Privacy, Terms of Service, End User License, and Subscription Agreement
AthleteTypes, LLC is a Delaware LLC. We provide athletic mindset assessment, associated guidance, and development tools to our clients and users. We are committed to protecting the safety and security of our online visitors and are sensitive to our user’s concerns about the safety of personal information provided to us. We encourage all our users to read this Privacy Statement carefully in order to understand how any personal information collected about you is used.
AthleteTypes does not share, sell, rent or trade, your personal information to any third parties for their promotional purposes. We personally value our privacy, and believe it would be hypocritical to not respect yours.
Table of Contents
- Tracking User Behavior On Our Sites
- Free Accounts
- Collection of User Information
- Children Under 13
- Subscriber Accounts
- What We Will Do With Your Personal Information
- What We Will Not Do With Your Personal Information
- Privacy and Rights of Personality
- How can users access, change or delete personally identifiable information about themselves?
- Third Party Links
- Contacting AthleteTypes
- Provisions and General Information
Tracking User Behavior On Our Sites
AthleteTypes (“Company”) creates and retains logs of all activity (both private and public) on our sites, as well as private test patterns and other activity of users (including any chat content, public messages, etc.) within the site (hereinafter ‘User Content’). By using our services, you acknowledge and grant permission to AthleteTypes and any of its affiliated companies to review, monitor, disclose, censor, delete or otherwise remove User Content for the purpose of preventing breaches of this Agreement and of other Company prohibitions on unlawful or abusive activity. Accordingly, you acknowledge that you have no privacy rights whatsoever in User Content or any other content that you create within Company sites.
AthleteTypes has some of its content available to users for free. All users must be 13 years of age or older to register an account with AthleteTypes, including accounts registered for free content.
Collection of User Information
AthleteTypes collects the user’s e-mail address for the following purposes:
- To send a confirmation notice to the user of their registration and password information.
- Upon the user’s request, to send the user password information when the user has lost or forgotten the password.
- In response to any question, concerns or problem about which the user contacted AthleteTypes.
- To contact the user about any problem with the user’s account.
- To send out a newsletter.
By registering for AthleteTypes, you consent to: a) receive periodic email communications from AthleteTypes concerning your account; b) receive the above-described email newsletter and c) potentially have your assessment and demographic data aggregated and processed, anonymously, with other user data.
All users of AthleteTypes consent to potentially have their data aggregated and processed, anonymously, with other user data. That is a pre-condition for use of our products, and the only way to opt out is to not use our services.
You may opt-out of receiving email messages or other communications by following the instructions included in any newsletter, email message or other promotional communications. We also offer an opportunity to opt-out of certain communications on our Manage Account web pages, or you may contact us via email or our physical address listed below to opt-out.
Children Under 13
AthleteTypes complies with the Children’s Online Privacy Protection Act (COPPA) of 1998. If you are under the age of 13, you are welcome to look at our Site, but you cannot make a purchase. You also cannot become a registered user, or use any service on our Site that asks for personal information. Our Site is not designed for children. We do not wish to collect personal information from children under the age of 13 and we do not knowingly collect personal information from children under the age of 13. This policy is designed to protect children and we take special steps to safeguard children’s privacy. If a child under 13 registers an account with us and we discover it, we will delete that account. We will send a message to the account notifying you of this. For more information about COPPA, please click here. COPPA provides provisions for parental consent to create user accounts for children under the age of 13, and we will consider creating Subscriber Accounts of that nature, with proper consent, on an individual basis. For more information, email us at firstname.lastname@example.org.
A Subscriber Account is a paid membership account that provides our users with additional access and privileges. The Subscriber Account requires and uses all of the information listed under the Free Account in the same manner. In addition to the above, however, we will require you to provide the following information:
1) First and last name
2) Address, city, state and zip code
3) Telephone number
We are copied with this information by our credit card processor (see Security and Credit Card Use below) and require this information for the sole purpose of verifying your account and payment information.
Your Account information is protected by a password for your privacy and security. Protect against unauthorized access to your password and to your computer by logging off once you have finished using a shared computer.
What We Will Do With Your Personal Information
We use third-party service providers (“Service Providers”), such as a credit card processing company to bill you for goods and services. When you sign up with the website as a paid subscriber, we will provide your personal information (e.g. name, address, phone number and email address) to Service Providers as necessary for such Service Providers to provide their respective services. Please note that Service Providers (e.g., PayPal) may have separate privacy policies that govern their collection, use and storage of information that you provide to them directly.
In general, we may use the information that we collect about you to:
- deliver the products and services that you have requested.
- manage your account and provide you with customer support.
- perform research and analysis about your use of, or interest in, our products, services, or content, or products, services or content offered by others.
- communicate with you by email, postal mail, telephone and/or mobile devices about products or services that may be of interest to you either from us, Company affiliates or other third parties.
- develop and display content and advertising tailored to your interests on our site and other sites.
- verify your eligibility and deliver prizes in connection with contests and sweepstakes.
- enforce or exercise any rights in our terms and conditions.
- manage our business including the transfer of assets (including your Personal Information) in the event of a merger, acquisition or sale of assets.
- provide our advertisements to you when you visit other sites.
- perform functions as otherwise described to you at the time of collection.
What We Will Not Do With Your Personal Information
AthleteTypes does not share, sell, rent or trade your personally-identifiable information (PII) with any third parties for their promotional purposes. We reserve the right to disclose your personally-identifiable information as required by law and when we believe that disclosure is necessary to protect our rights and/or to comply with a judicial proceeding, subpoena, court order, or legal process served on our Web Sites.
Privacy and Rights of Personality
The Right Profile or its affiliates may, in the course of administering this assessment or generally conducting their activities, collect, use or disclose the information that it collects. Any personal information collected, used or disclosed by AthleteTypes or its affiliates will be treated in accordance with Company policy and applicable privacy and personal information laws. The information that we collect is two-fold, and includes both di-individualized (anonymous) and personally-identifiable information (PII).
For all industries that we serve other than sports, your PII will be held in strict confidence and we will only share the collected PII with the entities sponsoring the user’s access to our service (e.g. a university, professional services firm or business), unless the entity sponsoring the user’s access is performing an anonymous research study (in those instances the PII will not be shared with the sponsoring entity), or those organizations or individuals with whom the user explicitly chooses to share the information.
Anonymous data by definition contains no PII and may be used without any additional consent or remuneration for research or any other academic or business purpose by the Company, its affiliates or assignees. By using our services and products, you specifically consent to the collection, use and disclosure of the information described herein.
If you are using our services as part of any professional-level athletic-related purpose including a specific athletic team, program or organization, you also grant to AthleteTypes and its affiliated companies, representatives, agents and assigns, all rights and permission to use your name, biography, likeness or other indicia of identity in conjunction with your general type such as your “Athlete Type” or other general information from your results. Lastly, you specifically release all of the aforementioned parties from any claim or cause of action for invasion of the rights of privacy, right of publicity, right of personality, or any similar rights.
How can users access, change or delete personally identifiable information about themselves?
If your personal identifiable information changes, or if you no longer desire our service, you may correct, update or delete it by making a change within the ‘Account Management’ section of the site, or by contacting us at the email address provided below. We will respond to your request to access within 30 days. Keep in mind that if you delete information in your Account, we may retain your Personal Information in accordance with our data retention policy, and Personal Information may remain within our databases, access logs and other records.
The Site may link to websites operated by third parties that we do not control. We do not monitor, control, or endorse the information collection or privacy practices of any third parties. We encourage you to become familiar with the privacy practices of every website you visit and contact them if you have any questions about their respective privacy policies and practices. This Policy applies solely to information collected by us through the Site or Services and does not apply to these third-party websites. The ability to access information of third parties from the Site or Services, or links to other websites or locations, is for your convenience only and does not signify our endorsement of such third parties, their products, services, websites, locations or their content.
3259 Progress Drive
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Other General Provisions and Information
A cookie is a small text file that is stored on a user’s computer for record-keeping purposes. Each cookie can only be accessed by the website that created the cookie. We do not link the information we store in cookies to any personally identifiable information you submit while on our site.
We use both temporary session ID cookies and persistent cookies. We use session cookies to make it easier for you to navigate on our site. A session ID cookie expires when you close your browser. A persistent cookie remains on your hard drive for an extended period of time. You can remove persistent cookies by following directions provided in your web browser’s help information.
We set persistent cookies to store your account login and/or password, so you don’t have to enter it more than once. Persistent cookies also enable us to detect new users and track referrals to the site to reward users that refer their friends to the site.
If your browser rejects all cookies, you may still use our site, but your ability to use some areas of our site, including purchases, may be limited.
Information Collected Automatically
We automatically collect information from your browser when you visit our website. This information includes your IP address, your browser type, and language, access times, the content of any undeleted cookies that your browser previously accepted from us and the referring website address.
Third Party Tracking Technologies
Third party partners, affiliates, and advertisers employ a software technology called Web beacons, that help us better manage content on our site by informing us what content is effective. Web beacons are tiny graphics with a unique identifier, similar in function to cookies, and are used to track the online movements of Web users. In contrast to cookies, which are stored on a user’s computer hard drive, Web beacons are embedded invisibly on Web pages and are about the size of the period at the end of this sentence.
What are IP Addresses?
An IP address (Internet Protocol address) is a unique address that certain electronic devices use in order to identify and communicate with each other on a computer network utilizing the Internet Protocol standard (IP)—in simpler terms, a computer address. Any participating network device—including routers, computers, time-servers, printers, Internet fax machines, and some telephones—can have their own unique address.
AthleteTypes may use tools or third party analytical software to collect and use certain non-personal data that does not enable AthleteTypes to identify you. The types of non-personal data AthleteTypes may collect and use include, but are not limited to: (i) mobile device type and device properties; (ii) mobile device software platform and firmware; (iii) mobile phone carrier; (iv) geographical data no more accurate that metropolitan areas; (v) other non-personal data as reasonably required by AthleteTypes to enhance its services.
AthleteTypes may use the collected data for purposes of analyzing usage of subscribers, and to further develop AthleteTypes’s services and products. AthleteTypes reserves the right to use and disclose the collected non-personal data for purposes of advertisement by AthleteTypes or its partners.
Security and Credit Card Use
The security of your personal information is important to AthleteTypes and to our third party vendors. When you enter sensitive information (such as credit card number, Corp ID number or ABN) on our site or an affiliate signup page, registration or order forms, both AthleteTypes and our third party vendors encrypt that information using secure socket layer technology (SSL). We follow generally accepted industry standards to protect the personally identifiable information submitted to us, both during transmission and once we receive it. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, while we strive to use commercially acceptable means to protect your personal information, we cannot guarantee its absolute security and do not warrant that your information, including Personal Information, will be completely secure or not be intercepted while being transmitted over the internet. If you have any questions about the security of our website, you can email us at: email@example.com
AthleteTypes utilizes a credit card processor to process your payments while on our site. We share your name, email address and credit card information with these third parties to provide the service requested. The personal information (such as name and email address, but non-inclusive of your financial information) collected by these third parties is shared back with AthleteTypes for the purpose of fulfilling your subscription request.
Terms of Service
Thanks for using our products and services (“Services”). The Services are provided by AthleteTypes, LLC, a Delaware LLC. (“AthleteTypes”). We provide athletetypes.com, athletetypes.co.za, mentalgym.me, and tapscouting.com (the “Site(s)”), each subject to the terms and conditions set forth below.
Please read this document carefully before accessing the Site(s) or using the Services. By accessing the Site(s) or using the Services, you agree to be bound by the terms and conditions set forth below. If you do not wish to be bound by these terms and conditions, you may not access the Site(s) or use the Service. We reserve the right, in our sole discretion, to modify or replace any terms of this agreement at any time, and such modifications shall be effective immediately upon posting of the modified agreement on the Site(s). You agree to review the agreement periodically to be aware of such modifications, and your continued access of the Site(s) or use of the Services shall be deemed your conclusive acceptance of the modified agreement.
Table of Contents
- Using Our Services
- Your Account
- Privacy and Copyright Protection
- Your Content in our Services
- About Software in our Services
- Modifying and Terminating our Services
- Our Warranties and Disclaimers
- Liability for our Services
- About these Terms
Using Our Services
You must follow any policies made available to you within the Services.
Don’t misuse our Services. You may use the Site(s) and our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.
- You shall not use the Site(s) to solicit, enable or perform illegal acts.
- You shall not use the Site(s) to display any content that violates the intellectual property rights of any user or third party.
- You shall not use the Site(s) to disseminate unsolicited commercial advertisements of a nature typically characterized as spam, including but not limited to hyperlinks provided by commercial advertisement agencies.
- You shall not use any robot or spider to collect information about users for any unauthorized purpose.
- You shall not use the Site(s) to infringe on the privacy of others by posting confidential information or other personally identifiable information without their express authorization.
- You shall not use the Site(s) to display content that does or is intended to harass, defame, threaten, or otherwise abuse others. You shall not use the Site(s) to display content that is pornographic in nature.
- You shall not use the Site(s) to conduct commercial activities and/or sales (such as contests, sweepstakes, barter, advertising or pyramid schemes) without our prior written consent.
- You shall not take any action that may impose (as we determine in our sole discretion) an unreasonable or disproportionately large load on the infrastructure of the Site(s), interfere or attempt to interfere with the proper working of the Services or bypass any measures intended to prevent or restrict access to the Services.
- You shall not decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service except to the limited extent applicable laws specifically prohibit such restriction.
The entire contents of the Site(s) are protected by copyright and trademark laws of multiple jurisdictions. The owner of the copyrights and trademarks are AthleteTypes, our affiliates or other third party licensors. Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These terms do not grant you the right to use any branding or logos used in our Services. You may print and download portions of material from the Site(s) solely for your own personal and non-commercial use provided that you agree not to remove, change, obscure or delete any copyright, proprietary or legal notices contained within the materials.
Our Services display some content that is not AthleteTypes’s. This content is the sole responsibility of the entity that makes it available. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content, so please don’t assume that we do.
In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications.
You may need an Account in order to use some of our Services. You may create your own Account, or your Account may be assigned to you by an administrator, such as your employer or educational institution. If you are using an Account assigned to you by an administrator, different or additional terms may apply and your administrator may be able to access or disable your Account. You shall provide accurate and truthful registration information and update registration information to keep it current. Failure to do so shall constitute a violation of the Terms of Service which may result in immediate termination of your AthleteTypes Account. We reserve the right, in our sole discretion, to refuse registration of or cancel an Account. You are solely responsible for activity that occurs on your Account and for maintaining the confidentiality of your registration information. You are prohibited from using another user’s account without express permission from that user. If you are aware of any unauthorized use of your Account or Account-related security breach, you must immediately notify us in writing.
Privacy and Copyright Protection
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act.
We provide information to help copyright holders manage their intellectual property online. If you think somebody is violating your copyrights and want to notify us, go to our contact page.
Your Content in our Services
Some of our Services allow you to submit content. For example, the selections or text you enter into our Services in response to survey questions or online activities. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.
When you upload or otherwise submit content to our Services, you give AthleteTypes (and those we work with) a royalty-free, worldwide, perpetual license to, with a right to sublicense, use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license applies to any content you submit by any means and in any media now known or hereafter developed and continues even if you stop using our Services (for example, for a business listing you have added to AthleteTypes). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.
Some services offered through the Site or Services may be subject to additional terms and conditions established from time to time; your use of such services is subject to those additional terms and conditions which are incorporated into these Terms of Service by reference.
About Software in our Services
When a Service requires or includes downloadable software, this software may update automatically on your device once a new version or feature is available. Some Services may let you adjust your automatic update settings. You understand that we cannot and do not guarantee or warrant that files available for downloading through the Site will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Site for the reconstruction of any lost data.
AthleteTypes gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by AthleteTypes as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by AthleteTypes, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission.
Open source software is important to us. Some software used in our Services may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
Modifying and Terminating our Services
We are constantly changing and improving our Services. We may, without prior notice, add or remove functionalities or features, and we may suspend or stop a Service altogether.
You can stop using our Services at any time, although we’ll be sorry to see you go. AthleteTypes may also stop providing Services to you, or add or create new limits to our Services at any time.
We believe that you own your data and preserving your access to such data is important. If we discontinue a Service, where reasonably possible, we will give you reasonable advance notice and a chance to get information out of that Service.
Our Warranties and Disclaimers
We provide our Services using a commercially reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Services.
OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS, NEITHER AthleteTypes, ITS SUPPLIERS OR DISTRIBUTORS OR ANY OF ITS CUSTOMERS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES PROVIDED FOR THE USE OF ANY INDIVIDUAL USING OUR SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTION OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS” AND “AS AVAILABLE.”.
AthleteTypes DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NONINFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SITE, THE SERVICES, ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH THE SITE OR ON THE INTERNET GENERALLY, AND SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES, MERCHANDISE AND OTHER INFORMATION PROVIDED THROUGH THE SITE OR THE SERVICE OR ON THE INTERNET GENERALLY. AthleteTypes DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.
Liability for our Services
AS PERMITTED BY APPLICABLE LAW, AthleteTypes, AND AthleteTypes’s CUSTOMERS, SUPPLIERS AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE TO ANY INDIVIDUAL OR COMPANY FOR LOST PROFITS, REVENUES, DATA, FINANCIAL LOSSES OR ANY TORT DAMAGES WHETHER INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF AthleteTypes, AND ITS CUSTOMERS, SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIM UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICES AGAIN).
IN ALL CASES, AthleteTypes, AND ITS CUSTOMERS, SUPPLIERS AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
You agree to indemnify, defend and hold harmless AthleteTypes, its officers, managers, employees, agents, licensors, suppliers and any third party information providers to the Site(s) from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (a) your use of the Site(s) or Services; (b) any violation of this Agreement or breach of any representations and warranties herein (including negligent or wrongful conduct) by you or any other person accessing the Site(s) or using the Services; and (c) your violation of any third party right including, without limitation, any intellectual property right, publicity, confidentiality, or privacy right.
About these Terms
If there is a conflict between these terms and the additional terms, the additional terms will control for that conflict.
These terms control the relationship between AthleteTypes and you. They do not create any third party beneficiary rights.
If you do not comply with these terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).
If it turns out that a particular term is not enforceable, this will not affect any other terms.
The laws of Illinois, U.S.A., will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of Illinois, USA, and you and AthleteTypes consent to personal jurisdiction in those courts.
For information about how to contact AthleteTypes, please visit our contact page.
User License and Subscription Agreement
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES AND CONTENT..
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, SCHOOL, PROFESSIONAL SERVICES FIRM OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purposes.
This Agreement is effective between You and Us as of the date of You accept this Agreement by clicking below or executing the relevant order form.
Table of Contents
- Free Versions
- Our Responsibilities
- Use of the Services and Content
- Third Party Product & Service Providers & Non-AthleteTypes Applications
- Fees and Payment for Purchased Services
- Proprietary Rights and Licenses
- Representations, Warranties, Exclusive Remedies and Disclaimers
- Mutual Indemnification
- Limitation of Liability
- Term and Termination
- Who You Are Contracting With, Notices, Governing Law and Jurisdiction
- General Provisions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this End User License and Subscription Agreement.
“Beta Services” means Our services that are not generally available to customers.
“Content” means information and/or applications obtained by Us from Our licensors or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via our Site or login to the applicable Service.
“Enterprise” means an entire company, organization, school, sports team, professional services firm or other legal entity.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under an Order Form and made available online by Us, including associated offline components, as described in the Documentation. “Services” exclude Content and Non-AthleteTypes Applications.
“Sites” means websites owned and operated by AthleteTypes including, but not limited to, athletetypes.com, athletetypes.co.za, mentalgym.me, and tapscouting.com.
AthleteTypes means AthleteTypes, LLC
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees & prospective employees, students & prospective students, team athletes, team coaches, parents of students or athletes, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means AthleteTypes, LLC described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company, organization, professional services firm, school or other legal entity for which you are accepting this Agreement, and Affiliates of that company, organization, school or entity.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Non-AthleteTypes Applications.
2. FREE VERSIONS
Some of our Services may be available free of charge. If You register on our website or otherwise are entitled to receive a free version of our Services, We will make one or more Services available to You free of charge until the earlier of (a) the termination of the applicable Service(s) per Section 12 of this Agreement, or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional terms and conditions may appear on the free version Order Form. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE USE OF OUR SERVICES WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE IN THE FREE VERSION OR EXPORT SUCH DATA, BEFORE TERMINATION.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), FREE VERSION SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. OUR RESPONSIBILITIES
3.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 8:00 p.m. Friday and 5:00 a.m. Monday Central time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-AthleteTypes Application, or denial of service attack.
3.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
3.3 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.4 Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4. USE OF SERVICES AND CONTENT
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form, Services and Content are purchased as subscriptions.
4.2 Users & Usage Options.
4.21 User & Usage Limits. Services and Content may be subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.22 Enterprise Users & Usage. Subscriptions may provide for all Users in an enterprise (company, sports team program, school, professional services firm or other legal entity) to have access to the Service or Content. The Order Form will define the enterprise and only Users from the enterprise will be provided access under the Subscription. If You provide access to non-Enterprise Users, You are obligated to pay an applicable per-User fee for the Services and Content for each non-Enterprise User in accordance with Section 6.2 (Invoicing and Payment).
4.23 Variable Users & Usage. Subscriptions may provide for variable charges accumulating over time based upon the incremental new Users accessing the Services and Content. We will monitor the number of Users and incremental new Users accessing the Services and Content and invoice You according to the Order Form and Section 6.2 (Invoice and Payment).
4.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of Non- AthleteTypes Applications with which You use Services or Content..
4.4 Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
4.5 Removal of Content and Non-AthleteTypes Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-AthleteTypes Application hosted on a Service by You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-AthleteTypes Application or modify the Non-AthleteTypes Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-AthleteTypes Application until the potential violation is resolved.
5. THIRD PARTY PRODUCT & SERVICE PROVIDERS & NON-AthleteTypes APPLICATIONS
5.1. Acquisition of Third Party Products & Services. We or third parties may make available third-party products or services, including, for example consulting services relating to our Services and Content. Any acquisition by You of such third party products or services, and any exchange of data between You and any third party service provider, is solely between You and the applicable third party service provider. We do not warrant or support third party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.
5.2. Non-AthleteTypes Applications and Your Data. You shall not install or enable a Non-AthleteTypes Application for use with Our Service without Our advance written consent. Incident to any such consent, You hereby grant Us permission to allow the provider of that Non-AthleteTypes Application to access Your Data as required for the interoperation of that Non-AthleteTypes Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-AthleteTypes Application.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to You.
6.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. License by Us to use Service. We hereby grant You a royalty-free, nonexclusive, non-transferable, limited right and license to access, use, execute and deploy the Services solely for the purposes set forth in herein and solely for the applicable subscription term subject to the restrictions set forth in these Terms. The Services are owned and operated by AthleteTypes and provided to You pursuant to this license on a monthly (or other defined term) subscription basis; AthleteTypes is not transferring ownership or title to the Services to You. The Services are made available solely for use by You and only according to these Terms. Any reproduction, resale or redistribution of the Services that is not in accordance with these Terms is expressly prohibited. The license granted hereunder may not be transferred by You to any third party without the consent of AthleteTypes, which consent shall not be unreasonably withheld if such transfer is a result of a change of ownership or control of Your business.
7.3. You acknowledge that the Services and their related software are proprietary to AthleteTypes and/or its affiliates and are protected by copyrights, trademarks, service marks, patents and/or other proprietary rights and laws. You may not remove any proprietary notices or labels from any of the Services. You may not alter, modify, redistribute, sell, auction, decompile, reverse engineer, disassemble or otherwise reduce any of the Services to a human-readable form. You may not reproduce, distribute or create any derivative works based on the Services without expressly being authorized in writing to do so by AthleteTypes. Further, You may not rent, lease, grant a security interest in or otherwise transfer any rights to the Services. All rights not expressly granted in these Terms are reserved to AthleteTypes and its affiliates.
7.4. The license granted hereunder entitles You to receive standard updates and support that AthleteTypes provides to all users of its Services, generally. Notwithstanding the previous sentence, AthleteTypes reserves the right to charge all of its users fees for any future versions of, or premium (i.e., charged for) upgrades to, the Services. You understand that AthleteTypes may update or modify any of the Services and their related software at any time, but is under no obligation to inform You of any such updates or modifications. For the avoidance of doubt, unless AthleteTypes chooses to provide such updates or modifications to all of its users, these Terms do not grant You any right, license or interest in or to any premium or “VIP” support, maintenance, improvements, modifications, enhancements or upgrades to the Services or their related software. To the extent that AthleteTypes supplies any updates or upgrades to You, they will be deemed to be subject to these Terms.
7.5. ANY AND ALL CONTENT ON THE WEBSITES, SOFTWARE AND COMPUTER PROGRAMS ASSOCIATED WITH THE SERVICES ARE PROTECTED BY COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS. EXCEPT AS SPECIFICALLY PERMITTED HEREIN, NO PORTION OF THE INFORMATION OR CONTENT ON SUCH WEBSITES, SOFTWARE AND COMPUTER PROGRAMS MAY BE REPRODUCED IN ANY FORM, OR BY ANY MEANS, WITHOUT PRIOR WRITTEN PERMISSION FROM AthleteTypes. YOU AND ANY OTHER VISITOR OR USER ARE NOT PERMITTED TO MODIFY, DISTRIBUTE, PUBLISH, TRANSMIT OR CREATE DERIVATIVE WORKS OF ANY MATERIAL FOUND ON SUCH WEBSITES, SOFTWARE AND COMPUTER PROGRAMS FOR ANY PUBLIC OR COMMERCIAL PURPOSE.
7.6. License by Us to Use Content. We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
7.7. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, limited- term license to host, copy, transmit and display Your Data as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non-AthleteTypes Application or program code.
7.8. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback or testimonials provided by You or Users relating to the operation of the Services.
7.9. License by You to Use Data. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services your Data. Your Data will be made anonymous before it is aggregated into the Services.
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. We warrant that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) subject to Section 5.2 (Non-AthleteTypes Applications and Your Data), We will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 12.3 (Termination) and 12.4 (Refund or Payment upon Termination).
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 9.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Salesforce.com Application or Your breach of this Agreement.
10.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless we have given you written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
12.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make the Your Data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
12.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Who You Are Contracting With, Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration if this Agreement.
13. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
The governing law is: Illinois
The courts having exclusive jurisdiction are: those federal and state courts located in Chicago, Cook County, Illinois
You are contracting with: AthleteTypes, LLC
Notices should be addressed to: 730 West Randolph, 6th Floor, Chicago, IL 60661
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.4. No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other salesforce.com company. Subject to any permitted Assignment under Section 14.2, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14 GENERAL PROVISIONS
14.1. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
14.2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.4. Publicity. During the term of this Agreement, We shall be permitted to identify You as a customer. With prior written consent, We shall be permitted to to use Your name and additional content in news releases, articles, brochures, marketing materials, advertisements and other publicity or promotions, and to hyperlink from our Web site to your home page. No specific consideration or endorsement fee shall be required for this right
14.5. Third-Party Beneficiaries. Our Content licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
14.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.