END USER LICENSE AGREEMENT
Effective as of April 1, 2023
IMPORTANT – This is a legal agreement between you (“you,” “your,” or the “Authorized User”) and FloSports, Inc. (“FloSports”). Before downloading, accessing, or using any part of the software (the “Software”) identified during registration or on any applicable order form (“Order Form”) separately executed by the parties, you should carefully read the following terms and conditions contained in this end user license agreement (the “Agreement”) as they govern your access to and use of the Software. FloSports is willing to license and allow the use of the Software only on the condition that you accept and agree to all the terms and conditions in contained in this Agreement and applicable Order Form. If you do not agree with this Agreement or applicable Order Form, you are not granted permission to access or otherwise use the Software.
TERMS AND CONDITIONS
CHANGES TO THE AGREEMENT. The effective date of this Agreement is set forth at the top of this Agreement. FloSports may make changes to the terms of this Agreement from time to time and will notify you of any material change by revising the date at the top of the Agreement. You should review the Agreement regularly. Unless otherwise noted, the amended Agreement will become effective immediately, and your continued use of the Software will be your acceptance of the changes. If you do not agree to the amended Agreement, you must stop using the Software. The amended Agreement supersedes all previous versions.
LICENSE GRANT. The Software is provided by FloSports, and this Agreement provides to you a personal, revocable, limited, non-exclusive, royalty-free, non-transferable, non-refundable (except as otherwise stated in this Agreement) license to use the Software conditioned on your continued compliance with the terms and conditions of this Agreement. This Agreement permits you to use and access the Software, for personal or business purposes only. You may also load information from the Software into your laptop’s, workstation’s, or computer’s temporary memory (RAM) and print and download materials and information from the Software solely for your personal or business use, provided that all hard copies contain all copyright and other applicable notices contained in the materials and information. If you are using the Software on behalf of a company or other form of entity, please note that the company or entity may have a separate agreement with FloSports regarding access and usage privileges for the Software. Nevertheless, your use of the Software will be subject to the obligations and restrictions as set forth in this Agreement.
RESTRICTIONS. The foregoing license is limited. You will not use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit any data through the Software in any manner not expressly permitted by this Agreement, including without limitation, using the Software for illegitimate and illegal purposes or in any other way than in accordance with the applicable documentation. In addition, you will not modify, translate, decompile, create any derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove or alter any proprietary notices or labels, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use in any manner not expressly permitted in this Agreement.
USER OBLIGATIONS. By downloading, accessing, or using the Software in order to view FloSports information and materials or submit information of any kind, you represent that you are at least 18 years old or the legal age of majority in your state of residence and will, at all times, provide true, accurate, current, and complete information when submitting information or materials on the Software, including, without limitation, when you provide information via a Software registration or submission form. In addition, you agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Software. This Agreement is also expressly made subject to any applicable export laws, orders, restrictions, or regulations.
FEES AND PAYMENT TERMS. The party will pay all fees as set out ( a ) during registration or ( b ) in an Order Form in addition with any other amounts payable under this Agreement.
CONSENT, COLLECTION, AND USE OF YOUR DATA. You grant FloSports a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to reproduce, distribute, modify, run, copy, publicly perform or display, translate, create derivative works, and perform all acts with respect to Data (defined below) in perpetuity. Without limitation to the foregoing license you grant to FloSports, FloSports will have the right to use Data for any purpose related to any use of the Software by you or on your equipment, including but not limited to: ( a ) improving the performance of the Software or developing updates; ( b ) verifying your compliance with the terms of this Agreement and enforcing FloSports’ rights, including all intellectual property rights in and to the Software; and ( c ) providing Data to business partners, distributors, service providers, marketing partners, and vendors. You acknowledge and agree that FloSports may ( a ) collect, directly or indirectly through the services of third parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through the security measures included in the Software; and ( b ) collect, use, and disclose Data transmitted through or otherwise derived from your use of the Software. “Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of you or an Authorized User through the Software. FloSports acknowledges that, as between you and FloSports, you own all right, title, and interest, including all intellectual property rights in and to the Data.
SPECIAL NOTICE OF DATA USE. Without limiting the generality of section 5 (Consent, Collection, and Use of Your Data) and section 13 (Your Representations and Warranties), you specifically acknowledge and agree that FloSports, without limitation, may collect, use, share, store and monetize the Data to its affiliates, business partners, distributors, service providers and vendors, including without limitation, your name, weight, height, competition results, and school that is transmitted through your use or the use of an Authorized User of the Software. You represent and warrant that in the event you or an Authorized User is using the Software to transmit Data on behalf of third parties, that you or the Authorized User own or have obtained all consents, permissions and rights to transmit Data through the Software, including without limitation, having obtained all necessary consents, permissions and waivers from either the ( a ) third party or ( b ) parent/legal guardian of the third party if the third party is younger than the age of 18 years old or age of majority of your state of residence. In the event you or an Authorized User wish to request any adjustments to FloSports’ use of the Data as set out in this section please send an email to email@example.com.
INTELLECTUAL PROPERTY RIGHTS. This Agreement provides only a limited license to access and use the Software. You expressly acknowledge and agree that FloSports transfers no ownership or intellectual property interest or title in and to the Software or any Licensed Patent (defined below) to you or anyone else. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, patents or Licensed Patents, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Software, unless otherwise indicated, are owned, controlled, and licensed by FloSports and its successors and assigns and are protected by law including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other state, national, and international laws and regulations. Except as expressly provided in this Agreement, FloSports does not grant any express or implied right to you or any other person under any intellectual or proprietary rights. Your unauthorized use of the Software may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes. The Software, FloSports, the FloSports logo, and all other names, logos, and icons identifying FloSports and its programs, products, and services are proprietary trademarks of FloSports, and any use of the marks, including, without limitation, as domain names, without the express written permission of FloSports is strictly prohibited. Other service and entity names mentioned in this Agreement may be the trademarks and service marks or both of their respective owners. “Licensed Patent” means the following U.S. patents associated with FloSports products and services: 7,247,023; 8,087,937; 8,272,872; 8,560,547; and US 2015/0039107. Additional patents and applications may be pending in the U.S. and elsewhere.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. FloSports will respond to notices of alleged copyright infringement that comply with applicable law. If you believe that any materials, accessible through the Software, infringes your copyright, you may request removal of those materials (or access of them) from the Software by submitting written notification to FloSports copyright agent designated below. In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
( a ) your physical or electronic signature;
( b ) identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of the works;
( c ) identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material
( d ) adequate information by which FloSports can contact you (including your name, postal address, telephone number, and, if available, email address);
( e ) a statement that you have a good faith belied that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law;
( f ) a statement that the information in the written notice is accurate; and
( g ) a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
See section 21( e ) (Notices) for FloSports designated copyright agent to receive DMCA Notices.
If you fail to comply with all of the requirement of section 512( c )(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity of your use of the Software is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under section 512( f ) of the DMCA.
FEEDBACK AND SUBMISSIONS. FloSports welcomes your feedback and suggestions about FloSports’ products, services, or the Software. By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to FloSports, you represent and warrant that the Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to FloSports and enable FloSports to use the Feedback. In addition, any Feedback received through the Software will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for FloSports to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on the Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in the content, and you waive any claim to the contrary.
DISCLAIMER. While FloSports endeavors to provide reliable information, services, programs, software, and materials, the Software and any associated customer or technical support is provided “as-is” and “as-available” and may include errors, omissions, or other inaccuracies. You assume the sole risk of making use of or accessing the Software, including without limitation, complying with all applicable laws. FloSports make no representations or warranties that ( a ) the Software is appropriate or available for use in other locations outside the state of Texas, and access to the Software from states, territories, or nations where any aspect of the Software is illegal or prohibited ( b ) the results that can be achieved from or the suitability, completeness, timeliness, reliability, legality, or accuracy of the Software for any purpose, and expressly disclaims all warranties, express or implied, including without limitation, any warranty of merchantability, fitness for a particular purpose, or non-infringement or any other implied warranty under the Uniform Computer Information Transactions Act as enacted by any state. FloSports also makes no representations or warranty that the Software will operate error free or in an uninterrupted fashion or that any downloadable files or information will be free of viruses or contamination or destructive features. FloSports will not be liable for any losses, damages, or costs that you or others may suffer arising out of or relating to ( a ) your access to, or use of, the Software in a way that is inconsistent with this Agreement, applicable Order Form or documentation; ( b ) unauthorized access to servers or infrastructure, or to the Data; ( c ) Software interruptions or stoppages; ( d ) errors, inaccuracies, omissions or losses in or to any Data; or ( e ) your or another party’s defamatory, offensive, fraudulent or illegal conduct.
YOUR REPRESENTATIONS AND WARRANTIES. You, your Authorized User, or if you are under 18 years of age or the age of majority in your state of residence, your parent/legal guardian represents as of the Effective Date, and warrants at all times throughout your use of the Software: ( a ) you have the right to enter into and perform under this Agreement and any applicable Order Form; ( b ) you own or have obtained all necessary rights and permissions to the Data (including without limitation the right for FloSports to publicly display the Data); ( c ) Data will not infringe or violate the intellectual property rights of any third party; ( d ) if you are agreeing to this Agreement and an Order Form or both 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 the entity or individuals to this Agreement and Order Form or both; ( e ) 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 the Software; ( f ) you intend to use the Software for only legitimate and legal purposes and that any and all liability that is incurred as a result of any illegitimate or illegal use of the Software by you is borne solely by you; and ( g ) you will comply with all applicable documentation.
LIMITATION OF LIABILITY. You expressly absolve and release FloSports and its affiliates, officers, directors, employees, agents, successors, and assigns from any claim of harm resulting from a cause beyond FloSports’ control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. Moreover, to the fullest extent permitted by applicable law, in no event will FloSports and its affiliates, officers, directors, employees, successors, and assigns be liable for any indirect, punitive, incidental, special, or consequential damages arising out of or in any way connected with the use of the Software, with the delay or inability to use the Software, or for any information, services, programs, products, and materials available through the Software, whether based in contract, tort, strict liability, or otherwise, even if FloSports has been advised of the possibility of the damages. Notwithstanding the foregoing, the total liability of FloSports for any reason whatsoever related to the use of the Software will not exceed the total amount paid by you to FloSports in the 12-month period preceding the event giving rise to the claim. The limitations set forth in this Agreement apply even if your remedies fail of their essential purpose. The parties agree that the foregoing represents a fair allocation of risk under this Agreement.
INDEMNITY. You agree to defend, indemnify, and hold harmless FloSports and its affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from any breach by you of this Agreement.
TERM, TERMINATION, AND EFFECT OF TERMINATION. This Agreement and your right to use the Software will take effect either ( a ) upon completion of your registration; or ( b ) if applicable, when both parties execute a separate Order Form and will remain in force and effect until all applicable Order Forms have expired or have been terminated pursuant to the terms of this Agreement. In addition, FloSports reserves the right at any time and on reasonable grounds, which will include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this Agreement or Order Form or both, to deny your access to the Software or to any portion thereof in order to protect its name and goodwill, its business, or other Authorized Users, and this Agreement and any Order Form will also terminate automatically if you fail to comply with this Agreement, subject to the survival rights of certain provisions identified below. The termination will be effective without notice. You may also terminate this Agreement at any time by ceasing to use the Software, but all applicable provisions of this Agreement will survive termination, as identified below. Upon termination, you must destroy all copies of any aspect of the Software in your possession. Additionally, either party may terminate this this Agreement or the applicable Order Form for cause immediately upon written notice if the other party does not cure its breach of this Agreement or the applicable Order Form within (i) 24 hours of receipt of notice for a breach involving FloSports’ intellectual property rights; (ii) 10 days of receipt of notice for a breach involving payment; and (iii) 30 days of receipt of notice for all other material breaches. If this Agreement or an Order Form is terminated by FloSports for your uncured breach, or by you other than as a result of FloSports’ material uncured breach, you will pay FloSports the amounts due under this Agreement and all terminated Order Forms for the remainder of the relevant term. If you terminate this Agreement or an Order Form for FloSports’ uncured material breach, as your exclusive remedy, FloSports will provide you a pro-rata refund of all prepaid fees that correspond to the percentage of the period remaining after the effective date of the termination.
SURVIVAL. In addition to section 20 (Miscellaneous), the provisions concerning FloSports’ proprietary rights, fees and payment terms, Data, Feedback, effect of termination, indemnity, disclaimers of warranty, limitation of liability, and governing law will survive the termination of this Agreement or the applicable Order Form for any reason.
CONFIDENTIALITY. The parties agree to treat the terms and conditions of this Agreement and any applicable Order Form as confidential and agree to undertake whatever measures are reasonably necessary to prevent disclosure to third parties unless disclosure is required by law or written consent of the other party is obtained. Notwithstanding the foregoing, each party may disclose the terms of this Agreement and applicable Order Form to its respective attorneys, accountants and other agents in the ordinary course of business, in each instance subject to appropriate confidentiality agreements or obligations. You acknowledge that any breach, threatened or actual, of this Agreement will cause irreparable injury to FloSports, the injury would not be quantifiable in monetary damages, and FloSports would not have an adequate remedy at law. You therefore agree that FloSports will be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement. You waive any requirement that FloSports post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to FloSports to enforce any provision of this Agreement.
ASSIGNMENT. This Agreement is personal to you and may not be assigned by you without the prior written consent of FloSports; except that you may assign this Agreement or applicable Order Form without consent, in whole or in part, to a successor that acquires all or substantially all of your business or assets, whether by merger, reorganization, sales, acquisition, or otherwise. Any purported assignment or delegation in violation of the foregoing will be null and void. No assignment will relieve you of any of your obligations under this Agreement. This Agreement will be binding on any permitted assignee or any successor in interest of you. FloSports may at any time assign or transfer any or all of its right or obligations under this Agreement without your prior written consent.
FORCE MAJEURE. No party will be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent the party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): ( a ) acts of God; ( b ) flood, fire, earthquake, explosion, COVID-19, pandemic, quarantine or any epidemic event; ( c ) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; ( d ) government order, law, or action; ( e ) embargoes or blockades in effect on or after the date of this Agreement; ( f ) national or regional emergency; ( g ) strikes, labor stoppages or slowdowns or other industrial disturbances; ( h ) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and ( i ) other similar events beyond the reasonable control of the Impacted Party. Notwithstanding the foregoing, your financial inability to perform, changes in cost or availability of materials, components or services, market conditions, or supplier actions or contract disputes will not excuse performance by you under this section.
WAIVER. This Agreement, or any term hereof, may only be modified, amended, or waived by written agreement signed by each party hereto and a failure by either party to enforce any term of this Agreement will not constitute a waiver by that party of the term or any other term of this Agreement. No written waiver will excuse the performance of any act other than those specifically referred in the written waiver.
Conflict Between Documents. In the event of any conflict or inconsistency in the interpretation of this Agreement (including any exhibits) and an applicable Order Form, the conflict or inconsistency will be resolved by giving precedence first to the Order Form, then to this Agreement, and then to the exhibits, if any.
Governing Law. This Agreement and all related documents including all those attached hereto and all matters arising out of or relating to this Agreement and the Software provided, whether sounding in contract, tort, or statute, for all purposes will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply. Any action or proceeding by either of the parties to enforce this Agreement will be brought only in any state or federal court located in the State of Texas, County of Travis. The parties irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in the venue.
Independent Contractors. The parties agree and acknowledge that the relationship of the parties is in the nature of an independent contractor, and this Agreement will not be construed to create any association, partnership, joint venture, employment, or agency relationship between the parties for any purpose. Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties, and neither party may do or permit any act to be done whereby a party may be represented as an agent or partner of the other.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or will confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder will be in writing and will be deemed to have been given: (1) when delivered by hand (with written confirmation of receipt); (2) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (3) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (4) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid, in each case, addressed to you as set forth on an applicable Order Form or registration and to FloSports as follows:
For legal notices:For DMCA Notices:For all other notices:FloSports, Inc.301 Congress Ave.Suite 1500Austin, TX 78701Attn: LegalEmail: firstname.lastname@example.orgFloSports, Inc.301 Congress Ave.Suite 1500Austin, TX 78744Attn: LegalEmail: email@example.comFloSports, Inc.301 Congress Ave.Suite 1500Austin, TX 78701Attn: SupportEmail: firstname.lastname@example.org
Arbitration. Any dispute, controversy, or claim between the parties arising out of or relating in any way to this Agreement, Order Form or the Software will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law will apply to this arbitration agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award the same damages and relief as a court (including injunctive and declaratory relief or statutory damages). Before beginning an arbitration proceeding, the initiating party must send an individualized letter to the other party identifying itself, its legal claims, the requested relief and requesting arbitration. You may email this correspondence to the address set forth in section 21( e ) (Notices). Except as otherwise stated in this Agreement, if the parties cannot resolve the dispute within 30 days of service of the individualized letter, the arbitration may be initiated and will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The parties also agree to delegate the issue of arbitrability to an arbitrator. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, except the filing fees will be paid by you. If you are the prevailing party, you may seek reimbursement of your fees and costs. However, FloSports may seek and will be entitled to its attorneys’ fees and costs if the arbitration finds your claims to be frivolous. There will be only one arbitrator, not a panel. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
Class Action Waiver. You and FloSports agree that any dispute resolution proceedings or lawsuits, whether in arbitration or in a court of law, will be conducted only on an individual basis and not in a class, consolidated, or representative action. Therefore, you waive all rights to bring claims on behalf of a class of persons; however, you may still bring an individual claim for public injunctive relief and in small claims court. Nothing in this provision, however, should operate to prevent the parties from settling claims on a class-wide basis.
Jury Trial and Small Claims Court. If for any reason a claim proceeds in court rather than in arbitration, each party waives any right to a jury trial. The parties agree that either party may bring suit in any court of competent jurisdiction to enjoin infringement or other misuse of intellectual property rights, including with respect to temporary restraining orders. Any claims arising in connection with your use of the Software must be brought within one year of the event giving rise to the action occurred; however, this period will be tolled for the 30-day pre-filing notice period above.
Lawsuit Notice. If you become a party to any lawsuit or proceeding that arises out of or relates to this Agreement, you will provide FloSports with prompt written notice of the lawsuit, and a copy of all pleadings served in connection with it.
Further Assurances. On a party’s reasonable request, the other party will, at the requesting party’s sole cost and expense, execute and deliver all the documents and instruments, and take all the further actions, as may be necessary to give full effect to this Agreement.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, the invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable the term or provision in any other jurisdiction.
COMPLIANCE WITH LAWS. Each party will comply with all applicable law with respect to its obligations pursuant to this Agreement.
ENTIRE AGREEMENT. This Agreement and any applicable Order Form, when fully executed, constitutes the entire agreement of the parties (including all exhibits attached to this Agreement, if any) with respect to the subject matter in this Agreement and applicable Order Form, and the provisions in this Agreement and applicable Order Form supersede any and all prior representations, proposals, discussions, communications and contemporaneous agreements, whether oral or in writing, between the parties with respect to the subject matter of this Agreement and applicable Order Form.
COUNTERPARTS. The Order Form and this associated Agreement may be executed in one or more counterparts and by electronic or facsimile signature, each of which will be deemed an original and all of which together will become effective and binding upon the parties as of the Effective Date at the time as all signatories have signed a counterpart of this Agreement.