNOW® is currently located at 249 S. Hwy 101, Suite 525, Solana Beach, CA 92075. Anyone wishing a copy of this Agreement may obtain such by writing a formal written request to PerformNOW®, accessing the Site, or emailing support@PerformNOW®.com. Questions concerning the Site, the software products, or any aspect of this Agreement should be directed to PerformNOW®.

22. No Spam

User shall not send unsolicited bulk email (spam). All Users are required to accept and adhere to PerformNOW®’s anti-spam policy. This policy also applies to using PerformNOW’s network to send SMS text messages.

Additional Terms for Account Owners

If a User signs up for a paid PerformNOW® subscription or account, that User shall be deemed an “Account Owner” and the following additional terms and conditions shall also apply to such User.  Such Account Owner may have contacts in his or her account that may use the Site to make payments to the Account Owner for events, such as meetings, practices, event fees, sports equipment or other fees or costs relating to the group or team.

1. Monthly Membership Fee for Account Owners

The charge to an Account Owner for the ‘Premium Account Membership’ shall be charged on the Account Owner’s credit card at the end of each 30-day cycle after Account Owner’s initial subscription date. Pricing for accounts is available on the Pricing page of the PerformNOW.com website.  Such charge shall reflect PerformNOW®’s parent company, Synchronous Technologies Inc.

2. Additional Benefits

PerformNOW® offers additional benefits to the Account Owner (paying subscribers). These benefits include, but are not limited to, more flexible emailing tools, faster contact import functions, and processing of payments for events and seasons. PerformNOW® offers a store venue (“Store”) which allows Account Owners to offer and sell items to the public at large. PerformNOW® shall in no way be involved in the transaction between buyers and sellers.  Any dispute between the buyer and the seller shall not involve PerformNOW®.  Account Owners shall therefore indemnify PerformNOW® fully for any costs, fees, including attorneys fees PerformNOW® may have to pay in defending itself in defending itself against a buyer or a seller. 

3. Items Sold via the Store

Account Owner waives any guaranty or warranty obtained regarding the quality, safety or legality of items advertised, any complaints regarding the accuracy of content or listings, including disputes or complaints regarding the description of items, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction to the fullest extent allowable under the law.

4. Transfer of Items Sold via the Store

PerformNOW® does not transfer legal ownership of items from the seller to the buyer. Nothing in this Agreement shall modify the provisions of California Commercial Code Section 2401(2) which provides in pertinent part “Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading.”

5. Transaction Fees

Depending on your subscription with PerformNOW, you may have transaction fees associated with selling items on your storefront or for event registration.  This will be found on your Account Settings page when you you are logged in to your PerformNOW account.  If transaction fees apply to the account subscription, Account Owner agrees that PerformNOW® charges a transaction fee for payments made through the Site by players to Account Owners and payments made through the Store by any buyer. Such transaction fee(s) shall be charged on Account Owners credit card at the end of each month. By signing up for the premium account, Account Owner expressly authorizes PerformNOW® to automatically process all such fees by credit card at the end of each month. All transaction fees shall be non-refundable. The fee charged by PerformNOW® shall be in addition to any transactional fees paid to PayPal or Authorize.net. PayPal and Authorize.net are third party vendors which provide on-line payment services.

6. Restriction on Use of the Store

While using the Store, Account Owner shall not:

Violate any laws or third party rights; Use the Store if you are not able to form legally binding contracts or are under the age of 18; Fail to deliver items purchased from Account Owner, unless the buyer fails to meet agreed upon terms; Intentionally, accidentally, or negligently circumvent or manipulate PerformNOW®’s fee structure, billing process or fees owed to PerformNOW®; Transfer Account Owner’s account and User Identification to another person or entity without PerformNOW®’s express written consent; Offer to sell or sell any of the following prohibited items: Adult content and sexually oriented materials including child pornography; Agricultural compounds including fertilizers; Alcoholic beverages including beer, wine, spirit, and liquor; Animals, fish, plants, and wildlife products; Cigarette, cigar, tobacco, or nicotine products;
Copyrighted items and content which breach any copyright or other intellectual property rights; Counterfeit items including, coins, currency, and stamps; Drug paraphernalia and narcotics; Firearms, fireworks, ammunition, pyrotechnics, and explosives; Government-issued identification documents including passport, driver license, police badge and insignia; Human bodies or body parts and bodily fluids; Illegal telecommunication or electronic equipment such as satellite, digital, cable Law enforcement and military items prohibited by federal and state law; Lottery and raffle tickets, sweepstakes, pyramid schemes, manufacturer coupons, multiple level marketing programs, etc.; Mailing lists, personal information, e-mail addresses, or URL’s; Meat, livestock and poultry; Medicine, medical devices, and health-related supplements; Weapons such as pepper spray, switchblade knives, ninja stars, or concealed weapons; Products recalled by the U.S. Consumer Product Safety Commission, other government agency, or product manufacturers; Real estate; Slot machines and gambling equipment;
Stocks, bonds, and securities of companies; Non-transferrable travel packages and offers including vouchers, airplane tickets, train tickets, and timeshare properties; and
Any other item that violates any applicable federal, state or local law or regulation or which PerformNOW® determines, in its sole discretion, is inappropriate for sale through the Store.  If Account Owner does violate this provision, PerformNOW® shall be able to immediately terminate Account Owner’s account, and recover any and all fees, costs and expenses incurred from such actions, including attorneys fees. 

7. Abuse and Misuse of Store

PerformNOW® may investigate reports of abuse or misuse and, if appropriate, limit or prohibit Account Owners’s use of the Store. Account Owner expressly agrees that PerformNOW® may access Account Owner’s account and records at PerformNOW®’s sole discretion to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized use of the Website. PerformNOW® reserves the right to terminate Account Owner’s account or Account Owner’s access to the Store immediately, with or without notice to Account Owner, if PerformNOW® believes Account Owner has violated any of the Terms of Use, furnished PerformNOW® with false or misleading information, or interfered with use of the Store by others. All determinations are final and are made at PerformNOW®’s sole discretion. By agreeing to these Terms of Use, Account Owner agrees to participate in investigations and be bound by PerformNOW®’s determinations. If PerformNOW®, in its sole discretion, determines that a violation of this Agreement has occurred, or if PerformNOW® believes that Account Owner’s actions may cause legal liability for Account Owner, PerformNOW®’s other users or  PerformNOW® itself, PerformNOW® may, on its own choosing, take actions or pursue legal remedies that it believes are necessary or prudent, including, but not limited or required to, issuing a warning, filing a complaint, deleting any listings, advertisements or offending material from the Site, suspending or canceling Account Owner’s account, releasing user information, filing a report with the appropriate authorities and/or excluding any person(s) who may have violated any terms of this Agreement.

8. Termination

PerformNOW® may terminate Account Owner’s account and services at any time upon notice to Account Owner. PerformNOW® may also, but has no duty, to immediately terminate its services, terminate Account Owner’s access and password and/or remove any content. Upon termination, Account Owner shall remain fully and solely responsible for any applicable transaction fees still due and owing. Termination by Account Owner requires 30 days written advance notice to PerformNOW®. Account Owner may request a refund for any unused prepayments that were collected by PerformNOW®. All subscription-related refunds will be pro-rated with the remaining balancing starting 30 days from the receipt of the request to cancel the account. This refund will be processed within 30 days of receipt of the account termination request and will be in the form of a credit to the card PerformNOW® has on file.

9. Limitation of Liability

PerformNOW® provides the Store “as is” and without any warranty or condition, express, implied or statutory. To the fullest extent legally permitted, PerformNOW® specifically disclaims any implied warranties of title, merchantability, and fitness for a particular purpose, accuracy of informational content and non-infringement. Account Owners assume total responsibility and risk for use of the Store. PerformNOW® cannot guarantee continuous or secure access to its services and operation of the Store may be interfered with by factors outside of its control. PerformNOW® shall not be liable for any loss of money, goodwill or reputation or special, indirect, or consequential damages arising out of Account Owners use of the Store or PerformNOW®’s services.

Additional Terms for Members of Groups

A User who signs up as a member of a group on the PerformNOW® Site shall be deemed a “Member”.  Members of groups may have additional benefits provided to them. There are no additional monthly fees charged to group members.

1. Transaction Fees

User, Member and Account Holder agree that PayPal and PerformNOW® charge fees for payments made through the Site. Such transaction fee(s) are in addition to event and season fees. By providing your billing information through the PerformNOW® and PayPal payment systems, User, Member and Account Holders expressly authorize PayPal and PerformNOW® to automatically process all such fees. All transaction fees are non-refundable. PayPal is a third party vendor which provides on-line payment services.

2. Limitation of Liability

PerformNOW® assumes no risk of liability in connection with these transactions, and any disputes shall be handled directly between the parties and not involve PerformNOW® whatsoever.

Additional Terms for Sponsors

Individuals, companies, and other entities may choose to sponsor a PerformNOW® group or company (hereinafter “Sponsors”). Sponsors and their sponsorships are displayed on the group Website, at the discretion of the group organizer. Some accounts provide an online mechanism for a third party to become a Sponsor directly through the group Website.

1. Transaction Fees

Users, Members and Account Holders agree that PayPal, Authorize.net, and PerformNOW® charge fees for payments made through the Site by Sponsors to Account Owners. Such transaction fee(s) are in addition to sponsorship fees charged by the Account Owner. By providing User, Member, or Account Holder billing information through the PerformNOW® and PayPal and Authorize.net payment systems, PerformNOW® is expressly authorized to automatically process all such fees. All transaction fees are non-refundable. PayPal and Authorize.net are third party vendors which provide on-line payment services.

2. Limitation of Liability

PerformNOW® assumes no risk of liability in connection with the transactions between Sponsors and Account Owners, and any dispute between a Sponsor and an Account Owner shall be handled directly between the Sponsor and Account Owner.

Exhibit A

Privacy Policy

1. General

PerformNOW® is committed to protecting the privacy of any person or entity that uses, or makes use of its services, products, or system (“User” or “Users”). This privacy policy (hereinafter “Policy”) explains when and how personal information is collected, used, disclosed and protected with respect to the PerformNOW®’s web site located at www.PerformNOW.com (the “Site”). The PerformNOW.com domain is managed by Synchronous Technologies Group Inc, or STGI.net. By using the Site, the User fully understands and consents to the privacy practices described in this Policy, as reasonably modified from time to time by PerformNOW®. User has carefully reviewed this Policy in order to fully understand the PerformNOW® data privacy practices.  PerformNOW, LLC is also covered by this privacy policy.

2. Personal Information

Personal Information shall be defined, but not limited to, as information that is specifically identifiable to a unique individual, information such as a name, address, individual’s telephone number, e-mail address, account number, information about an individual’s activities if directly linked to that person (hereinafter “Personal Information”).  Personal Information also includes, but shall not be limited to, demographic information, such as date of birth, one’s gender, geographic area, and personal preferences if such information is identifiable and unique. 

3. Personal Information We Collect

PerformNOW® collects Personal Information from Users in a number of ways, examples of such are: when Users visit the PerformNOW® Site, PerformNOW® collects Personal Information when Users: (1) register and set up an account; or (2) contact PerformNOW® by e-mail for any reason; or (3) Users enter contact information of clients or potential clients for the purpose of engaging with them through the use of the PerformNOW platform.  When Users visit the PerformNOW® web site or sites with PerformNOW® tracking scripts embedded, some information is also automatically collected for the benefit of our Clients, such as the Users’ computer’s Internet Protocol (“IP”) address, Users’ computer’s operating system, the browser type, the address of a referring web site, and the time and date of Users visit and purchases. PerformNOW® treats this information as Personal Information if it is combined with or linked to any of the identifying information mentioned above.  While these may be some examples of how PerformNOW® can gather and obtain User Personal Information, User shall not consider this to be an exhaustive list. All Personal Information collected is for the express purpose of identity confirmation and fraud prevention, so PerformNOW’s servers and team can be assured accurate information is delivered to the correct individual using the software. 

4. How We Use Personal Information

PerformNOW® uses Personal Information to process User requests and provide Users with services, to inform Users about other products, to provide Users with products and/or services PerformNOW® believes may be of interest to the User. When PerformNOW® uses User Personal Information in its own marketing efforts, PerformNOW® provides Users with options and do not disclose the User’s Personal Information to third parties, except as described in this Policy. Personal Information provided online may be linked together or merged with other Personal Information so that PerformNOW® may confirm the identity of the user, better understand User needs, and inform Users about PerformNOW® products or services. PerformNOW® also uses User Personal Information to send Users informational e-mails, including without limitation to newsletters, notifications by account owners, project managers, forum moderators, group members, and reminders of event schedules and attendance. 

5. Emails

If Users send emails through the PerformNOW® Site, the User must understand that the email will include email address and any personal message included. Due to the nature of the e-mail being sent from the PerformNOW® Site, these emails are not private communications and therefore are not confidential. PerformNOW® has no responsibility to keep such information confidential if User sends emails through the PerformNOW® Site.  User shall not use the Site or any software provided through the Site to send spam or content that violates this agreement or any other User agreement. To stop receiving emails from us or our clients, please click the link found at the bottom of each email or update your account preferences. 

6. Security

PerformNOW® has put security measures into place in an effort to protect User’s Personal Information while such information is under PerformNOW® control. All Personal Information relating to Users are stored in a reasonably secure environment, separate from the Site. User’s account information is accessible online only through the use of a confidential password. To protect the confidentiality of Personal Information, User must keep its password confidential and not disclose it to any other person. User is solely responsible for all uses of the Site by any person using User password. User shall advise PerformNOW® immediately if User believes its password has been misused or improperly obtained. 

7. Control of Personal Information

PerformNOW® gives the User the opportunity to opt-out of receiving communications from PerformNOW®, and to limit the use and disclosure of the User’s own Personal Information for purposes other than which it was originally collected or subsequently authorized.  Every non-transactional email sent by PerformNOW servers includes a link to manage preferences.  Use that link to opt-out of any communications from that sender. You can also opt out by sending an email to [email protected] with a reference to the email you received.  PerformNOW® does not sell, rent, or share Personal Information with third parties without User’s prior consent, except in the limited circumstances as described in this Policy.  PerformNOW® acknowledges that EU individuals have the right to access the personal information that we maintain about them.  An individual who seeks access, or who seeks to correct, amend, or delete inaccurate data, should direct his query to the contact information listed below. If requested to remove data, we will respond within a reasonable timeframe.

PerformNOW® may share Personal Information with third-party vendors who assist PerformNOW® in performing functions necessary to operate PerformNOW®’s own business. These functions may include, but are not limited to, website hosting, credit card transaction processing, and data entry. PerformNOW® limits User Personal Information shared with PerformNOW® third-party vendors to that which PerformNOW® believes is necessary to carry out those functions. In addition, PerformNOW® may disclose Personal Information in the good faith belief that PerformNOW® is lawfully authorized to do so, or that doing so is reasonably necessary to comply with legal process or authorities, respond to any claims, or to protect the rights, property or personal safety of PerformNOW®, its users, its employees or the public.  PerformNOW® also may be required to disclose an individual’s personal information in response to a lawful request by public authorities, including to meet national security or law enforcement requirements.  Information about PerformNOW® Users, including Personal Information, may be disclosed or transferred as part of, or during negotiations of, any merger, sale of company assets or acquisition.

Notwithstanding any other provision, PerformNOW® may also engage a data provider who may collect web log data from contacts in PerformNOW® accounts (including IP address and information about browser or operating system), or place or recognize a unique cookie on such contacts’ browsers to enable the delivery of customized content.   These cookies contain no personally identifiable information.  The cookies may reflect de-identified demographic or other data linked to data that PerformNOW® users voluntarily have submitted to us, e.g., email address, that we may use to interface with a data provider solely in hashed, non-human readable form. To opt-out of these data provider cookies, please go to http://www.aboutads.info/choices  

8.  EU-US and Swiss-US Privacy Shield

PerformNOW® complies with the EU-U.S. Privacy Shield Framework and the Swiss-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information transferred from the European Union and Switzerland to the United States, respectively. PerformNOW® has certified to the Department of Commerce that it adheres to the Privacy Shield Principles. If there is any conflict between the terms in this privacy policy and the Privacy Shield Principles, the Privacy Shield Principles shall govern. To learn more about the Privacy Shield program, and to view our certification, please visit https://www.privacyshield.gov/participant?id=a2zt0000000TNYGAA4&status=Active.

In compliance with the US-EU and Swiss-US Privacy Shield Principles, PerformNOW® commits to resolve complaints about your privacy and our collection or use of your personal information. European Union or Swiss individuals with inquiries or complaints regarding this privacy policy should first contact PerformNOW®

PerformNOW® has further committed to refer unresolved privacy complaints under the EU-US and Swiss-US Privacy Shield Principles to an independent dispute resolution mechanism, the BBB EU PRIVACY SHIELD, operated by the Council of Better Business Bureaus. If you do not receive timely acknowledgment of your complaint, or if your complaint is not satisfactorily addressed, please visit http://www.bbb.org/EU-privacy-shield/for-eu-consumers for more information and to file a complaint.

When a customer and PerformNOW® have agreed by contract that transfers of personal information from the European Economic Area (“EEA”) or Switzerland will be transferred and processed pursuant to the Privacy Shield for the relevant services, when conducting those activities on behalf of its EEA/Swiss customers, PerformNOW® holds and/or processes personal information provided by the EEA/Swiss customer at the direction of the customer. PerformNOW® will then be responsible for ensuring that third parties acting as agents on its behalf meet the same standards. Pursuant to the Privacy Shield, PerformNOW® remains liable for the transfer of personal data to third parties acting as our agents unless we can prove we were not a party to the events giving rise to the damages.

Please note that if your complaint is not resolved through these channels, under limited circumstances, a binding arbitration option may be available before a Privacy Shield Panel. PerformNOW® is subject to the investigatory and enforcement powers of the Federal Trade Commission (FTC).

In July 2020, the Court of Justice of the European Union (CJEU) invalidated the Privacy Shield. While there are some issues that were raised outside the purview of PerformNOW’s ability to control, we do go through extraordinary lengths to secure all communication and data with and within our networks. Data is encrypted at rest and in transit. We do not share any personally identifiable information with any third parties without your prior, written consent. PerformNOW remains a member of the Privacy Shield program and agrees and abides by the tenets of the program. 

9. EU General Data Protection Regulation

PerformNOW® supports the tenets of the General Data Protection Regulation (GDPR). We collect a minimum amount of information, and we will ask for your consent to process any information that goes above and beyond the information we need to collect about you and your actions on our website. We do collect your IP address and store cookies on your browser for fraud protection and identity confirmation during the use of our website and while logged into the PerformNOW® CRM application. We do this for your protection and for analyzing the use of our platform to provide you with the best user experience possible. If you choose to exercise any of your rights under the GDPR, we will comply to the fullest extent of the law. If you wish to contact PerformNOW’s Data Protection Officer (DPO), Lyle Hopkins, you may do so by emailing [email protected].

10. Policies for Users in Australia

If you are a Member who lives in Australia, this Section applies to you. We are subject to the operation of the Privacy Act 1988 (“Australian Privacy Act”).

Where we say we assume an obligation about Personal Information, we are also requiring our subcontractors to undertake a similar obligation, where relevant.

We will not use or disclose Personal Information for the purpose of our direct marketing to you unless: you have consented to receive direct marketing; you would reasonably expect us to use your personal details for the marketing; or we believe you may be interested in the material but it is impractical for us to obtain your consent. You may opt out of any marketing materials we send to you through an unsubscribe mechanism or by contacting us directly. If you have requested not to receive further direct marketing messages, we may continue to provide you with messages that are not regarded as “direct marketing” under the Australian Privacy Act, including changes to our terms, system alerts, and other information related to your account.

Our servers are primarily located in the United States. In addition, we or our subcontractors, may use cloud technology to store or process Personal Information, which may result in storage of data outside Australia. It is not practicable for us to specify in advance which country will have jurisdiction over this type of off-shore activity. All of our subcontractors, however, are required to comply with the Australian Privacy Act in relation to the transfer or storage of Personal Information overseas.

If you think the information we hold about you is inaccurate, out of date, incomplete, irrelevant or misleading, we will take reasonable steps, consistent with our obligations under the Australian Privacy Act, to correct that information upon your request.

If you are unsatisfied with our response to a privacy matter then you may consult either an independent advisor or contact the Office of the Australian Information Commissioner for additional help. We will provide our full cooperation if you pursue this course of action.

11. Cookies, IP Addresses and URLs

Automatically Collected Information: PerformNOW® automatically receives certain types of Personal Information whenever a User interacts with PerformNOW®. For example, when a User visits the Site, PerformNOW® automatically collects the User IP address and the type of browser the User uses. Information may be automatically collected through the use of a term called “cookies.” PerformNOW® also collects various types of information called ‘clickstream information’, which is information about Users browsing behavior, such as IP address information, entry and exit points for the Site, search terms, web site addresses User visits, page views, and impressions. Cookies are also collected.  Cookies are small text files placed on Users hard drive by a web site when Users visit a particular website. These files identify a User’s computer and record a User’s preferences and other data about a User’s visit so that when the User returns to the site, the site knows who the User is, and can personalize the User visit. Most browsers automatically accept cookies as the default setting. Users can modify the setting to reject cookies or to prompt Users before accepting a cookie from the sites User visit by editing browser options. PerformNOW® may place or recognize a unique cookie on Users browser to enable Users to receive customized content or services, as well as for fraud protection and identity confirmation. Any cookies made available to shopping carts or other tracking information sent to third parties will reflect only de-identified demographic or other data linked to data Users have voluntarily submitted to PerformNOW®, will be encrypted, and will not be used to identify Users individually. If Users decide not to accept PerformNOW® cookies, Users will still be able to access those parts of the PerformNOW® site available to the general public, but Users may not be able to login or use the site’s features or services, and Users may have a less satisfactory experience. 

12. Links to Other Web Sites

The PerformNOW® Site may contain links to other web sites. Any Personal Information User provides on the linked pages is provided directly to that third party and is subject to that third party’s privacy policy. Except as described above, PerformNOW® is not responsible for the content or privacy and security practices and policies of web sites to which PerformNOW® links. Links from PerformNOW®’s Site to third parties or to other sites are provided for User convenience. PerformNOW® encourages Users to learn about their privacy and security practices and policies before providing them with Personal Information. 

13. Forms

The PerformNOW® Site contains forms that Users may use to enter Personal Information. By submitting these forms, the User agrees that PerformNOW has permission to accept, store, and process the data provided through the submission of the form. 

14. Policy Changes

PerformNOW® reserves the right to change or alter this Policy at any time. PerformNOW® may use User Personal Information for new, unanticipated uses not previously disclosed in this Policy. If PerformNOW®’s privacy practices change, PerformNOW® will post the policy changes to our web site and notify Users by indicating the date the privacy policy was last updated. PerformNOW® encourages Users to check back at the PerformNOW® Site periodically if the User is concerned about how the Users Personal Information is used. 

ADDITIONAL TERMS APPLICABLE TO PERFORMNOW SOFTWARE, PLATFORMS AND SERVICES

The following provisions supplement, and do not replace, modify, delete, or supersede any existing provisions of the PerformNOW Terms of Use. All existing provisions remain in effect. These additional provisions apply to current and future users and clients accessing or using PerformNOW software, platforms, applications, services, demonstrations, documentation, or related technology, including PerformNOW CXM and other PerformNOW products and services (collectively, the “PerformNOW Products”).

Software and Intellectual Property

PerformNOW Products, including their software, functionality, configuration, organization, user interfaces, workflows, processes, business methods, documentation, reports, dashboards, data structures, terminology, specifications, designs, automation, integrations, algorithms, scoring methodologies, prompts, artificial intelligence configurations, and other proprietary elements, may contain intellectual property, confidential information, trade secrets, and/or proprietary know-how belonging to PerformNOW or its licensors.

Except for the limited right to use PerformNOW Products for the User’s authorized internal business purposes, no license, ownership interest, or other intellectual property right is granted or transferred to any User or client.

No Reverse Engineering

Users and clients may not, directly or indirectly, themselves or through any employee, contractor, consultant, developer, agent, affiliate, artificial intelligence system, automated tool, or other third party:

(a) reverse engineer, decompile, disassemble, decode, analyze, inspect, probe, or otherwise attempt to discover or derive the source code, architecture, underlying structure, algorithms, data structures, methods, processes, business logic, workflows, specifications, or operation of any PerformNOW Product except to the extent such restriction is expressly prohibited by applicable law;

(b) systematically study, document, map, reproduce, replicate, emulate, or reconstruct a PerformNOW Product or any material portion of its functionality for the purpose of developing, designing, improving, benchmarking, supporting, or providing another software product or service;

(c) copy, reproduce, adapt, translate, modify, or create derivative works from protected elements of a PerformNOW Product except as expressly authorized in writing by PerformNOW; or

(d) permit or assist any third party in engaging in any of the foregoing activities.

Competitive Development

Access to PerformNOW Products is provided solely for the User’s authorized business use and not for the purpose of developing or assisting in the development of a competing or substantially similar software product or service.

Users and clients may not use PerformNOW proprietary or confidential information, trade secrets, protected content, non-public documentation, demonstrations, specifications, workflows, methodologies, or other protected materials obtained through their relationship with PerformNOW to design, develop, train, configure, benchmark, improve, market, support, or commercialize a competing software product or service.

Nothing in this provision is intended to prohibit lawful competition, the independent development of software without use of PerformNOW’s protected information, or any activity that cannot lawfully be restricted.

Artificial Intelligence and Automated Development

Users and clients may not provide, upload, disclose, transmit, or otherwise make available PerformNOW confidential or proprietary information or protected materials to ChatGPT, Claude, Gemini, Copilot, Cursor, or any other artificial intelligence, large language model, machine-learning system, code-generation platform, automated development tool, or third-party service for the purpose of reproducing protected elements of a PerformNOW Product; generating software based upon PerformNOW confidential or proprietary information; analyzing such information for development of a competing product; or developing or improving another product or service through unauthorized use of PerformNOW confidential or proprietary information.

The use of artificial intelligence or automated development technology does not alter or eliminate a User’s obligations concerning PerformNOW intellectual property, confidential information, trade secrets, or authorized use of PerformNOW Products.

Scraping, Automated Collection and Systematic Extraction

Except as expressly authorized in writing by PerformNOW, Users may not use robots, spiders, crawlers, scripts, browser automation, screen-scraping tools, APIs, artificial intelligence agents, automated browsing systems, data extraction tools, or similar technologies to systematically access, monitor, record, copy, extract, download, or reproduce information, functionality, screens, workflows, documentation, or other protected content from PerformNOW Products.

This restriction supplements existing restrictions contained in the PerformNOW Terms of Use concerning automated and manual monitoring, copying, interception, and extraction.

Confidential and Proprietary Information

Information made available to a User because of the User’s customer, client, demonstration, implementation, consulting, integration, support, testing, development, or other relationship with PerformNOW may include confidential or proprietary information.

Such information may include non-public product functionality, development plans, demonstrations of unreleased functionality, specifications, documentation, methodologies, processes, configurations, integration information, business logic, algorithms, prompts, pricing, customer information, benchmark information, analytics, research, and other information that a reasonable person would understand to be confidential or proprietary under the circumstances.

Users may use such confidential or proprietary information only for the authorized purpose for which access was provided and may not disclose or use it for an unauthorized commercial purpose.

Demonstrations, Testing and Early Access

Access to demonstrations, prototypes, beta functionality, development environments, testing systems, unreleased features, technical discussions, implementation meetings, product-development discussions, or other non-public PerformNOW information does not grant permission to reproduce, commercialize, disclose, or use protected information obtained through such access to develop another product or service.

Customer Data

Nothing in these provisions is intended to claim ownership of a client’s own customer, transactional, operational, or other data merely because that data is processed through a PerformNOW Product. Clients retain their applicable rights in their own data.

Restrictions relating to PerformNOW intellectual property and confidential information are separate from a client’s rights in its own business data.

Continuing Obligations

Obligations concerning confidential information, trade secrets, intellectual property, unauthorized copying, and misuse of proprietary information survive termination or expiration of a User’s or client’s access to PerformNOW Products to the extent permitted by applicable law.

Termination of access does not authorize subsequent use or disclosure of confidential information or trade secrets obtained while the User had authorized access.

Enforcement

Unauthorized use, disclosure, reproduction, reverse engineering, or misappropriation of PerformNOW intellectual property, confidential information, or trade secrets may cause substantial harm for which monetary damages may be inadequate. PerformNOW reserves all rights and remedies available under applicable contracts and law, including the right to seek appropriate injunctive or equitable relief where legally available.

Relationship to Existing Terms

These provisions are supplemental to the existing PerformNOW Terms of Use. Except where these additional provisions expressly supplement an existing provision, nothing contained herein is intended to eliminate or reduce any rights, restrictions, protections, or remedies contained in the existing Terms of Use.

Continued access to or use of PerformNOW Products is subject to the applicable Terms of Use and any additional terms presented to the User in connection with such access or use.

Term of Use and Privacy policy effective 10 December 2020.