Best Hiring Practices in the Construction Industry (#5062)

Legal Notice, Terms of Use, and Conditions for Service

Upcycle Performance Solutions Courses

            This Legal Notice, Terms of Use, and Conditions of Service (collectively, the “Terms”) govern your access to and use of Upcycle Performance Solutions Courses (“Course” or “Courses”). These terms are incorporated into any enrollment (“Enrollment”) entered into between you (“Customer,” “You,” or “Your”) and Upcycle Performance Solutions, LLC (“Provider”, “We,” or “Us”) that references these Terms. Together, the Enrollment and these Terms constitute the “Agreement.”

BY ENROLLING, ACCESSING, OR USING A COURSE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR A COMPANY OR ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT COMPANY OR ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

1. Access and Use.

1.1 Ownership of Courses. You acknowledge and agree that the Courses, as well as all intellectual property rights and other rights in and to such Courses, are owned exclusively by Provider in their entirety, that such Courses are the intellectual and/or industrial property of Provider, and that such Courses are the preexisting intellectual property of Provider.  For avoidance of doubt, nothing in this Agreement conveys any ownership or right in such Courses, except for the non-exclusive, limited time online viewing of the Courses.

1.2 Use Restrictions. The Courses are for Your personal viewing and educational enhancement only. You shall not use the Courses, or any of the Courses’ content, for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly: (1) copy, print, modify, save, disclose, publish, distribute, display, transfer, or sell the Courses, or any of the Courses’ content, except as permitted under this Agreement or (2) use the Courses in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of Provider or any other person or entity, or that violates any applicable law, regulation, or rule.

1.3 The Platform. All of Provider’s Courses utilize an online learning platform, which can be found at: https://upcycleperformance.trainingfolks.com and its technology partners.

1.4 Time Limit of Access for Each Course; Termination. Each Course has a specified time period for access and use (the “Time Limit”).  The Time Limit begins at enrollment and ends (30) days later or on November 30 of any given year, whichever is earlier. If not completed within the earlier of thirty (30) days or November 30 of any given year, then You will not receive credit for the course. Additionally, Your right to use and access a Course terminates automatically at the end of the Time Limit.

1.5 Suspension. Provider retains the right to suspend or to terminate Your access and use of a Course for any breach of this Agreement (including non-payment), and for any noncompliance with Provider’s policies and practices, which are occasionally communicated to You.

1.6 Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider’s intellectual property.

2. Customer Responsibilities.

2.1 Your Computer System and Equipment. You are solely responsible for supplying all equipment, Internet access and bandwidth needed to properly access and use the Course. Before paying for access to any Course, You must confirm the compatibility of your computer system with published computer specification for the applicable Course. Provider shall have no responsibility or liability for Your inability to access the Course due to issues beyond Providers’ control, including, but not limited to, the speed of Your modem - or other connection devices used, Your use of third-party security software or firewall/proxy servers, or the performance levels of Your internet service provider.

2.2 Acceptable Use. The Courses may not be used for unlawful, fraudulent, offensive, or obscene activity. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be distributed by Provider to Customer from time to time.

2.3 Account Use. You are responsible for all uses of the Courses, and the Courses’ content, resulting from access provided by You, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.

2.4 Passwords and Access Credentials. You are responsible for keeping Your passwords and access credentials associated with the Courses confidential. You will not sell or transfer them to any other person or entity. You will promptly notify Us about any unauthorized access to Your passwords or access credentials.

2.5 Feedback. To the extent You provide Provider with any feedback, ideas, modifications, comments, or suggestions about Provider’s website, Courses, this Agreement, or the content of any of the foregoing, then You hereby grant to Provider a nonexclusive, perpetual, irrevocable, worldwide, royalty-free license to use, incorporate, create derivative works or otherwise exploit.

2.6 Links to Other Websites. A Course may contain links to third party websites. Access to any other website linked to the Course is at the Your own risk. Provider is not responsible for the accuracy or reliability of any information, data, opinions, advice or statements found on those websites, and Provider does not exert any editorial or other control over those other sites. Provider provides these links merely as a convenience to You and the inclusion of such links does not imply an endorsement by Provider of any such third-party sites or their content.

3. Fees and Payment. Payment shall be made before use of any Course.  Fees will be as stated on the applicable website or informational materials about a Course, which fees may change from time-to-time at Provider’s sole discretion.  All fees may be subject to sales-and-use tax for the state the course is purchased.  Provider processes payment through a third-party payment provider.  Provider shall have no liability for any claims arising out of or in connection with this payment process or the information you provide, including but not limited to the processing or failure to properly process any payment.

4. Intellectual Property Ownership; Feedback. All content included or available on or in the Courses or Provider’s website, including the design, code, text, graphics, interfaces, and the selection and arrangements thereof, is intellectual property or copyright protected materials of Provider, its affiliates, or a third party. Under no circumstances is this Your property, and You shall have no right, title or interest in any of the foregoing. Any reproduction, retransmission or republication of any or all parts of any part of the Courses is expressly prohibited, unless Provider has expressly provided prior written consent to so reproduce, retransmit or republish the material. The names, trademarks, service marks and logos of Provider appearing on Provider’s website or in connection with any Course may not be used in any advertising or publicity, or otherwise to indicate Provider’s affiliation with any product or service, without Provider’s prior express written permission. All other rights reserved.

5. Confidential Information. Provider and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6. Disclaimer. USE OF THE COURSES ARE AT YOUR SOLE RISK. THE COURSES ARE PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO: (A) UNINTERRUPTED USE OR ACCESS TO THE COURSES; (B) COURSES ARE FIT FOR A PARTICULAR PURPOSE; (C) COURSES ARE FREE FROM ERROR, ACCURATE, OR CURRENT; (D) RELIANCE UPON INFORMATION AND DATA IN THE COURSE; AND (E) THE COURSES, PLATFORM, AND SERVERS ARE FREE FROM VIRUSES AND OTHER HARMFUL COMPONENTS. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY THAT THE COURSES, OR ANY OF THE COURSES’ CONTENTS, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERRO-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

7. Indemnification. You shall be solely responsible for and shall defend, indemnify and hold harmless Provider, its affiliates and their respective employees, agents, officers, directors, and assigns from and against any claims, lawsuits, judgments, losses, liabilities, expenses (including reasonable attorney's fees), costs, damages and awards (collectively “Claims”) including, without limitation, Claims relating to property damage, personal injury, wrongful death or economic loss arising out of or resulting from (A) Your access, use, or misuse of a Course or Course’s content, Provider’s website, Provider’s personal and intellectual property; (B) Provider’s own allegedly negligent acts; and (C) Your failure to abide by any the Terms of this Agreement. This indemnity provision shall survive any and all terminations of this agreement, the Time Limit, or use of the courses.

8. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. ANY CLAIM OR CAUSE OF ACTION THAT YOU MAY HAVE WITH RESPECT TO THE COURSES OR AGREEMENT MUST BE COMMENCED PROMPTLY AFTER AWARENESS OF ANY ALLEGED CAUSE OF ACTION. EXCEPT FOR PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL PROVIDER BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO CLAIMS ARISING UNDER THIS AGREEMENT OR FOR USE OF THE COURSE IN AN AMOUNT IN EXCESS OF THE FEES PAID TO PROVIDER FOR THE COURSE. IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER FOR ANY ACTS OR OMISSIONS OF ANY END USERS. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

9. Governing Law and Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of North Carolina. Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of North Carolina in each case located in the city of Raleigh and County of Wake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

10. Force Majeure. Provider will not be responsible or liable to Customer, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Customer equipment, loss and destruction of property, or any other circumstances or causes beyond Provider's reasonable control.

11. Amendments. Provider reserves the right to amend this Agreement at any time and from time to time.  Your continued use of any Course after posting of changes on this website constitutes Your acceptance of those changes. Provider has no obligation to inform You of such changes in any other manner.

12. Severability. If any of the terms and conditions of this Agreement is adjudged to be invalid, void or unenforceable, the remaining terms and conditions of this Agreement will not be affected thereby.  Such invalid provision shall automatically be deemed to be replaced by the lawful provision that most nearly embodies the original intention of the parties as expressed herein, and the remaining terms and conditions of this Agreement will in any event otherwise remain valid and enforceable.

13. Miscellaneous. This Agreement (both the Enrollment and these Terms) constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our company headquarters address available at 36 Morrison Manor Drive, Angier, North Carolina 27501 and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Courses. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. Provider may assign this Agreement to an affiliate or to a successor of all or substantially all of its business or the portion of its business to which this Agreement relates, including by operation of law, merger or otherwise.  Customer and Provider are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Customer and Provider.