Please read this agreement carefully to ensure that you understand each provision. This agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes rather than jury trials or class actions.
1. USE OF OUR SERVICE
The Athlete Portal provides a platform for athletes, parents, youth coaches, team managers, college coaches, and tournament directors to communicate, build relationships and help its customers achieve success.
This is a contract between you and The Athlete Portal. You must read and agree to these terms before using The Athlete Portal Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with The Athlete Portal, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by The Athlete Portal.
B. The Athlete Portal Service
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. The Athlete Portal reserves all rights not expressly granted herein in the Service and the The Athlete Portal Content (as defined below). The Athlete Portal may terminate this license at any time for any reason or no reason.
C. The Athlete Portal Accounts
Your “The Athlete Portal” account gives you access to the services and functionality that we may establish and maintain from time to time and at our sole discretion. We may maintain different types of accounts for different types of Users. If you are a coach or employee of a university or other institution, you agree that you will only open a The Athlete Portal account on behalf of such university, institution, company, organization, or other entity, and
(a) “you” includes you and that entity, and
(b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
In the event the coach or employee with the foregoing authorization leaves the institution that (s)he created such account for, the institution will have thirty (30) days to transfer ownership and control of such account, including any data or User Content (as defined below) that has previously been created or uploaded by such User.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify The Athlete Portal immediately of any breach of security or unauthorized use of your account. The Athlete Portal will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing the settings on your settings or profile page. By providing The Athlete Portal your email address you consent to using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
D. Service Rules
You agree not to engage in any of the following prohibited activities:
(i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
(ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the The Athlete Portal servers than a human can reasonably produce in the same period of time by using a conventional web browser (except that The Athlete Portal grants the operators of public search engines revocable permission to use spiders to copy publically available materials from our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
(iii) transmitting spam, chain letters, or other unsolicited email;
(iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;
(v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
(vi) uploading invalid data, viruses, worms, or other software agents through the Service;
(vii) collecting or harvesting any personally identifiable information, including account names, from the Service;
(viii) using the Service for any commercial solicitation purposes;
(ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
(x) interfering with the proper working of the Service;
(xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or
(xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
You agree to be fully informed of and abide by all rules and regulations set forth by the NCAA, NAIA, U Sport, CCAA, and any other organizations that govern high school, club, and intercollegiate athletics that are applicable to your activities. You are solely responsible for compliance with these rules. Violation of any such rules and regulations are grounds for suspension and/or termination of the Service. You agree to absolve The Athlete Portal of any liability that may arise from your violation of these rules and regulations.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other The Athlete Portal Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. The Athlete Portal shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2. USER CONTENT
Some areas of the Service allow Users to post or provide content such as profile information, videos, images, music, comments, questions, and other content or information (any such materials a User provides, submits, posts, displays, or otherwise makes available on the Service is referred to as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by providing or sharing User Content through the Service, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. The Athlete Portal has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
You agree not to provide User Content that:
(i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
(ii) may create a risk of any other loss or damage to any person or property;
(iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
(iv) may constitute or contribute to a crime or tort;
(v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable;
(vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
(vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or
(viii) contains any information or content that you know is not correct and current or
(ix) violates any school, governing body or other applicable policy, including those related to cheating or ethics or recruiting. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy.
To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below.
The Athlete Portal reserves the right, but is not obligated, to reject and/or remove any User Content, including, without limitation, any User Content that The Athlete Portal believes, in its sole discretion, violates any of these provisions, any User Content that The Athlete Portal believes was obtained without the proper permissions and consents, as warranted by you below, or in response to a request by another User or third party or parent or guardian of another User or third party. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
A. You have the consent of each and every identifiable natural person in the User Content, if any, to use such a person's name, information or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
B. You have obtained and are solely responsible for obtaining all consents as may be required by law to provide any User Content relating to third parties.
C. Your User Content and The Athlete Portal and other Users’ use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
D. The Athlete Portal may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
E. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
The Athlete Portal takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of providing it, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that The Athlete Portal shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
3. USER CONTENT LICENSE GRANT
By providing or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to The Athlete Portal a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and The Athlete Portal’ (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
A. License Grant to User Data.
Certain aspects of the Service allow Users to provide The Athlete Portal with data or access to other data sources (whether online or otherwise) (“User Data”). By submitting such User Data, or providing The Athlete Portal with access to such User Data, you expressly grant, and you represent and warrant that you have all rights necessary to grant, all right and licenses to the User Data required for us and our subcontractors and service providers to provide the Services, including, without limitation, our consultative services such as the reconciliation of data from multiple sources. You acknowledge and agree that we may collect, analyze and use User Data, including data that has been anonymized, aggregated or derived from User Data, as well as data about your access and use of our Services, for the purpose of providing, operating, analyzing, and improving our Services.
B. Your Responsibilities.
In connection with User Data, as of the date you accepted this Agreement and throughout the term of this Agreement, you represent, warrant and agree that:
(1) you have obtained such User Data lawfully, and such User Data does not and will not violate any applicable laws or a third party's proprietary or intellectual property rights;
(2) you shall not provide any User Data or content that contains bank account information, credit or debit card information, personal information collected from children under 13, social security numbers, or health or medical information, except in designated areas of the Service which permit the receipt of such sensitive data elements. Such data may not be submitted or stored by The Athlete Portal without The Athlete Portal explicit consent, and The Athlete Portal reserves the right to delete or anonymize such data if discovered stored in an unauthorized location within the Service;
(3) you are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to your User Data that you share with us for the provision of Services under this Agreement;
(4) We may exercise the rights to your User Data granted under this Agreement without liability or cost to any third party; and
(5) Your User Data complies with the terms of this Agreement.
5. MOBILE SOFTWARE
A. Mobile Software.
We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. The Athlete Portal does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. The Athlete Portal hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one The Athlete Portal account on one mobile device owned or leased solely by you, for your personal use. You may not:
(i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law;
(ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party;
(iii) make any copies of the Mobile Software;
(iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or
(v) delete the copyright and other proprietary rights notices on the Mobile Software.
You acknowledge that The Athlete Portal may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and The Athlete Portal or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. The Athlete Portal reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the The Athlete Portal Service.
B. Mobile Software from iTunes.
The following applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and The Athlete Portal, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to The Athlete Portal as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to
(i) product liability claims;
(ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and
(iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to The Athlete Portal as provider of the software.
You acknowledge that, in the event of any third-party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, The Athlete Portal not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and The Athlete Portal acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third-party beneficiary thereof.
C. Mobile Software from Google.
The following applies to any Mobile Software you acquire from the Google Play Store ("Google-Sourced Software"):
(i) you acknowledge that the Agreement is between you and The Athlete Portal only, and not with Google, Inc. ("Google");
(ii) your use of Google-Sourced Software must comply with Google's then-current Google Play Store Terms of Service;
(iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software;
(iv) The Athlete Portal, and not Google, is solely responsible for its Google-Sourced Software;
(v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and
(vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to The Athlete Portal Google-Sourced Software.
6. OUR PROPRIETARY RIGHTS
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “The Athlete Portal Content”), and all Intellectual Property Rights related thereto, are the exclusive property of The Athlete Portal and its licensors (including other Users who provide User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any The Athlete Portal Content. Use of the The Athlete Portal Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas' '). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place The Athlete Portal under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, The Athlete Portal does not waive any rights to use similar or related ideas previously known to The Athlete Portal, or developed by its employees, or obtained from sources other than you.
7. THE ATHLETE PORTAL PROPERTY
Notwithstanding any value attributed to such data by you or any third party, you understand and agree that any data, account history, and account content residing on company servers, may be deleted, altered, moved or transferred at any time for any reason in the company’s sole discretion, with or without notice and with no liability of any kind. The Company does not provide or guarantee, and expressly disclaims any value, cash or otherwise, attributed to any data residing on company’s servers.
8. PAID SERVICES
A. Billing Policies.
Certain aspects of the Service may be provided for a fee or other charge. If you elect to use paid aspects of the Service, you agree to the pricing and payment terms, which can be found at www.toppathletes.com/subscription as we may update them from time to time. The Athlete Portal may add new services for additional fees and charges, add or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement.
B. Cancellation; No Refunds.
It is your sole responsibility to terminate your The Athlete Portal account or any paid subscription. You may cancel your The Athlete Portal account at any time; however, there are no refunds for cancellation. In the event that The Athlete Portal suspends or terminates your account or this Agreement, you understand and agree that you shall receive no refund or exchange for any The Athlete Portal Property, any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your account, or for anything else.
C. Payment Information; Taxes.
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You must provide current, complete and accurate information for your billing account and promptly update all information to keep such information current, and you must promptly notify The Athlete Portal if your payment method is canceled (e.g., for loss, theft, or expiration) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your username or password. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
9. NO PROFESSIONAL ADVICE
If the Service provides professional information (for example, legal, medical or compliance advice), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
10. TEXT MESSAGING
A. Consent to Send Text Messages
The Athlete Portal may help college coaches communicate with athletes by text message. You may only send text messages to existing athletes on your team roster. You are not permitted to send text messages to any user with whom you do not have a relationship and from whom you have not received explicit consent to send such messages. If you send a text message through the Service, you represent and warrant to us that each person you message has consented to receive text messages from you. You further warrant and agree that you will promptly honor any opt-out requests you receive.
B. Consent to Receive Messages.
From time to time, a coach or other user may wish to send you a text message. By signing up for The Athlete Portal and providing your mobile number, you agree to receive text messages from members of the service.
You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
The Athlete Portal cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
13. DMCA NOTICE
Since we respect artist and content owner rights, it is The Athlete Portal policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify The Athlete Portal copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit The Athlete Portal to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice – The Athlete Portal, LLC
Address: The Athlete Portal, PO Box #866, Blaine, WA, 98231
Under federal law, if you knowingly misrepresent that online material is infringing you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs and attorney fees.
Please note that this procedure is exclusively for notifying The Athlete Portal and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with The Athlete Portal rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, The Athlete Portal has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. The Athlete Portal may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
14. THIRD PARTY LINKS AND INFORMATION
You agree to defend, indemnify and hold harmless The Athlete Portal and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
(i) your use of and access to the Service, including any data or content transmitted or received by you;
(ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above;
(iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights;
(iv) your violation of any applicable law, rule or regulation;
(v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information;
(vi) your willful misconduct; or
(vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
16. NO WARRANTY
The service is provided on an “as is” and “as available” basis. Use of the service is at your own risk. To the maximum extent permitted by applicable law, the service is provided without warranties of any kind, whether express or implied, including but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information whether oral or written, obtained by you from the company or through the service will create any warranty not expressly stated herein. Without limiting the foregoing company its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct, that the service will meet your requirements, that the
You agree that The Athlete Portal shall not be liable for any damages arising from any such interruption, suspension or termination of the service and that you shall put in place contingency plans to account for such periodic interruptions or suspensions of the service. Company does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the company service or any hyperlinked website or service, and the company will not be a party to or in any way monitor any transaction between you and third party providers of products and services.
Federal law in some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties so the above exclusions may not apply to you. This agreement gives you specific legal rights and you may also have other rights which vary from state to state and country to country. The disclaimers and exclusions under this agreement will not apply to the extent prohibited by applicable law.
17. LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, in no event shall Company, its affiliates, agents, directors, employees, suppliers, or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation, damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of or inability to use, this service. Under no circumstances will the Company be responsible for any damage, loss, or injury resulting from hacking, tampering, or the unauthorized access or use of the service or your account or the information contained therein.
To the maximum extent permitted by applicable law, company assumes no liability, or responsibility for
(I) any errors, mistakes, or inaccuracies of content;
(II) personal injury or property damage of any nature whatsoever resulting from your access to or use of our service,
(III) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein
(IV) Any interruption or cessation of transmission to or from the service;
(V) any bugs, viruses, Trojan horses, or the like that may be transmitted to or through our service by any third party;
(VI) Any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the service; and/or
(VII) user content or the defamatory, offensive, or illegal conduct of any third party. In no event shall the company, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to the company hereunder or $100.00 whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if the company has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusions may not apply to you. This agreement gives you specific legal rights and you may also have other rights which vary from state to state and province to province and country to country. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by applicable law.
The Service is controlled and operated from facilities in the United States. The Athlete Portal makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
18. GOVERNING LAW, ARBITRATION + CLASS ACTION/JURY TRIAL WAIVER
A. Governing Law.
You agree that:
(i) the Service shall be deemed solely based in Washington State; and
(ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Washington.
This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidenced a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Olympia, Washington for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Olympia Washington is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from The Athlete Portal. For any dispute with The Athlete Portal you agree to first contact us at email@example.com firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that The Athlete Portal has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Olympia Washington, unless you and The Athlete Portal agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes:
(i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS;
(ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and
(iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing The Athlete Portal from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
C. Class Action/Jury Trial Waiver.
With respect to all persons and entities, regardless of whether they have obtained or used the service for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. you agree that, by entering into this agreement, you and company are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by The Athlete Portal without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
B. Notification Procedures and Changes to the Agreement.
C. Entire Agreement/Severability.
This Agreement, together with any amendments and any additional agreements you may enter into with The Athlete Portal in connection with the Service, shall constitute the entire agreement between you and The Athlete Portal concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
D. No Waiver.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and The Athlete Portal failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at email@example.com, with any questions regarding this Agreement.
This Agreement was last modified on May 20, 2021