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BALLOGY TERMS & CONDITIONS
Please read these terms of service very carefully before registering for the Ballogy website and Service. These terms of service (“Agreement”) govern your accessing content and using www.Ballogy.com and its affiliate’s websites and mobile applications. This Agreement between you (“you”) and Ballogy, is subject to change by us as described below. By registering with Ballogy, you (i) accept this Agreement; (ii) agree to be bound by these terms and conditions; and (iii) have entered into a binding agreement between you and Ballogy.
1. BALLOGY INTELLECTUAL PROPERTY
This website and any mobile application (collectively the “Site”) is owned and operated by Ballogy, Inc. (referred to as “Ballogy” herein). The Site and its content (“Content”) and the Ballogy App for Athletes service (“App for Athletes Service”) and Ballogy Pro for Teams service (“Ballogy Pro for Teams Service”) (individually the App for Athletes Service and Ballogy Pro for Teams Service are each the “Service”) may only be accessed in accordance with this Agreement. Any violation of the copyright in the Content or these terms and conditions may be enforced by Ballogy or the copyright owner to the fullest extent allowed by law.
2. LICENSE & SITE ACCESS
2.1 You acknowledge and agree that Ballogy may stop (permanently or temporarily) providing the paid subscription services (or any features within the Services) to you or to users generally at Ballogy’s sole discretion or due to non-payment or other breaches of this Agreement, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Ballogy when you stop using the Services. You acknowledge and agree that if Ballogy disables access to your account, you may be prevented from accessing the Services, your account details, or any files or other materials which are contained in your account.
2.2 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Ballogy, unless you have been specifically allowed to do so in a separate agreement with Ballogy. You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Unless you have been specifically permitted to do so in a separate agreement with Ballogy, you agree that you will not reproduce, duplicate, copy, sell, trade, or resell the Services for any purpose. You agree that you are solely responsible for (and that Ballogy has no responsibility to you or to any third party for) any breach of your obligations under this Agreement and for the consequences (including any loss or damage which Ballogy may suffer) of any such breach.
2.3 The provisions of this Section are only applicable to the App for Athletes Service. Ballogy does not charge for access using its App for Athletes mobile application; however, your carrier rates will apply, such as fees for text messaging and data charges. You hereby acknowledge, agree, and provide consent in order for users to sync any device with your information.
2.4 The provisions of this Section are only applicable to the Ballogy Pro for Teams Service. The Ballogy Pro for Teams Service is a subscription service, available as a monthly or yearly subscription. At the conclusion of the Initial Ballogy Pro for Teams Term, the subscription shall automatically renew for additional monthly periods (each a “Ballogy Pro Teams Monthly Renewal Term”) and you hereby authorize Ballogy to charge your credit card. For annual subscribers, each subscription shall be for a period of twelve (12) months beginning on the date of payment by you and ending the last day of the last month of the twelve (12) month period (“Initial Yearly Term”). At the conclusion of the Initial Yearly Term, the subscription shall automatically renew for an additional twelve (12) month period (each a “Yearly Renewal Term”) and you hereby authorize Ballogy to charge your credit card, if applicable. The initial subscription fee payment must be paid on the first day of the subscription for the then-current fee indicated on the Site. Subscription payments shall be made in accordance with the Site. You shall receive access to the Ballogy Pro for Teams Service as long as you are current in your payments. There is no charge for canceling the subscription to the Ballogy Pro for Teams Service; however; no refunds or credits will be issued for partial months or years of Ballogy Pro for Teams Service. The subscription fees are exclusive of applicable state, federal, local and other taxes. Subscription fees are subject to change by posting on the Site.
2.5 COPPA. You represent and warrant that you are thirteen (13) years of age or older if you are opening an account. A parent or guardian may open an account on behalf of a person under the age of thirteen (13). If you are under the age of thirteen (13), you may not use the Site without verifiable parental consent. Where the Children’s Online Privacy Protection Act (COPPA) applies, the parent or legal guardian (“Parent”) by providing consent acknowledges that it is aware of the parental/ legal guardian and child’s rights under COPPA and has informed itself about the Ballogy personal information and data practices, including, without limitation, by reading the Privacy Policy. Parent expressly authorizes the collection of information in accordance with this Section 2.5 and the Privacy Policy. If a child under thirteen (13) opens an account, and/or Ballogy does not receive parental consent within a reasonable time of any request, Ballogy will delete the parent contact information and any other information collected by the Ballogy website and/or application in connection with the child under thirteen (13) years of age. In the event that Ballogy discovers that information has been collected from a child under the age of 13 in a manner inconsistent with COPPA’s requirements, Ballogy will delete the information or immediately seek verifiable parental consent for the collection of personal information.
3. ACCEPTABLE USE POLICY
You shall not transmit to Ballogy or upload to this Site any Harmful Code or use or misappropriate the data on this Site for your own commercial gain. “Harmful Code” shall mean any software (sometimes referred to as “viruses,” “worms,” “trojan horses,” “time bombs,” “time locks,” “drop dead devices,” “traps,” “access codes,” “cancelbots” or “trap door devices”) that: (a) is intentionally designed to damage, disrupt, disable, harm, impair, interfere with, intercept, expropriate or otherwise impede in any manner, any data, storage media, program, system, equipment or communication, based on any event, including for example but not limited to (i) exceeding the number of copies, (ii) exceeding the number of users, (iii) passage of a period of time, (iv) advancement to a particular date or another numeral, or (v) use of a certain feature; or (b) would enable an unauthorized person to cause such result; or (c) would enable an unauthorized person to access another person’s information without such other person’s knowledge and permission.
3.1 You may not use your username and password for any unauthorized purpose.
3.2 Ballogy may retain and use, information collected in your use of the Service, provided such information does not individually identify you.
3.3 Ballogy reserves all rights not specifically granted herein. You shall not modify any copyright notices, proprietary legends, any trademark and service mark attributions, any patent markings, and other indicia of ownership on the Content or other materials accessed through the Service. The delivery of, and license to, the Content and/or access to third-party materials does not transfer to you any commercial or promotional use rights in the Content or any portion thereof. Any use of Content, or descriptions; any derivative use of this Site or its materials; and any use of data mining, robots, or similar data gathering and extraction tools is strictly prohibited. In no event shall the user frame any portion of the Site or any materials contained therein.
3.4 Users of the Site may post comments, reviews, and other materials and submit suggestions, ideas, or other information, provided, the materials do not contain any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or hateful content or content which is racially, ethnically or otherwise objectionable, or which infringes upon the rights of any third party. You acknowledge that by accessing the Site, you may come into contact with content that you find harmful, offensive, threatening, indecent or objectionable and you acknowledge that Ballogy shall have no liability to you for the content including, but not limited to explicit language and other potentially offensive material. The user agrees to not impersonate any person or communicate under a false name or a name the user is not entitled or authorized to use. Ballogy has the right (but not the obligation) to remove, prohibit, edit or discontinue any content on the Site, including content that has been posted by users.
3.5 If you post content or submit material, unless such content or material submittal is subject to separate terms and conditions, Ballogy shall own such content and material and you hereby assign any rights in such content and material to Ballogy. In the event ownership in the content or material cannot be granted to Ballogy, you grant Ballogy and it’s affiliates a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable right and license to make, use, sell, sublicense, reproduce, distribute, perform, display, prepare derivative works from and otherwise exploit all such content and material as if it were the full owner thereof. Furthermore, you grant Ballogy, its affiliates, and sublicensees the right to use your name and/or user name in connection with the content. You represent and warrant that all content and materials you provide shall be your original work product and will not be based on, or derived from, the proprietary information or items of a third party. Furthermore, you represent and warrant that your use of the Service in connection with any Content or third-party content complies with all laws including, but not limited to, United States copyright law. You will defend, indemnify and hold Ballogy and its affiliates harmless from and against any claims resulting from any content or materials you provide hereunder or your use of the Service.
3.6 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos, or other images) that you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such materials originated, which may be you.
3.7 At your discretion, you may provide feedback to Ballogy concerning the functionality and performance of the Service from time to time, including, without limitation, identifying potential errors, improvements, modifications, bug fixes, or enhancements (“Feedback”). If you, through your evaluation or otherwise, suggest any Feedback, you hereby assign ownership of all Feedback to Ballogy. In the event ownership in the Feedback cannot be granted to Ballogy, you grant Ballogy at no charge a perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction. You agree that Ballogy may disclose that Feedback to any third party in any manner and you agree that Ballogy has the ability to sublicense all Feedback in any form to any third party without restriction.
3.8 Ballogy may terminate your access to our Site or the Service for any reason at any time. The provisions that by their nature are designed to survive termination or expiration of this Agreement shall survive termination or expiration of this Agreement or your access to our Site or Service.
3.9 By using this Site, you signify your assent to these terms of use and agree to comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations, copyright laws, and other laws regarding intellectual property. If you do not agree to these terms of use, please do not use the Site. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE INTERNAL LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF ANY STATE OR JURISDICTION.
3.10 The materials on this Site are provided with “Restricted Rights.” Use, duplication, or disclosure by the Government is subject to restrictions as set forth in applicable laws and regulations. Use of the materials by the Government constitutes acknowledgment of Ballogy’s proprietary rights in them.
4. DISCLAIMER OF WARRANTIES AND LIMITATION of LIABILITY
4.1 THE MATERIALS, CONTENT ON THIS SITE, AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. BALLOGY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY CONTENT OR MATERIALS POSTED ON THE SITE OR SERVICES. BALLOGY MAKES NO GUARANTEES AS TO THE UPTIME OR AVAILABILITY OF THE SERVICE. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO THE APPLICABLE LAW, BALLOGY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR OTHER VIOLATION OF RIGHTS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BALLOGY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING INTERNET CONGESTION, VIRUS ATTACKS, AND DENIAL OF SERVICE (DOS) ATTACKS.
4.2 UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL BALLOGY OR ITS THIRD-PARTY LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE MATERIALS ON THIS SITE OR THE SERVICE, EVEN IF BALLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BALLOGY’S AND ITS LICENSORS’ ENTIRE AND AGGREGATE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED $100, EVEN IF BALLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IF YOUR USE OF MATERIALS FROM THIS SITE OR THE SERVICE RESULTS IN THE NEED FOR SERVICING, REPAIR, OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
4.3 Ballogy is not responsible for any incurred injuries during the Ballogy Skills Assessment or any assigned Ballogy Training Task. YOU HEREBY REMISE, RELEASE, ACQUIT AND FOREVER DISCHARGE BALLOGY, ANY EMPLOYEES OR OFFICERS OF BALLOGY, AND ANY INDIVIDUALS ASSOCIATED WITH BALLOGY OR BALLOGY PRODUCTS AND SERVICES (“RELEASED PARTIES”) OF AND FROM ANY AND ALL LIABILITIES, CLAIMS, REMEDIES, DEMANDS, SUITS OR CAUSES OF ACTION OF WHATSOEVER KIND OR CHARACTER, IN WHOLE OR IN PART, WHETHER CHOATE OR INCHOATE, WHICH YOU MAY EVER HAVE AGAINST THE RELEASED PARTIES THAT IN ANY WAY DIRECTLY OR INDIRECTLY RELATE TO, RESULT FROM, ARE BASED UPON, OR ARISE OUT OF THE BALLOGY PRODUCTS OR SERVICES.
YOU FURTHER AGREE TO DEFEND, INDEMNIFY, SAVE, AND HOLD THE RELEASED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LAWSUITS, LITIGATION, ATTORNEYS FEES, EXPENSES, OR ARBITRATIONS ARISING OUT OF ANY YOUR ACTIONS, EITHER INTENTIONALLY OR NEGLIGENTLY, DURING THE USE OF THE BALLOGY PRODUCTS AND SERVICES.
YOU FURTHER ACKNOWLEDGE AND AGREE THAT ANY OF YOUR ACTIVITIES RELATING TO THE BALLOGY PRODUCTS AND SERVICES SHALL BE PURELY VOLUNTARY AND CONDUCTED AT YOUR OWN CHOICE. YOU HEREBY ASSUME ALL RISKS ASSOCIATED WITH THE USE OF THE BALLOGY PRODUCTS AND SERVICES, INCLUDING ALL RISKS OF PERSONAL INJURY OR PROPERTY DAMAGE.
This Agreement shall constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
Ballogy shall not be liable to you for any delay or failure of Ballogy to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Ballogy. Such causes shall include but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, labor strike, or delays by you in performing any requirements hereunder. This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity of this Agreement as a whole and any such provision should be enforced by authorities, and reconstructed if need be, to apply to the maximum extent allowable under applicable law. The failure by either party to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance of the other of any of the provisions herein will not in any way be construed as a waiver of such provisions. Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement. The section headings used herein are for convenience only and shall not be given any legal import.
The state or federal courts sitting in Austin, Texas shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement and sale, and you hereby consent to the jurisdiction of such courts. Ballogy shall not be liable to you for any delay or failure of Ballogy to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Ballogy. Such causes shall include but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, labor strike, or delays by you in performing any requirements hereunder. This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity of this Agreement as a whole and any such provision should be enforced by authorities, and reconstructed if need be, to apply to the maximum extent allowable under applicable law. The failure by either party to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance of the other of any of the provisions herein will not in any way be construed as a waiver of such provisions. Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement. The section headings used herein are for convenience only and shall not be given any legal import. Any dispute, controversy, or claim arising under, out of, or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach, or termination, as well as non-contractual claims, shall be submitted to arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules. The place of arbitration shall be Austin, Texas. The language to be used in the arbitral proceedings shall be English. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the arbitrator. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction. You agree to the entry of injunctive relief to stop any lawsuit or to remove you as a participant in such a suit. This Agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually in binding arbitration, but not as a class action. This provision preventing you from bringing, joining, or participating in class action lawsuits is an independent covenant. You may opt out of this Section by providing written notice of your decision within thirty (30) days of the date that you first use the Site or Services.
5. MISCELLANEOUS
5.1 Accuracy. While Ballogy uses reasonable efforts to include accurate and up-to-date information on the Site, Ballogy makes no warranties or representations as to its accuracy. Ballogy assumes no liability or responsibility for any errors or representations in the Content or this Site.
5.2 Additional Terms. The Site may contain areas in which additional terms and conditions apply. For purposes of the use of such areas, in the event of a conflict between the terms and conditions of such other areas and these terms and conditions, the terms and conditions of the other area shall prevail.
5.3 Updates. Ballogy may at any time revise these terms and conditions by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the current Agreement to which you are bound.