Catapult Sports - OpenField End User Licence Agreement

OpenField End User Licence Agreement

1. Acceptance

a. Your use of the Software, Portal, Local Copy (if applicable) and Documentation is governed by these Terms. You may only access and use the Software, Portal, Local Copy (if applicable) and Documentation in accordance with these Terms. By using and accessing the Software, Portal, Local Copy (if applicable) or Documentation you agree to be bound by these Terms. If you do not agree to these Terms, you must not access or use the Software, Portal, Local Copy (if applicable) or Documentation.

b. In these Terms “you” means you as an individual, and if you are using or accessing the Software, Portal, Local Copy (if applicable) or Documentation for or on behalf of another person, that person. “Your” has a corresponding meaning. If you are using or accessing the Software, Portal, Local Copy (if applicable) or Documentation for or on behalf of another person, you warrant that you are duly authorised to accept these Terms on behalf of that person and that that person will be bound by these Terms.

c. To the extent that there is any conflict or inconsistency between these Terms and the terms of the Subscription Agreement in relation to your access and use of Software, Portal, Local Copy (if applicable) and Documentation, the terms of the Subscription Agreement prevail to the extent of that conflict or inconsistency. Where these Terms impose obligations on Catapult or its Affiliates which are more onerous that their obligations under the Subscription Agreement, only their obligations under the Subscription Agreement shall apply. Subject to the rest of this clause 1.c, these Terms supplement the Subscription Agreement which is incorporated into these Terms where applicable.

d. Catapult reserves the right to amend these Terms at any time without notice to you. The most current version of these Terms can be found at the login page of the web portal and it is your responsibility to regularly check this webpage for amendments to the Terms. Any amendments to these Terms are effective immediately from the time of posting on the Portal. Your use of the Software, Portal, Local Copy (if applicable) or Documentation any time after these Terms are amended and posted on the Portal indicates your acceptance of and agreement to be bound by the updated Terms.

2. Rights to use and licence

a. The Software, Portal, Local Copy (if applicable) and Documentation may only be accessed and used by persons that are lawful owners or lessees of Equipment and have a current right under their Subscription Agreement to access and use the Software, Portal and Local Copy (if applicable), and by authorised persons of those persons to the extent permitted in the Subscription Agreement. You warrant that at all times while the Software, Portal and Local Copy (if applicable) is used, you and your authorised persons are entitled to do so in accordance with the foregoing.

b. Subject to your compliance with these Terms, Catapult grants you a non-exclusive, non-sublicensable, non-transferable and revocable licence for the Term to use the Software, Portal and Local Copy (if applicable) in accordance with these Terms and the Subscription Agreement.

3. Software access

a. Access

The Software may only be accessed and used through the Portal and, if applicable, the Local Copy, in accordance with these Terms and the Subscription Agreement.

b. Account registration

I. To access and use the Software you must register for a User account (Account) and choose a username and password and any other credentials specified in the registration process (Credentials). You warrant that the information that you provide to Catapult during the Account registration process is accurate, complete and current at the time that it is provided.

II. You must keep the Credentials secret, and you must not allow anyone else (other than the current User) to use the Credentials. You must immediately notify Catapult if you become aware of any disclosure of your Credentials, any unauthorised use or access of your Account or any other security breaches in relation to the Portal, Local Copy (if applicable), Software or Documentation.

c. Local Copy

If Catapult provides you with a Local Copy, the Subscription Agreement applies in relation to installation, use and the making of copies of, and all other matters in relation to, the same.

d. User

I. The Software, Portal, Local Copy (if applicable) and Documentation may only be accessed and used by the current User.

II. If the current User nominated by you is no longer the appropriate person to be the User, you may cancel that User’s Account and appoint a new User.

4. Your obligations

You are responsible and liable for the consequences of use and access of the Software, Portal, Local Copy (if applicable) and Documentation by your Users and any other persons for whom you are vicariously liable. You must ensure that at all times:

a. the Software, Portal, Local Copy (if applicable) and Documentation is only accessed and used in accordance with the Documentation, these Terms and the Subscription Agreement, and only by current Users; and

b. all equipment, software, networks and systems (and similar) used to access and use the Software, Portal, Local Copy (if applicable) or Documentation meet Catapult’s minimum system requirements (as set out in the Documentation or as otherwise advised to you by Catapult from time to time) and are configured, maintained, and operated so as to enable you to access and operate the Software, Portal, Local Copy (if applicable) or Documentation only as permitted under these Terms and the Subscription Agreement.

5. Catapult’s obligations

a. Availability

The Subscription Agreement applies in relation to availability of the Software, Portal, Local Copy (if applicable) and Documentation.

b. Security

The Subscription Agreement applies in relation to security matters relating to your Materials.

c. Back-up

The Subscription Agreement applies in relation to back-up and recovery procedures by Catapult to protect and preserve your Materials.

d. Support

The Subscription Agreement applies in relation to support services provided by Catapult to you.

6. Data

The Subscription Agreement applies in relation to access, use and disclosure of your Data by you and Catapult.

7. Intellectual Property

Subject to the Subscription Agreement, Catapult and/or its Affiliates and/or licensors own all Intellectual Property in the Software, Portal, Local Copy (if applicable) and Documentation (Catapult IP). The Subscription Agreement applies in relation to your use of the Catapult IP, and your and Catapult’s use of other Intellectual Property.

8. Termination and Suspension

a. Termination and suspension events

I. Catapult may restrict your ability to access or use the Software, Portal, Local Copy (if applicable) or Documentation, and suspend other services provided by Catapult under these Terms and the Subscription Agreement, in accordance with the Subscription Agreement.

II. These Terms are terminable in accordance with the Subscription Agreement, and automatically terminate upon termination or expiry of the Subscription Agreement.

b. Consequences of termination

On termination of these Terms, the Subscription Agreement applies.

9. Warranties and Reliance

a. The entirety of all warranties given by Catapult is as expressly set out in the Subscription Agreement.

b. No reliance

Subject to the Subscription Agreement, you acknowledge that no reliance has been made on any person (including Catapult) when deciding whether to accept these Terms, the Software, Portal, Local Copy (if applicable) and Documentation.

10. Liability

a. Modifications

Catapult reserves the right to modify the Software, the Portal and the Documentation in accordance with the Subscription Agreement.

b. Third party limitations

The Subscription Agreement applies in relation to limitations (including in relation to availability) on your ability to access to the Software, Portal, Local Copy (if applicable) and Documentation.

c. Your assumption of risk

To the maximum extent permitted by law, the Subscription Agreement sets out your assumption of risk in relation to the Software, Portal, Local Copy (if applicable) and Documentation.

d. Catapult’s liability

To the maximum extent permitted by law, the entirety of Catapult’s and its Affiliates liability in relation to the Software, Portal, Local Copy (if applicable) and Documentation, and under or in connection with these Terms, is as expressly set out in the Subscription Agreement.

e. Consumer law

Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy (or similar) conferred on you by applicable law which under that law cannot be excluded, restricted or modified by agreement.

11. Your Indemnity

You shall indemnify and hold Catapult and Catapult’s licensors, Affiliates, and their respective officers, directors, employees, contractors and agents, harmless from all Losses in accordance with the Subscription Agreement.

12. U.S. Government Rights

Use, duplication, reproduction, release, modification, disclosure, or transfer of the Software is restricted in accordance the Subscription Agreement (if applicable).

13. Privacy

a. Catapult acknowledges and respects your privacy and is committed to complying with the Australian Privacy Principles (APPs) under the Privacy Act 1988 (Cth, Australia) (as amended from time to time) (if applicable to you). If the Privacy Act 1988 (Cth) applies to you the following provisions apply.

b. The personal information that you provide Catapult (including when registering for a User Account and as contained with Data stored by Catapult) is collected by Catapult for the purpose of undertaking Catapult’s business functions and activities, including fulfilling Catapult’s obligations to you under these Terms, assessing and processing any of your requests or enquiries, administering and managing Catapult’s relationship with you, and, unless you opt out, communicating with you about Catapult and its Affiliates’ business, services and offerings in the future.

c. If you do not provide Catapult with the personal information about you that Catapult requests, Catapult may not be able to undertake certain activities for you, including registering a User Account for you, processing your request or enquiry, or providing you with information or services that you request Catapult to provide.

d. Catapult may disclose your personal information to its Affiliates, contractors, consultants and agents (including business partners, advertising partners, mailing and printing houses, IT providers and other service providers) who assist it in undertaking its business functions and activities, including running Catapult’s website and Portal, some of whom are located outside of Australia. By providing Catapult with your personal information, you consent to Catapult disclosing your personal information to these third parties. You also consent to Catapult disclosing your personal information where Catapult is required or authorised by law to do so.

e. Catapult’s privacy policy contains information about how you may access and seek correction of the personal information that Catapult holds about you, how you may complain about a breach of the APPs, and how Catapult will deal with such a complaint.

f. For further information about how Catapult manages your personal information and complies with the APPs, please see Catapult’s privacy policy. You may also contact Catapult in relation to privacy by mail at 75-83 High St, Prahran VIC 3181, Australia, by phone on +61 3 9095 8410, or by email on privacy.officer@catapultsports.com. Please address all of your correspondence to Privacy Officer – Catapult Sports.

14. Disputes

Any disputes between you and Catapult under or in connection with these Terms shall be governed by the dispute resolution procedure contained in the Subscription Agreement.

15. General

a. Subject to clause 1.c, these Terms constitute the entire agreement between the parties in relation to its subject matter. Subject to clause 1.c, all prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by these Terms and have no further effect.

b. You may not assign or sub-licence your rights or obligations under these Terms without the express prior written consent of Catapult.

c. Catapult and Catapult’s Affiliates and licensors shall not be liable for any delay or failure in the performance of obligations that arise from causes beyond its control subject to, and in accordance with, the Subscription Agreement.

d. Subject to, and in accordance with, the Subscription Agreement, nothing in these Terms confers any right on a person other than the parties and their respective permitted successors and assigns, discharges the obligation of any third person to any party, or gives any third person a right of subrogation or action against any party.

e. If part or all of any provision of these Terms is illegal or unenforceable that part or entire provision will be severed from these Terms and will not affect the continued operation of the remaining parts of the offending provision and remaining provisions of these Terms.

f. Waiver of any power or right under these Terms must be in writing signed by the party entitled to the benefit of that power or right, and is effective only to the extent set out in that written waiver. A waiver of any power or right does not preclude any subsequent exercise of that power or right, or any other power or right.

g. Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to these Terms and the transactions contemplated by it (including the execution of documents).

h. Any notice or other communication given by you to Catapult, or by Catapult to you, under or in connection with these Terms must be given in accordance with the Subscription Agreement.

i. These Terms will be governed by and construed in accordance with the laws in force in the State of Victoria, Australia, and each party submits to the exclusive jurisdiction of the courts of that State.

16. Definitions and interpretation

a. Definitions

In these Terms unless the context otherwise requires:

I. Affiliate means in respect of a person, a person that directly or indirectly through one or more intermediaries, “controls” or is “controlled” by, or is under “common” control with the person, and “related bodies corporate” of that person (as those terms are defined in the Corporations Act 2001 (Cth, Australia).

II. Catapult means the Catapult entity which is a party to the Subscription Agreement being Catapult Sports Pty Ltd (ACN 137 513 378) of 75-83 High St, Prahran VIC 3181, Australia, or Catapult Sports LLC of 8770 W Bryn Mawr Suite 1300, Chicago Il 60631, or an Affiliate of these entities.

III. Data means the data that your use of the Software or the Equipment generates.

IV. Documentation means all documentation (including instruction and training manuals) relating to the Software, Portal or Local Copy (if applicable) made available to you by or on behalf of Catapult, including through the Portal.

V. Equipment means athlete monitoring goods and equipment leased or sold by or on behalf of Catapult or its Affiliates (including by their distributors) for use with the Software.

VI. Local Copy means a copy of the Software that can be installed on a computer and accessed independently of the Portal.

VII. Losses means all losses, damages, liabilities, obligations, harm, charges, costs and expenses (including all reasonable legal fees).

VIII. Intellectual Property means all present and future intellectual property rights of whatever nature (whether or not registered or registrable) including:

1. patents, designs, copyright, rights in circuit layouts, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field; and

2. any application or right to apply for registration of any of the rights in clause 1 immediately above and all renewals and extensions of those rights.

IX. Materials means all Data and other information, documents, materials and data generated or uploaded by you using the Software to the extent that it is hosted by or on behalf of Catapult under these Terms.

X. party means a party to these Terms.

XI. person includes natural persons and incorporated and unincorporated entities and bodies.

XII. Portal means the online Software portal hosted by Catapult (or its nominee).

XIII. Subscription Agreement means the agreement between you and Catapult under which (among other things) you lease or purchase any Equipment and have a license to use the Software and the Portal.

XIV. Software means the OpenField software whether accessed and used via the Portal or via the Local Copy (if applicable), as updated or upgraded from time to time in accordance with the Subscription Agreement.

XV. Term means the period of time commencing on the earlier of the date of acceptance by you of these Terms or the date that you first use or access the Software, Portal, Local Copy (if applicable) or Documentation, and ending on the date that these Terms are terminated in accordance with these Terms.

XVI. Terms means this End User Licence Agreement, as amended from time to time, including all schedules, exhibits and annexures to it.

XVII. User means the unique individual nominated by you to use and access the Software, Portal, Local Copy (if applicable) and Documentation, which individual must be your employee.

b. Interpretation

In these Terms unless the context otherwise requires:

I. the singular includes the plural and vice versa, and other grammatical forms of defined words or expressions have corresponding meanings;

II. headings are used for convenience only and do not affect the interpretation of these Terms;

III. a reference to a document includes that document as modified from time to time and any document replacing it;

IV. a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time; and

V. wherever "include" or any form of that word is used, it must be construed as if it were followed by "(without being limited to)".

c. Effective Date of this version of these Terms: 28 October 2015.