Performa Sports

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.

  1. PERFORMA SPORTS USER TERMS

    1. 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).
  2. ACCEPTING THE USER TERMS

    1. 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:
      1. 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
      2. 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.
    2. 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.
  3. FEES

    1. 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.
    2. You can obtain supplements to the standard products and services covered by your Subscription Fee as follows:
      1. an extra iPad device for an additional fee as notified to you;
      2. 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
      3. any further supplements as advertised by us
    3. You grant us the right to audit your use of the Service, so as to ensure compliance by you with these User Terms.
    4. 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.
    5. If you wish to cancel your subscription, we require a 30 day notice period in writing to process your cancellation.
    6. 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.
  4. USE OF THE SERVICE BY YOU

    1. 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, nonsublicensable licence for the duration of the agreement created by these User Terms to use the Service solely and strictly for your own use.
    2. 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.
    3. 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:
      1. we may cease providing any or all of the Service to you;
      2. 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.
    5. 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.
    6. 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.
    7. 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.
    8. 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).
    9. 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:
    10. 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;
    11. 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:
      1. the Service is being used in violation of the AUP;
      2. you do not cooperate with the network provider's investigation of any suspected violation of the AUP;
      3. 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
      4. if required by law or regulation or as compelled by a law enforcement or government agency; and
    12. 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.
  5. ACCOUNT SECURITY

    1. 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.
    2. 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.
    3. 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.
    4. You grant us the right to access your Service accounts for the purposes of any service improvement or upgrade.
  6. USER CONTENT

    1. 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.
    2. By uploading any User Content you represent and warrant that:
      1. you have the lawful right to reproduce and distribute such User Content;
      2. 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;
      3. 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
      4. 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.
    3. 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.
    4. 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.
  7. INTELLECTUAL PROPERTY

    1. 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). 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    6. 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.
  8. PRIVACY

    1. 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:
      1. 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
      2. 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].
    2. 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.
    3. 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.
  9. PUBLICITY

    1. 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.
    2. 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.
  10. TERMINATION

    1. We may at any time, terminate our legal agreement with you and the supply to you of the Service if:
      1. 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
      2. we are required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); or
      3. 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
      4. the provision of the Service to you by us is, in our opinion, no longer commercially viable.
    2. When these Terms come to an end:
      1. the licence granted at clause 4.1 of these User Terms terminates;
      2. 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
      3. 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.
    3. 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.
    4. 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.
  11. LIMITATION OF LIABILITY

    1. 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.
    2. 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.
    3. 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."
    4. In particular, we, our subsidiaries and affiliates, and our licensors, do not represent or warrant to you that:
      1. 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
      2. any information obtained by you as a result of your use of the Service will be accurate or reliable; and
      3. that defects in the operation or functionality of the the Service will be corrected, rectified, or remedied.
    5. 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.
    6. 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.
    7. 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.
    8. You expressly understand and agree that we and our licensors shall not be liable to you for:
      1. 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;
      2. loss of profit, business revenue, goodwill and anticipated savings:
      3. any trading or other losses which you may incur as a result of use of or reliance upon any content;
      4. 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
      5. any effect which use of the Service may have on any software you use.
    9. 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.
    10. 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.
  12. GENERAL

    1. 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.
    2. 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.
    3. 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.
    4. 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.
  13. LAW AND JURISDICTION

    1. 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.