We collect or receive the following general types of information when you use the Services:
1.1 Information You Provide Directly.
You may provide information directly to us through the Services in several different ways. For example, you may complete online assessments or questionnaires (most notably the Troutwine Athletic Profile ("TAP")), respond to specific questions, communicate with us via email or feedback forms, complete online registration forms, and subscribe to email newsletters or other similar communications. The types of information you may provide directly include the following, as applicable:
1.2 Information We Collect Automatically.
We collect certain information about you and your computer automatically when you use the Services. Automatically collected information may include:
1.3 Information from Commercially Available Sources.
We may receive additional information about you from other sources, such as data cooperatives and public databases.
1.4 Information from other Individuals.
2.1 Performing our Services
We may use information about you for various purposes related to performing our Services, including:
2.2 Communications with You
We may use information about you for various purposes related to communicating with you, including:
2.2 Communications with You
We may use information about you for various purposes related to communicating with you, including:
2.3 Advertising and Partners
We may use information about you for various other purposes, including to:
2.4 Legal Basis for Processing
Our legal basis for collecting and using the information described above will depend on the type of information and the specific context in which we collect it. For example:
2.5 Public Profiles & Report Cards on Ryzer
Ryzer Services allow you the option to publish your profile and event report card publicly. You don' t have to publish your profile or report card to use some of our Services (e.g. you can take the TAP assessment and receive results without having or publishing a profile); however, publishing your profile and report card (e.g. your event results and athletic mindset scores) publicly helps you to get more from our Services and Ryzer Services, including helping promote your abilities and accomplishments to other users of our and Ryzer Services (e.g., to Event Organizers, Coaches, Scouts, and other Consumers). Publishing your profile publicly on Ryzer will allow your Personal Data to appear in Ryzer searches and on Ryzer leaderboards. See https://ryzer.com/Privacy for additional details.
We may share your information in the following manners:
3.1 Always Shareable Information
If you have submitted the information listed below by completing the online assessment/survey part of our Services, we may share the information listed with other users of our Services including educational institutions, athletic organizations, athletic teams, coaches, scouts, and athletic directors:
If you would not like to share the above information, you can abstain from taking the online assessment/survey part of our Services, or delete your account.
3.2 Shareable Information by Your Explicit Permission Only
In addition to the information listed in section 3.1, we may share the information listed below ONLY if you explicitly agree to share the information with
The Services may also provide opportunities for you and other users (e.g., friends, teammates) to connect with each other socially and to view each other’s profiled information in a limited manner (e.g. sharing one’s Athlete Type). To achieve this, certain information you provide may be shared with other users of the Services.
3.3 When You Choose to Share Your Information With Others
In using our Services, you will have the opportunity to share your information with other Ryzer Mindset team or organizational account holders through a specific sharing code, or with Ryzer Mindset individual account holders through email. The information accessible to those account holders will include general information including your name and other Ryzer Mindset profile information, but will not include your specific answers to individual questions within our surveys or assessments. In addition, the account holder cannot modify, alter, or delete any of your profile or your account dat.
After completion of the assessment/survey, you will at all times have the opportunity to change the settings and opt-out from sharing your results going forward.
3.4 Rights of Personality
If you are using our Services as part of any professional-level athletic-related purpose including a specific athletic team, program or organization, you also grant to Ryzer Mindset and its agents, attorneys, representatives, predecessors, successors, affiliates, parents, subsidiaries, nominees, licensees, executors, administrators, assigns, media outlets/partners and those acting with authority of the foregoing (collectively, "Ryzer Mindset Parties") all rights and permission to use your name, biography, likeness or other indicia of identity in conjunction with your general athletic mindset such as your matched Athlete Type. Lastly, you specifically release all Ryzer Mindset Parties from any claim or cause of action for invasion of the rights of privacy, right of publicity, right of personality, or any similar rights.
3.5 Partners and Subsidiaries
We may share your information with partners and subsidiaries who provide products or services that may be of interest to you or student-athletes, including: (i) educational products and services; (ii) career, employment, and military opportunities; (iii) products of consumer focused companies; (iv) sports related activities and events; and (v) other relevant products and services. These partners may use your information to make predictions about your interests and may provide you with offers, promotional materials, advertisements, and other materials.
3.6 Service Providers
We also may share your information with entities that provide services to us, including companies that provide payment processing, shipping, web analytics, data processing, web hosting, technical support, advertising, email distribution, and other services.
3.7 Other Parties When Required by Law or as Necessary to Protect Our Services.
There may be instances when we disclose your information to other parties in order to:
3.8 Other Parties in Aggregated Form
We may also share your information with third parties in aggregated or non-personally identifiable form.
3.9 Other Parties in Connection With a Transfer of Assets
If we make a sale or transfer of assets, or are otherwise involved in a merger, divestiture, acquisition, liquidation, or transfer, or in the unlikely event of bankruptcy, we may transfer your information to one or more third parties as part of that transaction.
3.10 Other Parties With Your Consent
If you do not want your information shared with any third party who may use such information for direct marketing purposes, then you may opt out of such disclosures by updating your account preferences accordingly or sending an email to us at firstname.lastname@example.org.
3.11 Change of Ownership
We respond to all requests that we receive from individuals who wish to exercise their data protection rights in accordance with applicable data protection laws. You can contact us by sending an email to email@example.com.
4.1 Rights that you may have, depending on the country in which you live, include:
We employ technical and organizational measures designed to appropriately protect your information that is under our control and that we process on your behalf from unauthorized access collection, use, disclosure, copying, modification or disposal, both during transmission and once we receive it. We store all information that you provide to us on secure servers. We train employees regarding our data privacy policies and procedures, and permit authorized employees to access information on a need to know basis, as required for their role. We use firewalls designed to protect against intruders and test for network vulnerabilities. However, no method of transmission over the internet or method of electronic storage is completely secure.
Where you have a password, which enables you to use our services, you are responsible for keeping this password complex, secure, and confidential. If you would like to update or change your password, you may select the "Reset Password" link on the login page. You will be sent an email with instructions to log in and change your password.
We retain certain information that we collect from you while you are a user of our Services, for a limited period of time as long as we need it to fulfill the purposes for which it was initially collected, and in certain cases where you have deleted your account, for the following reasons:
In compliance with the Privacy Shield Principles, Ryzer Mindset commits to resolve complaints about our collection or use of your personal information. EU individuals with inquiries or complaints regarding our Privacy Shield policy should first contact Ryzer Mindset Data Protection Officer at firstname.lastname@example.org.
The Services are neither intended for nor directed at children younger than 13 years of age. We do not knowingly collect or store personal information about children under the age of 13.
If you access the Services from outside the United States, please be aware that information you provide to us or that we obtain as a result of your use of the Services may be processed and transferred to the United States and be subject to U.S. law. The privacy and data protection laws in the United States may not be equivalent to such laws in your country of residence. By using our website, participating in any of the Services, or by providing us with your information, you consent to the collection, transfer, storage, and processing of information to and in the United States and in accordance with U.S. law.
We wish to maintain accurate personal information. If you have submitted personal information through the Services and set-up an account, then you can (i) access and update your personal information by logging into your online account and making the appropriate changes or (ii) delete your account by emailing us at email@example.com. Please note that if you delete your account, we may continue to retain your information on our servers for archival purposes.
If you have forgotten your login credentials, you can retrieve those via our automated password retrieval system.
Ryzer Mindset—as well as certain third parties that provide content and other functionality on the Services—may use a variety of technologies to learn more about how people use the Services and the Internet. This section provides more information about some of those technologies and how they work.
California residents are entitled once a year, free of charge, to request and obtain certain information regarding our disclosure of certain categories of personal information to third parties for their direct marketing purposes in the preceding calendar year. If you are a California resident and would like to make such a request, please submit your request to:
Attn: Ryzer Mindset Privacy
Ryzer Mindset, LLC
1920 Philadelphia Street, Suite 104
Ames, IA 50010
In addition, California residents who are registered users of the Services and are under the age of 18 are entitled, in accordance with California law, to request and obtain removal of content and information that they themselves post as user content on the Services. You may request such removal by emailing us at firstname.lastname@example.org. Please note that your request does not ensure the complete or comprehensive removal of the material.
Some web browsers may transmit "do-not-track" signals to the websites with which the user communicates. We do not currently take action in response to those signals. If an industry standard on responding to such signals is established and accepted, we may reassess how to respond to those signals.
Ryzer Mindset is a data controller. Team and organizational account holders, are directly responsible for complying with all requirements of applicable EU privacy laws in connection with the information that they obtain and process for the purposes of managing their individual users.
Attn: Ryzer Mindset Privacy
Ryzer Mindset, LLC
1920 Philadelphia Street, Suite 104
Ames, Iowa 50010
PLEASE READ THE TERMS OF SERVICE CAREFULLY BEFORE USING OUR SERVICES. THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, INCLUDING DISCLAIMERS OF WARRANTIES, DISCLAIMERS OF LIABILITY, AND MANDATORY ARBITRATION. THE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE.
Ryzer Mindset reserves the right to change or modify the Terms and Conditions applicable to your use of our Services, or any part thereof, or to impose new conditions, at any time. All such changes will take effect immediately after they have been posted on our Services, and you will be deemed to have accepted any such changes by your use of our Services following such time. Therefore, we encourage you to regularly review the Terms and Conditions.
OUR SERVICES ARE NOT DIRECTED TO, OR INTENDED FOR, CHILDREN UNDER 13 YEARS OF AGE. Ryzer Mindset understands that protecting the privacy of young children is important. For that reason, children under the age of 13 may not use the Services. If you use the Services, you affirm that you are at least 13 years old.
You need an account in order to use some of our Services. The availability of these services may vary, and, in the future, we may add other services that may be accessed through our Services. While your use of our Services is subject to the Terms and Conditions, other services offered by Ryzer Mindset may be subject to additional terms and conditions.
You may register to create your own account, or your account may be assigned to you by an administrator, such as your employer or educational institution. If you are using an account assigned to you by an administrator, different or additional terms may apply and your administrator may be able to access or disable your account.
When you register for your account, you will select a valid email address and password. You are responsible for maintaining the confidentiality of your password, and you are responsible for all activities that occur under your email address and password, whether or not authorized by you. You agree to immediately notify Ryzer Mindset of any unauthorized use of your email address and password.
YOUR USE OF OUR SERVICES
You agree that you will NOT:
YOUR SUBMISSIONS TO OUR SERVICES
Our Services may allow you to post, disseminate, submit, transmit, host, share and/or publish various materials and information, including without limitation photographs, videos, biographical information, your answers to survey questions, narrative text (e.g., interactive answers in mental gym workouts) and other materials (collectively, "User Materials"). You are solely responsible for your User Materials and the consequences of posting, disseminating, submitting, transmitting, hosting, sharing and/or publishing such User Materials on and/or to our Services.
By using our Services and posting, disseminating, submitting, transmitting, hosting, sharing and/or publishing such User Materials on and/or to our Services, you represent and warrant that you own the entire right, title and interest in and to such User Materials, including without limitation the copyrights therein and thereto (or you otherwise possess sufficient rights in such User Materials, through a written agreement with the owner(s) of such rights, to grant the license, consent and release herein), and that such User Materials: (i) are original and have not been copied in whole or in part from any other work; and, (ii) do not violate, infringe and/or misappropriate the proprietary rights of any third party, including without limitation privacy and publicity rights.
You hereby fully and completely release, forever discharge, hold harmless and agree to defend and indemnify the Ryzer Mindset Parties from any and all claims, liabilities demands, actions, suits, causes of action and damages (including costs, expenses and attorneys’ fees), that you, or any third party, shall or may have arising out of or in connection with the use of such User Materials and/or Names and Likenesses as provided herein. The license, consent and release herein is binding upon you and your heirs, executors, administrators, successors, licensees and assigns.
You further acknowledge that Ryzer Mindset has the right, in our sole discretion, to prescreen, pre-approve, refuse and/or remove from our Services, without prior notice, any User Materials, including without limitation User Materials that violate the Terms and Conditions.
Some services offered through the Services may be subject to additional terms and conditions established from time to time; your use of such services is subject to those additional terms and conditions which are incorporated into these Terms of Service by reference.
If you have any comments or questions regarding content or materials on our Services, please contact Ryzer Mindset using the contact information found at the end of the Terms and Conditions. If you believe in good faith that any content or materials on our Services violate your copyright, please contact us as provided in the following section of the Terms and Conditions.
COPYRIGHT INFRINGEMENT AND THE DIGITAL MILLENNIUM COPYRIGHT ACT
Ryzer Mindset respects the valid intellectual property rights of others. We will respond to allegations of copyright infringement with respect to content or materials on our Services, including without limitation User Materials, in accordance with the Digital Millennium Copyright Act (the "DMCA").
The DMCA provides a process for copyright owners to give notification to online service providers concerning alleged copyright infringement. When Ryzer Mindset receives a valid DMCA notification, we respond by removing (or disabling access to) the allegedly infringing content or materials. After removing such content or materials, Ryzer Mindset will take reasonable steps to contact the owner of the removed content or materials so that a DMCA counter notification may be submitted. After receiving a valid counter notification, Ryzer Mindset generally restores the allegedly infringing content or materials, unless we receive further notice from the copyright owner that a legal action has been filed seeking a court order to restrain the alleged copyright infringer from engaging in the allegedly infringing activity.
If you are a copyright owner, or an agent of a copyright owner, and you believe that any content or materials on our Services, including without limitation User Materials, violate your copyright, you may submit a notification pursuant to the DMCA by providing our DMCA agent with the following information in writing (please see 17 U.S.C. §512(c)(3) for further detail): (i) your physical or electronic signature; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit Ryzer Mindset to locate the material; (iv) information reasonably sufficient to permit Ryzer Mindset to contact you, such as an address, telephone number, and, if available, an email address; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and, (vi) a statement under penalty of perjury that the information in the notification is accurate, and that you are authorized to act on behalf of the owner of the allegedly infringed copyright.
Ryzer Mindset’s designated agent to receive notifications of claimed copyright infringement under the DMCA is:
Ryzer Mindset LLC
Attn: Heather Gayer (DMCA Notice)
1920 Philadelphia Street, Suite 104
Ames, IA 50010
For the purposes of clarification, only notices pursuant to the DMCA should be directed to Ryzer Mindset’s DMCA agent. All other questions or concerns about our Services or the Terms and Conditions should be directed to Ryzer Mindset as set forth at the end of the Terms and Conditions.
All text, graphics, photographs, videos, user interfaces, trademarks, logos, taglines, animations, sounds, and music contained on, or comprising, our Services, including without limitation the design, structure, selection, organization, compilation, display, arrangement, expression and "look and feel" of our Services, and the software comprising and/or embodying the foregoing (collectively, the "Ryzer Mindset Content"), are owned, controlled or licensed by or to Ryzer Mindset, and are protected under applicable intellectual property laws, including without limitation copyright, trade dress, trademark and/or patent laws. Your use of our Services gives you no ownership rights in the Ryzer Mindset Content.
You may not, without limitation, copy, reproduce, republish, download, print, post, broadcast, record, mirror, transmit, commercially exploit, edit, communicate to the public or distribute in any way any part of our Services or the Ryzer Mindset Content except as follows: (i) you may download the Ryzer Mindset Content to your website viewing device for the purpose of viewing it or importing into an intranet or internal software system for your own internal business purposes; and, (ii) you may print portions of our Services and the associated Ryzer Mindset Content for your personal informational or internal business purpose use as long as the printed portions are not subsequently modified or altered in any way. Any use other than as permitted under the Terms and Conditions may be undertaken only with the prior written authorization of Ryzer Mindset.
TERMINATION OF YOUR RIGHT TO USE OUR SERVICES
Subject to the limitations of our User License and Subscription Agreement, Ryzer Mindset reserves the right to suspend, restrict and/or terminate your access to our Services at any time, without notice, in our sole discretion, without limitation to any of our other rights. Further, Ryzer Mindset reserves the right to terminate your account if your User Materials are the subject of multiple DMCA notifications and/or you are deemed to be a repeat infringer.
PRODUCTS AND SERVICES OFFERED BY RYZER MINDSET
Ryzer Mindset may offer products and services on or through our Services. When you enroll for such products or services, you accept the specific agreement(s) applicable to such products or services as described in our User License and Subscription Agreement in addition to the Terms and Conditions.
LINKS TO OTHER WEBSITES
Our Services may provide links to other websites or resources, including advertisers, over which we have no control. These links are provided solely as a convenience to you and, unless otherwise explicitly stated, should not be construed as an endorsement by Ryzer Mindset of the content, products or services on such websites or resources. You access and use such websites or resources, including the content, products or services thereon, solely at your own risk. We make no representations or warranties with respect to the content, ownership, or legality of any such linked websites, and you agree that Ryzer Mindset has no responsibility or liability for the availability of such websites or resources, or for the content, advertising, products, services or other materials available through such websites or resources.
THIRD PARTY ADVERTISING ON OUR SERVICES
Unless otherwise explicitly stated, Ryzer Mindset does not endorse or guarantee any third party products or services advertised on our Services or any third parties sponsoring parts of our Services. Your dealings with advertisers or other third parties found on or through our Services are solely the responsibility of you and the third party. These dealings include without limitation your participation in promotions, the payment for and delivery of products and services, if any, and any terms, conditions, warranties or representations associated with such dealings. You agree that Ryzer Mindset will have no liability with respect to any loss or damage of any kind incurred as a result of any dealings between you and any third party, or as a result of the presence of such third parties on our Services.
INFORMATIONAL AND EDUCATIONAL ONLY
You understand and agree that the TAP assessment and associated reports and content are to be used for informational and educational purposes only.
YOU AGREE THAT THE TAP ASSESSMENT DOES NOT MEASURE AN INDIVIDUAL' S CLINICAL OR MENTAL PERSONALITY, DOES NOT CREATE MEDICAL INFORMATION, DOES NOT MAKE A MEDICAL OR PSYCHOLOGICAL DIAGNOSIS, AND DOES NOT FALL UNDER THE UNITED STATES HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA).
DISCLAIMER OF WARRANTIES
YOU AGREE THAT YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. THE SERVICES, AND ALL MATERIALS, INFORMATION (INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, LINKS, OR ANY INFORMATION OR MATERIALS OBTAINED OR ACCESSED THROUGH THE SERVICES), AND PRODUCTS INCLUDED THEREIN ARE PROVIDED "AS IS," "WITH ALL FAULTS," "AS AVAILABLE," WITH NO WARRANTIES WHATSOEVER AND THEREFORE RYZER MINDSET EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM COMPUTER VIRUS, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS.
RYZER MINDSET DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, LEGALITY, RELIABILITY, OR OPERABILITY OF INFORMATION, CONTENT, OR MATERIALS ON THE SERVICES, THE FUNCTIONALITY OF THE SERVICES, OR THE AVAILABILITY OF THE SERVICES. RYZER MINDSET CANNOT AND DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULT FROM USE OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM RYZER MINDSET, OR FROM OR THROUGH THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU HAVE NO RIGHT TO RELY ON ANY INFORMATION CONTAINED HEREIN AS ACCURATE. RYZER MINDSET MAKES NO SUCH WARRANTY. RYZER MINDSET DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RESULTS OF THE USE OF THE INFORMATION MATERIALS, SOFTWARE, FACILITIES, SERVICES, OR OTHER CONTENT ON THE SERVICES OR ANY SITES LINKED TO THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, OR OTHERWISE. RYZER MINDSET DOES NOT WARRANT THAT THE FUNCTIONS AND FEATURES MADE AVAILABLE THROUGH THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
RYZER MINDSET EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITIES AND LIABILITY FOR THE CONDUCT OF ANY OTHER USER, AND EXPRESSLY DISCLAIMS THAT USER MATERIALS INPUTTED BY OTHER USERS ARE EITHER CORRECT OR ACCURATE. RYZER MINDSET IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OR OTHER USERS OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL RYZER MINDSET BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE’S USE OF THE SERVICES, ANY USER MATERIALS POSTED ON OR THROUGH THE SERVICES OR TRANSMITTED TO USERS OR OTHER USERS, OR ANY INTERACTIONS BETWEEN OR AMONG USERS OR OTHER USERS OF THE SERVICES, WHETHER ONLINE OR OFFLINE. RYZER MINDSET TAKES NO RESPONSIBILITY FOR THIRD-PARTY ADVERTISEMENTS THAT ARE POSTED THROUGH THE SERVICES, NOR DOES IT TAKE ANY RESPONSIBILITY FOR THE GOODS OR WEBSITES PROVIDED BY ITS ADVERTISERS.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. RYZER MINDSET IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY NETWORK, SYSTEM, SERVER OR PROVIDER, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF E-MAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS, OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF. RYZER MINDSET IS NOT RESPONSIBLE FOR ANY INJURY OR DAMAGE TO ANY DEVICES BELONGING TO ANY USER OR ANY OTHER PERSON RELATED TO OR RESULTING FROM USE OF THE SERVICES, VIEWING, PLAYING, OR DOWNLOADING ANY USER MATERIALS ON OR FROM THE SERVICES, OR OTHERWISE IN ANY WAY IN CONNECTION WITH THE SERVICES.
RYZER MINDSET ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER OR USER COMMUNICATIONS. UNDER NO CIRCUMSTANCES WILL RYZER MINDSET, ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, AND THEIR RESPECTIVE OWNERS, OFFICERS, MANAGERS, OTHER USERS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, GOODWILL, USE DATA, OR OTHER INTANGIBLE LOSSES), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH USE OF, OR INABILITY TO USE, THE SERVICES, WHETHER OR NOT RYZER MINDSET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. SUCH LIMITATIONS OF LIABILITY SHALL APPLY (A) WHETHER THE DAMAGES ARISE FROM THE SERVICES OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), AND (B) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. IF YOU ARE DISSATISFIED WITH ANY PART OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
RYZER MINDSET ASSUMES NO RESPONSIBILITY FOR ANY CONCLUSIONS, OPINIONS, OR DECISIONS MADE BY OTHERS, INCLUDING USERS YOU HAVE SHARED YOUR INFORMATION WITH, RELATING IN ANY WAY TO OUR SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, UNDER NO CIRCUMSTANCES SHALL RYZER MINDSET BE LIABLE TO YOU FOR ANY AMOUNT EXCEEDING TWENTY-FIVE DOLLARS ($25.00) OR THE MINIMUM AMOUNT ALLOWED BY LAW IN THE APPLICABLE JURISDICTION.
Unless otherwise stated in a separate agreement between you and Ryzer Mindset that governs your use of Ryzer Mindset’s web and/or mobile based application software, the Terms and Conditions shall be governed by and construed under the laws of the State of Iowa, without regard to conflicts of laws rules. You agree that the courts of Iowa shall have exclusive jurisdiction over the parties for all disputes. Venue shall lie exclusively and only in the state and federal courts in Ames, Story County, Iowa.
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor Ryzer Mindset will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
Any arbitration necessary under this section will be held through confidential binding arbitration in accordance with the commercial rules of arbitration of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in a court of competent jurisdiction. You agree that Ryzer Mindset may seek any interim or preliminary relief from a court of competent jurisdiction in Ames, Story County, Iowa necessary to protect its rights or property pending the completion of arbitration.
To the extent permitted by law, any claim or dispute under these Terms and Conditions must be filed within one year in an arbitration proceeding. The one-year period begins when the claim or notice of dispute first could be filed.
LIABILITY FOR TECHNICAL DISRUPTIONS TO OUR SERVICES
If you cause a technical disruption of our Services or any aspect of its functionality you agree to be responsible for any and all losses, costs, liabilities or expenses Ryzer Mindset may suffer and you agree to be liable for any attorneys’ fees and costs arising from and/or related to the same. The foregoing shall be without limitation of our other vendors in law or equity.
You agree to compensate, indemnify, defend, and hold harmless Ryzer Mindset, our officers, directors, employees, agents, business partners, affiliates, distributors, licensors and licensees for, from and against all claims, losses, expenses, damages, costs, or demands, resulting from any claim, action, investigation, demand, or proceeding arising in connection with your use of our Services or any violation of the Terms and Conditions.
Each provision of the Terms and Conditions shall be construed separately and independently of each other and the invalidity of any one part shall not affect the validity of any other part.
The failure of Ryzer Mindset to enforce any provision of the Terms and Conditions or to respond to a breach by you or other parties shall not in any way waive its rights to enforce subsequently any terms or conditions of the Terms and Conditions or to act with respect to similar breaches.
HOW TO CONTACT US
Should you have questions or concerns about the Terms and Conditions, please contact us at email@example.com.
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES AND CONTENT.. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A SCHOOL, COLLEGE, CORPORATION, PARTNERSHIP, NON-PROFIT ORGANIZATION, SERVICES ORGANIZATION, OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if you are our direct competitor, except with our prior written consent. In addition, You may not access the Services for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purposes.
This Agreement is effective between you and Ryzer Mindset as of the date of you accept this Agreement by accepting online through our Services, or by consummating a purchase through written agreement, purchase order, or invoice payment.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means this User License and Subscription Agreement.
"Ryzer Mindset," "we," "us" or "our" means Ryzer Mindset, LLC described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"Beta Services" means our services that are not generally available to customers or under development in a test phase.
"Content" means information and/or applications obtained by us from our licensors or publicly available sources and provided to you in our Products.
"Documentation" means our online user guides, documentation, and help and training materials, as updated from time to time, accessible via our Services.
"Enterprise" means an entire company, organization, school, sports team, professional services firm or other legal entity.
"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
"Order Form" means an ordering document specifying the Services to be provided hereunder that is entered into between you and us including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
"Purchased Product(s)" means Products that you or your Affiliate purchase for money under an Order Form, as distinguished from those provided pursuant to a free trial with no monetary obligation.
"Product(s)" means the Content and Services that are ordered by you under an Order Form and made available online by us, including associated offline components, as described in the Documentation.
"Services" means the collective digital services offered by Ryzer Mindset when you visit or use https://ryzer.com/mindset, or https://mindset.ryzer.com, and any other online site, mobile application, service, or product that links to the Terms and Conditions of Ryzer Mindset.
"Sites" means websites owned and operated by Ryzer Mindset including, but not limited to, ryzermindset.com, mindset.ryzer.com, and tapscouting.com
"User" means an individual who is authorized by you to use a Service, for whom you have ordered the Service, and to whom you (or we at your request) have supplied a user identification and password. Users may include, for example, your employees & prospective employees, students & prospective students, team athletes or prospective team athletes, team coaches, parents of students or athletes, consultants, contractors and agents, and third parties with which you transact business.
"You" or "your" means the school, college, corporation, partnership, non-profit organization, services organization, or other legal entity for which you are accepting this Agreement, and Affiliates of that school, college, corporation, partnership, non-profit organization, services organization, or entity.
"Your Data" means electronic data and information submitted by or for you to the Services or collected and processed by or for you using the Services.
2. FREE VERSIONS
Some of our Products may be available free of charge. If you are entitled to receive a free version of our Products, We will make one or more Products available to you free of charge until the earlier of (a) the termination of the applicable Product(s) per Section 12 of this Agreement, or (b) the start date of any Purchased Product subscriptions ordered by you for such Product(s), or (c) your termination as a customer of our affiliate or subsidiary. Additional terms and conditions may appear on the free version Order Form. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL USE OF OUR SERVICES WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE IN THE FREE TRIAL VERSION OR EXPORT SUCH DATA, BEFORE TERMINATION.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), FREE VERSION SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.
3. OUR RESPONSIBILITIES
3.1. Provision of Purchased Products. We will (a) make the Services and Content available to you pursuant to this Agreement and the applicable Order Forms, (b) provide our standard support for the Purchased Products to you at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Products available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which we shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 9:00 p.m. Friday and 6:00 a.m. Monday Eastern time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Ryzer Mindset Application, or denial of service attack.
3.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by our personnel except (a) to provide the Purchased Products and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
3.3 Our Personnel. We will be responsible for the performance of our personnel (including our employees and contractors) and their compliance with our obligations under this Agreement, except as otherwise specified herein.
3.4 Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in your sole discretion. Some Beta Services may be offered generally to all Users through our Products without requiring your acceptance, and you are under no obligation to use the Beta Services. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered "Products" under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4. USE OF SERVICES AND CONTENT
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form, Products are purchased as subscriptions.
4.2 Users & Usage Options.
4.21 User & Usage Limits. Products may be subject to usage limits for team or group subscriptions, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Product may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Product. If you exceed a contractual usage limit, we may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding our efforts, you are unable or unwilling to abide by a contractual usage limit, you will execute an Order Form for additional quantities of the applicable Product promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.22 Enterprise Users & Usage. Subscriptions may provide for all Users in an enterprise (school, college, corporation, partnership, non-profit organization, services organization, or other legal entity) to have access to the Product(s). The Order Form will define the enterprise and only Users from the enterprise will be provided access under the Subscription. If you provide access to non-Enterprise Users, You are obligated to pay an applicable per-User fee for the Product(s) for each non-Enterprise User in accordance with Section 6.2 (Invoicing and Payment).
4.23 Variable Users & Usage. Subscriptions may provide for variable charges accumulating over time based upon the incremental new Users accessing the Product(s). We will monitor the number of Users and incremental new Users accessing the Product(s) and invoice you according to the Order Form and Section 6.2 (Invoice and Payment).
4.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which you acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Product(s), and notify us promptly of any such unauthorized access or use, (d) use Product(s) only in accordance with the Documentation and applicable laws and government regulations, (e) use commercially reasonable efforts to ensure Users’ use our Product(s) only in accordance with our Terms and Conditions, and (f) comply with terms of service of Non- Ryzer Mindset Applications with which you use our Product(s).
4.4 Usage Restrictions. You will not (a) make any Product available to, or use any Product for the benefit of, anyone other than you or your Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Product, or include any Product in a service bureau or outsourcing offering, (c) use a Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Product to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Product or third-party data contained therein, (f) attempt to gain unauthorized access to any Product or its related systems or networks, (g) permit direct or indirect access to or use of any Product in a way that circumvents a contractual usage limit, (h) copy a Product or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Product, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in the Documentation, (k) access any Product in order to build a competitive product or service, or (l) reverse engineer any Product (to the extent such restriction is permitted by law).
4.5 Removal of Content and Non-Ryzer Mindset Applications. If we are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify you and in such event you will promptly remove such Content from your systems. If we receive information that a Non-Ryzer Mindset Application hosted on a Service by you may violate applicable law or third-party rights, We may so notify you and in such event you will promptly disable such Non-Ryzer Mindset Application or modify the Non-Ryzer Mindset Application to resolve the potential violation. If you do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-Ryzer Mindset Application until the potential violation is resolved.
5. THIRD PARTY PRODUCT & SERVICE PROVIDERS & NON-RYZER MINDSET APPLICATIONS
5.1. Acquisition of Third Party Products & Services. We or third parties may make available third-party products or services, including, for example consulting services relating to our Products. Any acquisition by you of such third party products or services, and any exchange of data between you and any third party service provider, is solely between you and the applicable third party service provider. We do not warrant or support third party products or services, whether or not they are designated by us as "certified" or otherwise, except as specified in an Order Form.
5.2. Non-Ryzer Mindset Applications and Your Data. You shall not install or enable a Non-Ryzer Mindset Application for use with our Products without our advance written consent. Incident to any such consent, you hereby grant us permission to allow the provider of that Non-Ryzer Mindset Application to access Your Data as required for the interoperation of that Non-Ryzer Mindset Application with the Product(s). We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-Ryzer Mindset Application.
6. FEES AND PAYMENT FOR PURCHASED PRODUCTS
6.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Product(s) purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
6.2. Invoicing and Payment. You will provide us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card information to us, You authorize us to charge such credit card for all Purchased Products listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice you in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
6.3. Overdue Charges. If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) we may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized us to charge to your credit card), we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend our services to you until such amounts are paid in full. We will give you at least 10 days’ prior notice that your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to you.
6.5. Payment Disputes. We will not exercise our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 6.6, We will invoice you and you will pay that amount unless You provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against us based on our income, property and employees.
6.7. Future Functionality. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, we and our licensors reserve all of our/their right, title and interest in and to the Products, including all of our/their related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
7.2. License by us to use Products. We hereby grant you a royalty-free, non-exclusive, non-transferable, limited right and license to access, use, execute and deploy the Product(s) solely for the purposes set forth in herein and solely for the applicable subscription term subject to the restrictions set forth in this Agreement. The Products are owned and operated by Ryzer Mindset and provided to you pursuant to this license on an annual (or other defined term) subscription basis; Ryzer Mindset is not transferring ownership or title to the Products to you. The Products are made available solely for use by you and only according to the terms of this Agreement. Any reproduction, resale or redistribution of the Products that is not in accordance with this Agreement is expressly prohibited. The license granted hereunder may not be transferred by you to any third party without the consent of Ryzer Mindset, which consent shall not be unreasonably withheld if such transfer is a result of a change of ownership or control of your business.
7.3. You acknowledge that the Products and their related software are proprietary to Ryzer Mindset and/or its affiliates and are protected by copyrights, trademarks, service marks, patents and/or other proprietary rights and laws. You may not remove any proprietary notices or labels from any of the Products. You may not alter, modify, redistribute, sell, auction, decompile, reverse engineer, disassemble or otherwise reduce any of the Products to a human-readable form. You may not reproduce, distribute or create any derivative works based on the Products without expressly being authorized in writing to do so by Ryzer Mindset. Further, You may not rent, lease, grant a security interest in or otherwise transfer any rights to the Products. All rights not expressly granted in this Agreement are reserved to Ryzer Mindset and its affiliates.
7.4. The license granted hereunder entitles you to receive standard updates and support that Ryzer Mindset provides to all users of its Products, generally. Notwithstanding the previous sentence, Ryzer Mindset reserves the right to charge all of its users fees for any future versions of, or premium (i.e., charged for) upgrades to, the Products and Services. You understand that Ryzer Mindset may update or modify any of the Products and their related software at any time, but is under no obligation to inform you of any such updates or modifications. For the avoidance of doubt, unless Ryzer Mindset chooses to provide such updates or modifications to all of its users, this Agreement does not grant you any right, license or interest in or to any premium or "VIP" support, maintenance, improvements, modifications, enhancements or upgrades to the Products or their related software. To the extent that Ryzer Mindset supplies any updates or upgrades to you, they will be deemed to be subject to this Agreement.
7.5. ANY AND ALL CONTENT ON THE WEBSITES, SOFTWARE AND COMPUTER PROGRAMS ASSOCIATED WITH THE PRODUCTS ARE PROTECTED BY COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS. EXCEPT AS SPECIFICALLY PERMITTED HEREIN, NO PORTION OF THE INFORMATION OR CONTENT ON SUCH WEBSITES, SOFTWARE AND COMPUTER PROGRAMS MAY BE REPRODUCED IN ANY FORM, OR BY ANY MEANS, WITHOUT PRIOR WRITTEN PERMISSION FROM RYZER MINDSET. YOU AND ANY OTHER VISITOR OR USER ARE NOT PERMITTED TO MODIFY, DISTRIBUTE, PUBLISH, TRANSMIT OR CREATE DERIVATIVE WORKS OF ANY MATERIAL FOUND ON SUCH WEBSITES, SOFTWARE AND COMPUTER PROGRAMS FOR ANY PUBLIC OR COMMERCIAL PURPOSE.
7.6. License by Us to Use Content. We grant to you a worldwide, limited-term license, under our applicable intellectual property rights and licenses, to use the Product(s) acquired by you pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
7.7. License by You to Host Your Data and Applications. You grant us and our Affiliates a worldwide, limited- term license to host, copy, transmit and display Your Data as necessary for us to provide the Products in accordance with this Agreement. Subject to the limited licenses granted herein, we acquire no right, title or interest from you or your licensors under this Agreement in or to Your Data or any Non-Ryzer Mindset Application or program code.
7.8. License by You to Use Feedback. You grant to us and our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Products any suggestion, enhancement request, recommendation, correction or other feedback or testimonials provided by you or Users relating to the operation of the Products, Content, or Services.
7.9. License by You to Use Data. You grant to us and our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Products your Data. Your Data will be made anonymous before it is aggregated into the Products.
8.1. Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Products, Services, and Content; and Confidential Information of each party includes the Terms and Conditions, the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. We warrant that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Products during a subscription term, (c) the Purchased Products will perform materially in accordance with the applicable Documentation, (d) subject to Section 5.2 (Non-Ryzer Mindset Applications and Your Data), We will not materially decrease the functionality of the Purchased Products during a subscription term, and (e) the Purchased Products will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 12.3 (Termination) and 12.4 (Refund or Payment upon Termination).
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of a Purchased Product in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a "Claim Against You"), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, a Claim Against You, provided you (a) promptly give us written notice of the Claim Against You, (b) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases you of all liability), and (c) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to a Product, We may in our discretion and at no cost to you (i) modify the Product so that it no longer infringes or misappropriates, without breaching our warranties under Section 9.2 (Our Warranties), (ii) obtain a license for your continued use of that Product in accordance with this Agreement, or (iii) terminate your subscriptions for that Product upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Ryzer Mindset Application or your breach of this Agreement.
10.2. Indemnification by You. You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that Your Data, or your use of any Product in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a "Claim Against Us"), and will indemnify us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by us under a court-approved settlement of a Claim Against Us, provided we (a) promptly give you written notice of the Claim Against Us, (b) give you sole control of the defense and settlement of the Claim Against Us (except that you may not settle any Claim Against Us unless it unconditionally releases us of all liability), and (c) give you all reasonable assistance, at your expense.
10.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED PRODUCTS).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date you first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless we have given you written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
12.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by you in accordance with Section 12.3 (Termination), We will refund you any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by us in accordance with Section 12.3, you will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination.
12.5. Your Data Portability and Deletion. Upon request by you made within 30 days after the effective date of termination or expiration of this Agreement, we will make the Your Data available to you for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and may thereafter delete or destroy all copies of Your Data in our systems or otherwise in our possession or control as provided in the Documentation, unless legally prohibited.
12.6. Surviving Provisions. The Sections titled "Fees and Payment for Purchase Services," "Proprietary Rights and Licenses," "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Your Data Portability and Deletion," "Who You Are Contracting With, Notices, Governing Law and Jurisdiction," and "General Provisions" will survive any termination or expiration of this Agreement.
13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
The governing law is: Iowa
The courts having exclusive jurisdiction are: those federal and state courts located in Ames, Story County, Iowa.
You are contracting with: Ryzer Mindset, LLC
Notices should be addressed to:
Ryzer Mindset, LLC
1920 Philadelphia Street, Suite 104
Ames, IA 50010
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All other notices to you shall be addressed to the relevant Products’ system administrator designated by you.
13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.4. No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other Affiliate company. Subject to any permitted Assignment under Section 14.2, the obligations owed by us under this Agreement shall be owed to you solely by us and the obligations owed by you under this Agreement shall be owed solely to us.
14 GENERAL PROVISIONS
14.1. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between you and us regarding your use of Products and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in your purchase order or in any other of your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
14.2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to you any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.4. Publicity. During the term of this Agreement, We shall be permitted to identify you as a customer. With prior written consent, we shall be permitted to use your name and additional content in news releases, articles, brochures, marketing materials, advertisements and other publicity or promotions, and to hyperlink from our Web site to your home page. No specific consideration or endorsement fee shall be required for this right
14.5. Third-Party Beneficiaries. Our Content licensors shall have the benefit of our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
14.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.