PLEASE READ THE TERMS AND CONDITIONS OF THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS PROGRAM INSTALL.
BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THIS PROGRAM, YOU AGREE TO THIS END USER LICENSE AGREEMENT (THIS “EULA”), WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU AND PROFESSIONAL APPLICATIONS, LLC (“COMPANY”) FOR THE PRO’S APP APPLICATION (THE “APPLICATION”). EVERY TIME THAT YOU ACCESS, INSTALL, OR USE THE APPLICATION OR ACCESS THE SITE, YOU REAFFIRM YOUR ACCEPTANCE OF AND AGREEMENT TO THE TERMS OF THIS EULA.
Site; Participation as an Athlete; No Conflict
a. You have been invited to access, use, participate as a professional athlete on an athletics-oriented social media site to the extent such participation, access, and use is permitted by Company as Company may determine or change from time to time (the “Site”).
b. As a professional athlete, You will have access to and use of such part of the Site that is reserved for professional athletes, any direct contact among professional athletes, and not intended for access or use by any member of the general public obtaining access to the site (“Fan”). Company will make reasonable efforts to limit the interaction with any Fan through an administrator of the Site. However, Company does not warrant, represent, or ensure that no other interaction or contact between You and a Fan will not occur.
c. You acknowledge that the Site will be financed through advertising and commercial sponsorships from different businesses, including athletic products and services. You will be solely responsible for ensuring, and You hereby expressly warrant, represent, and covenant to Company, that Your participation as a professional athlete on the Site, and any of Your association with the Site and any such advertising, sponsorship, or business, will not conflict with any sponsorship, advertising, or other contract or contractual or other obligation or duty that You may have.
Company reserves the right to limit the downloading, access to, and use of the Application, and access to and use of the Site, to individuals residing in specific countries or territories and to require You to confirm that You reside in such country or territory. Your rights to download the Application and access and use the Application and the Site is expressly conditioned on Your truthful and accurate confirmation that You reside in such country or territory.
Modifications of this EULA
Company may modify, amend, change, and alter this EULA or any provision herein at any time, whether through a specific notice or inclusion in the text of this EULA presented or displayed to You. Your installation and use of the Application or the Site after such notice or such presentation or display of the text of this EULA shall be conclusively deemed to be Your acceptance of and agreement to such modification, amendment, change, and alteration of this EULA.
Modifications of Application or Site
Company may (if, as, and when it decides to do so in its sole discretion) include, implement, install, or make available to You, without any obligation by Company, any update, upgrade, error correction, patch, enhancement, or change to the Application and/or the Site (“Modification”) that is made available to You by Company. Company has the right to make any Modification at any time, without obligation by Company to provide any notice or obtain any consent or agreement from You thereto, and without any right by You to receive such notice or provide such consent or agreement. The terms of this EULA will govern any Modification that Company includes, implements, installs, or makes available, and upon any Modification to the Application, the term “Application” in this EULA refers to the Application including such Modification and the term “Site” refers to the Site including such Modification, all of which is governed by this EULA.
Privacy of Your Data
When downloading the Application, or registering the downloaded Application, or registering on the Site, You shall provide true, accurate, and complete information about Yourself as requested during the downloading, and to update this information promptly when it changes. If You provide any information that is untrue or inaccurate, not current, or incomplete, or if Company suspects that Your information is untrue or inaccurate, not current, or incomplete, Company may, in its sole discretion, suspend or terminate such registration and/or access or refuse current or future access.
License and Limitations
a. Company grants You a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable license to: (i) install and use the Application on a tablet, smart phone, or other mobile device for which Company makes the Application, solely in object code, available, and if Company makes it available for download and installation onto a laptop, desktop, or personal computer, to install and use the Application on such laptop, desktop, or personal computer, that is owned and controlled by You and (ii) access and use the Site as made available to You by Company at a given time solei for the purpose for which the Site is made available to You by Company, all under the provisions of this EULA and any terms, conditions, directions, restrictions, and requirements posted on the Site (including, without limitation, any website terms posted thereon) or notified to You by or for Company from time to time. In the event of a conflict between any website terms posted on the Site and governing the access to and use of the Site and this EULA, this EULA shall prevail. No right is granted or promised with regard to any source code of the Application or the Site.
b. The Application and access to and use of the Site is licensed – and not sold – to You for use only under the terms of this EULA.
c. You may use the Application only for Your own personal enjoyment and may not use it in connection with any business or business activities, or for any commercial or monetary purposes, including, without limitation, to use or operate the Application or any part thereof for the benefit of any third party in any type of service outsourcing, application service, provider service or service bureau capacity, or to offer, sell, distribute, market, or promote any product or service use or operate the Application or any part thereof for the benefit of any third party in any type of service outsourcing, application service, provider service or service bureau capacity (except if You entered into a written agreement with Company to the extent it permits You offer, market, and promote products and services on the Site). You may not:
Any attempt to do so is a violation of the rights of Company. If and to the extent that any of the foregoing prohibitions in this Section 8(c) covers a specific use that, under applicable law, must be permitted, such foregoing prohibition shall be interpreted to not cover such specific use.
d. ANY ACCESS, EXECUTION, OR USE OF THE APPLICATION OR THE SITE OR ANY PART THEREOF OTHER THAN AS EXPRESSLY PERMITTED UNDER THIS SECTION 8 OR IN VIOLATION OF THIS EULA, INCLUDING, WITHOUT LIMITATION, SECTION 8(c) OF THIS EULA, SHALL BE DEEMED TO BE AN INFRINGEMENT OF COMPANY’S RIGHTS IN THE APPLICATION AND THE SITE AND IS SUBJECT TO COMPANY ALL RIGHTS AND REMEDIES OF COMPANY ARISING FROM OR IN CONNECTION WITH SUCH AN INFRINGEMENT AND BREACH OF THIS AGREEMENT.
You shall download and maintain the Application solely on a device that meets the requirements posted or noticed by Company at the time of the downloading or from time to time thereafter, which requirements Company may change at any time. You are solely responsible for obtaining and maintaining, at Your sole cost, such device and any software, hardware, communication, internet access and connection, electricity, and any other prerequisites that are or may be necessary for the operation of the Device or downloading the Application or access to or use of the Application or the Site from Your device. Company is not liable for Your compliance with any of the foregoing, or Your device, or any costs, charges, fees, taxes, rates, or other payments incurred or made in connection therewith.
User Name and password
a. Access to the Application and Site is conditioned on use of a confidential user name and password, which You have to establish in accordance with the directions or guidelines provided by Company, and which Company may require You to change from time to time. Establishment and use of such user name and password are conditions precedent for Your access to and use of the Application and the Site.
b. You agree not to obtain or attempt to obtain access to or use of the Application or the Site under a different user’s username and/or password or without Your username and password.
c. You will be solely responsible for maintaining the confidentiality of the user name, password, and Your account information, and are fully responsible for all activities that occur under Your user name, password or user account. You will not provide or make available Your username or password for any other’s access to or use of the Application or the Site. You will promptly notify Company of any unauthorized use of Your user name, password, or account, or any other breach of security. When selecting a user name, You agree: (i) not to use Your real name or the real name of another person as the user name, (ii) not to use or select a user name for any deceptive, fraudulent, unlawful, or illegal purposes, and (iii) that Your user name may be visible to all users of the Site and the internet’s general public while You use the Site.
d. Additionally, please be aware of a scam known as “phishing,” in which identity thieves send emails or texts to a service provider’s customers asking them to verify personal information or otherwise divulge personal data directly in response to the email or text or via a linked website or attachment. Company will never send emails or texts to You asking You to provide or verify Your log-in information and/or password in any manner, including by clicking on a website link or clicking on an attachment contained in an email or text. While communications of this nature may look like they are from Company, and even use Company’s name or logo, they are most likely a “phishing” scam. Do not respond to e-mails or text messages of this nature. If You receive an email or text purporting to be from Company and question it, do not hesitate to contact Company to confirm it.
a. You will or may have the opportunity to submit questions, comments, blog entries, suggestions, testimonials, stories, photographs or other images, videos, remarks, statements or other materials of any kind, including, without limitation, communication with any professional athlete (each a “Submission”) by e-mail or direct communication through the Site or the Application. You may provide Company with any Submission in the manner, and subject to the limitations, stated on the Site as long as the Submission is not, and is not for any purpose or in any manner that is, illegal or in violation of any applicable law or rights of any third party, or for the purpose or in a manner that is threatening, libelous, slanderous, defamatory, pornographic, or otherwise inappropriate for a sports-related social media page visited and used by minors.
b. By providing a Submission, You grant Company the unrestricted, unlimited, perpetual, irrevocable, non-terminable, transferable, assignable, directly and indirectly sublicensable, worldwide right and license, free of any royalty, fee, or other payment or value to You or by Company, to use such Submission for any purpose, including, without limitation, to copy, distribute, display, modify, edit, publish, and to create derivative works or derivations from it. Company shall not be liable to You, and You shall have no claim against Company, for any royalty, fee, or payment or value of any kind in connection with any use of a Submission or for the compensation or reimbursement of any cost, expense or liability incurred by You. Company have no obligation or responsibility regarding any Submission. Any Submission submitted by You is submitted at Your own risk.
c. Company may or may not archive any Submission and may delete from the Site and/or its archive any Submission at any time in Company’s sole discretion, with or without any notice to You.
d. By providing Company with a Submission, You expressly agree and consent to the foregoing in this Section 10 and may identify You by Your user name as the source of such Submission if Company publishes or displays it or parts of it on the Site. Any Submission may be viewed by any third party so please be mindful not to include any information (e.g., Your name or other personally identifiable information) that You do not wish to be publicly known.
Copyrights and Trademarks
If You believe that any Submission or other content on the Site infringes any copyright or trademark of You, please proceed in accordance with Company’s Copyright and Trademark Policy.
a. Company is not obligated or required to provide or make available any support, maintenance, or other services to You or regarding the Application or the Site.
b. Company may, from time to time, take down or shut down access to the Application, or parts thereof, for maintenance, repair, or service as Company may deem necessary in its sole discretion ("Downtime"). You acknowledges that, during any Downtime, You may not be able to access and use some or all parts of the Application. Company may, but shall have no obligation to, make commercially reasonable efforts to notify You, or have You notified, in advance of such Downtime, for example by displaying a notice during access of the Application or by posting a notice on the website of the Designated Domain. Company will make commercially reasonable efforts to keep the Downtime to a minimum, but in no event shall Company or any Affiliate or any distributor or reseller of Company or any Affiliate be liable to You or any third party in connection with any Downtime.
c. Company does not offer, and does not agree to, any service level agreement, service levels, credit, uptime, minimum uptime, or other similar features.
Suspension and Termination
a. Company may suspend or terminate this EULA, and Your right to download, access, and use the Application and to access and use the Site, at any time without cause and without any liability by Company, by disabling Your access to or use of the Application or the Site. Company will make a reasonable effort to provide You with a notice of such suspension or termination, provided that such notice shall not be a prerequisite for such suspension or termination. You may terminate this EULA at any time by irretrievably removing the Application from Your device without retaining any copy and not access or using the Application and the Site.
b. Upon termination of this EULA, all Your rights to have the Application and access or use the Application or the Site shall immediately end. Any termination of this EULA shall not affect the provisions in Sections 6, 11(b), 12, and 15-24 of this EULA, and this Section 14(b), all of which shall survive the termination of this EULA.
Company owns and shall retain all rights, title and interest in and to: (i) the Application and any and all parts thereof (including, without limitation, all Modifications), (ii) any and all marks and names of Company and the name(s) and title(s) of the Application), (iii) any technology, invention, concept, system, method, process, and other element of the Application and/or the Approved Device, (iv) any Modification, and any copy, reproduction, update, upgrade, modification, derivation, improvement, and derivative work thereof, thereto, and/or therefrom, by whomever created, and (v) any and all copyrights, patents, trade secret rights, trademark rights, service mark rights, and other intellectual property rights, industrial property rights, and other proprietary rights of any kind, existing anywhere or under any law, in or to any of the foregoing (collectively and individually, "Company Property"). Nothing in this EULA or any performance of this EULA constitutes, or shall be interpreted or construed to constitute, any assignment, transfer or conveyance of any right, title or interest, or (except solely for the license expressly granted to You in Section 16 of this EULA) any license or use right, or any right to grant any license or use right whatsoever, in or to any Company Property. You agrees that You will not acquire, by use or otherwise, and will not claim, any ownership, license, or other rights (other than the limited express license granted in Section 8 of this EULA during the term of this EULA) in, or take any action that in any way may jeopardize or jeopardize Company’s ownership or rights in or to, any Company Property.
NO WARRANTY; WARRANTY DISCLAIMER
a. Company makes no warranty or representation with regard to the Application, the Site, or any part thereof, or any content thereon, or any Submission, this EULA, or any other matter or performance related thereto.
b. THE APPLICATION, THE SITE, AND ANY PART THEREOF (INCLUDING, WITHOUT LIMITATION, ANY MODIFICATION), IS LICENSED, DELIVERED, AND PROVIDED “AS IS” AND “WHERE IS,” AND COMPANY MAKES NO REPRESENTATION, WARRANTY, COVENANT, OR CONDITION OF ANY KIND TO YOU OR ANY OTHER THIRD PARTY, WHETHER VERBAL, WRITTEN, EXPRESSLY, OR IMPLICITLY, AND COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, AND STATUTORY, OF ANY KIND FOR OR RELATED TO OR REGARDING THE APPLICATION, THE SITE, ANY PART THEREOF (INCLUDING, WITHOUT LIMITATION, ANY MODIFICATION), AND OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, WORKMANSHIP, ACCURACY, RELIABILITY, INTEROPERABILITY WITH OTHER SOFTWARE OR ANY HARDWARE, SECURITY, OR QUIET ENJOYMENT OR THAT THE USE OF THE APPLICATION OR THE SITE WILL BE UNINTERRUPTED OR VIRUS- OR ERRORFREE, OR MEET YOUR SPECIFIC REQUIREMENTS, FUNCTIONS, OR RESULTS, AND HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS ARISING AS A RESULT OF CUSTOM, USAGE OR TRADE AND THOSE ARISING UNDER STATUTE.
c. Some jurisdictions do not allow the conditions, limitations, disclaimer, or exclusion of implied warranties, representations, or conditions, so some of the disclaimers and exclusions in the foregoing provisions of this Section 16 may not apply to You. In such case: (i) the conditions, limitations, disclaimer, or exclusion of implied warranties, representations, or conditions shall not be invalidated or nullified but be revised and remain valid and enforceable such that they are effective to the greatest extent as permitted under applicable law, and (ii) if any implied warranties or conditions would then otherwise arise, such implied warranties and conditions will be limited in duration to ninety (90) days, or if applicable law requires a longer time period, the shortest legally required time period, from the date of the delivery of the Application. The warranties given herein give You specific legal rights and You may have other rights, which may vary from jurisdiction to jurisdiction. In the event and to the extent that any part or provision of this EULA is invalid or unenforceable in any particular country, state, or jurisdiction, such part or provision shall be interpreted both to be valid and enforceable and to conform to the greatest extent possible to the intent and purpose of such part or provision as set forth in this EULA.
LIMITATION OF LIABILITY
a. IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, LIQUIDATED, EXEMPLARY, OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, AND DISCLOSURE OR LOSS OF INFORMATION, DATA, INCOME, REVENUE, GOODWILL OR ANTICIPATED SAVINGS) EVEN IF COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE (INCLUDING, WITHOUT LIMITATION, FOR OR RELATED TO OR REGARDING THE APPLICATION, THE SITE, ANY PART THEREOF, ANY MODIFICATION, AND OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT). FURTHER, IN NO EVENT WILL COMPANY’S TOTAL CUMULATIVE LIABILITY NOT EXCLUDED HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED THE TOTAL AMOUNT OF FIVE HUNDRED U.S. DOLLARS. THIS LIMITATION AND EXCLUSION APPLIES IRRESPECTIVE OF THE CAUSE OF ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF WARRANTY, MISREPRESENTATION OR ANY OTHER LEGAL THEORY AND WILL SURVIVE A FUNDAMENTAL BREACH.
b. Some jurisdictions do not allow for the limitation or exclusion of liability, so the above limitation or exclusion may not apply to You and You may also have other legal rights, which may vary from jurisdiction to jurisdiction. In such case the limitation or exclusion shall not be invalidated or nullified but be revised and remain valid and enforceable such that they are effective to the greatest extent as permitted under applicable law. In the event and to the extent that any part or provision of this EULA is invalid or unenforceable in any particular country, state, or jurisdiction, such part or provision shall be interpreted both to be valid and enforceable and to conform to the greatest extent possible to the intent and purpose of such part or provision as set forth in this EULA.
You hereby agree to defend, indemnify, and hold harmless Company and its owners, directors, officers, employees, and agents, and any athlete (each, an "Indemnitee") from and against any claim, action, suit, litigation, demand, allegation, arbitration, proceeding, judgment, order, damages, loss, liability, injury, costs, expenses (including, without limitation, reasonable attorneys’ fees and witness and other defense costs), settlement, and other payment obligation of any Indemnitee arising from or in connection with or related to: (i) Your use of the Application and the Site, (ii) any Submission by or for You, (iii) any breach of this EULA by You, (iv) any negligence or willful misconduct or violation of law by You (regardless of any contributory or comparative negligence of any Indemnitee), or (v) any loss or misappropriation of any username or password of You.
Force Majeure Event
For the avoidance of doubt, and without limiting any disclaimer or exclusion or limitation of liability by Company, and without imposing, by interpretation, implication, or otherwise, any obligation or liability on Company, You will not have the right to claim damages as a result of Company's inability to perform or any delay in performance due to unforeseeable circumstances beyond its reasonable control, such as labor disputes, strikes, lockouts, war, riot, insurrection, epidemic, Internet virus attack, Internet failure, supplier failure, act of God, or governmental action.
Assignment and Transfer
This EULA and the rights and obligations hereunder shall not be assigned or delegated by You without the express prior written consent of Company. Company may, at any time, assign this EULA, or assign any of its rights and/or delegate any of its obligations hereunder, with or without notice to You. Subject to the foregoing, this EULA shall be binding upon and inure to the benefit of You and Company, and Your and Company’s successors and assigns. A permitted assignment under this Section 20 shall not constitute an amendment of this EULA if the assignment does not change any terms, conditions or provisions of this EULA other than replacing the assigning party with the assignee.
a. This EULA shall be governed by applicable United States federal law and the laws of the State of Texas, United States of America, exclusive of any of its conflicts of law or international private law rules or principles that would result in the application of the law of any other jurisdiction.
b. You and Company agree that the courts located in Dallas, Texas, United States of America, will have exclusive jurisdiction to resolve any disputes between You and Company concerning this EULA. You and Company hereby irrevocably consent and submit to, and waive any objection to, personal jurisdiction of such courts. Notwithstanding the foregoing, Company may apply to any court of competent jurisdiction for injunctive relief.
c. You agree that damages alone may be an insufficient remedy for a breach of this EULA and that Company may suffer irreparable damage as a result of such a breach. Accordingly, You agree that Company is entitled, in the event of a breach or threatened breach of this EULA, to seek injunctive relief without posting a bond. Injunctive relief shall be in addition to any and all other rights or remedies available to Company, including, but not limited to, damages or other relief or remedies for such violation. Assertion or the failure to assert injunctive (or such equivalent) relief shall not constitute a waiver of any such other rights or remedies. In the event it is necessary for Company to institute legal proceedings to enforce any right under this EULA against You, Company will be entitled to recover from You attorneys’ fees and costs incurred by Company in such proceedings if Company prevails in such proceedings.
No Third Party Beneficiaries
You and Company do not intend any third party to be a third party beneficiary under this EULA, and nothing in this EULA shall be construed for any third party to be a third party beneficiary or to confer any third party beneficiary rights or status on any third party.
This is the entire agreement between You and Company relating to the Application, and Your use of the same, and supersedes all prior, collateral or contemporaneous oral or written representations, warranties or agreements regarding the same. Except as set forth in Section 4 of this EULA, no amendment to or modification of this EULA will be binding unless in writing and signed by You and Company (by Company through its duly authorized representative therefor). Any and all terms and conditions set out in any correspondence between You or Company shall have no application and no written notice of same shall be required. In the event that one or more of the provisions of this EULA is found to be illegal or unenforceable, this EULA shall not be rendered inoperative but the remaining provisions shall continue in full force and effect, and such provision shall be validly reformed so as to approximate the intent of You and Company as nearly as possible as set forth in this EULA. Any waiver of a right under this EULA or a breach of this EULA must be express and written. The waiver of any breach of any provision of this EULA shall not be construed to be a waiver of any succeeding breach of such provision or a waiver of the provision itself. Selection of a specific remedy does not constitute, and shall not be interpreted to constitute, a waiver of any other remedy, and failure to select a specific remedy does not constitute, and shall not be interpreted to constitute, a waiver of such remedy.
Notices and Contact
a. Any notice to You may be given by Company at Your e-mail address provided by You at the time of Your downloading the Application or as later changed by You through a notice hereunder, and shall be effective and received when delivered to such e-mail address.
b. Any notice by You to Company shall be delivered by e-mail to the following e-mail address (as may be changed at any time by Company by notice to You): firstname.lastname@example.org. If You wish to contact Company with any questions related to this EULA, please do so at the following e-mail address: email@example.com.