PERFORMA SPORTS USER TERMS
Dear Performa Sports User
Please take time to read the
provisions below carefully, because they are legally binding.
Provisions which are highlighted are particularly
important: these include the restrictions in section 7, which are
important to protect our ownership of intellectual property rights
in the Performa Sports Service.
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PERFORMA SPORTS USER TERMS
- These terms (the User Terms) form
a binding legal agreement between you and Performa Sports
Limited, 87 Drumnacanvy Road, Portadown, N. Ireland,
BT63 5LY, company registration number NI604529
(we, us, our). By accepting these User
Terms you agree to be bound by their effect in
relation to your use of the Performa Sports
software application and the website
at www.performasports.com (together,
the Service).
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ACCEPTING THE USER TERMS
- In order to use the Service, you must first agree to the User Terms.
You may not use the Service if you do not accept the User Terms.
You can accept the User Terms by:
- clicking to accept or agree to the User
Terms, where this option is made available to
you by us in the user interface for the
Service; or
- by actually using the Service, whether on a
trial or subscribed basis. In this case, you
understand and agree that we will treat your
use of the Service as acceptance of the User
Terms from that point onwards.
- We may update or change these User Terms from time
to time and recommend that you review the User Terms on
a regular basis. You understand and agree that your
continued use of the Service after the User Terms have
changed constitutes your acceptance of the User Terms as
revised. If we make a change to the User Terms that materially
impacts your use of the Service, we may post notice of the change
to the User Terms on our website and/or email you notice of any
such change
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FEES
- Access to the Service is on a subscription basis,
except where you are availing of any trial period granted by us.
We will charge you a monthly or annual subscription fee
(Subscription Fee)
for access to the Service and you undertake to pay the price notified to you.
- You can obtain supplements to the standard products and services covered by
your Subscription Fee as follows:
- an extra iPad device for an additional fee
as notified to you;
- an extra sport in addition to the sport which
you elected on your primary purchase of the Service
for an additional fee as notified to you; or
- any further supplements as advertised by
us
- You grant us the right to audit your use of the Service,
so as to ensure compliance by you with these User Terms.
- Any default in payment shall entitle us to suspend
or lock access to your account until payment is received
or terminate this agreement and delete your User Contentin
accordance with clause 10.1.1 of these User Terms.
Late payment fees may be incurred.
- If you wish to cancel your subscription, we require
a 30 day notice period in writing to process your cancellation.
- We may at any time, upon notice required by applicable law,
change the price of the Subscription Fee or institute new changes
or fees. Price changes and institution of new charges implemented
during your subscription term will apply to subsequent subscription
terms and to all new subscribers after the effective date of change.
If you do not agree to any such price changes, then you must cancel
your account and stop using the Service. You continued use of the
Service after the effective date of change shall constitute your
acceptance of such change.
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USE OF THE SERVICE BY YOU
- In consideration of the fulfilment by you of the
obligations imposed on you by these User Terms,
including the payment by you of the fees charged
by us for use of the Service, we grant you a non-exclusive,
non-assignable, non-transferable, non-sub-licensable licence
for the duration of the agreement created by these User Terms
to use the Service solely and strictly for your own use.
- You agree not to access (or attempt to access)
any part of the Service by any means other than through
the interface that is provided by us. You specifically
agree not to access (or attempt to access) any part of
the Service through any automated means, including use
of scripts, robots, spiders, scrapers or web crawlers.
You agree that you will not (a) take any action that
imposes, or may impose (in each case in our sole discretion)
an unreasonable or disproportionately large load on our
infrastructure; (b) copy, duplicate, reproduce, rent,
lease, loan, sell, trade, resell, modify, create derivative
works, distribute or publicly display any part of the Service
without prior written consent from us and any third party
determined by us as appropriate; (c) interfere or attempt to
interfere with the proper working of the Service or any
activities conducted via the Service; (d) bypass any measures
we may use to prevent or restrict access to the Service;
and (e) attempt to reverse engineer, decompile or otherwise
seek to obtain access to any source code in the Service.
- You agree that you will not engage in any activity that interferes
with or disrupts the Service, or the servers and networks which are
connected to the Service.
- 4. In order to enhance user experience, you agree that we may change the
structure, content and nature of the Service at any time without notice
to you. In particular, you agree that:
- we may cease providing any or all of the
Service to you;
- if we (in our sole discretion) determine
that your bandwidth usage exceeds a reasonable
level we may control your use of the site by
reducing or preventing your access.
- We may elect to update the Service. These updates may
be may include bug fixes, feature enhancements or
improvements, or entirely new versions of the Service.
You agree that we may automatically deliver such updates
to you as part of the Service and you shall receive and
install them as required.
- You may only use the Service in accordance with
these User Terms, and as may be permitted by any
relevant law and/or decree of any relevant regulatory
body.
- You shall not copy all or part of the
contents of the Service or any database
accessed through the Service (each such a Database)
(in each case excluding any User Content provided by you)
for the purpose of making those contents available to
third parties without our prior written consent.
You acknowledge that each Database has been created
through the expenditure of substantial time, effort
and money and constitutes valuable intellectual
property of us.
- We will maintain the Service at a reputable third party
ISP and hosting facility, to be subject to commercially
reasonable security precautions to prevent unauthorised
access to the Service. You acknowledge that, notwithstanding
such security precautions, use of or connection to the internet
provides the opportunity for unauthorised third parties to
circumvent such precautions and illegally gain access to the
Service and User Content. Accordingly, and notwithstanding
any other provision of these User Terms, we cannot and do
not guarantee, and will not be liable in any way to you or
any other party for the privacy, security or authenticity
of any information transmitted over the internet (including any User Content).
- You acknowledge that our provision of the Service
is contingent upon compliance with the hosting facility
network provider's acceptable use policy
(AUP). In order to enable our
continued provision of the Service, and irrespective of
any other provision of these User Terms, you agree and
acknowledge as reasonable that:
- you will comply both with any obligation imposed on us by,
and with the exercise of any right afforded the network
provider by, the AUP, in each case as if the you were
us for the purposes of the AUP;
- we may suspend the provision of the Service without
telling you and without liability (provided that we
shall, where practicable, give you reasonable prior
notice) if:
- the Service is being used in violation of
the AUP;
- you do not cooperate with the network
provider's investigation of any suspected
violation of the AUP;
- there is an attack on servers or other
event for which we reasonably believe that the
suspension of the Service is necessary to
protect you or the network; or
- if required by law or regulation or as
compelled by a law enforcement or government
agency; and
- you will indemnify and keep indemnified us
against any and all loss, liability, cost or expense
(including reasonable legal expenses) howsoever
incurred by us arising out of any breach of the
AUP or a breach of a third party's rights by you
or any User Content submitted by you.
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ACCOUNT SECURITY
- You represent and warrant to us that any and all
information provided by you is true, accurate and
complete. You undertake to notify us promptly of
any changes to such information. You agree not to
impersonate any other person or entity or to use
a false name or a name that you are not authorised
to use. We reserve the right to decline any application
from you to register as a user of the Service in our
sole discretion and/or to suspend your use of the Service
where we in our sole discretion believe that you are in
breach of any provision of these User Terms.
- You agree and understand that you are responsible
for maintaining the confidentiality of passwords
associated with any account you use to access the Service.
Accordingly, you agree that you will be solely responsible
to us for all activities that occur under your account, as
determined, noted, or recorded by us. Such determination,
notation, and record shall be at our sole discretion, and
shall serve as conclusive proof of the facts stated therein
and to which they attest.
- If you become aware of any unauthorized use of your
password or of your account, you agree to notify us
immediately at info@performasports.com.
- You grant us the right to access your Service
accounts for the purposes of any service improvement or
upgrade.
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USER CONTENT
- You agree that you are solely responsible for
(and that we have no responsibility to you or
to any third party for) any media files, metadata,
graphics, images (including but not limited to player
and team images), photographs, videos and other like
materials that you create, upload, download, transmit,
store, post, email or display while using the Service
(any and all such content User Content)
and for the consequences of your actions (including any
loss or damage which we may suffer) by doing so. We do not
control the User Content used in the Service, nor do we
guarantee the accuracy, integrity or quality of such User
Content.
- By uploading any User Content you represent and
warrant that:
- you have the lawful right to reproduce and
distribute such User Content;
- the uploading, downloading, posting,
emailing or transmission by any other means of
the User Content will not constitute or
encourage a criminal offence, violate the
rights of any party or otherwise create
liability or violate any local, state, national
or international law;
- the User Content submitted by you will not
be unlawful, harmful, threatening, abusive,
vulgar, harassing, defamatory, obscene,
pornographic, indecent, inflammatory,
libelous, tortious, hateful, or racially,
ethnically or otherwise objectionable, or
invasive of another's rights including rights
of celebrity, privacy and intellectual property;
and
- the User Content submitted by you will not
breach national or international data
protection or intellectual property laws, nor
infringe the intellectual property rights or
other statutory rights of any third party.
- You acknowledge and agree that we are not responsible
or liable in any way for any User Content provided by
you or other users and have no duty to moderate such
User Content. However, we reserve the right at all times
to determine whether User Content is appropriate and
in compliance with these User Terms, and may move,
modify and/or remove User Content at any time, without
prior notice and in our sole discretion, if such User
content is found to be in non-compliance with these
User Terms or notified to us as objectionable by a
third party. We also reserve the right to provide User
Content to any third party who, in our sole opinion,
demonstrates a proper legal basis for such disclosure.
- You shall indemnify us and hold us harmless,
without limitation and upon demand, against any
claims, proceedings, actions, costs, damages, expenses,
liability, losses and demands (including reasonable legal
expenses) that may be incurred by us and whether directly or
indirectly arising from: (a) any User Content you submit,
post, transmit, or otherwise make available through the
Service; (b) your use of the Service; (c) any breach by
you of these User Terms; or (d) infringement by you or
your User Content of third party intellectual property
rights.
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INTELLECTUAL PROPERTY
- In these User Terms intellectual property rights
shall mean any and all intellectual property rights
including trademarks, copyright, moral rights, rights
in goodwill or to sue for passing off, database rights,
know-how, and all other intellectual property and proprietary
information rights (including confidential information) as
may exist now or hereafter come into existence; all modifications,
continuations, renewals and extension of any of the foregoing
arising under the laws of any country, state or jurisdiction
in the world.
- You acknowledge and agree that we (or our
licensors) own all legal right, title and interest in
and to the Service, including any intellectual property
rights which subsist in the Service (whether those
rights happen to be registered or not, and wherever in
the world those rights may exist) and that all intellectual
property rights in the Service (including source
code in the software) belong to and shall remain
vested in us (or where relevant our licensors).
Nothing in these User Terms shall confer on you
any right, title or interest in any intellectual
property rights (except the rights of use set out in
these User Terms). You further
acknowledge that the Service may contain information
which is designated confidential by us and that you
shall not disclose such information without our prior
written consent. Such intellectual property rights are
recognised and protected by national and international
laws. You agree to comply with all such laws as are
applicable to you.
- For the avoidance of doubt, all reports,
data, records, statistics, graphs, results, databases
or like material (Results) generated from the analysis
conducted by the Service shall be our intellectual
property. To the extent that any such material could in
any way be deemed created by you, you hereby assign all
right, title and interest in such material to us
absolutely.
- We hereby grant to you a non-transferable,
non-assignable, non-exclusive, non sub-licensable
perpetual licence to use the Results in connection with
your use of the Service.
- Unless you have agreed otherwise in writing
with us, nothing in the User Terms gives you a right to
use any of our trade names, trade marks, service marks,
logos, domain names, and other distinctive brand
features. You agree that you shall not remove, obscure,
or alter any proprietary rights notices (including
copyright and trade mark notices) which may be affixed
to or contained within the Service.
- In the event that your use of the Services, if used
in accordance with these User Terms, infringes any intellectual
property rights of a third party, we may, at our sole discretion
and expense, replace or modify the Service so that it is no longer
infringing or obtain for you the right to continue using the Services.
This therefore constitutes your sole remedy in relation to any claim
of infringement in respect of the Service.
- Except as permitted by these User Terms,
you may not copy, or make any use of any part of the
Service (or any Database) or use any such intellectual
property rights for any purposes. In particular you may
not modify, rent, lease, loan, sell, distribute or
create derivative works based on the Content (either in
whole or in part) unless you have been specifically
permitted to do so by us, or by the owners of that
Content, in a separate agreement.
- In these User Terms intellectual property
rights shall mean all intellectual property
rights wherever in the world arising, whether
registered or unregistered (and including any
application), including copyright, database rights,
patents, patent applications, patent rights, rights in
designs, trademarks, trademark applications, trademark
registrations, trademark rights, trade secrets and all
other intellectual property and proprietary information
rights as may exist now or hereafter come into
existence, all modifications, continuations, renewals
and extensions of the foregoing, and all claims,
actions, causes of action, damages, costs, expenses,
profits, penalties, recoveries and remedies relating to
any past, present or future infringement of any of the
foregoing, arising under the laws of any country, state
or jurisdiction in the world.
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PRIVACY
- Your use of the Service, including any registration
process, may involve your disclosure to us of personal
data (which term shall include sensitive personal data)
relating to data subjects (personal data,
sensitive personal data and data
subjects each as defined by the Data
Protection Act 1988). In the event that you do so
disclose such personal data you:
- warrant and represent to us that you have
secured all consents and permissions, and have
taken all actions necessary, as may be required
by applicable law for the purposes of
disclosure to us and subsequent use by us of
any such data relating to third parties in the
provision of the Service in accordance with our
privacy policy [https://app.performasports.com/privacy];
and
- in relation to any personal data relating
to you, you consent to the use of such personal
data in accordance with our privacy policy
[https://app.performasports.com/privacy].
- You agree to our use, in accordance with our
privacy policy privacy policy of your User Content,
including but not limited to player and team names for
promotional and advertising purposes only. If you do
not wish to be featured in our promotional material
please notify us immediately at
info@performasports.com.
- Both of us acknowledge that publicity by us using
any of your User Content does not constitute any
endorsement of your App and/or website or any User
Content therein and, in accordance with Clause 6, you
are solely responsibility for the User Content in your
App and/or website.
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PUBLICITY
- You agree to our use, in accordance with our
privacy policy [https://app.performasports.com/privacy],
of your User Content, including but not limited to
player and team names for promotional and advertising
purposes only. If you do not wish to be featured in our
promotional material please notify us immediately at
support@performasports.com.
- Both of us acknowledge that publicity by us using
any of your User Content does not constitute any
endorsement of your User Content and, in accordance
with Clause 6, you are solely responsibility for the
User Content.
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TERMINATION
- We may at any time, terminate our legal agreement
with you and the supply to you of the Service if:
- you have materially breached any provision
of the User Terms (or have acted in manner
which clearly shows that you do not intend to,
or are unable to comply with the provisions of
the User Terms) and, where such breach is
capable of remedy, we determine that you have
not so remedied within fourteen days of
notification; or
- we are required to do so by law (for
example, where the provision of the Service to
you is, or becomes, unlawful); or
- you cease to trade; or become insolvent or
unable to pay your debts within the meaning of
the insolvency legislation applicable to you;
or a person (including the holder of a charge
or other security interest) is appointed to
manage or take control of the whole part of
your business or assets, or notice of an
intention to appoint such a person is given or
documents relating to such an appointment are
filed with any court; or the ability of your
creditors to take any action to enforce your
debts is suspended, restricted or prevented or
some or all of your creditors accept, by
agreement or pursuant to a court order, an
amount of less than the sums owing to them in
satisfaction of those sums; or any process is
instituted which could lead to you being
dissolved and your assets being distributed to
your creditors, shareholders or other
contributors (other than for the purposes of
solvent amalgamation or reconstruction):
or
- the provision of the Service to you by us
is, in our opinion, no longer commercially
viable.
- When these Terms come to an end:
- the licence granted at clause 4.1 of these
User Terms terminates;
- all of the legal rights, obligations and
liabilities that you and we have benefited
from, been subject to (or which have accrued
over time whilst the User Terms have been in
force) or which are expressed to continue
indefinitely, shall be unaffected by this
cessation, and the provisions of Clauses 6, 7,
8, 9, 11, 12 and 13 shall survive termination
of these User Terms; and
- we will provide you a link to download your
User Content. Your User Content will be stored
for a period of 30 days. Upon expiry of this 30
day period you will have no further access to
your User Content.
- In the event that you [downgrade], this will not be
automatically deemed termination for the purposes of
these User Terms. We will continue to store your User
Content, and for a month we will continue to back up
your User Content (with the exception of any and all
video content). At the end of the month, if you have
not accessed the Service within that period, these User
Terms shall come to an end and the provisions of clause
10.2 shall apply.
- We reserve the exclusive right and prerogative (but
do not guarantee) to retain, maintain, archive,
protect, use, or store any and all data or information,
without regard as to time or duration, as we may deem
reasonable or necessary in the pursuit of our business
or interests, or in protecting such business or
interests, notwithstanding the termination or cessation
of your relationship with us.
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LIMITATION OF LIABILITY
- Nothing in these User Terms, including this clause
11, shall exclude or limit any warranty or liability
which may not be lawfully excluded or limited by
applicable law, including liability for fraud or for
death or personal injury caused by our negligence.
- There are no conditions, warranties,
representations or other terms, express or implied,
that are binding on us except as specifically stated in
these User Terms (including implied warranties and
conditions of merchantability, fitness for a particular
purpose and non-infringement). Any condition, warranty,
representation or other term concerning the supply of
the Service which might otherwise be implied into or
incorporated in these User Terms, or any collateral
contract, whether by statute, common law or otherwise,
is hereby excluded to the fullest extent permitted by
law.
- You expressly understand and so agree that your use
of the Service is at your sole risk and that the
Service is provided "As Is" and "As Available."
- In particular, we, our subsidiaries and affiliates,
and our licensors, do not represent or warrant to you
that:
- your use of the Service (including its use
in conjunction with any other software) will
meet your requirements, that your use of the
Service will be uninterrupted, timely, secure
or free from error or that defects in the
operation or functionality of the Service
provided to you will be corrected; and
- any information obtained by you as a result
of your use of the Service will be accurate or
reliable; and
- that defects in the operation or
functionality of the the Service will be
corrected, rectified, or remedied.
- Any material downloaded or otherwise obtained or
accessed through the use of the Service is done at your
own discretion and risk, and that you will be solely
responsible for any damage, loss, or prejudice to your
computer system or other device or loss of data that
results from the download or access of any such
material.
- In order for you to make full use of the Service it
may be necessary for you to use particular computer
equipment or to download or install certain pieces of
software. If you are unable to access all or part of
the Service because of internet availability, or
because you do not have access to any necessary
software or equipment, this shall not constitute a
breach of these User Terms by us and we shall not be
liable for any loss, damage or expense which may result
from your inability to access the Service.
- No advice or information, whether oral or written,
obtained by you from us or any of our subsidiaries,
affiliates, officials, employees, or personnel, or
through or from the Service shall create any warranty
not expressly stated in these User Terms. We shall not
be under any liability whatsoever in respect of any
inaccuracies or omissions in the Service. All such
liability is excluded by us to the fullest extent
permitted by law.
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You expressly understand and agree that we
and our licensors shall not be liable to you
for:
- any direct, indirect, special,
incidental or consequential loss or damage
which may arise in respect of the Service
and/or its use or
non-availability;
- loss of profit, business revenue,
goodwill and anticipated savings:
- any trading or other losses which
you may incur as a result of use of or reliance
upon any content;
- the deletion of, corruption of, or
failure to store, any content and other
communications data maintained or transmitted
by or through your use of the Service;
or
- any effect which use of the Service
may have on any software you use.
- Subject to the clauses above, the aggregate
liability of us in respect of any loss or damage
suffered by you and arising out of or in connection
with the use of the Service by you and/or any third
party shall not exceed the amount of the total fees
actually paid by you to us in the twelve months
preceding the date of the your claim.
- You agree and acknowledge that you are in a
better position than us to foresee and evaluate any
potential damage or loss which you may suffer in
connection with the use of the Service; that we cannot
adequately insure its potential liability to you; and
that accordingly the exclusions and limitations
contained in this clause 11 are reasonable. You also
undertake at all times to mitigate any such damage or
loss.
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GENERAL
- You shall not assign, transfer or sub-license any
of your rights or obligations under these User Terms.
We may at any time assign all or any of our rights and
transfer all or any of our obligations under these User
Terms.
- Failure or neglect by us to enforce any of the
provisions of these User Terms at any time shall not be
construed or deemed to be a waiver of our rights nor
shall this in any way affect the validity of the whole
or any part of these User Terms, nor prejudice our
rights to take subsequent action.
- If any part of any provision of these User Terms
shall be or become invalid, unlawful or unenforceable
to any extent, then the remainder of such provision and
all other provisions of these User Terms shall continue
to be valid and enforceable to the fullest extent
permitted by law.
- These User Terms represent the entire agreement of
you and us in relation to the subject matter of these
User Terms and supersedes any previous agreement
between you and us in relation to the Service. Neither
of you and us has relied upon any statement or
representation made by the other in agreeing to enter
this agreement.
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LAW AND JURISDICTION
- These User Terms shall be construed in accordance
with Northern Irish law and the parties hereby submit
to the exclusive jurisdiction of the Northern Irish
courts to settle any disputes which may arise in
connection with these User Terms.