IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS TERMS OF USE AGREEMENT (THIS “AGREEMENT”). This Agreement sets forth the legally binding terms and conditions governing the access and use of 6-8 Sports Mobile App and/or the 6-8 Sports Game Desk software applications (individually and collectively, the “Software”) and any related resources, materials, information and/or services provided by 6-8 Sports, Inc. (hereinafter, “6-8 Sports”) in connection with the use of the Software (collectively, the “Services”).
Eligibility Requirements
You must be at least eighteen (18) years old or the age of majority in your jurisdiction in order to create an account to access and use the Software and Services (an “Account”). If you are under the age of eighteen (18) or the age of majority in your jurisdiction, you must have a parent or legal guardian’s permission to use the Software and Services, as well as have them read and agree to this Agreement on your behalf. By creating an Account, you affirm and represent and warrant that: (i) you are at least eighteen (18) years old or the age of majority in your jurisdiction and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and (ii) if you are authorizing the use of the Software and Services by a user or users under the age of eighteen (18) or the age of majority in your jurisdiction, you are the parent or legal guardian of such user and agree to be bound by this Agreement with respect to, and hereby expressly consents to, the use of the Software and Services by each such user.
NOTICE OF AGREEMENT TO ARBITRATE: THIS AGREEMENT CONTAIN AN AGREEMENT TO ARBITRATE WHICH WILL REQUIRE USERS TO SUBMIT CLAIMS USERS MAY HAVE AGAINST US TO BINDING AND FINAL ARBITRATION AND A WAIVER OF THE RIGHT TO PARTICIPATE IN CLASS ACTIONS AS SET FORTH, AND SUBJECT TO, SECTION 14.
NOTICE OF WARRANTY & LIABILITY DISCLAIMERS: PLEASE BE ADVISED THAT 6-8 SPORTS DOES NOT PROVIDE ANY WARRANTIES AND THIS AGREEMENT LIMITS OUR LIABILITY. PLEASE SEE SECTIONS 2.6, 6, AND 7 FOR ADDITIONAL INFORMATION.
ACCEPTANCE OF THIS AGREEMENT: BY CLICKING “I ACCEPT”, REGISTERING AN ACCOUNT, OR PROCEEDING WITH THE INSTALLATION OR DOWNLOAD OF THE SOFTWARE, AND/OR OTHERWISE ACCESSING AND/OR USING THE SOFTWARE AND/OR SERVICES (OR ANY PART THEREOF), YOU: (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, (2) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, ENTITY OR PERSON NAMED ON THE ACCOUNT REGISTERED FOR SUCH ORGANIZATION, ENTITY OR PERSON ON WHOSE BEHALF ACCESS TO THE SOFTWARE AND SERVICES WAS OBTAINED (SUCH ENTITY OR PERSON, THE “ACCOUNT HOLDER”), AND TO BIND THE ACCOUNT HOLDER TO THE TERMS OF THIS AGREEMENT; (3) YOU AFFIRM AND REPRESENT THAT YOU MEET THE ELIGIBILITY REQUIREMENTS SET FORTH ABOVE; AND (4) AGREE THAT ACCOUNT HOLDER IS ENTERING INTO THIS AGREEMENT WITH 6-8 SPORTS, INC., A DELAWARE CORPORATION.
IF YOU AND/OR THE ACCOUNT HOLDER DOES NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, OR YOU DO NOT HAVE AUTHORITY TO BIND THE ACCOUNT HOLDER TO THIS AGREEMENT OR YOU AND/OR THE ACCOUNT HOLDER DOES NOT MEET THE ELIGIBILITY REQUIREMENTS SET FORTH ABOVE, DO NOT DOWNLOAD OR INSTALL THE SOFTWARE OR ACCESS OR OTHERWISE USE THE SOFTWARE OR SERVICES OR ANY PART THEREOF.
Modifications To This Agreement
6-8 Sports reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted on 6-8 Sports’ website located at https://6-8sa.co.za/software-license-agreement (the “Site”). All updates and modifications to this Agreement will be effective from the day they are posted on the Site (except as otherwise stated in this Section 1). If 6-8 Sports makes any material changes to this Agreement, 6-8 Sports will notify Account Holder of these changes by sending a notification to the email address 6-8 Sports has on file for Account Holder, or, if 6-8 Sports does not have an email address on file, by posting a notice of the changes on the Site and through the user interface of the Software. It is Account Holder’s responsibility to regularly visit and review this Agreement. If Account Holder does not agree to any updates or modifications to this Agreement, Account Holder may terminate its Account and cease all access and use by Account Holder and its Authorized Users of the Software and Services. Account Holder’s (or any of its Authorized Users’) continued use of the Software and/or Services after 6-8 Sports has posted the updated Agreement, or, in the event of material changes, ten (10) days following the date 6-8 Sports first notified Account Holder of such material changes either through email or the date 6-8 Sports posted the notice of such changes on the Site or through the user interface of the Software, signifies Account Holder’s acknowledgment and agreement to be bound by the revised Agreement.
Access And Use Of The Software And Services
- Subscriptions. 6-8 Sports will provide access to the Software and Services in accordance with the subscription plan purchased by Account Holder from 6-8 Sports (the “Subscription”). Each Subscription shall begin on the date Account Holder purchased the Subscription, or on the start date specified in the applicable order form entered into by Account Holder and 6-8 Sports for the purchase of a Subscription, and continue for the applicable subscription period (e.g., monthly or annually) selected by Account Holder for such Subscription (the “Subscription Term”). The Subscription Term shall automatically renew for successive periods equal to the initial Subscription Term, unless Account Holder provides 6-8 Sports with written notice of non-renewal prior to the expiration of Account Holder’s then-current Subscription Term by email at sara@azevedowaterpolo.com, subject line: “Notice on Non-Renewal” or by terminating the Account in accordance with Section 5.2.
- Accounts. Account Holder must register an Account to access and use the Software and Services. In registering an Account, Account Holder agrees to provide and maintain up to date information that is true, accurate, current, up to date, and complete. Account Holder agrees that Account Holder will not (a) create an Account using a false identity or fictitious name or information, and/or (b) create an Account or use the Software and/or Services if Account Holder has been previously removed or banned by 6-8 Sports from use of the Software and/or Services, or any part thereof. Account Holder understands and agrees that Account Holder is solely responsible for maintaining the confidentiality of and protecting Account Holder’s password for the Account. Account Holder is solely responsible for any activity originating from the Account, regardless of whether such activity is authorized by Account Holder. Account Holder agrees to notify 6-8 Sports immediately of any unauthorized use of the Account. 6-8 Sports reserves the right to limit the number of Accounts that can be created from a computer or mobile device and the number of computer or mobile devices that can access an individual Account.
- Administrators; Permissions. Account Holder must designate an administrator or administrators (each, an “Administrator”) to manage and administer the Account, including, without limitation, inviting Account Holder’s employees, contractors, agents, and/or athletes, to access and use the Software and/or Services as an authorized user of the Account (“Authorized Users”). For the avoidance of doubt, “Authorized Users” as used in this Agreement, include Administrators. Account Holder understands and agrees that by designating an Administrator, the Administrator may set certain permissions and access rights to each Authorized User (“Permissions”). Account Holder acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may (a) subsequently invite or enable other Authorized Users with the same access and ability to use the Software and Services, and such additional Authorized User will be deemed an Authorized User of the Account; and/or (b) have the ability to view Account Holder Data, Account Holder Content, and information and content from any Third Party Applications (defined below in Section 2.10) that are connected to the Account. Account Holder acknowledges and agrees that Account Holder is solely responsible and liable for inviting Authorized Users and the Permissions granted to Authorized Users by the Administrator(s) of the Account.
- License Grant. Subject to the terms and conditions of this Agreement, 6-8 Sports grants to Account Holder a non-exclusive, non-transferable, revocable, limited right, during the Subscription Term to permit Account Holder’s employees, contractors, and/or athletes (“Authorized Users”) to install, execute and use the Software, in object code, on mobile and tablet devices owned or controlled by Account Holder (“Authorized Devices”), solely for Account Holder’s internal non-commercial purposes, in accordance with the applicable user manuals and/or documentation made available by 6-8 Sports for the Software (the “Documentation) and subject to any usage limitations or parameters specified by 6-8 Sports. Account Holder may reproduce and use, during the term of this Agreement, a reasonable number of copies of the Documentation in support of the exercise of the license granted in this Section 2.4.
- Access to Beta-Version and Features. From time to time, 6-8 Sports, in its sole discretion, may make certain beta versions of and/or beta features and/or functionality of the Software and/or Services available to Account Holder to try at its option at no additional charge which are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description (collectively, “Beta Version and Features”). If Account Holder elects to access Beta Version and Features made available to Account Holder by 6-8 Sports, 6-8 Sports grants to Account Holder a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Version and Features solely for Account Holder’s internal evaluation and subject to any and all technical limitations implemented in the Beta Versions and Features and/or other usage parameters or restrictions specified by 6-8 Sports for the Beta Version and Features. In addition to the restrictions set forth in Section 2.6 below, Account Holder shall not access and/or use the Beta Version and Features (a) for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose, or (b) without the express prior written approval of 6-8 Sports if Account Holder is a direct competitor of 6-8 Sports. In addition, Account Holder acknowledges and agrees that the Beta Versions and Features and any Feedback (as defined below in Section 2.12) regarding the Beta Versions and Features are the confidential information of 6-8 Sports and Account Holder shall not disclose any such confidential information to any third party. BETA VERSION AND FEATURES ARE PROVIDED AS-IS, ARE NOT SUPPORTED, AND MAY BE SUBJECT TO ADDITIONAL TERMS AS SPECIFIED BY 6-8 SPORTS IN WRITING AND/OR IN THE APPLICABLE DOCUMENTATION FOR THE BETA VERSION AND FEATURES. 6-8 SPORTS RESERVES THE RIGHT TO TERMINATE ACCOUNT HOLDER’S ACCESS TO ANY BETA VERSIONS AND FEATURES AT ANY TIME, FOR ANY REASON.
- Restrictions. Account Holder will not, and will not permit any third party (including any Authorized Users) to:
- modify, translate, or create derivative works of the Software, including, without limitation, any Beta Versions and Features, and/or Services;
- decompile, disassemble, reverse engineer, or otherwise attempt to derive the structure or source code form of the Software (including, without limitation, any Beta Versions and Features);
- assign, share, timeshare, sell, rent, lease, sublicense, distribute, grant a security interest in, or otherwise transfer the Software (or any part thereof), including, without limitation, any Beta Versions and Features, and/or Services or the Account Holder’s limited right to use the Software and/or Services (including, without limitation, any Beta Versions and Features);
- remove, alter, or obscure any proprietary notices or labels of 6-8 Sports or its licensors or suppliers in the Software, Services and/or Documentation, including, without limitation, any Beta Versions and Features;
- interfere with or disrupt the integrity or performance of the Software, including, without limitation, any Beta Versions and Features, and/or Services, or any system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Software, including, without limitation, any Beta Versions and Features and/or Services;
- attempt to gain unauthorized access to the Software, including, without limitation, any Beta Versions and Features and/or Services, or any related systems or networks;
- frame or utilize framing techniques to enclose the Software, including, without limitation, any Beta Versions and Features, and/or Services, or any portion thereof;
- use any meta tags, “hidden text”, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Software (including, without limitation, any Beta Versions and Features), Services and/or any content, or the personal information of others without 6-8 Sports’ prior written permission or authorization;
- impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Account Holder’s affiliation with any person or entity; or
- violate any applicable local, state, national or international law in Account Holder’s use of the Software and/or Services, including, without limitation, any Beta Versions and Features.
- Responsibility for Authorized Users. Account Holder agrees that it shall not permit any person other than Authorized Users to access and use the Software and/or Services and will ensure that its Authorized Users use the Software and Services solely in accordance with this Agreement. Account Holder acknowledges and agrees that Account Holder is solely responsible for the use of the Software and Services by Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Account Holder.
- Authorized Devices. Account Holder acknowledges and agrees that in order to use the Software, Account Holder and its Authorized Users must have a compatible Authorized Device. Account Holder is solely responsible for determining whether or not it’s and/or its Authorized Users’ Authorized Device is or is not compatible with the Software and 6-8 Sports makes no representations or warranties whatsoever regarding the Software and compatibility with any computer or mobile device. Account Holder further acknowledges and agrees that Account Holder is solely responsible for any fees or charges incurred from use of the Software by Account Holder and/or its Authorized Users through Authorized Devices, including, without limitation, any mobile phone provider charges for SMS, text, or data usage or services.
- Third Party Software. The Software may contain third party software, including, without limitation, open source software components (“Third Party Software”). Third Party Software is not licensed under this Agreement, but are instead licensed under the terms of the applicable license agreement for such Third Party Software. Account Holder’s use of Third Party Software is subject to the terms of each applicable license which are available to Account Holder on request from 6-8 Sports. Notwithstanding any provision herein to the contrary, Account Holder is solely responsible for its compliance with such licenses. As used in this Agreement, the defined term “Software” does not include Third Party Software.
- Third-Party Integrated Services. Account Holder acknowledges that the Software may enable Account Holder to access and interact with products, services, applications, or websites made available by third parties (“Third-Party Applications”). Account Holder’s access and use of any Third-Party Applications are at Account Holder’s own risk. Any use of Third-Party Applications is governed solely by the terms and conditions of such Third-Party Applications (and Account Holder agrees to comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Application, is between Account Holder and the relevant third party, and not 6-8 Sports. 6-8 SPORTS MAKES NO REPRESENTATION AND SHALL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER IN RELATION TO THE CONTENT OR USE OF, OR CORRESPONDENCE WITH, ANY SUCH THIRD-PARTY APPLICATION OR ANY TRANSACTIONS COMPLETED AND/OR ANY CONTRACT ENTERED INTO BY ACCOUNT HOLDER AND ANY SUCH THIRD PARTY.
- Proprietary Rights. 6-8 Sports and/or its licensors shall retain all rights, title, interest, in and to and ownership of (a) the Services, including, without limitation, the Software, any Beta Versions and Features, Documentation, and any text, graphics, images, music, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Software and/or Services, excluding User Data (collectively, the “6-8 Sports Content”), (b) any improved, updated, modified or additional parts to the Services, Software, Beta Version and Features, Documentation, and 6-8 Sports Content, and (c) all copyright, patent, trade secret, trademark and other intellectual property and proprietary rights in and to the Services, Software, Beta Version and Features, Documentation, and 6-8 Sports Content. 6-8 Sports reserves all rights and licenses not expressly granted to Account Holder in Section 2.4 and 2.5, and no implied license or right is granted hereunder. Title to the Software shall not pass from 6-8 Sports to Account Holder, and the Software and all copies thereof shall at all times remain the sole and exclusive property of 6-8 Sports.
- Feedback. To the extent that Account Holder and/or any Authorized Users provide or submit to 6-8 Sports any ideas, suggestions, improvements and/or other feedback regarding any aspect of the Services, Software, Beta Versions and Features, Documentation, and/or 6-8 Sports Content including, without limitation, the functioning, features, and other characteristics thereof (collectively, “Feedback”), Account Holder hereby grants 6-8 Sports, its subsidiaries, affiliates and partners a worldwide, irrevocable, perpetual, royalty free, non-exclusive, sublicensable and transferable license under all Account Holder’s intellectual property rights in the Feedback to exploit and use for any purpose, without compensation or attribution.
- Support. During the applicable Subscription Term (subject to Account Holder’s payment of applicable fees, if any), 6-8 Sports will use commercially reasonable efforts to provide Account Holder with remote technical support services for the use of the Software by email or phone during 6-8 Sports’ normal business hours, and excluding holidays, in accordance with 6-8 Sports’ then current support terms and conditions.
- Changes and Modifications. 6-8 Sports reserves the rights to either temporarily or permanently modify, suspend or discontinue the Software and/or Services (or any part thereof) with or without notice. Account Holder agrees that 6-8 Sports will not be liable to Account Holder or to any third party for any modification, suspension or discontinuance of the Software and/or Services (or any part thereof).
User Data & Privacy
- Data Privacy — Personal Data. Account Holder acknowledges and agrees that, as between the parties, with respect to the collection, transmission, disclosure, processing and/or use of any personally identifiable data and/or information of Account Holder and/or its Authorized Users through or in connection with the use of the Software and/or Services (“Personal Data”), that is subject to any applicable laws, rules, or regulations pertaining to data privacy or data security (“Data Protection Laws”), Account Holder is the data controller and 6-8 Sports is merely a data processor and/or service provider as such terms are defined pursuant to Data Protection Laws. Personal Data provided to, or collected by, 6-8 Sports in connection with Account Holder’s and/or its Authorized Users’ use of the Software and/or Services shall only be used in accordance with this Agreement and 6-8 Sports’ Privacy Notice. If Account Holder is the parent or guardian of an Authorized User, Account Holder expressly consents to 6-8 Sports’ use of Personal Data of such Authorized Users in accordance with this Agreement and as set forth in the Privacy Notice.
- User Data. Account Holder understands and agrees that 6-8 Sports may collect data and information, which may include Personal Data, in connection with Account Holder’s and/or its Authorized User’s use of the Software and/or Services (“User Data”). By using the Software and/or Services and providing User Data Account Holder grants to 6-8 Sports a non-exclusive, royalty-free, fully-paid, worldwide license to use User Data as reasonably necessary for 6-8 Sports to provide Account Holder the Software and Services hereunder. As between Account Holder and 6-8 Sports, Account Holder shall retain all right, title, and interest in and to User Data. Notwithstanding the foregoing, Account Holder acknowledges and agrees that 6-8 Sports may use and fully exploit any aggregated non-personally identifiable data and/or information collected or obtained from Account Holder’s and/or its Authorized Users’ use of the Software and/or Services for any purpose.
- Representations and Warranties. Account Holder represents and warrants that, with respect to any User Data (including, without limitation, any Personal Data), transmitted, hosted, stored or processed, or otherwise provided by Account Holder to 6-8 Sports in connection with Account Holder’s and its Authorized Users’ use of the Software and/or Services: (a) Account Holder has all the rights necessary to grant the 6-8 Sports the licenses granted herein in and to User Data; (b) Account Holder is in compliance with all applicable data laws, and (c) Account Holder has made all disclosures to, and obtained all permissions and/or approvals from, each applicable data source as may be necessary or required to transmit such data through the Software and/or Services.
- Publicity. If Account Holder is an entity, organization, and or business (and not an individual), then Account Holder agrees that 6-8 Sports may identify Account Holder as a customer in its customer listings, websites, and other promotional materials. In addition, 6-8 Sports may issue a press release regarding the parties’ new relationship under this Agreement.
Fees & Payment Terms
- Fees. Account Holder shall pay the applicable fees, if any, for the Subscription purchased by Account Holder. Except as otherwise set forth in this Agreement, the fees payable by Account Holder for the Subscription will remain fixed during the Subscription Term unless Account Holder (a) exceeds the permitted user seats or other applicable usage limits of the Subscription, (b) upgrades the Subscription, and/or (c) subscribes to additional features or products. In the event a price change applies, Account Holder will be charged at the start of the next billing cycle for such additional fees. For the avoidance of doubt, Account Holder acknowledges and agrees that any downgrade to the Subscription shall not take effect until the next renewal date of the applicable Subscription Term, regardless of Account Holder’s billing cycle for such Subscription (i.e., for monthly Subscriptions, prior to the start of the next month, and for annual Subscriptions, prior to the start of the next year). Subscriptions Plans shall renew at 6-8 Sports6-8 Sports’ then-current pricing for such Subscription.
- Payment Terms. All fees are due and payable by Account Holder in advance, unless otherwise expressly and mutually agreed to by Account Holder and 6-8 Sports in writing. Account Holder expressly agrees that 6-8 Sports is permitted to bill Account Holder the applicable fees, any applicable tax and any other charges Account Holder may incur with 6-8 Sports in connection with such Subscription, and Account Holder hereby authorizes 6-8 Sports and/or its third party payment processors to charge the fees to the credit card, or other payment method, Account Holder provides at the time the Subscription is purchased, in accordance with the billing terms in effect at the time a fee or charge is due and payable. If payment is not received or cannot be charged to Account Holder for any reason in advance, 6-8 Sports reserves the right to suspend or terminate Account Holder’s and its Authorized User’s access to the Software and/or Services, downgrade the Subscription and/or terminate this Agreement. All fees are non-refundable and non-cancellable. All payments shall be made in United States Dollars (USD). ALL FEES PAYABLE UNDER THIS AGREEMENT ARE NON-REFUNDABLE.
- Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Account Holder is and shall be responsible for payment of all such taxes (other than taxes based on 6-8 Sports’ income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Software and/or Services, or performance of any services by 6-8 Sports hereunder.
Term & Termination
- Term. The term of this Agreement commences on the Effective Date and will remain in effect during the Subscription Term (including any renewal thereof), or until terminated in accordance with this Agreement (whichever is sooner).
- Termination. Account Holder may terminate this Agreement and/or any Subscription by providing 6-8 Sports written notice of such termination at sara@azevedowaterpolo.com. Account Holder acknowledges and agrees that notwithstanding any termination of this Agreement, the Subscription fees, if any, payable by Account Holder are non-refundable and non-cancellable. At any time, 6-8 Sports may (a) suspend or terminate Account Holder’s and/or any Authorized User’s right to access or use the Software and/or Services (or any part thereof), or (b) terminate this Agreement with respect to Account Holder if 6-8 Sports, in good faith, believes that Account Holder has used the Software and/or Services (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms or rules.
- Effects of Termination. Upon expiration or termination of this Agreement for any reason:(a) the licenses granted hereunder shall terminate effective immediately and Account Holder shall promptly discontinue its, and ensure its Authorized Users’ discontinue, use of the Software and Documentation and shall destroy all electronic copies of the Software and Documentation, including, without limitation, permanently deleting the Software (and any copies thereof) from Authorized Devices; and (b) all outstanding fees immediately becoming due and payable, including, without limitation, any Subscription fees due and payable for the remainder of the then-current Subscription Term. The following Sections will survive any such termination or expiration: 2.2, 2.3, 2.6 through 2.12, 3, 4, 5.3, and 9 through 15.
- 1. DISCLAIMER. THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, BETA VERSIONS AND FEATURES, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY 6-8 SPORTS, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. 6-8 SPORTS AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT. 6-8 SPORTS AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT SOFTWARE, INCLUDING, WITHOUT LIMITATION, BETA VERSIONS AND FEATURES, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY 6-8 SPORTS OR CONTENT MADE AVAILABLE THROUGH THE SOFTWARE AND/OR SERVICES: (A) WILL MEET ACCOUNT HOLDER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH ACCOUNT HOLDER’S AND/OR ITS AUTHORIZED USERS’ NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY APPLICATIONS; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE. ACCOUNT HOLDER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, BETA VERSIONS AND FEATURES, AND/OR ANY OTHER CONTENT, MATERIALS OR SERVICES PROVIDED BY 6-8 SPORTS AND ALL RESULTS OF SUCH USE IS SOLELY AT ACCOUNT HOLDER’S OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ACCOUNT HOLDER FROM 6-8 SPORTS, ANY THIRD PARTY, OR THROUGH THE SOFTWARE AND/OR SERVICES, SHALL CREATE ANY WARRANTY.
- 2. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL 6-8 SPORTS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR INDIRECT DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF OR DAMAGE TO DATA, LOST PROFITS, OR THE LIKE, FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 6-8 SPORTS’ AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF THE FEES PAID BY ACCOUNT HOLDER FOR THE SOFTWARE IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR LIABILITY OR ONE HUNDRED DOLLARS ($100.00). THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. 6-8 SPORTS DISCLAIMS ALL LIABILITY OF ANY KIND OF 6-8 SPORTS’ LICENSORS AND SUPPLIERS. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
- 3. INDEMNIFICATION3.1 By Account Holder. Account Holder agrees to indemnify, defend and hold harmless 6-8 Sports and its officers, employees, agents, directors, subsidiaries, affiliates, successors, assigns, suppliers, and/or licensors (collectively, the “6-8 Sports Indemnified Parties”) from any and all claims, demands, damages, liabilities, losses, costs and expenses (including attorneys’ reasonable fees) arising from or related to: (a) Account Holder’s or its Authorized Users’ violation of this Agreement, including but not limited to a claim arising out of a breach of Account Holder’s representations or warranties hereunder; (b) Account Holder’s or its Authorized Users’ breach of any terms of use, end user agreement, or other license or use agreement applicable to any Third Party Software and/or Third Party Applications; (c) Account Holder’s and its Authorized Users’ access and/or use of the Software and/or Services (or any part thereof), including, without limitation, and Beta Versions and Features; (d) Account Holder’s violation of any third party rights, including without limitation, any copyright, property, moral or privacy right; and/or (e) User Data. 6-8 Sports reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by Account Holder, in which event Account Holder will cooperate with 6-8 Sports in asserting any available defenses. Under no circumstances shall Account Holder enter into any settlement that involves an admission of liability, negligence or other culpability of 6-8 Sports and/or any 6-8 Sports Indemnified Party or requires 6-8 Sports and/or any 6-8 Sports Indemnified Party to contribute to the settlement without 6-8 Sports’ prior written consent. 6-8 Sports and any 6-8 Sports Indemnified Party may participate and retain its own counsel at its own expense.
- 3.2 By 6-8 Sports. 6-8 Sports agrees to indemnify, defend and hold harmless Account Holder and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from any claim or action brought by a third party against Account Holder alleging that Account Holder’s use of the Software as authorized herein infringes or misappropriates any copyrights or trade secrets of any such third party recognized under the laws of the United States. 6-8 Sports’ indemnification obligations under this Section 8.2 are contingent upon Account Holder promptly notifying 6-8 Sports in writing of such claim, permitting 6-8 Sports sole authority to control the defense or settlement of such claim and providing 6-8 Sports reasonable assistance (at 6-8 Sports’ sole expense) in connection therewith. If Account Holder’s use of the Software is, or is likely (in 6-8 Sports’ reasonable discretion) to be, enjoined, 6-8 Sports will have the right, in its sole discretion, to either (a) procure for Account Holder the right or license to continue to use the Software free of the infringement claim, or (b) modify or replace the Software to make it non-infringing, or (c) if the options in clause (a) and (b) above are not commercially reasonable, as determined in 6-8 Sports’ sole discretion, 6-8 Sports may immediately terminate this Agreement and return the prorated portion of any pre-paid, unused fees for the relevant Software. Notwithstanding the foregoing, 6-8 Sports will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Software with any hardware, software, products, data, or other materials not provided by 6-8 Sports, (ii) modification or alteration of the Software by anyone other than 6-8 Sports, (iii) use of Software in violation of this Agreement, or (iv) User Data and/or any specifications or other intellectual property provided by Account Holder. THIS SECTION 8.2 STATES 6-8 SPORTS’ SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY, AND ACCOUNT HOLDER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION.
- 4. EXPORT CONTROL. Account Holder may not use or otherwise export or re-export the Software and/or Documentation (or any aspect of the foregoing), including, without limitation, Beta Versions and Features, except as authorized by United States law and the laws of the jurisdiction in which the Software and/or Documentation (including, without limitation, Beta Versions and Features) was obtained. In particular, but without limitation, the Software and/or Documentation, including, without limitation, Beta Versions and Features, may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, Account Holder represents and warrants that Account Holder is not located in any such country or on any such list.
- 5. U.S. GOVERNMENT RIGHTS. The Software (including, without limitation, any Beta Versions and Features) is commercial computer software and all services are commercial items. “Commercial computer software” has the meaning set forth in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and the Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases. If the Software (including, without limitation, Beta Versions and Features) is licensed or acquired by or on behalf of a civilian agency, 6-8 Sports provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the Software (including, without limitation, Beta Versions and Features) is licensed or acquired by or on behalf of any agency within the DOD, 6-8 Sports provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as specified in DFARS 227.7202-3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227-7015. Except as otherwise expressly agreed in a signed writing by an authorized representative of 6-8 Sports, this Section 13.8 (U.S. Government Rights) is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses U.S. Government rights in computer software or technical data.
- 6. AVAILABILITY OF THE SERVICES. Information describing the Software and Services is accessible worldwide but this does not mean the Software and/or Services, or certain portions thereof, are available in Account Holder’s country. 6-8 Sports may restrict access to the Software and/or Services, or portions thereof, in certain countries in its sole discretion. It is Account Holder’s responsibility to make sure Account Holder’s use of the Software and/or Services is legal in Account Holder’s country of residence. The Software and/or Services may not be available or accessible in all languages.
- 7. ELECTRONIC COMMUNICATIONS. By using the Software and/or Services, including, without limitation, Beta Versions and Features, Account Holder consents to receiving electronic communications from 6-8 Sports. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to Account Holder’s use of the Software and/or Services. These electronic communications are part of Account Holder’s relationship with 6-8 Sports and Account Holder receive them as part of Account Holder’s access and use of the Software and/or Services. Account Holder agrees that any notices, agreements, disclosures or other communications that 6-8 Sports sends Account Holder electronically will satisfy any legal communication requirements, including that such communications be in writing.
- 1. THIRD PARTY RIGHTS.1.1 Third Party Rights. Account Holder acknowledges and agrees that certain distributors (such as app store providers) are intended beneficiaries of this Agreement and have the right to enforce this Agreement directly against Account Holder. Other than as set out in this Section 13, this Agreement are not intended to grant rights to anyone except Account Holder and 6-8 Sports, and in no event shall this Agreement create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of this Agreement are not subject to the consent of any other person.
- 1.2 iOS App. The following additional terms and conditions apply with respect to any Software provided or made available to Account Holder by 6-8 Sports hereunder designed for use on an Apple iOS-powered mobile device (an “iOS App”): Account Holder acknowledges that this Agreement are between Account Holder and 6-8 Sports only, and not with Apple, Inc. (“Apple”). Account Holder’s use of the iOS App must comply with Apple’s then-current App Store Terms of Service. 6-8 Sports, and not Apple, are solely responsible for the iOS App and related content available thereon. Account Holder acknowledges that Apple has no obligation to provide maintenance and support services with respect to the iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App. Account Holder agrees that 6-8 Sports, and not Apple, is responsible for addressing any claims by Account Holder relating to the iOS App or Account Holder’s possession and/or use of the iOS App, including, but not limited to: (a) product liability claims; (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to 6-8 Sports as provider of the iOS App. Account Holder agrees that 6-8 Sports, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or Account Holder’s possession and use of the iOS App. Account Holder represents and warrants that Account Holder: (i) is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) is not listed on any U.S. Government list of prohibited or restricted parties. Account Holder agrees to comply with all applicable third-party terms of agreement when using the iOS App (e.g., Account Holder must not be in violation of its wireless data service terms of agreement when using the iOS App). The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to this Agreement as it relates to the license granted herein to Account Holder to use the iOS App. Upon Account Holder’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Account Holder as they relate to the license granted herein to Account Holder to use the iOS App as a third-party beneficiary thereof.
- 1.3 Android App. The following additional terms and conditions apply with respect to any Software provided or made available to Account Holder by 6-8 Sports, designed for use on an Android-powered mobile device and/or tablet (an “Android App”): Account Holder acknowledges that this Agreement is between Account Holder and 6-8 Sports only, and not with Google, Inc. (“Google”). Account Holder’s use of the Android App must comply with Google’s then-current Android Market Terms of Service. Google is only a provider of the Android Market where Account Holder and/or its Authorized Users have obtained the Android App. 6-8 Sports, and not Google, is solely responsible for the Android App and the related content available thereon. Google has no obligation or liability to Account Holder or any Authorized User with respect to the Android App or this Agreement. Account Holder acknowledges and agrees that Google is a third-party beneficiary to this Agreement as it relates to the Android App.
2. GOVERNING LAW AND DISPUTE RESOLUTION2.1 Governing Law. This Agreement will be governed by the laws of the State of California, U.S.A., without giving effect to any conflicts of law principles that may require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement, including, without limitation, application to the Software (including, without limitation, any Beta Versions or Features) and/or any Services provided hereunder. Furthermore, this Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA - 2.2 Disputes. Except as otherwise set forth in this Agreement, Account Holder agrees that any dispute between Account Holder and 6-8 Sports arising out of or relating to this Agreement, the Software and/or the Services (or any part thereof), including, without limitation, Beta Versions and Features, (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.
- 2.3 Informal Resolution. Before resorting to formal dispute resolution in accordance with this Section, Account Holder agrees to first contact 6-8 Sports directly at sara@azevedowaterpolo.com to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, Account Holder or 6-8 Sports may institute arbitration in accordance with the procedures set forth in this Section.
- 2.4 Dispute Resolution. Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 14.3 above shall be settled under the Federal Arbitration Act and resolved exclusively through final, binding and confidential arbitration and shall take place in Long Beach, California unless otherwise mutually agreed to by the parties. If the Account Holder is located in the United States, the arbitration will be conducted by the American Arbitration Association (AAA) under in accordance with the arbitration rules then in effect; provided that if Account Holder’s use of the Software and/or Services (or any part thereof), including, without limitation, any Beta Versions or and Features, has been principally for personal or household use, the AAA’s Supplementary Procedures for Consumer-Related Disputes will also apply. If Account Holder is a resident of a country other than the United States of America, the arbitration will be conducted by the AAA’s International Centre for Dispute Resolution, under its rules for international arbitration. The arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration and shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. The arbitration proceedings and any information and materials furnished during the arbitration shall be treated as confidential. The arbitrator shall not have the power to award damages except to the extent specifically permitted by this Agreement. The arbitration will be conducted in the English language by a single arbitrator, mutually agreed upon by the parties; provided that, if the parties can’t agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the AAA will pick a neutral arbitrator who meets the qualifications. Any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction, and each of the parties irrevocably submits to the jurisdiction of such court for confirmation or recognition or enforcement of any award rendered by the arbitral tribunal in accordance with, inter alia, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The AAA’s rules are available at www.adr.org, or by calling 1-800-778-7879 from inside the United States or +1-212-484-4181 from outside the United States In the event of a conflict or inconsistency between the applicable rules of arbitration specified above and this Section, this Section shall govern and control.
- 2.5 Exception to Arbitration. Notwithstanding anything in this Agreement to the contrary to the extent Account Holder and/or any Authorized User has in any manner violated or threatened to violate any of 6-8 Sports’ intellectual property rights, 6-8 Sports may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and Account Holder hereby consents to the personal jurisdiction and exclusive venue in such courts.
- 2.6 Opting-Out of Arbitration. IF ACCOUNT HOLDER IS AN INDIVIDUAL, AND NOT AN ENTITY, CORPORATION, LIMITED LIABILITY OR OTHER ORGANIZATION, ACCOUNT HOLDER MAY OPT-OUT OF THE AGREEMENT TO ARBITRATE BY PROVIDING 6-8 SPORTS WRITTEN NOTICE BY EMAIL TO sara@azevedowaterpolo.com WITHIN THIRTY (30) DAYS OF FIRST ACCEPTING THIS AGREEMENT. ACCOUNT HOLDER’S NOTICE MUST INCLUDE: (I) ACCOUNT HOLDER’S FULL NAME (FIRST AND LAST); (II) THE EMAIL ADDRESS ACCOUNT HOLDER USED TO REGISTER THE ACCOUNT; AND (III) A CLEAR STATEMENT THAT ACCOUNT HOLDER DECLINES THIS AGREEMENT TO ARBITRATE. Once 6-8 Sports receives Account Holder’s opt-out notice in accordance with this Section 14.6, the agreement to arbitrate will be void and the parties agree that the exclusive jurisdiction and venue described in Section 14.7 will govern any Disputes, claims, and/or actions arising out of or related to this Agreement. The remaining provisions of this Section 14 will not be affected by the opt-out notice.
- 2.7 Venue. If the agreement to arbitrate is found not to apply to Account Holder’s or 6-8 Sports’ claim, or either party challenges the right of the other party to obtain arbitration of a dispute between them, or otherwise seeks to file a court action notwithstanding the agreement of the parties to arbitrate disputes, any such legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced solely in the state and federal courts located in Los Angeles County, California, United States of America, and each party hereto irrevocably submits to the exclusive jurisdiction and exclusive venue of any such court in any such suit, action or proceeding.
- 2.8 Time Limitation on Claims. Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement and/or Account Holder’s use of the Software and/or Services (or any part thereof), including, without limitation, any Beta Versions or and Features, must be filed by Account Holder within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
- 2.9 No Class Actions. ACCOUNT HOLDER MAY ONLY RESOLVE DISPUTES WITH 6-8 SPORTS ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN’T ALLOWED UNDER THIS AGREEMENT.
- 3. GENERAL. Neither the rights nor the obligations arising under this Agreement are assignable by Account Holder, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in this Agreement. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in this Agreement and its performance shall be construed as creating a joint venture or agency between 6-8 Sports and Account Holder. 6-8 Sports may delegate the performance of any services hereunder to its affiliates and contractors. This Agreement and any other policies or terms and condition referenced herein, constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to Account Holder may be provided by email. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Account Holder agrees that this Agreement will not be construed against 6-8 Sports by virtue of having drafted them. The official text of this Agreement (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that this Agreement be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of this Agreement, reference will be made only to this Agreement as written in English and not to any translation into another language.
Questions And Additional Information
Please feel free to contact 6-8 Sports at sara@azevedowaterpolo.com if you have any questions about this Agreement.