A. Assent to Agreement
BY USING THIS WEB SITE, YOU ARE INDICATING THAT YOU HAVE READ, ACKNOWLEDGE, AND ASSENT TO BE BOUND BY THE POLICIES, TERMS, AND CONDITIONS SET FORTH BELOW IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THIS SITE OR DOWNLOAD MATERIALS FROM THIS SITE.
This web site is provided by IBACOS, Inc. and may be used for informational purposes only. If the user is not an individual, then “you” means your company, its officers, members, agents, successors, and assigns.
B. Restrictions on Use
Except as otherwise permitted in writing by IBACOS, no materials from the PERFORM site may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. You may download material displayed on the PERFORM site for non-commercial, personal use only. If you do so, you agree to retain all copyright and other proprietary notices contained on the materials. You may not use, distribute, modify, transmit, or post the content of the PERFORM site for public or commercial purposes, including any text, images, audio, or video without IBACOS' written permission. You may not mirror any material contained on this site on any other server. You may not frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of IBACOS without express written consent. You may not use any metatags or any other “hidden text” using IBACOS' name or trademarks without the express written consent of IBACOS. Any unauthorized use terminates the permission or license granted by IBACOS.
C. Intellectual Property
All content included on this site, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material and software is the property of IBACOS or its content suppliers and is protected by copyrights, trademarks, trade secrets, or other proprietary rights, and these rights are valid and protected in all forms, media, and technologies existing now or hereinafter developed. All such content is copyrighted as a collective work under the US copyright laws (17 U.S.C. § 101, et. seq.) and international treaty provisions, and IBACOS owns a copyright in the selection, coordination, arrangement, and displayed enhancement of such content. All software used on this site is the property of IBACOS or its software suppliers and is protected by US and international copyright laws. You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the content on the site, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, republication, display, or performance of the content on this site, except as specifically permitted below, is strictly prohibited.
D. Limited License
IBACOS grants you a limited, nonexclusive, non-transferable personal license to access, display, and copy the Materials on the PERFORM web site for personal, non-commercial use only, subject to the requirements set forth in this Agreement. This license is conditioned on your continued compliance with the terms and conditions in this Agreement. All rights not expressly granted herein are reserved.
E. Representations and Warranties
By using this site, you represent and warrant that (i) you understand and agree that this Agreement is a legally binding agreement and the equivalent of a signed, written contract; (ii) you will use this web site in a manner consistent with all laws and regulations and in accordance with the terms and conditions of this Agreement; (iii) you are authorized to sign for and bind the contracting party; and (iv) you will not impersonate any person or entity, misrepresent any affiliation with another person, entity, or association, use false headers, or otherwise conceal your identity from IBACOS for any purpose.
F. Disclaimer of Warranties
You expressly agree that use of the PERFORM site is at your sole risk. Neither IBACOS, nor its affiliates, nor any of their officers, directors, or employees, agents, third-party content providers, merchants, sponsors, or licensors (collectively, Providers), or the like, warrant that the PERFORM site will be uninterrupted or error-free; nor do they make any warranty as to the results that may be obtained from the use of the PERFORM site or the content contained therein, or as to the accuracy, completeness, reliability, security or currency of the content. The content may contain errors, omissions, inaccuracies, or outdated information. Further, IBACOS does not warrant reliability of any advice, opinion, statement or other information displayed or distributed through the site. IBACOS reserves the right, its sole discretion, to correct any errors or omissions in any portion of the site. IBACOS may make any other changes to the site, the content and the products, programs, services or prices (if any) described in the site at any time without notice.
THIS SITE AND THE INFORMATION, CONTENT, AND MATERIALS ON THE SITE ARE PROVIDED BY PERFORM ON AN “AS IS,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS. PERFORM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, THE CONTENT, INFORMATION, OR THE MATERIALS ON THE PERFORM SITE, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. PERFORM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, WITH RESPECT TO ANY THE MATERIALS, CONTENT, OR INFORMATION ON THE PERFORM SITE OR ANY GOODS OR OTHER PRODUCTS OR SERVICES OFFERED, SOLD, OR DISPLAYED ON THE PERFORM SITE OR YOUR USE OF THE PERFORM SITE GENERALLY, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION, QUALITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW APPLIES TO THIS AGREEMENT.
G. Limitation of Liabilities
YOU AGREE THAT PERFORM AND ITS PROVIDERS SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS, OR EXPENSE OF ANY KIND ARISING OUT OF OR RESULTING FROM YOUR POSSESSION OR USE OF THE MATERIALS, CONTENT, OR INFORMATION ON THE PERFORM SITE REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT, OR OTHERWISE. IN NO EVENT, SHALL PERFORM OR ANY OF ITS PROVIDERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OR PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR INTERRUPTION OF BUSINESS), ARISING OUT OF OR IN ANY WAY RELATED TO THE MATERIALS, CONTENT OR INFORMATION ON THE PERFORM SITE, YOUR USE OF, OR INABILITY TO USE, THE PERFORM SITE GENERALLY, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER PERFORM OR ANY OF ITS PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
H. Discussion Areas
IBACOS may operate discussion areas in a good faith attempt to foster open communication via the Internet. IBACOS requests that only messages suitable to the subject matter of discussions are posted, and such messages are respectful of others. IBACOS reserves the right to cancel any message posted at any time. The views expressed in discussion areas are the thoughts and ideas of the posting author only; IBACOS does not necessarily support or endorse any such views. Furthermore, IBACOS is not responsible for any loss or damage that may occur directly or indirectly from the posting of a message to the discussion area.
I. Indemnification
You agree to indemnify, defend, and hold harmless IBACOS, its affiliates, agents, employees, and licensors from and against any and all claims and expenses, including reasonable attorneys’ fees, arising out of or related in any way to your use of the site, violation of this Agreement, violation of any law or regulation, or violation of any proprietary or privacy right.
J. Privacy
See IBACOS' Privacy Policy (https://perform.ibacos.com/privacy-policy).
K. Dispute Resolution
Any dispute relating in any way to your use of the PERFORM site shall be submitted to confidential arbitration in Pittsburgh, Pennsylvania, except that, to the extent you have in any manner violated or threatened to violate IBACOS' intellectual property rights, IBACOS may seek injunctive or other appropriate relief in any state or federal court in Allegheny County, Pennsylvania and you consent and submit to exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
L. Limitations on Claims
Any cause of action you may have with respect to your use of the site must be commenced within one (1) year after the claim or cause of action arises.
M. Term and Termination
Without limiting its other remedies, IBACOS may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate the license granted under this Agreement if you fail to comply with any term or condition of this Agreement.
N. Hyperlink Disclaimers
As a convenience to you, IBACOS may provide, on this site, links to web sites operated by other entities (collectively the “Linked Site”). If you use any Linked Sites, you will leave this site. If you decide to visit any Linked Site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. Linked Sites, regardless of the linking form (e.g., hotlinks, hypertext links, IMG links) are not maintained, controlled or otherwise governed by IBACOS. The content, accuracy, opinions expressed, and other links provided by Linked Sites are not investigated, verified, monitored, or endorsed by IBACOS. IBACOS does not endorse, make any representations regarding or warrant any information, goods and/or services appearing and/or offered on any Linked Site, other than linked information authored by IBACOS. Links do not imply that IBACOS or this site sponsors, endorses, is affiliated or associated with, or its legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links, or that any Linked Site is authorized to use any trademark, trade name, logo or copyright symbol of IBACOS or any of its affiliates or subsidiaries. Except for links to information authored by IBACOS, IBACOS is neither responsible for nor will it be liable under any theory based upon (i) any Linked Site; (ii) any information and/or content found on any Link Site; or (iii) any site(s) linked to or from any Linked Site. If you decide to visit any Linked Sites and/or transact any business thereon, you do so at your own risk. IBACOS reserves the right to discontinue any Linked Site at any time without prior notice. Please contact the web matters of any Linked Sites concerning any information, goods and/or services appearing thereon.
O. Choice of Law and Venue
The site is controlled, operated and administered by IBACOS from its offices within Pittsburgh, Pennsylvania, United States of America. IBACOS makes no representation that materials at this site are appropriate or available for use at other locations outside of the United States and access to them from territories where their contents are illegal is prohibited. You may not use the site or export the Materials in violation of US export laws and regulations. If you access this site from locations outside of the United States, you are responsible for compliance with all local laws. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without giving effect to its conflict of laws provisions. This is the case regardless of whether you reside or transact business with IBACOS in Pennsylvania or elsewhere. You agree to submit to the personal and exclusive jurisdiction of the courts located within Allegheny County, Pennsylvania.
P. Entire Agreement
This Agreement constitutes the entire agreement between IBACOS and you with respect this web site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between the customer and IBACOS with respect to this web site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. If for any reason a court of competent jurisdiction finds any provision of the Agreement or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
Q. Modifications to Agreement
IBACOS may revise the Agreement at any time and you agree to be bound by the revised Agreement. It is your responsibility to return to this Agreement from time to time to review the most current terms and conditions. IBACOS does not and will not assume any obligation to notify you of changes to this Agreement. This Agreement shall supersede any prior or subsequent terms or conditions included with any communications or agreement, whether or not such terms or conditions are signed by IBACOS. IBACOS reserves the right to make changes to this site and to these terms and conditions at any time. Any such modifications will become effective upon the date they are first posted to this site.
R. Designated Agent
Under Title 17, United States Code, Section 512(c)(2), PERFORM designates an agent as described below, to receive notifications of claimed infringement:
Legal name and address of service provider: IBACOS, Inc. 2212 Liberty Avenue, Pittsburgh, PA 15222
Name under which service provider does business: IBACOS, Inc.
Designated agent: Michael Dickens
Designated agent's address: 2212 Liberty Avenue, Pittsburgh, PA, 15222
Telephone, fax, and email address of designated agent: 412-765-3664 (p), 412-765-3738 (f), -
S. Electronic Communications and Electronic Signatures
You agree to be bound by any affirmation, assent or agreement you transmit through the PERFORM web site, including but not limited to any consent you give to receive communications from IBACOS solely through electronic transmission. You agree that, when in the future you click on an “I agree,” “I consent” or other similarly worded “button” or entry field with your mouse, keystroke or other computer device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.