tru™ STRENGTH REALIZATION PLATFORM
Last Updated: December 01, 2023
AGREEMENT TO TERMS
We are Breakthrough Performance Systems, Inc. (“BPS,” “we,” “us,” or “our”), a company registered in the State of Delaware. We operate the website, www.tru-sr.com (the “Website”) which houses the tru™ Strength Realization Platform through which we provide you our services, (collectively, the “Services”).
The Services are intended for business or individual users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Services.
1. OUR WEBSITE AND SERVICES
We provide you a software as a service (the “Software”), that you access remotely via the cloud, that you can use, as applicable, in connection with and in support of human capital development, performance optimization, individual career development and self-actualization, organizational retention and company culture development and support using information entered into the Software by you related to you, your experiences, your business or organization.
2. INTELLECTUAL PROPERTY RIGHTS
A. Defined. As used herein, “Intellectual Property” means recognized protectable rights and interests such as patents (whether or not issued), copyrights, trademarks, service marks, applications for any of the foregoing, inventions, Confidential Information (defined below), trade secrets, trade dress, domain names, logos, insignia, color combinations, slogans, moral rights, right of publicity, author’s rights, contract and licensing rights, works, mask works, industrial design rights, rights of priority, know how, design flows, methodologies, devices business processes, developments, innovations, graphics, user interfaces, databases, functionality, software, website designs, audio, video, text, photographs, graphics reproduced through the Website, good will and all other legal rights protecting intangible proprietary information as may exist now and/or hereafter come into existence, and all registrations, renewals and extensions, regardless of whether those rights arise under the laws of the United States, or any other state, country or jurisdiction.
C. Limited Use. With regard to BPS’ Intellectual Property and any Intellectual Property of a third party in the possession of BPS:
(ii) User will not use such Intellectual Property for its own benefit other than as intended pursuant to the terms of the Service the User’s Subscription, or for the detriment or the intended detriment of BPS;
(iii) User will not use the Intellectual Property in violation of any restrictions imposed by, or in any manner inconsistent with the ownership or rights of BPS or third party;
(iv) User will not disclose any Intellectual Property to any person other than authorized personnel,
(v) User will not copy all or part of any documents, books, or records containing Intellectual Property, without the express permission of BPS.
You agree to keep all BPS’ Intellectual Property (defined above), training materials, and other information pertaining to our business (collectively, “Confidential Information”) confidential and not to disclose such materials or information to third parties.
Upon a breach or threatened breach of any of the provisions of this Section 3, BPS shall have any and all rights and remedies available to it at law, in equity, and otherwise against the breaching party for such breach, including the right to injunctive relief in order to prevent or to restrain the breaching party and any and all persons acting directly or indirectly for or with that breaching party.
4. USER REPRESENTATIONS
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
5. USER REGISTRATION
You are required to establish a user account (“User Account”) (complete with an unique username and user password) to register to use the Services. You agree to keep your user password confidential and will be responsible for all use of your User Account and user password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
6. SUBSCRIPTION PLANS AND FEES; BILLING; PAYMENT; TAXES; CANCELLATION
A. Subscription Plans. Each User Account will require the User to sign up and pay for one of BPS’ subscription plans (“Subscription Plans” and each a “Subscription”). You can find information about our pricing options and available Subscription Plans on the following page(s): Individual, Coach, and Enterprise (the “Subscription Plan Page(s)”).
B. Fees for Subscriptions. Fees for Subscriptions (“Subscription Fees”) shall be based on the type and length of your Subscription (“Subscription Period”) as provided on the Subscription Plan Page. No Subscription Plan shall be activated or renewed prior to full payment of the applicable Services Fee. The Subscription Period shall commence on the date full payment for your Subscription Plan is received or as otherwise agreed by and between us and you and shall continue for the period associated with the Subscription Plan. All Subscriptions will auto-renew at the end of the applicable Subscription Period for your Subscription.
C. Billing. We bill you for all initial and recurring Subscription Fees through an online billing account and you agree to provide (and keep updated) current, complete, and accurate purchase and account information including email address, payment method, and payment card expiration date, so that we can process your payments and contact you as needed.
Our prices may be updated from time to time so please make sure that you check our current Subscription Fees before placing your order. All payments shall be in USD.
D. Accepted Forms of Payment. We accept the following forms of payment:
· American Express
· Any other Stripe supported card brand
You agree to pay all charges or fees at the prices then in effect for your Subscription, and you authorize us to charge your chosen payment provider for any such amounts upon placing your order. If your Subscription is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation in accordance with the cancellation information described in this section below.
E. Corrections. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any Subscription request. In such case we will notify you by email and refund you any Subscription Fees that you have paid.
withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, we may require that you submit applicable Sales Taxes to us. However, the preceding sentence does not apply to the extent that you are tax exempt, provided you give us a valid tax exemption certificate within thirty (30) days of the start of your Subscription. Our failure to include any applicable tax in an invoice will not waive or dismiss the parties’ rights or obligations pursuant to this Section. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, you shall separately pay us the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section does not govern taxes based on our net income.
G. Subscription Plan Cancellation. You can cancel your Subscription Plan at any time by logging into your account or contacting us using the contact information provided below. Your cancellation will take effect at the end of your current Subscription Period. Except as stated in this Section, we will not be required to refund Subscription Fees under any circumstances. Upon cancellation, you will no longer have access to the Services and any certifications, as applicable, associated with your Subscription Plan (collectively, “Associated Certifications”) shall be deemed to have expired; provided, however, you will continue to have access to the Services and use of any Associated Certifications pursuant to the terms of the Subscription Plan for the remainder of the Subscription Period. At the end of your Subscription Period, we will provide you with an export of the data and information resulting from your use of the Services during the Subscription Period. If you are unsatisfied with our services, please email us at trudyAtyourservice@bp-systems.com.
7. PROHIBITED ACTIVITIES
A. No Inconsistent Use of Services. You may not access or use the Services for any purpose other than that for which we make the Services available. The Services may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
B. User Agreements. As a user of the Services, you agree not to:
(i) Systematically retrieve data from the Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
(ii) Make any unauthorized use of the Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
(iii) Use the Services to advertise or offer to sell goods and services.
(iv) Circumvent, disable, or otherwise interfere with security-related features of the Services, including features that prevent or restrict the use or copying of any content or enforce limitations on the use of the Services and/or the content contained therein.
(v) Engage in unauthorized framing of or linking to the Services.
(vi) Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
(vii) Make improper use of our support services or submit false reports of abuse or misconduct.
(viii) Engage in any automated use of the Website or Services, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
(ix) Interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services.
(x) Attempt to impersonate another user or person or use the username of another user.
(xi) Sell or otherwise transfer your BPS profile or account.
(xii) Use any information obtained from the Services in order to harass, abuse, or harm another person.
(xiv) Decipher, decompile, disassemble, or reverse engineer any of the Software comprising or in any way making up a part of the Services.
(xv) Attempt to bypass any measures of the Website or Software designed to prevent or restrict access to the Services, or any portion of the Services.
(xvi) Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Services to you.
(xvii) Delete the copyright or other proprietary rights notice from any Content.
(xix) Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Software or the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Software or the Services.
(xx) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
(xxi) Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Software or the Services, or using or launching any unauthorized script or other software.
(xxii) Disparage, tarnish, or otherwise harm, in our opinion, BPS, the Software, Website, and/or the Services.
(xxiii) Use the Services in a manner inconsistent with any applicable laws or regulations (Note that the Services are not tailored to comply with industry-specific regulations (including, without limitation, Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), or Gramm-Leach-Bliley Act (GLBA), so if your interactions would be subjected to such laws or might in a result in the violation thereof, you may not use these Services.)
7. THIRD-PARTY WEBSITES AND CONTENT
You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Services or relating to any applications you use or install from the Services. Any
purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
8. MANAGEMENT OF SERVICES
9. PRIVACY NOTICE
We care about data privacy and security. Please review our Privacy Notice to understand our use of your personal information. You acknowledge that you have reviewed and understand our Privacy Notice.
Please be advised the Services are hosted in the United States. If you access the Services from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Services, you are transferring your data to the United States, and you agree to have your data transferred to and processed in the United States.
10. DIGITAL MILLENIUM COPYRIGHT ACT (DMCA) NOTICE AND POLICY
A. Notifications. We respect the intellectual property rights of others. If you believe that any material available on or through the Services infringes upon any copyright you own or control, please immediately notify our Designated Copyright Agent using the contact information provided below (a “Notificiation”). Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Services infringes your copyright, you should consider first contacting an attorney.
All Notifications should meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by the Notification, a representative list of such works on the Services; (3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (4) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted; (5) a statement that the complaining party has 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 (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon.
B. Designated Copyright Agent.
Breakthrough Performance Systems, Inc. Attn: Copyright Agent 748 St Johns Circle
Pleasanton, CA 94566 trudyAtyourservice@bp-systems.com
11. TERM AND TERMINATION
WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICES OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION IF WE CONSIDER THAT YOU HAVE BREACHED, OR ARE LIKELY TO BREACH, ANY OF THE ABOVE.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new User Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
12. MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the Content or the Services from time to time to comply with new laws or regulations or to update our offerings. We also reserve the right to modify or discontinue all or part of the Services if BPS were to close down or if we decide to change BPS’s business offering. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Services.
We cannot guarantee the Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services from time to time and will endeavor to give you notice of such changes. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services.
13. GOVERNING LAW
14. DISPUTE RESOLUTION
B. Binding Arbitration.
(i) If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excepted below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at www.adr.org. Your arbitration fees and your share of
arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Kent County, DE. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
(iii) In no event shall any Dispute brought by either Party related in any way to the Services be commenced more than one (1) year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
C. Restrictions. The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
D. Exceptions to Informal Negotiations and Arbitration.
(i) The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
There may be information on the Services that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information.
We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Services at any time, without prior notice.
THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. YOU AGREE THAT YOUR USE OF OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SOFTWARE OR THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES, THE CONTENT OR ANY THIRD-PARTY CONTENT AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY WEBSITE AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
17. LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE OR BPS’S DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, OR ANY (DIRECT OR INDIRECT): (A) LOSS OF DATA, (B) LOST PROFIT, OR (C) LOST REVENUE OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF (A) THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING AND (B) THE SUM OF US$100.
CERTAIN STATE LAWS AND COUNTRIES’ LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
19. USER DATA
Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby agree that you shall independently back up all your data and waive any right of action against us arising from any such loss or corruption of such data.
20. ELECTRONIC COMMUNICATIONS; TRANSACTIONS; SIGNATURES
Visiting the Website or using the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Services, satisfy any legal requirement that such communication be in writing.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICES.
You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
21. CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
22. OTHER IMPORTATANT INFORMATION
We may assign any or all of our rights and obligations to others at any time.
You shall not (a) permit any third party to access or use the Services or Software in violation of any U.S. law or regulation; or (b) export any software provided by us or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, you shall
not permit any third party to access or use the Services in, or export the Software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
23. CONTACT US
You can contact us by email at trudyAtyourservice@bp-systems.com, or by post to Breakthrough Performance Systems, Inc., 748 St Johns Circle, Pleasanton, CA 94566.