Version 1.5
Last Revised On: December 09, 2019
NameCoach, Inc., a Delaware corporation (“NameCoach,” “we,” “our,” “us”) thanks you for using our services. These Terms of Service (“Terms”) apply to you if you are an institution, university, college, school, business, entity, or organization (each, an “Institution”) and if you are an individual, customer, authorized end user, and/or a customer’s authorized end user (each, an “User”) (“you” refers to an Institution and User).
These Terms govern your access to and use of the services, including our various websites, SMS, APIs, email notifications, documentation, software, licenses or applications, including the Master Services Agreement, and any applicable order form (“MSA”), License Agreement and any applicable order form (“License Agreement”), technology/application software (“Application Service”) (collectively, the “Services”), and any information, content, text, graphics, photos, audio, video, or other materials, uploaded, downloaded, or appearing on the Services, (with the exclusion of “Feedback,” as defined in Section 7) (collectively, “Content”). Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services, you agree to be bound by these Terms.
Note: These Terms also apply to NameCoach’s third parties and subcontractors who perform services under a MSA or License Agreement. These Terms are incorporated into and subject to the Privacy Policy [https://cloud.name-coach.com/privacy] and, if applicable, the terms of your MSA or License Agreement with us. Any terms not defined herein are defined in our Privacy Policy, MSA, or License Agreement.
You are responsible for your use of the Services, including any material you post to the Services (“Content”), and for any consequences thereof. The Content you submit, post, or display may be viewed by your Institution’s authorized representatives. You should only provide Content that you are comfortable sharing with others under these Terms.
You may use the Services only if you or your Institution can form a binding contract with NameCoach and are not barred from receiving services under applicable law. If you accept these Terms and use the Services on behalf of an Institution, you represent and warrant that you are authorized to do so. By accepting these Terms and using these Services you acknowledge that you are entering into a binding contract with NameCoach. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations.
The Services may evolve and may change without prior notice to you. In addition, NameCoach may stop (permanently or temporarily) providing Services (or any features within the Services) to you and/or may create limits on use at our sole discretion without providing prior notice, unless otherwise agreed. To ensure you are aware of all updates to these Terms, please periodically check for updates.
These Terms contain mandatory arbitration provisions. For more information see Section 13(I).
NameCoach reserves the right to restrict access to areas of its website, or its entire website, at our discretion. To access the Site or some of the Services, you may be asked to provide certain registration details or other information. It is a condition of your use of the Services that all the information you provide is correct, current, and complete. We may terminate your access to our Site and to the Services if we learn that you have provided us with false or misleading registration data.
If you choose or NameCoach provides you with a username and password, API key, or other piece of information to grant you access to restricted areas of its website, Content, or Services, you must ensure that these credentials are kept confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Site or portions of it using your user name, password, or other security information. You are solely responsible for maintaining the confidentiality of your password and account, and you are solely responsible for all use of your password or account, whether authorized by you or not. NameCoach cannot and will not be liable for any loss or damage arising from your failure to comply with the terms of this Agreement. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
NameCoach is not liable for any loss or damage arising from your failure to comply with the above requirements.
NameCoach may disable your username and password, API key and secret, or consumer key and secret in NameCoach’s sole discretion without notice or explanation.
All Content, however transmitted, is the sole responsibility of the originator. We may not monitor or control all Content and are not responsible for such Content. You use or rely on any Content at your own risk.
We do not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or any opinions expressed therein. By using the Services, you may be exposed to Content that is offensive, harmful, inaccurate, or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will NameCoach be liable for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage incurred as a result of the use of any Content made available through the Services.
By submitting, posting, or displaying Content you grant us a worldwide, irrevocable, non-exclusive, royalty-free and fully paid, worldwide license to use, sublicense, transmit, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use or distribute your Content. You irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Content.
NameCoach is not responsible or liable for any use of your Content by your Institution. You represent and warrant that you have all the rights, power, and authority necessary to grant the rights granted herein to any Content that you submit.
If you have entered into a MSA or License Agreement with us, you may permit your students, employees, agents, or contractors (“Authorized End Users”) to use the Application Service, if Authorized End Users are subject to an enforceable agreement, providing the same or greater protections for our Confidential Information and Application IP as found in these Terms, the MSA, the License Agreement, and/or the Privacy Policy. “Confidential Information” includes, but is not limited to, any and all written or oral information concerning the MSA or License Agreement you may enter into with us, pricing and financial information, performance requirements, proposals, and Application Documentation.
You will notify Authorized End Users that they are subject to other educational institution’s terms and conditions, and policies.
You will not, nor will you permit any Authorized End User to: (i) copy or duplicate any of the Application Service, text, and/or graphical documentation describing the Application Service’s functionality (“Application Documentation”) provided through a release, update, or upgrade, and all related intellectual property provided to you (collectively, “Application IP”); (ii) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component of any of the Application IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Application IP, and you acknowledge that nothing in these Terms or in the MSA or License Agreement will be construed to grant you any right to obtain or use such source code; (iii) modify, alter, tamper with, or repair any of the Application IP, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with NameCoach’s prior written consent; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Application IP; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Application IP; or (vi) assign, sublicense, sell, resell, lease, rent, or otherwise transfer, convey, pledge as security, or otherwise encumber, your rights under the MSA, License Agreement, and these Terms. You will not use any of the Application IP or Services except in compliance with these Terms, the License Agreement, and the MSA. So long as you comply with these Terms, we give you a limited, nonexclusive, nontransferable, revocable license to use the Services. Your use of the Application IP or Services must comply with all applicable laws, statutes, regulations, or rules.
NameCoach and its licensors retain all right, title and interest in, to, and under the Services, Application IP, and their components and any data NameCoach provides through the Services or Application Service. You acknowledge that you neither own nor acquire any additional rights in and to the foregoing that these Terms and/or the MSA or License Agreement do not expressly grant.
The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the Terms gives you a right to use the NameCoach name or any of the NameCoach trademarks, logos, domain names, and other distinctive brand features.
NameCoach shall exclusively own all communications, comments, questions, suggestions, or related materials which are transmitted to NameCoach, by any means, suggesting or recommending changes to the Application IP, including, new features or functionality (collectively, “Feedback”). You hereby assign all right, title, and interest in, to, and under the Feedback and agree to provide us assistance to document, perfect, and maintain our rights in the Feedback. We may use, without any restrictions, attribution, or compensation to you, any ideas, know-how, concepts, techniques, and all applicable intellectual property rights relating to the Feedback, whether or not patentable, for any purpose whatsoever. You agree and understand that we are not obligated to use, display, reproduce, or distribute anything in the Feedback.
We have the right, but not the obligation, at all times to remove or refuse to distribute any Content, to suspend or terminate users, and to reclaim usernames without liability to you. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe necessary to: (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce the Terms, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to user support requests; or (v) protect the rights, property, or safety of NameCoach, its users, its clients, and the public.
The Site and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof (“NameCoach Content”) is owned by NameCoach, its licensors, or other providers of such material (collectively, and individually, “Company Content Providers”) and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You agree not to modify, copy, distribute, transmit, share, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any NameCoach Content.
The Site and Services contain proprietary and copyright-protected information. Any unauthorized use of any NameCoach Content contained on the Site or the Services may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content in whole or in part.
While accessing or using the Services You shall not: (i) upload, post, or otherwise make available on the Site or via the Services, any material protected by copyright, trademark, or other proprietary right without the express permission of the owner of the copyright, trademark, or other proprietary right; (ii) access, tamper with, or use non-public areas of the Services, NameCoach’s computer systems, or the technical delivery systems of NameCoach’s providers; (iii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iv) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available published interfaces (and only pursuant to those terms and conditions), unless You have been specifically allowed to do so in a separate agreement with NameCoach; (v) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive, or false source-identifying information; or (vi) interfere with, or disrupt (or attempt to do so), the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services. You will indemnify NameCoach and its officers, directors, employees, and agents for any claims by third parties of infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission of material by you.
The NameCoach Content and Site may not be reproduced, duplicated, copied, sold, resold, or otherwise exploited for any commercial purpose without NameCoach’ express written consent. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of NameCoach without express written consent. You may not modify copies of any materials from this site or delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site. You may not use any meta tags or any other “hidden text” utilizing NameCoach’s name or trademarks without NameCoach’ express written consent. You may not misuse the Site. You may use the Site only as permitted by law. You must not access or use for any commercial purposes any part of the Site or any services or materials available through the Site.
Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials. You may store files that are automatically cached by your Web browser for display enhancement purposes.
The Company name, the terms, and all related names, logos, product and service names, designs, and slogans are trademarks of NameCoach or its affiliates or licensors. You must not use such marks without NameCoach’s prior written permission. All other names, logos, product and service names, designs, and slogans on this Site are the trademarks of their respective owners.
No right, title, or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by NameCoach. Any use of the Site not expressly permitted by these Terms is a breach of these Terms may violate copyright, trademark, and other laws.
NameCoach respects the intellectual property rights of others and expects you to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe your Content has been infringed, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) 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; (iv) your contact information, including your address, telephone number, and email; (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 that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. NameCoach will also terminate a user’s account if the user is determined to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing on the Services is:
Copyright Administrator
Weiss Brown
6263 North Scottsdale Road, Suite 340
Scottsdale, AZ 85250
[email protected]
You may terminate these Terms at any time for any reason, without notifying us, by discontinuing your use of the Services, unless you are otherwise subject to certain termination provisions arising from a MSA or License Agreement with NameCoach.
We may suspend or terminate your account or cease providing you or your authorized user with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms; (ii) you create risk or possible legal exposure for us; (iii) you stop using the Services for a prolonged period; or (iv) it is no longer commercially viable to provide Services to you. We will make reasonable efforts to notify you by the email address associated with your account or the next time you attempt to access your account of such termination.
Upon termination the following sections shall continue to apply: 3, 4, 6, 8, 10, 11, 12, 13.
Nothing in this section shall affect NameCoach’s rights to change, limit or stop the provision of the Services without prior notice, as provided in Section 1.
If you entered into a MSA or License Agreement with NameCoach, NameCoach agrees to indemnify, defend, and hold you harmless from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any third party claim that the Application Service and/or the Application Documentation infringes such third party’s U.S. patents issued as of the Effective Date of the MSA or License Agreement or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction, provided you promptly notify NameCoach in writing of the claim, cooperate with NameCoach, and allow NameCoach sole authority to control the defense and settlement of such claim. You agree to permit NameCoach, at NameCoach’s sole discretion, to enable you to continue to use the Application Service or the Application Documentation, or to modify or replace any such infringing material to make it non-infringing. If none of these alternatives is available, you shall, upon NameCoach’s written request, cease use of, and, if applicable, return, materials subject to the infringement claim. This provision shall not apply if the alleged infringement arises from any: (i) modification of the Application IP; (ii) combination, operation, or use of the Application IP with other non-NameCoach provided software, hardware or technology; (iii) use of a superseded or altered release of any of the Application IP, if You failed to use a then-current release of the Application IP we provided to you; (iv) Customer Content; or (v) Third Party Products (any of the foregoing circumstances under clauses (i), (ii), (iii), or (iv) a “Customer Indemnity Responsibility”). THIS IS NAMECOACH’S ENTIRE OBLIGATION AND LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS, AND NAMECOACH’S LIABILITY UNDER THIS SECTION SHALL NOT EXCEED NAMECOACH’S LIMITATIONS OF LIABILITY.
To the extent allowable by law you agree to hold harmless, indemnify, and, at NameCoach’s option, defend NameCoach from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from: (i) your or any Authorized End User’s negligence or willful misconduct; (ii) your or any Authorized End User’s unauthorized use of the Application IP; or (iii) a Customer Indemnity Responsibility, provided that you will not settle any third-party claim against NameCoach without NameCoach’s consent.
Each of the subsections below only applies up to the maximum extent permitted under applicable law.
A. The Services are Available “AS-IS.” You access and use the Services and Content at your own risk. You understand and agree that NameCoach provides these Services and Content to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, NameCoach and its parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “NameCoach Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. The NameCoach Entities make no warranty and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security, or reliability of the Services or Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services or Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from the NameCoach Entities or through the Services or Content, will create any warranty not expressly made herein.
B. Third-Party Links. The Services may contain links to third-party websites or resources. You acknowledge and agree that the NameCoach Entities are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the NameCoach Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
C. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE NAMECOACH ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (i) YOUR ACCESS TO,USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES OR CONTENT; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE NAMECOACH ENTITIES EXCEED ONE HUNDRED DOLLARS (U.S. $100.00). THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE NAMECOACH ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
A. U.S. Government End-Users. Each of the Application Documentation and the software components constituting the Application Service is a “commercial item” as defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Service and the Application Documentation with only those rights set forth therein.
B. Notices. All notices required under an applicable MSA or License Agreement shall be in writing, in English, and sent by certified mail or email to the address provided on the MSA or License Agreement, if applicable, and to NameCoach at:
NameCoach Inc.
2627 Hanover St.
Palo Alto, CA 94304
Email: [email protected]
C. Assignment; Delegation. If you entered into a MSA or License Agreement with NameCoach, You may not assign any of your rights or duties under the MSA or License Agreement, without NameCoach’s prior written consent. NameCoach may assign any MSA or License Agreement, without consent, if there is a merger, sale, transfer, or other disposition of all or most of its stock or assets.
D. Payment. To the extent the Services or any portion thereof is made available for any fee or through a subscription, your access will be granted following payment of the applicable fees to Company. Your account and access to the Services may be suspended in the event of non-payment of applicable fees. You represent and warrant to Company that such payment information is true and that you are authorized to use the payment instrument. For recurring subscriptions, you will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
E. Force Majeure. Except for payment, if you are prevented or delayed in performing your obligations by circumstances beyond your reasonable control, including, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, the failure or delay is not a material breach of the applicable MSA or License Agreement, but the obligation will remain in full force and effect, and will be performed as soon as reasonably practicable after the termination of the relevant circumstances causing such delay.
F. Advertising. If you entered into a MSA or License Agreement with NameCoach, and gave prior written consent, we may reference and use your name and trademarks, and disclose NameCoach’s services for business development and marketing efforts, including on our website. NameCoach will not use any Content to advertise or market to students or their parents. NameCoach may use de-identified data for advertising or marketing to schools.
G. Independent Contractors. You and NameCoach will, at all times, act as independent contractors, and nothing contained in these Terms, or any other agreement, will be construed or implied to create an agency, partnership, or employer and employee relationship.
H. Waiver and Severability. The failure of NameCoach to enforce any right or provision of these Terms, or any other applicable agreement, will not be deemed a waiver of such right or provision. If any provision of these Terms, or any other applicable agreement, is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
I. Arbitration. All claims and disputes, including the enforceability of this arbitration provision, in connection with the Terms or the use of the Services provided by NameCoach that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis initiated through the American Arbitration Association. Unless otherwise agreed, all arbitration proceedings will be held in English. This provision does not apply to claims for injunctive or other equitable relief. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that NameCoach made to you prior to the initiation of arbitration, NameCoach will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorneys’ fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION PROVISION MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
J. Jurisdiction. In any circumstances, if the foregoing arbitration section permits litigation, you and NameCoach agree to submit to the personal jurisdiction of the courts in San Francisco, California and that Delaware law shall apply. If you are a federal, state, or local government entity in the United States using the Services in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Delaware (excluding choice of law).
K. Entire Agreement. These Terms, our Privacy Policy, and Master Services Agreement, if applicable, are the entire and exclusive agreement between NameCoach and you regarding the Services (excluding any services for which you have an additional agreement with NameCoach), and these Terms supersede and replace any prior agreements between NameCoach and you regarding the Services. Other than members of the group of companies of which NameCoach is the parent, no other person or company will be third party beneficiaries to the Terms.
© 2019 NameCoach, Inc.