TERMS OF SERVICE
LAST UPDATED 2018-06-25 (KO)
The ReadyList, Inc. (“ReadyList”, “we”, “our”, or “us”) provides the website located at http://readylistsports.com/ including all of its webpages and subpages (collectively, the “Site”) and may provide software that may be downloaded to your smartphone or tablet to access services (each a “Mobile Applications”). The Site, the Mobile Applications, and the online and offline services which ReadyList provides to you in connection with the Site and Mobile Applications, are referred to as the “Services” as further defined below.
These Terms of Service (“Terms”) are a legal agreement between Client and ReadyList governing your access to and use of the Services only. Mobile Applications (including all updates thereto) may be governed by an additional End User License Agreement (“EULA”).
BY CLICKING [“I AGREE”] OR BY OTHERWISE USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS YOU MAY NOT ACCESS OR USE THE SERVICES.
You represent and certify that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdictions. To register an Account with ReadyList, you must be 18 years or over. If you are between the age of 13 and 18, you will only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. Any use or access to the Services by individuals under the age of 13 (or equivalent minimum age in the jurisdiction where you reside) is strictly prohibited and is a violation of these Terms. In the event that you are agreeing to these Terms on behalf of a third party entity, you represent and warrant that you have sufficient right to bind such third party to these Terms. The term “you,” as used in these Terms, means any person or entity who accesses or uses the Services and any person or entity who creates an Account and accepts these Terms.
These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability in these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
In the case of inconsistencies between these Terms and information included in any other materials related to the Services (e.g., promotional materials and mailers), these Terms will always govern and take precedence.
These Terms (together with each Order Form, the “Agreement”) are entered into between ReadyList and Client (defined below). The “Effective Date” of this Agreement is the date you accept these terms in connection with the order form process for access to the Services into which these Terms are incorporated by reference (an “Order Form”). The parties agree as follows:
SECTION 1 – DEFINITIONS. As used herein, in addition to the terms defined elsewhere in this Agreement, the following terms shall have the meaning given to them:
“Client” means the individual accepting these Terms, or if such individual is acting as an employee or agent of a business entity or person, then such business entity or person. The individual accepting these Terms represents and warrants that such individual is entering into this Agreement on behalf of Client and that such individual has the authority to bind Client to this Agreement. Client is entering into this Agreement for use of the Service by Client for Client’s own business purposes.
“Confidential Information” means all business or technical information of the disclosing party that is not generally known to the public and that derives value from not being generally known, whether such information is disclosed to the receiving party orally or in writing. Confidential Information may include any Software, Documentation, algorithm, device, compilation of information, method, technique or process. The parties expressly acknowledge that this Agreement, the Software (in both source code and object code versions) and all Documentation provided to Client hereunder constitute Confidential Information of ReadyList.
“Documentation” means the end-user documentation or operating instructions provided in connection with the Software.
“Error” means any reproducible error or defect in the Software that causes the Software to not operate substantially in accordance with the Documentation despite Client’s use of the Software in accordance with this Agreement and the Documentation.
“Play Limitation” means the total number of plays and file size ReadyList grants to Client for all of Client’s uses of the Software under the terms of this Agreement, as specified in the applicable Order Form.
“Software Fee” means the Software subscription fee specified in the applicable Order Form, the initial payment of which is payable by Client to ReadyList upon entering into this Agreement.
“Person” means any individual, corporation, limited liability company, partnership, trust or other legal entity.
“Player” means a user of the Software who plays for the Client’s football team as of the date of such player’s use of the Software.
“Professional Services” means the installation, training and/or consulting services described in the applicable Order Form(s) or a separate written statement of work.
“Software” means the computer programs and data in machine-readable form made available by ReadyList to Client hereunder, as listed on the applicable Order Forms, together with any modifications, corrections, updates or improvements thereto that ReadyList makes available to Client.
“Third Party” means any Person other than ReadyList or Client or their respective employees, agents, officers, directors or contractors.
SECTION 2 – ACCESS GRANT
2.1. Grant of Access. Subject to Client’s continued compliance with this Agreement (including payment of the Software Fees), ReadyList grants to Client the non-exclusive, non-sublicensable right to access and use the Software and Documentation solely: (a) during the Term; (b) for Client’s own internal business operations, and not for processing the data of any Third Party, redistribution, remarketing or any other use; (c) by the quota of users (whether administrators, players or otherwise) specified in the Order Form; (d) subject to the Play Limitation specified and agreed to between ReadyList and Client in the Order Form; and (e) subject to any additional user restrictions set forth in an Order Form. Users may be administrators, players or other members of Client’s organization, but Client shall at all times remain principally responsible to ReadyList for the acts and omissions (including compliance with this Agreement) by its users and for any activity under its account.
2.2. Additional Restrictions. Except only as expressly permitted in Section 2.1, Client will not, and will not permit any user or Third Party, to (a) modify, customize, adapt, alter, translate or create derivative works of the Software or Documentation; (b) merge the Software with other software other than through interfaces pre-authorized in writing by ReadyList; (c) sublicense, distribute, sell, use for service bureau use or as an application service provider, lease, rent, loan or otherwise transfer the Software or the Documentation to any Third Party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; (e) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the Software; or (f) otherwise use or copy the Software in any manner not set forth herein or otherwise pre-authorized by ReadyList in writing. Client will promptly notify ReadyList once it learns of any unauthorized use or disclosure of the Software.
2.3. Client Responsibility. Client is solely responsible for (a) obtaining any software or products required for use of the Software, including any operating system software, database software, or third-party applications software; (b) the integrity, accuracy and legality of all of its data and content; (c) providing timely and reliable assistance, resources and decision-making in connection with any Professional Services; and (d) conversion of any of Client’s existing data files for use with the Software.
2.4. Ownership of Software and Documentation. Except as otherwise expressly set forth in this Agreement, ReadyList retains all right, title and interest in and to all Software and Documentation, in all forms, and all copies and modifications of the thereof, including all worldwide rights to patents, copyrights, trademarks and trade secrets in or relating to the same. Client is not acquiring any right, title or interest of any nature whatsoever in any Software or Documentation except the access rights affirmatively stated herein.
2.5. Ownership of Plays and Player Information. It is expected that Client will use the Software to upload into the Software Client’s athletic and football plays and information related to Players who are members of Client’s organization. Except as otherwise expressly set forth in this Agreement, Client retains all right, title and interest in and to all of Client’s data, including Player information, playbooks, analysis and team strategies. Client agrees to indemnify, defend and hold harmless ReadyList from and against all third-party claims, demands and actions, and all damages, losses, costs and expenses (including reasonable attorneys’ fees) arising therefrom or related thereto, which relate to the ownership, accuracy, appropriateness or integrity of any such Client data.
2.6. Payment of Software Fee. Except as otherwise provided in the Order Form, payment of the Software Fee from Client to ReadyList is due upon the Effective Date. All past due payments of the Software Fee will accrue interest at a rate of one-and-a-half percent (1.5%) per month on the unpaid balance from the due date until the Software Fee is paid in full. Except as otherwise specified in this Agreement, all obligations with respect to the amounts due to either party shall survive any expiration or termination of this Agreement. All payments by Client to ReadyList under this Agreement for any fees due hereunder shall be exclusive of any sales, use, service, value added or withholding taxes, or any levy, tariff, duty or tax of any kind whatsoever imposed by any governmental authority with respect to the services rendered or expenses incurred by ReadyList hereunder (other than a tax imposed on ReadyList’s net income). Client agrees to pay within 30 days of receipt of the applicable ReadyList invoices any such tax whenever such tax is imposed by a governmental authority. ReadyList reserves all remedies available at law or otherwise to collect any unpaid Software Fee, including but not limited to, forwarding all payments past due by 30 days to the appropriate collections agency.
SECTION 3 – SERVICE LEVELS – ReadyList agrees to provide customer and technical support of Client’s use of the Software in accordance with the service levels set forth made available on the Site and incorporated herein.
SECTION 4 — LIMITED WARRANTIES AND REMEDIES; LIABILITY LIMITS
4.1 Software Warranty. ReadyList warrants that the Software, when used in accordance with this Agreement and the Documentation, will operate free of material Errors. ReadyList does not warrant that the Software will meet the specific requirements of Client or perform uninterrupted or error-free, or that ReadyList will be able to correct all Errors. The warranties set forth in this Section 4.1 do not cover any Errors to the extent resulting from Software modification or combination with other software or hardware by anyone other than ReadyList.
4.2 Remedies. ReadyList will, as its sole obligation and Client’s exclusive remedy for any breach of the foregoing warranties: (a) in the case of Section 4.1, provided ReadyList receives a written warranty claim within 10 days of when the breach first occurred, either (i) correct the identified Error(s) at no extra cost, or, if ReadyList is unable to do so within 30 days’ receipt of the claim, (ii) refund to Client all unused, prepaid Software Fees, in which case this Agreement and Client’s right to access and use the Software will automatically terminate; and (b) in the case of Section 4.2, provided ReadyList receives a written warranty claim within 30 days of the warranty breach’s first occurrence, use commercially reasonable efforts to promptly correct or re-perform the defective services at no extra cost.
4.3 Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ARTICLE 4, THE SOFTWARE, DOCUMENTATION AND PROFESSIONAL SERVICES ARE PROVIDED “AS-IS”, AND READYLIST DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY. CUSTOMER UNDERSTANDS AND AGREES THAT, UNLESS OTHERWISE SET FORTH IN THE DOCUMENTATION OR A STATEMENT OF WORK, READYLIST SHALL NOT BE RESPONSIBLE IN ANY MANNER FOR THIRD-PARTY HARDWARE, SOFTWARE, SERVICES OR OTHER ITEMS USED OR OFFERED IN CONNECTION WITH THIS AGREEMENT.
4.4. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL: (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING ANY LOSS OF DATA, PROFITS, REVENUE OR DATA USE) ARISING FROM OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) READYLIST’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO READYLIST UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY UNDER THIS SECTION 4.5 SHALL NOT APPLY TO (I) CUSTOMER’S BREACH OF ANY USER RESTRICTIONS SET FORTH IN ARTICLE 2, (II) READYLIST’S INTELLECTUAL PROPERTY INDEMNITY OBLIGATIONS BELOW, OR (III) A PARTY’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS BELOW.
SECTION 5 – CONFIDENTIALITY
5.1. Limitations on Disclosure and Use. Each party, as the recipient of Confidential Information from the other party, agrees that it will not disclose, provide or otherwise make available any Confidential Information of the disclosing party, without the disclosing party’s prior written consent. In addition, each recipient party agrees that it will not: (a) use the disclosing party’s Confidential Information for any purpose beyond the scope of this Agreement; (b) copy any part of such Confidential Information or disclose any part of such Confidential Information to any Person other than the recipient’s employees who need the information to perform their duties; (c) authorize or permit any such employee to use or disclose any part of such Confidential Information in violation of this Agreement; (d) reverse engineer, de-compile or disassemble any of such Confidential Information nor use any of such Confidential Information for the purpose of reverse engineering, de-compiling or disassembling the Software; or (e) produce any product nor offer any service of any nature whatsoever based in whole or in part on such Confidential Information, nor cause or assist any other Person to do so.
5.2. Exclusions. The recipient party’s obligations under this Agreement will not apply to any portion of the disclosing party’s Confidential Information that: (a) at the time of disclosure to recipient, was in the public domain or subsequently becomes a part of the public domain through no breach of this Agreement; (b) recipient party had in its possession at the time of disclosure by the disclosing party, as established by written documentation in existence at that time, and that was not acquired directly or indirectly from the disclosing party or with knowledge of confidentiality restrictions; or (c) recipient party subsequently acquires by lawful means from a Third Party who is under no obligation of confidentiality or non-use owed to disclosing party.
5.3. Disclosure Pursuant to Legal Process. If the recipient party is legally compelled to disclose any portion of the disclosing party’s Confidential Information in connection with a lawsuit or similar proceeding or to any governmental agency, the recipient party will give the disclosing party prompt notice of that fact in writing, including in its notice the legal basis for the required disclosure and the nature of the Confidential Information that must be disclosed. The recipient party will cooperate fully with the disclosing party in obtaining a protective order or other appropriate protection relating to the disclosure and subsequent use of such Confidential Information. The recipient party will disclose only that portion of the disclosing party’s Confidential Information that is legally required to be disclosed.
5.4. Enforcement. The recipient party acknowledges that the disclosing party would have no adequate remedy at law should the recipient party breach its obligations under this Section 5 and agrees that the disclosing party will be entitled to enforce its rights under this Section 5 by obtaining appropriate equitable relief including, but not limited to, a temporary restraining order and an injunction. Enforcement of this Section 5 shall not waive any other remedies available to the party by law or otherwise.
5.5. Return of Confidential Information. Upon request by the disclosing party, the recipient party will return any portion of the disclosing party’s Confidential Information that the recipient party no longer has the right to use, including all copies of that Confidential Information, or, if so directed by the disclosing party in writing, the recipient will destroy all copies of that Confidential Information and will certify to the disclosing party in writing that all copies have been destroyed.
SECTION 6 – TERM & TERMINATION
6.1. Term. This Agreement takes effect on the Effective Date and, subject to each party’s termination rights under this Agreement, will remain in effect for the initial license term stated in the Order Form (the “Initial Term”). Upon expiration of the Initial Term, the Agreement shall automatically renew for successive one-year periods (each, a “Renewal Term”) unless either party delivers to the other party a written notice of non-renewal at least 30 days prior to expiration of the then-current term. The Initial Term and each Renewal Term are collectively referred to herein as the “Term”.
6.2. Termination. Either party may terminate this Agreement (or an individual Order Form) by written notice to the other party if the other party (a) materially breaches any of its obligation of this Agreement and, if curable, does not cure such breach within 30 days after receiving written notice thereof; or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not favorably dismissed without prejudice within 90 days. Client shall not be entitled to a refund of fees paid, or a release of fees owed, in connection with any subscription terminated by Client other than for ReadyList’s breach as set forth in this clause.
6.4. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) any amounts owed to ReadyList under this Agreement before such termination will become due and payable; (b) all licenses granted in this Agreement will immediately and automatically expire; (c) Client must promptly discontinue all access and use of the Software; and (d) each party will promptly return to the other party (or destroy, if requested) all Confidential Information of the other party in its possession.
6.5. Survival. The provisions of this Agreement and Order Form(s) hereto that by their terms are meant to survive termination or expiration hereof, will survive and continue in full force and effect not withstanding such a termination or expiration.
SECTION 7 — MISCELLANEOUS PROVISIONS
7.2. Assignment. Client may not assign or transfer its rights or obligations under this Agreement and any attached Order Form(s) hereto without the prior express written consent of ReadyList.
7.3. Governing Law & Venue. This Agreement is governed by the laws of the State of Colorado, without reference to Colorado’s choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction of the federal or state courts within the State of Colorado for the resolution of any question, claim or controversy arising out of or related to this Agreement.
7.4. Notices. All notices, waivers, communications and deliveries under this Agreement must be made in writing signed by the party making the same, must specify the section under this Agreement pursuant to which it is given or being made (if applicable), and shall be deemed to have been given on the date received if delivered by hand, or sent by registered or certified mail, postage prepaid, addressed as indicated in the Order Form, or to any other addresses of which either party shall notify the other party in writing
7.5. Severability; No Waiver. If any provision of this Agreement and attached Order Form(s) hereto is held to be invalid or unenforceable, the remaining provisions of this Agreement and attached Order Form(s) hereto will remain in full force and effect. No delay or failure by a party in exercising any right under this Agreement will be construed to be a waiver of that right, nor of the right to assert a claim with respect to any future breach of this Agreement. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
7.6. Force Majeure. Neither party will be held responsible for any delay or failure in performance, other than payment obligations specified in the Agreement and attached Order Form(s) hereto, to the extent that such delay or failure is caused by fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, act of God, acts or omissions of carriers or other similar causes beyond its control.
7.7. Entire Agreement. This Agreement, including all Order Forms and exhibits, constitutes the complete understanding and entire agreement between the parties with respect to the terms and conditions set forth herein and supersedes all previous written or oral agreements and representations. This Agreement may be modified only in a writing, which expressly references this Agreement and is executed by both of the parties. This Agreement may be executed in several counterparts, all of which taken together will constitute one single Agreement between the parties.
7.7. Compliance with Laws. Each party will comply with all federal, state and local laws, statutes, rules and regulations applicable to the performance of their rights and obligations under this Agreement.
7.9. Relationship of the Parties. For all purposes, ReadyList and Client will be deemed to be independent contractors and nothing contained herein will be deemed to constitute a joint venture, partnership, employer-employee relationship or other agency relationship. No party is, nor will either party hold itself out to be, vested with any power or right to contractually bind or act on behalf of the other party.
7.10. Data Rights. Client grants to ReadyList and its subject matter agent(s), during the term of the Agreement, a nonexclusive, sublicensable right to use Client’s data and information uploaded into the Software to provide services related to the Software. In addition, Client grants to ReadyList and ReadyList’s subject matter agent(s), a nonexclusive, sublicensable right to use, combine and transfer Client’s data and information uploaded into the Software for ReadyList’s and ReadyList’s subject matter agent(s)’s research, analysis and marketing purposes, so long as Client’s data and information uploaded into the Software is de-identified (“De-Identified Data”). Client hereby grants to ReadyList and ReadyList’s subject matter agent(s) a perpetual, worldwide, royalty-free, transferable and sublicensable license to use, copy, modify, perform, display, make derivative works of and commercially exploit the De-Identified Data. ReadyList and/or its subject matter agent(s) own all aggregated and statistical data derived from the operation of the Software (the “Aggregated Data”). All reports, documentation, and other materials provided by ReadyList and/or ReadyList’s subject matter agent(s) based on or incorporating De-Identified Data or Aggregated Data shall be solely owned by ReadyList and/or ReadyList’s subject matter agent(s).
7.11. Amendment of Terms. ReadyList reserves the right to make changes to its site, policies and these Terms of Service on a prospective basis from time to time without notice, provided that we will not increase pricing or materially downgrade the features or functionalities of the Software under this clause during the term of Client’s then-current subscription period. Client’s continued use of the Software any time after 10 days from the change constitutes acceptance of and the intent to be bound by the change unless Client has objected in writing (in which case the parties will work in good faith to reach a mutually agreeable solution).
7.12. Interpretation of Agreement. The following rules of interpretation must be applied in interpreting this Agreement: (a) the section and subsection headings used in this Agreement are for reference and convenience only, and will not enter into the interpretation of this Agreement, (b) the provisions of the Order Form(s) attached hereto are incorporated in this Agreement, and (c) as used in this Agreement, the term “including” will always be deemed to mean “including without limitation.”