END-USER LICENSE AGREEMENT
IMPORTANT: THISS END-USER LICENSE AGREEMENT IS A LICENSE, NOT A SALE. READ THIS END-USER LICENSE AGREEMENT (“EULA”) IN ITS ENTIRETY BEFORE USING THIS PRODUCT. INSTALLING, OPENING, ACCESSING, COPYING (ONLY AS EXPRESSLY PERMITTED HEREIN), OR OTHERWISE USING THIS PRODUCT INDICSTES YOUR ACKNOWLEDGEMENT THAT YOU HAVE READ THIS EULA AND AGREE TO BE BOUND BY AND COMPLY WITH ITS TERMS.
- “Affiliate(s)” means any corporation, company, or other legal entity that directly or indirectly, via one or more intermediaries, controls, or is controlled by, or is under common control with the Vendor, in addition to Vendor’s licensor of this Product;
- “Computer” means a computer, tablet computer, smartphone, and any and all other electronic devices, whether such technology or device(s) are now or hereafter known, which accept information in digital or similar form and manipulate it for a specific result based on a sequence of instructions;
- “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services;
- “Documentation” means any accompanying printed materials, this EULA, any other license agreement that You may have with the Vendor relating to this Product, and “online” or electronic documentation;
- “Product” means the software made available to You through the Website which allows You to store, organize, display, manipulate, compile, modify, and delete information related to the performance of high school and college wrestlers including, but not limited to: (i) meet management software, (ii) roster management; (iii) schedule management; (iv) results management; and (v) weight-related information, which software is known as the NWCA Optimal Performance Calculator powered by Trackwrestling in its current and future versions;
- “Term” has the meaning as set forth in the Order Form, as well as that period during which You maintain an active license, or an active license is maintained on Your behalf, through the Vendor or its Affiliates to Use the product, which period shall be immediately terminated upon the termination of such license and which period shall be automatically and immediately renewed upon any renewal of such license;
- “Use” means to access, open, operate, run, or derive a benefit from the Product;
- “User(s)” refer to those who Use the Product or access the Website in connection with their Use of the Product;
- “Website” means www.trackwrestling.com or any and all subdomains, parent domains, assigns, affiliates, subsidiaries, or parent companies;
- “Vendor” means FloSports, Inc., a Delaware corporation and any of its permitted successors and assigns; and
- “You” or “Your” means the licensee or end-User.
GRANT OF RIGHTS
2.2 Provided that You have acquired this Product from either the Vendor or an approved Affiliate, YOU MAY:
2.2.1 Use the Product on Your Computer(s), either online or offline (but only as expressly permitted herein), as applicable, but only after registering as a User of the Product and agreeing to the Terms required to Use the Product;
2.2.2 Permit and enable certain of Your employees who are assigned job responsibilities, the completion of which requires the Use of the Product on Your behalf (e.g. an employee has been charged with the responsibility of tracking or recording performance-related data with respect to Your wrestlers via the Product), to Use the Product pursuant and subject to the Terms; provided, however, that You ensure that any and all such employees first carefully read this EULA and the remainder of the Terms and voluntarily agree, in writing, to fully comply with the Terms.
2.3 If You are an entity, such as an athletic association or corporation, which has obtained a license on behalf of other schools, entities or persons affiliated with You (other than your employees, as expressly permitted herein) (each a “Sub-User”) to Use the Product, you hereby acknowledge, agree, and confirm that You are obligated to ensure that each Sub-User, whether a known Sub-User now or any time during the Term, prior to any such Sub-User’s Use of the product, carefully read this EULA and the remainder of the Terms fully and voluntarily agrees to the Terms and registers as a User of the Product through the Website or other mechanism employed by the Vendor and obtains its own, unique username and password in connection with its Use of the Product.
2.4 This EULA shall remain in effect for the entirety of the Term, provided that You are in full compliance with the terms. Vendor may in its sole discretion immediately terminate this EULA in the event that You fail to comply with any of the terms. You agree upon termination or expiration of this EULA to immediately destroy any and all copies of the Product which remain in Your possession at the time of termination (even if such copy remains only in Your Computer’s Random Access Memory (“RAM”) or other temporary storage). The Intellectual Property Rights, indemnification provisions, Limited Warranty, Disclaimer, and Limitation of Liability provisions of this EULA shall survive and continue in force even after any termination.
LIMITATION OF RIGHTS
3.1 YOU SHALL NOT:
3.1.1 Use this Product or make copies of it other than as expressly permitted in this EULA;
3.1.2 translate, reverse-engineer, decompile, disassemble, translate, adapt, or make derivative works of the Product;
3.1.3 rent, lease, assign, sell, sublicense (except to an approved Sub-User), lend, or transfer the Product;
3.1.4 modify the Product or merge all or any part of the Product with another program;
3.1.5 attempt to create source code from the object code for the Product;
3.1.6 share credentials, usernames, or passwords specific to You or otherwise with others for the purpose of Using, extracting data or results for the benefit of another, viewing or enjoyment or use of another vendor, whether or not such vendor directly or indirectly competes with the Vendor or, more generally, allow, permit, enable, whether actively or passively another User to use, enjoy, or access Vendor’s Product with Your assigned log-in information for any reason; provided, however, that You may share your credentials, username or passwords specific to You with Your approved employees, pursuant to Section 2.2.2 above and subject to the Terms.
3.1.7 otherwise infringe upon Vendor’s or any of Vendor’s Affiliate’s rights in or to the Product or misappropriate the same or attempt to infringe upon or attempt to misappropriate the same in any way.
3.1.8 abuse, harass, or threaten any owner, employee, officer, director, consultant, contractor, or vendor of Vendor or any of Vendor’s Affiliates, whether through excessive direct or indirect communications, refusals to comply with the Terms, or general non-cooperation with any reasonable request of Vendor, or otherwise.
3.1.9 use any abusive, defamatory, ethnically or racially offensive, harassing, harmful, hateful, obscene, offensive, sexually explicit, threatening or vulgar language in connection with Your Use of the Product or Website, in any manner.
3.2 The Product may require You to separately acquire online services or data packages. Neither the Product nor this EULA gives You any right to use the internet, any online services, or any other services or software that may be required for You to Use all of the functions and features associated with the Product. The cost for such services, including, but not limited to; any data package costs for tablet computers or smartphones, shall be borne solely by You. Any and all liability resulting from such use of online or ancillary services shall be borne solely by You.
3.4 Except as expressly licensed to You in this EULA, the Vendor retains all of its rights, title, and interest in and to the Product and any copies You are authorized by the Vendor, as expressly set forth herein, to make. The Product is protected by patent, copyright, including without limitation by U.S. copyright law, international treaty provisions and applicable laws in the counter in which it is being Used, and trademark and trade secret laws. Except as expressly stated herein, the EULA does not grant You any intellectual property rights in or to the Product other than the rights granted pursuant to this limited license subject to the Terms. Any and all intellectual property rights in and to the Product are and shall remain the exclusive property of the Vendor, to the fullest extent that it possesses such rights. Nothing in this EULA intends to transfer any such intellectual property rights to, or to vest any such intellectual property rights in You. You are only entitled to the limited use of the intellectual property rights granted to You in this EULA. You will not take any action to jeopardize, limit, or interfere with the Vendor’s intellectual property rights in or to the Product or any and all works derivative thereof. Any unauthorized Use of the Vendor’s intellectual property rights is a violation of this EULA as well as a violation of intellectual property laws and treaties, including without limitation patent laws, trademark laws, or copyright laws where applicable. All title and intellectual property rights in and to any third-party content that is not contained in the Product, but which may be accessed through the Use of the Product, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
REPRESENTATIONS AND WARRANTIES
4.1 You Represent and Warrant that:
4.1.1 You are not a minor, that you have proper legal capacity to contract, that you have the intent to form a contract with the Vendor pursuant to the terms herein, and that You agree to be bound by all of the terms and conditions set out on this EULA. Use of this Product will be an irrevocable acceptance of the terms and conditions of the EULA;
4.1.2 You agree to be responsible for Your Internet service provider fees, telecommunication and data plan fees, and other charges that may apply as a result of Your Use of this Product;
4.1.3 You intend to Use this Product for only legitimate and legal purposes and that any and all liability that is incurred as a result of anu illegitimate or illegal Use of this Product by You is borne solely by You and you shall indemnify and hold Vendor and any and all of its Affiliates, directors, officers, employees, contractors, consultants, and vendors harmless with respect to the same;
4.1.4 if You are agreeing to the terms of this EULA as an agent, representative, employer, or otherwise on behalf of a business, school, other legal entity, or employee, that You have full authority to bind such entity or individuals to the terms of this EULA; and
4.1.5 all risk of damage and any and all actual damage, if any, to the Product or the Computer on which the Product is Used during the Product’s Use is assumed by You. ALL USER GENERATED CONTENT, AS DEFINED BELOW, FEATURED BY THE PRODUCT IS COMPILED BY THE USERS. VENDOR MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY, CORRECTNESS, OR TRUTH OF THE INFORMATION. ENSURING THE ACCURARCY, CORRECTNESS, AND TRUTH OF THE INFORMATION IS THE SOLE RESPONSIBILITY OF THE USERS. YOU HEREBY ACKNOWLEDGE AND AGREE THAT IT IS NOT POSSIBLE FOR VENDOR TO VALIDATE OR VET THE USER GENERATED CONTENT OR INFORMATION POSTED BY PRODUCT USERS AND THAT VENDOR IS NOT LIABLE OR RESPONSIBLE IN ANY WAY FOR THE VERACITY, ACCURACY, OR CORRECTNESS OF SUCH INFORMATION.
4.1.6 You hereby represent, warrant, covenant, and agree that the content that You submit through the Website in Your Use of the Product shall be non-infringing content and shall be content either originally created by You or content that You have the legal authority and right to use, display, compile, license, assign, sell, or generally benefit from.
4.2 If you are a commercial entity or organization, You agree that upon request from the Vendor or the Vendor’s authorized representative, You will, within 30 business days following such request, fully document and certify that Your Use, and the Use by any or all of Your employees of any and all of the Product at the time of the request is in conformity with the terms of this EULA and that all such User employees have consented to the terms and conditions set forth in this EULA pursuant to Section 2.2.2 above.
4.3 You agree that the Vendor may audit Your use of the Product for compliance with the terms of this EULA at any time, upon reasonable notice, in the discretion of the Vendor. In the event that such audit reveals any Use of the Product by You other than a Use that is in full compliance with the terms of this EULA, You shall reimburse the Vendor for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such non-compliance.
4.4 You agree to indemnify and hold the Vendor, its Affiliates and subsidiaries, directors, officers, employees, contractors, vendors, and suppliers harmless from and against any and all costs, liabilities, claims, or demands (including reasonable attorney’s fees and expenses of any kind whatever) that arise or result from Your Use, reproduction, or distribution of the Product, Documentation, or promotional or sales materials, including but not limited to any and all infringement claims made against Vendor or any or all of its Affiliates which are the result of Your Use of the Product, the Website, or Your submission of User-Generated Content in connection with the same.
4.5 In Your Use of the Product, You hereby covenant, agree, and certify that you will not disparage the Vendor or any of its Affiliates nor will you tarnish, blur, or otherwise cause harm, whether intentionally or unintentionally, to the marks or brands of Vendor or any of its Affiliates, in any way.
4.6 You represent and warrant that any registration information that you provide as required prior to Your Use of the Product will be true, accurate, current, and complete. You further agree to update your registration information as necessary to maintain its status as accurate, current, and complete at all times while You Use the Product.
4.7 User Generated Content.
4.7.1 General Provisions. “User Generated Content” means any content you make available to other Users, through the Website or the Product, by way of Your Use of the Product or the Website.
4.7.2 You hereby grant to Vendor and its Affiliates a worldwide, non-exclusive, license to Use, reproduce, modify, display, create derivative works from, distribute, transmit, transcode, translate, broadcast and otherwise communicate and publicly display and perform, Your User Generated Content and derivative works of Your User Generated Content. This license is granted to Vendor in perpetuity.
4.7.3 Notice and Procedure for Making Claims of Copyright Infringement. If you believe that your work has been copied in a way that constitutes copyright infringement, please submit your complaint to firstname.lastname@example.org. For any further questions, please see flosport.tv/copyright.
PRODUCT UPDATES, NEW VERSIONS
AND THIRD PARTIES’ SOFTWARE
5.1 You acknowledge that the Vendor may, but is under no obligation to, from time to time provide You with additional features, functions, patches, plug-ins, service packs, updates or other similar files related to this Product (“Updates”). You further acknowledge and accept that the Vendor need only provide You with reasonable advance notice of the employment and utilization of any such Updates, which notice shall be in the sole discretion of the Vendor.
5.2 Any Updates employed by the Vendor or its Affiliates may only be Used in conjunction with the Product and are subject to its Terms. You are granted da non-exclusive, limited license to Use the Updates only with the Product provided that You still possess a valid license from the Vendor for the Product and You remain in full compliance with the Terms.
5.3 You acknowledge and agree that the Vendor has no obligation to make available to You any subsequent versions of the Product. You also agree that You may have to enter and actively assent to an updated version of this EULA in the event that You want to Use a new version of the Product, from time to time. Furthermore, You acknowledge and agree that the Vendor, in its sole discretion, may modify or discontinue or suspend Your ability to Use any version of the Product, or disable any Product You may already have accessed or installed without any notice to You, for the repair, improvement, or upgrade of the underlying technology or for any other justifiable reason, including but not limited to circumstances where You, at the Vendor’s discretion, are in breach of any of the Terms or have potentially incurred legal liabilities as a result of Your Use of the Product, are acting inconsistently with the letter or spirit of the Vendor’s policies, or are engaging in fraudulent, immoral, or illegal activities, or for other similar reasons. The Vendor will not accept any liability in relation to the direct or indirect damages caused by: (i) the release or absence of release of new versions of the Product; or (ii) the suspension or termination of this EULA by it or by You.
WARRANTY AND LIMITATION OF VENDOR LIABILITY
6.1 LIMITED WARRANTY: Except as may be otherwise provided in this EULA, the Vendor warrants to You that this Product will be free from defect for ninety days from the date that You began Using the Product. If You are unable to Use the Product due to the fault of the Vendor and promptly notify the Vendor of the defect, the Vendor shall repair the defect immediately and may reimburse You, in its sole discretion, for the loss of Use of Product, as calculated on a pro rata basis for the time period during which You were unable to Use the Product. THIS REMEDY IS YOUR EXCLUSIVE REMEDY AND THE VENDOR’S AND ITS AFFILIATES’, INCLUDING, BUT NOT LIMITED TO ITS LICENSOR’S ENTIRE LIABILITY FOR BREACH OF THIS WARRANTY OR FOR ANY OTHER CAUSE OF ACTION (INCLUDING NEGLIGENCE) CONCERNING ANY DEFECT IN MATERIALS OR WORKSMANSHIP IN RELATION TO THE PRODUCT. THIS LIMITED WARRANTY GIVES YOU CERTAIN LEGAL RIGHTS.
6.2 DISCLAIMER: EXCEPT FOR THE EXPRESS LIMITED WARRANT ABOVE AND FOR ANY WARRANTY, CONDITION, REPRESENTATION, OR TERM, THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY OTHER WARANNTIES, REPRESENTATIONS, CONDITIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY LAW, STATUTE, USEAGE OF TRADE, COURSE OF DEALING OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THE VENDOR AND ITS SUPPLIERS AND DEALERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE PRODUCT. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCT IS ASSUMED BY YOU. WHERE ANY NON-EXCLUDABALE TERMS ARE IMPLIED INTO THIS LICENSE BY OPERATION OF LAW, TO THE EXTENT PERMISSIBLE BY LAW, THE VENDOR LIMITS ITS LIBILITY TO, AT ITS OPTION, THE REPAIR OR REPLACEMENT OF THE GOODS, THE RE-SUPPLY OF EQUIVALENT GOODS, OR THE COST THEREOF.
6.3 LIMITATION OF LIABILITY: SUBJECT TO THE EXPRESS LIMITED WARRANTY ABOVE, IN NO EVENT WILL THE VENDOR, ITS DEALERS OR SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, CLAIMS, OR COSTS WHATSOEVER (INCLUDING WITHOUT LIMITATION FOR BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER CAUSE OF ACTION WHATSOEVER) OR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF THE VENDOR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE.
THE VENDOR IS ALSO NOT RESPONSIBLE FOR CLAIMS MADE BY A THIRD PARTY. IN ANY EVENT, THE VENDOR’S MAXIMUM AGGREGATE LIABILITY AND THAT OF THE VENDOR’S DEALERS AND SUPPLIERS SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH. THE VENDOR IS ACTING ON BEHALF OF ITS DEALERS AND SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING, OR LIMITING OBLIGATIONS, WARRANTIES, AND LIABILITY AS PROVIDED IN THIE EULA, BUT IN NO OTHER RESPECTS.
7.1 This EULA is the entire license between You and the Vendor, superseding any other license, agreements, discussions, representations, or advertising, oral or written. This EULA may be modified only by a written document signed by an authorized officer of the Vendor.
7.2 This EULA shall be governed by the internal laws of the state of Texas, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the courts sitting in Austin, TX, Travis County unless the law requires otherwise to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
7.3 If any provision of this EULA is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such a provision shall be severed from the EULA and the other provisions shall remain in full force and effect and such severed term(s) shall the immediately be revised in such manner as to provide for the original intent of the parties hereto, to the fullest extent permitted under the law. Except as expressly set forth herein to the extent permitted by applicable law, this EULA shall not prejudice the non-excludable, statutory rights of any party dealing as a consumer.
7.4 You agree that You will not remove, obscure, make illegible or alter any notices or indications of the Vendor’s rights, including but not limited to its intellectual property rights and ownership thereof, whether such notice or indications are affixed on, contained in, or otherwise connected to any materials.
7.5 The failure to exercise, or delay in exercising, a right, power, or remedy provided by the terms of this EULA or by law shall not constitute a waiver of that right, power, or remedy. If the Vendor waives a breach of any provision of the Terms of this EULA, such a waiver shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS EULA, IN ITS ENTIRELY AND UNDERSTAND AND AGREE TO THE RIGHTS, OBLIGATIONS, TERMS, AND CONDITIONS SET FORTH HEREIN. BY USING THE PRODUCT, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO THE CENDOR THE RIGHTS SET FORTH HEREIN.