Last modified: November 1, 2021Introduction

Vizn Performance, INC (“Vizn Performance” or “We”) offers the Vizn Performance applications (the “App”) to provide feedback and customizable analyses and drills for sports (collectively, the “Services”).  These Terms and conditions apply to all websites, mobile applications, transactions, engagements (including interactions via social media), and other services (“Services”) involving Vizn Performance, INC and affiliates.

These Terms and Conditions (“Agreement”) are legally binding terms between you (“End User” or “you”) and Vizn Performance, INC (“Vizn Performance”). This Agreement governs your use of the website and the Vizn Performance Applications (including all related documentation, the “App”). The App is licensed, not sold, to you. 

BY ENTERING THIS SITE OR DOWNLOADING, INSTALLING, OR USING THE APP, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (B) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THIS SITE OR DOWNLOAD, INSTALL, OR USE THE APP AND DELETE IT FROM YOUR DEVICE(S). 

  1. The Services.  Vizn Performance provides the App as a platform to obtain feedback and analysis for motion related to sports coaching (the “Services”).  We allow users to create an account, record or upload videos of training sessions, communicate among users, save preferences, make purchases, watch or create new drills or business rules, and track and compare data between sessions both individually and as a team. 
  2. Service Exclusions and Limitations.  The Services are limited to what Vizn Performance expressly agrees to provide, subject to additional restrictions:
    • Vizn Performance does not guarantee or make any representations about the suitability, reliability, timeliness, or accuracy of the Services.
    • Vizn Performance is not responsible for any loss, damage, or injury to person or property arising from use of the App or Services.  Use of the App is at your own risk. 
    • Vizn Performance does not provide any medical, diagnostic, treatment, or rehabilitation service to users on or through the App. 
  3. Your Responsibilities. 
    • You acknowledge that you are responsible for whatever material you submit to the App, if any, including its legality, reliability, appropriateness, originality, or copyright.  If Vizn Performance makes a discussion group or bulletin board available on or through the App, you warrant that your use of such features is for lawful purposes only, as outlined below. 
    • You will register an account in your own legal name, even if providing care for another person.
    • You represent and warrant that you are providing User Content and using the App solely for the purpose of using the Services. 
    • By placing or downloading material on to the App, including intellectual property, documents, text, images, audio files or other audio-visual content to the App (“User Content”), you represent and warrant: (a) you own or otherwise have all necessary rights to the User Content you provide and the rights to provide it under this Agreement; and (b) the User Content will not cause injury to any person or entity. 
    • Without limitation, you may not submit to or transmit through this App any material, or otherwise engage in any conduct that: 
      • violates or infringes the rights of Vizn Performance or others including, without limitation, patent, trademark, trade secret, copyright, publicity, privacy, proprietary and/or intellectual property rights;
      • is inaccurate, unlawful, discriminatory, threatening, abusive, harmful, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, pornographic, obscene, offensive, or otherwise objectionable to Vizn Performance or other users of the App;
      • victimizes, harasses, degrades, intimidates, discriminates against, or retaliates against an individual or group of individuals on the basis of religion, sex, race, national origin, age, physical or mental disability, sexual orientation, or other characteristics protected by applicable state or federal law;
      • collects, stores, and/or discloses personal information or data about other others unless specifically authorized by such others;
      • impersonates any person, business, or entity, including Vizn Performance and its employees and agents; 
      • misrepresents your affiliation with a person or entity;  
      • contains viruses or any other computer code, files or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network; 
      • attempts to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining, or any other means;  
      • transmits spam, bulk, or unsolicited communications or posts third-party advertisements;  
      • that would violate any fiduciary relationship, any applicable local, state, national, or international law, or any regulations or other government requirements or rules having the force of law, including but not limited to attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making threats of harm, or that otherwise could constitute a criminal offense or give rise to civil liability;  
      • violates this Agreement, guidelines, or any policy Vizn Performance posts on the App; or 
      • disrupts the normal flow of dialogue or negatively affects or interferes with other users’ ability to use the App. 
  1.  
    • You acknowledge that Vizn Performance has the right (but not the obligation), in Vizn Performance’s sole discretion, to view, move, remove, block, edit, or refuse any Content, including User Content, for any reason, including, without limitation, that such User Content violates this Agreement or is otherwise objectionable. 

  4. Registered Accounts.  You will need a password and registered account (“Account”) to use  the Services, place orders, or communicate with other users through the App. You further agree to: 

  • Keep your password confidential; 
  • Restrict access to your device; 
  • Immediately notify Vizn Performance upon noticing that the privacy of your account or your password may be compromised; and 
  • Accept liability for any and all activity that may be executed through your account or using your password. 
  • If you have reason to believe that there is any unauthorized use of your username or any other breach of security related to the App, you shall immediately notify Vizn Performance by contacting us via email at contact@viznperformance.com.  

5. Minors.  You must be at least 13 years old to use the App and Services and create an Account.  If you are using the App or Services for a team or group that includes children under the age of 13, you are responsible for complying with the Children’s Online Privacy Protection Act (“COPPA”), which includes the obligation to provide notice to and obtain consent from parents and guardians before collecting and sharing with us any personal information of those children. Vizn Performance will use commercially reasonable efforts to secure and encrypt the personal information of children under 13 and to minimize the privacy risks to those children. We reserve the right to terminate any Account, with or without notice and in our sole discretion, if we believe that COPPA requirements have not been met. 

6. License Grant. Subject to the terms of this Agreement, Vizn Performance grants you a limited, non-exclusive, and nontransferable license to download, install, and use the App for your use on a single device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with this Agreement. In order to make use of the App, your mobile device must meet the specific system requirements outlined in the Apple App store.

7. License Restrictions. You shall not:  

  • copy the App, except as expressly permitted by this license; 
  • modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App; 
  • reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part thereof; 
  • remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including any copy thereof; 
  • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time;  
  • remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App; or  
  • use the App in, or in association with, any purpose other than the intended purpose stated herein.

8. Reservation of Rights. You acknowledge and agree that the App is provided under license, and not sold, to you. You do not acquire any ownership interest in the App under this Agreement, or any other rights thereto other than to use the App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Vizn Performance reserves and shall retain its entire right, title, and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. 

9. Collection and Use of Your Information. You acknowledge that when you download, install, or use the App, Vizn Performance may use automatic means (including, for example, cookies and web beacons) to collect information about your device and about your use of the App. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the App or certain of its features or functionality, and the App provides you with opportunities to share information about yourself with others. All information we collect through or in connection with this App is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this App, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. 

10. Fees and Payment.  The App is an online system that may allow purchases and subscription plans funded by a credit card or other payment method from participating merchants using the Service.  To the extent that Vizn Performance establishes aspects of the Service that are only available to those users opting for additional paid licenses and you elect to use such paid aspects of the App, you agree to the pricing, payment and billing policies applicable to such fees and charges as described herein and at the point of purchase.  Vizn Performance reserves the right to later charge fees for any parts of the App or Services that are or may be offered without a fee and to offer services that may require additional fees. Our pricing may change at any time. You agree to carefully read the disclosures provided to you prior to purchase regarding the features of the Site and/or Services that you will receive access to as part of your license or subscription. There is no minimum purchase obligation. 

  • THE PURCHASE OF ANY PAID LICENSE IS FINAL AND SHALL UNDER NO CIRCUMSTANCES BE REFUNDABLE, TRANSFERABLE, OR EXCHANGEABLE INCLUDING, WITHOUT LIMITATION, UPON TERMINATION OF YOUR USE OF THE APP OR SERVICES FOR ANY REASON OR NO REASON, TERMINATION OF THIS AGREEMENT, AND/OR THE DISCONTINUATION OF THE APP AND/OR SERVICES. 
  • You agree to pay all fees or charges incurred by you or through your Account, including applicable taxes, in accordance with this Agreement and any additional billing terms that are in effect at the time that the fee or charge becomes payable.  You acknowledge that Vizn Performance may utilize certain third-party providers to collect or otherwise process any such fees and charges.  Any additional, separate charges or obligations you directly incur with said third party are your responsibility.  VIZN PERFORMANCE MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY INFORMATION, GOODS AND/OR SERVICES PROVIDED BY ANY THIRD PARTY.  Unless otherwise indicated, all prices are in U.S. dollars and do not include Internet service provider, telephone, and other connection charges. 
  • If you enroll in a subscription plan, your plan subscription will continue and automatically renew until cancelled or downgraded by you or us. We will charge your payment method on the renewal date the then-current price (plus tax, if any). If the renewal date occurs on a weekend or holiday, we will charge your payment method on the first business day after the weekend or holiday. To avoid being charged for renewal, you must cancel or downgrade your subscription at least three (3) business days prior to your renewal date. 
  • Your subscription plan may begin a free or reduced cost trial period. At the end of the trial period your plan will automatically renew at the then-current standard price (plus tax, if any). To avoid being charged at renewal, you must cancel your subscription at least three (3) business days prior the last day of the trial period. 
  • You will be required to place on file with us or our payment processor at least one credit or debit card as a payment method. You remain responsible for any uncollected amounts. If payment is not successfully settled due to card expiration, insufficient funds, or otherwise, we may reattempt the charge up to three (3) more times over the following seven (7) days from the original attempt. If payment remains unsuccessful, we may suspend or cancel your subscription. You are responsible for any fees charged to you by your card issuer.  
  • You may cancel or downgrade your subscription at any time. If you cancel your subscription, you will continue to have access until the period for which you have paid expires. 

11. Geographic Restrictions. The Content and Services are based in the state of Texas in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws. 

12. Updates. Vizn Performance may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Vizn Performance has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your device settings, when your device is connected to the internet either (a) the App will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates.  You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement. 

13. Third-Party Materials. The App may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Vizn Performance is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Vizn Performance does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. 

14. Term and Termination. 

  • The term of Agreement commences when you download and install the App and will continue in effect until terminated by you or Vizn Performance as set forth in this Section 14. 
  • You may terminate this Agreement by deleting the App and all copies thereof from your device(s).  Your termination of the App does not terminate any engagements or employment terms entered directly with any HHA or Client. 
  • Vizn Performance may at any time, in its sole discretion, with or without notice, immediately terminate your access to all or part of the App and/or Services, to remove your Account and/or any Content posted by or about you from the App, and/or to terminate your Agreement entirely if Vizn Performance determines or has reason to believe that you are not eligible to use the Services, have violated any terms stated herein, have misused or misappropriated App content, including but not limited to use on a “mirrored,” competitive, or third-party site, or if Vizn Performance ceases to support the App.  Upon termination, Vizn Performance shall be under no obligation to provide you with a copy of any content posted by or about you on the App. If we terminate your registration, we have no obligation to notify you of the reason, if any, for your termination.  
  • Upon termination all rights granted to you under this Agreement will also terminate, and you must cease all use of the App and delete all copies of the App from your device(s). 
  • Termination will neither limit any of Vizn Performance’s rights or remedies at law or in equity, nor relieve you of any obligations to any third party under any engagement for Services or use of benefits or payroll services provided by a service provider. 

15. Disclaimer of Warranties. THE APP IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, VIZN PERFORMANCE, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APP, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, VIZN PERFORMANCE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. 

VIZN PERMORNACE MAKES NO WARRANTY OR REPRESENTATION THAT: (a) ACCESS TO THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE QUALITY OF ANY SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL OBTAINED FROM THE APP WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT; OR (c) ANY ERRORS IN THE APP OR ITS CONTENT WILL BE CORRECTED. 

VIZN PERFORMANCE MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO, AND SPECIFICALLY DISCLAIMS LIABILITY FOR, THE AVAILABILITY, USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY, RELIABILITY OR COMPLETENESS OF THE APP, ITS CONTENT, OR THE SERVICES OFFERED.   

YOU ASSUME ALL RISK FOR ANY LOSS OR DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM USING, ACCESSING, OR OBTAINING ANY CONTENT FROM THE APP, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM VIRUSES.  VIZN PERFORMANCE HAS NO LIABILITY OF ANY KIND FOR ANY LOSS OF DATA OR INFORMATION. 

PHYSICAL TRAINING COMES WITH CERTAIN INHERENT RISKS.  VIZN PERFORMANCE DOES NOT GUARANTEE THAT USE OF THE APP OR FOLLOWING ITS RECOMMENDATIONS WILL BE SAFE FOR YOU OR THE INDIVIDUALS YOU MAY BE TRAINING.  YOU ASSUME ALL RISK OF DEATH, LOSS, INJURY, OR DAMAGE ARISING FROM YOUR USE OF THE APP OR SERVICES, AND YOU AGREE TO TAKE ALL NECESSARY ACTIONS TO PROTECT YOURSELF AND WHEN INTERACTING WITH OR TRAINING OTHERS. 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.  

16. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VIZN PERFORMANCE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APP, CONTENT, AND/OR SERVICES FOR: (a) PERSONAL INJURY OR DEATH, EMOTIONAL DISTRESS, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, DEVICE FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, OR ATTORNEYS’ FEES; OR (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APP. THIS INCLUDES CLAIMS OR DAMAGES ARISING FROM USER CONDUCT, INCLUDING WITHOUT LIMITATION, FALSE PROFILE CONTENT, NEGLIGENT PROVISION OF SERVICES, OR CRIMINAL CONDUCT.  THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR VIZN PERFORMANCE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.  

17. Indemnification. You agree to indemnify, defend, and hold harmless Vizn Performance and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the App, Services, and/or Content, or your breach of this Agreement, or any warranties or representations made therein, or applicable law, including but not limited to services you may provide, your online or offline conduct, or content you submit or make available through this App. 

18. Consent to Electronic Communication.  By using the App or Services, you agree to allow Vizn Performance to communicate with you electronically, and you consent to electronic delivery of notices or documents from Vizn Performance via the App or e-mail. You also agree to check your Account, alerts, and messages, and the e-mail reflected on your Vizn Performance Account, on a reasonably regular basis to stay apprised of important notices and information about your Account. 

19. Intellectual Property. All copyrights, trademarks, trade dress, other intellectual property and materials, including images, text, illustrations, formats, logos, designs, icons, photographs, programs, music clips, video clips, and written and other materials on or part of the Sites and Services (collectively, the “IP”) are owned, controlled or licensed by us and are protected by U.S. and international trademark and copyright laws. The absence of our name or logo does not constitute a waiver of our trademark or other intellectual property rights relating to such name or logo. All other product names, company names, marks, logos, and symbols appearing on the Sites or Services may be the trademarks and the property of their respective owners. Software used as part of the Sites and Services is our property or our suppliers’ property and is protected by U.S. and international copyright laws.

Subject to your strict compliance with these Terms, we grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to access, view, download, and print the materials displayed on the Sites and Services for your use and access only; provided, however, that you (i) retain all copyright, trademark or other proprietary designations or watermarks contained on all IP; (ii) do not modify or alter the IP in any way; and (iii) do not provide or make available the IP to any third party in a commercial manner. Other than this limited license, no license, right, title, or interest in any IP is transferred to you as a result of your use of the Sites or Services or your accessing, viewing, downloading, or printing of the IP. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, reverse engineer, sell or participate in any sale of, or exploit in any way, in whole or in part, any of the IP, the Sites, Services, or any related software.

20. Third Party External Links. This Site and the App may contain links to or be accessed through links that are owned and operated by independent third parties to which these Terms do not apply.  We are not responsible for content including but not limited to advertising claims, special offers, illustrations, names or endorsements on any other sites to which the Sites or Services may be linked to or from which the Sites or Services may be accessed.  Further, we are not, directly or indirectly, implying any approval, association, sponsorship, endorsement, or affiliation with the linked site, unless specifically stated therein.  You linking to any other off-site pages or other sites is at your own risk.  We recommend that you review any terms of use statement and privacy policy before using any other linked site.

21. Comments and Suggestions. We welcome and encourage comments and suggestions to this Site and the App. We cannot respond to all communications or implement all suggestions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information provided by you to us are yours personally and not owned by a commercial entity. You grant us a worldwide, unrestricted, royalty-free license to distribute, publish, modify, edit, or otherwise use your submissions for any purpose, commercial or otherwise, without any acknowledgement of or compensation to you.

22. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect. 

23. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule.  Unless you and Vizn Performance agree otherwise, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute (except for small-claims court actions), either as a result of your decision to opt-out of the Arbitration Agreement or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Vizn Performance must be resolved exclusively by a state or federal court located in the state of Texas.  You and Vizn Performance agree to submit to the personal jurisdiction of the courts located within the state of Texas for the purpose of litigating all such claims or disputes. 

24. Agreement to Arbitrate.   

  • Arbitration Agreement. This Section 21 is referred to in this Agreement as the “Arbitration Agreement.” Unless you opt-out in accordance with the opt-out procedures set forth in Section (f) below, you agree that all claims relating to or arising out of the Agreement or the breach thereof, whether sounding in contract, tort, or otherwise that have arisen or may arise between you and Vizn Performance or a Vizn Performance Affiliate, whether relating to the Agreement (including any alleged breach thereof), the Services, the App, or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except you may assert individual claims in small claims court, if your claims qualify. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. 
  • Prohibition of Class and Representative Actions and Non-Individualized Relief.  YOU AND VIZN PERFORMANCE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION, ACTION OR PROCEEDING. UNLESS BOTH YOU AND VIZN PERFORMANCE EXPRESSLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AGAINST VIZN PERFORMANCE AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AND WILL NOT AFFECT OTHER VIZN PERFORMANCE USERS. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes. 
  • Arbitration Procedures. 
    • If we cannot resolve a claim informally, any claim either of us asserts will be resolved only by binding arbitration and not in courts of general jurisdiction. Arbitration will be conducted by a neutral arbitrator in accordance with the rules of JAMS that are in effect at the time the arbitration is initiated (collectively referred to as the “JAMS Rules”), as modified by this Arbitration Agreement, and excluding the JAMS Class Action Procedures. For information on JAMS, please visit its website https://www.jamsadr.com/. Information about JAMS’s Rules and fees for consumer disputes can be found at the JAMS consumer arbitration page, https://www.jamsadr.com/rules-comprehensive-arbitration/. If there is any inconsistency between the JAMS Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 16. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. 
    • To commence an arbitration against Vizn Performance, you must write a demand for arbitration that includes a description of the dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com. You should send three copies of the Demand, plus the appropriate filing fee, to JAMS at 500 North State College Blvd., Suite 600, Orange, CA 92868, and send one copy to Vizn Performance, INC, Attn: Legal, 6119 Terravita Dr, Spring, TX 77379 For more information, see the JAMS arbitration rules and forms, https://www.jamsadr.com/rules-download/. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you. 
    • The arbitration shall be held in the county in which you reside in Ohio or at another mutually agreed location in Texas. If the value of the relief sought is $10,000 or less, you or Vizn Performance may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Vizn Performance subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Vizn Performance, unless the arbitrator requires otherwise. 
    • The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort, or otherwise and all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Agreement, including, but not limited to any claim that all or any part of the Agreement are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. 
    • The arbitrator will decide the substance of all claims in accordance with the laws of the State of Delaware, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Vizn Performance users, but is bound by rulings in prior arbitrations involving the same Vizn Performance user to the extent required by applicable law. 
  • Costs of Arbitration.  Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Agreement to Arbitrate. If you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Vizn Performance will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Vizn Performance will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Vizn Performance for all fees associated with the arbitration paid by Vizn Performance on your behalf that you otherwise would be obligated to pay under the JAMS rules. 
  • Confidentiality.  All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties. 
  • Opt-Out Procedure.  You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section. For new users, the Opt-Out Notice must be postmarked no later than 30 Days after the date you use our App or Services for the first time. You must mail the Opt-Out Notice to Vizn Performance, INC, Attn: Legal,6119 Terravita Dr, Spring, TX 77379.The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to log in to the Vizn Performance account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, Vizn Performance will likewise not be bound by these arbitration provisions. All other terms of the Agreement will continue to apply. Opting out of the Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. Upon receipt of a valid Opt-Out Notice, Vizn Performance will provide the opting out user with a copy of the arbitration agreement from the last version of the Agreement that the user accepted, if any exists. 
  • Future Changes to this Arbitration Agreement.  Notwithstanding any provision in the Agreement to the contrary, you and Vizn Performance agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, such change shall not be effective until at least 60 days from the date of posting, and shall not apply to any claim that was filed in a legal proceeding against Vizn Performance prior to the effective date of the change. Moreover, if Vizn Performance seeks to terminate this Arbitration Agreement from the Agreement, such termination shall not be effective until 30 days after the version of the Agreement not containing the Arbitration Agreement is posted to the App, and shall not be effective as to any claim that was filed in a legal proceeding against Vizn Performance prior to the effective date of removal.  

25. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. 

26. Entire Agreement. This Agreement and Vizn Performance’s Privacy Policy constitute the entire agreement between you and Vizn Performance with respect to the Site and App and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Site and App.  

27. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

Changes to Our Terms and Conditions

We may update our Terms from time to time. If we make material changes, we will post the new Terms on this page with a notice that the Terms have been updated and notify you by an email to the primary email address listed in your account and in-App alert the first time you use the App after we make the change. 

The date the Terms were last revised is identified at the top of the page. You are responsible for ensuring we have an up-to-date active and deliverable email address and for periodically visiting these Terms to check for any changes.   

Contact Information 

To ask questions or comment about these Terms and Conditions, contact us at:  

Vizn Performance, INC

ATTN: Terms and Conditions

contact@viznperformance.com