1.1 We provide a real-time and post-game performance analysis app hosted at https://app.performasports.com/ with integrated cloud platform that helps our users analyse the performance of a particular team and individuals within that team (Performa App), we also provide training courses which are available at https://academy.performasports.com/ (Training Software) and a website which is currently available at https://www.performasports.com/ (our Website).
1.2 In this TOU, the following words shall have the following meanings:
Performa means the Performa App, our Training Software and/or our Website; Subscription Services means the Performa App and/or our Training Software; and Services means the provision of Performa.
1.3 This TOU set out how you may use Performa and forms a binding legal agreement (Agreement) between you and Performa Sports Limited, 87 Drumnacanvy Road, Portadown, N. Ireland, BT63 5LY, with company registration number NI604529 (we, us, our).
1.4 In this TOU: references to clauses (unless otherwise provided) are references of the clauses of this TOU; words in the singular include the plural and in the plural include the singular; a reference to a particular law is a reference to it as it is in force for the time being, taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it; and references to including and include(s) shall be deemed to mean respectively, including without limitation and include(s) without limitation.
2. Accepting the TOU
2.1 In order to use Performa, you must first agree to this TOU. You may not use Performa if you do not accept the TOU. You can accept the TOU by:
2.1.1 clicking to accept or agree to the TOU, where this option is made available to you by us in the user interface for the Service; or
2.1.2 by actually using the Service, whether on a trial or subscribed basis. In this case, you understand and agree that we will treat your use of the Service as acceptance of the TOU from that point onwards.
2.2 We may update or change this TOU from time to time and recommend that you review the TOU on a regular basis. You understand and agree that your continued use of our Services after the TOU have changed constitutes your acceptance of the TOU as revised. If we make a change to the TOU that materially impacts your use of the Service, we may post notice of the change to the TOU on our website and/or email you notice of any such change.
3. User Account
3.1 We reserve the right to decline any application from you to register as a user of the Service in our sole discretion and/or to suspend your use of the Service where we in our sole discretion believe that you are in breach of any provision of this TOU.
3.2 You acknowledge that your access to the Subscription Services is contingent upon the relevant subscription fee being paid by a customer of ours who permits you to benefit from the same. If we do not receive the relevant subscription fees, we reserve the right to shut down your User Account immediately and cease to provide you with access to the Subscription Services.
3.3 In order to use the Subscription Services you will be required to set up a user account (User Account). To do this, you will need to provide us with a number of details about you, contacts within your organisation, which types of sports you want to use the app to analyse, as well as details about your sports club (any such details, Account Details).
3.4.1 represent and warrant to us that:
184.108.40.206 any and all Account Details provided by you are true, accurate and complete; and
220.127.116.11 you have all necessary consents and/or authority to provide us with the Account Details for use by us in accordance with this Agreement.
3.4.2 undertake to notify us promptly of any changes to any Account Details;
3.4.3 agree not to impersonate any other person or entity or to use a false name or a name that you are not authorised to use.
3.5 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with your User Account. Accordingly, you agree that you will be solely responsible to us for all activities that occur under your account, as determined, noted, or recorded by us. Such determination, notation, and record shall be at our sole discretion, and shall serve as conclusive proof of the facts stated therein and to which they attest.
3.6 If you become aware of any unauthorized use of your password or of your User Account, you agree to notify us immediately at firstname.lastname@example.org.
3.7 You grant us the right to access your User Account for the purposes of any service improvement or upgrade.
4. User Content
4.1 You agree that you are responsible for (and that we have no responsibility to you or to any third party for) any media files, metadata, graphics, images (including but not limited to player and team images), photographs, videos and other like materials that created, uploaded, downloaded, transmitted, stored, posted, emailed or published while using the Subscription Services (any and all such content User Content) and for the consequences of your actions (including any loss or damage which we may suffer) by doing so.
4.2 You hereby grant us an irrevocable non-exclusive, royalty free, sub-licensable licence to use the User Content as required for the provision of our Services and to collect and retain aggregate usage data for our own business purposes (provided such aggregate data does not include personal data).
4.3 By uploading any User Content (or permitted, authorising or enabling any third party to upload any User Content) you represent and warrant that:
4.3.1 you have the lawful right to reproduce and distribute such User Content;
4.3.2 you have the rights, power and authority to grant the licence at clause 4.2 above;
4.3.3 the uploading, downloading, posting, emailing or transmission by any other means of the User Content will not constitute or encourage a criminal offence, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
4.3.4 the User Content submitted by you complies with the restrictions set out at clause 5.3.
4.4 We do not control the User Content in the Subscription Services nor do we guarantee the accuracy, integrity or quality of such User Content. You acknowledge and agree that we are not responsible or liable in any way for any User Content provided by you or other users and have no duty to moderate such User Content. However, we reserve the right at all times to determine whether User Content is appropriate and in compliance with this TOU, and may move, modify and/or remove User Content at any time, without prior notice and in our sole discretion, if such User Content is found to be in non-compliance with this TOU or notified to us as objectionable by a third party. We also reserve the right to provide User Content to any third party who, in our sole opinion, demonstrates a proper legal basis for such disclosure.
5. Use of the Services
5.1 The Subscription Services may only be used strictly and solely for the purposes of enabling coaches of team sports and individual players in a team to carry out real-time and post-game performance analysis of a sports game and/or to undertake training courses provided by us, and may not be used for any other purposes whatsoever without our prior, written and informed consent being obtained.
5.2 You agree that you will not (nor permit, authorise or enable any other person to): (a) take any action that imposes, or may impose (in each case in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (b) copy, duplicate, reproduce, rent, lease, operate a service bureau, transfer, redistribute, sub-licence, loan, sell, trade, resell, modify, create derivative works, distribute or publicly display, all or any part of Performa without our prior written consent; (c) interfere or attempt to interfere with the proper working of Performa or any activities conducted via Performa; (d) bypass any measures we may use to prevent or restrict access to Performa; (e) attempt to reverse engineer, decompile or otherwise seek to obtain access to the source code in Performa ; (f) engage in any activity that interferes with or disrupts Performa, or the servers and networks which are connected to Performa; and/or (g) use nor allow anyone else to use, any automated software, process, programme, robot, web crawler, spider, data mining, trawling or other “screen scraping” software (whether or not the resulting information is be used for your internal purposes) in respect of Performa and you must not disclose your password to anyone else for the purposes of using any such technology.
5.3 You agree not to upload (nor permit, authorise or enable any other person to upload) on to the Subscription Services any content which: (a) is misleading, harmful, threatening, abusive, harassing, defamatory, offensive, violent, obscene, pornographic, vulgar, libellous, racially, ethnically, religiously or otherwise objectionable; (b) constitutes unauthorised disclosure of personal or confidential information; (c) violates the rights of any party (including but not limited to any patent, trade mark, trade secret, publicity right, privacy right, copyright or other intellectual property right) or otherwise create liability or violate any local, state, national or international law; (d) contains viruses, trojans, worms, corrupted files or code, files and programs designed to impede or destroy the functionality of any computer software or hardware; spyware and malware designed for phishing and with a view to compromise the data security and integrity, and obtain sensitive personal or financial information; and/or (e) constitutes or encourages a criminal offence.
6. Intellectual Property
6.1 In this TOU intellectual property rights means any and all intellectual property rights including trademarks, copyright, moral rights, rights in goodwill or to sue for passing off, database rights, know-how, and all other intellectual property and proprietary information rights (including confidential information) as may exist now or hereafter come into existence; all modifications, continuations, renewals and extension of any of the foregoing arising under the laws of any country, state or jurisdiction in the world.
6.2 You acknowledge and agree that we (or our licensors) own all legal rights, title and interest in and to Performa, as well as any intellectual property rights which subsist in the Services (including source code in Performa), all reports, data, records, statistics, graphs, databases or like material generated from any analysis conducted using Performa, in each case, whether those rights happen to be registered or not, and wherever in the world those rights may exist. Any such intellectual property rights, Performa IPR.
6.3 Nothing in this Agreement shall confer on you any right, title or interest in any Performa IPR (except the rights of use set out in this Agreement). You further acknowledge that our Services may contain information which is designated confidential by us (such as information relating to our pricing, how the Subscription Services function, trade secrets) and that you shall not disclose such information without our prior written consent.
6.4 Unless you have agreed otherwise in writing with us, nothing in this TOU gives you (or anyone else) a right to use any of our trade names, trademarks, service marks, logos, domain names (including the ‘PERFORMA’ name), and other distinctive brand features without our express written permission. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within Performa (or any element of the Services).
6.5 You may not copy, or make any use of any part of Performa for any purposes save as expressly provided in this Agreement. In particular you may not modify, rent, lease, loan, sell, distribute or create derivative works based on Performa (either in whole or in part).
6.6 In the event that your use of the Services, if used in accordance with this Agreement, infringes any intellectual property rights of a third party, we may, at our sole discretion and expense, replace or modify the that part of our Services so that it is no longer infringing or obtain for you the right to continue using our Services. This therefore constitutes your sole remedy in relation to any claim of infringement in respect of your use of our Services.
6.7 Without prejudice to any other rights or remedies to which we might be entitled, we may at any time, terminate this Agreement with immediate effect and without liability to you if:
6.7.1 you have materially breached any provision of the TOU (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of this TOU) and, where such breach is capable of remedy, we determine that you have not so remedied within fourteen days of notification; or
6.7.2 we are required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); or
6.7.3 the provision of the Service to you by us is, in our opinion, no longer commercially viable (in which case we will refund you for any Services paid for by you which you have not received).
7. Limitation of Liability
7.1 Nothing in this TOU, including this clause 7, shall exclude or limit any warranty or liability which may not be lawfully excluded or limited by applicable law, including liability for fraud or for death or personal injury caused by our negligence.
7.2 There are no conditions, warranties, representations or other terms, express or implied, that are binding on us except as specifically stated in this TOU (including implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement). Any condition, warranty, representation or other term concerning the supply of the Service which might otherwise be implied into or incorporated in these TOU, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
7.3 You expressly understand and so agree that your use of the Service is at your sole risk and that the Service is provided "as is" and "as available."
7.4 In particular, we, our subsidiaries and affiliates, and our licensors, do not represent or warrant to you that:
7.4.1 your use of the Service (including its use in conjunction with any other software) will meet your requirements, that your use of the Service will be uninterrupted, timely, secure or free from error or that defects in the operation or functionality of the Service provided to you will be corrected;
7.4.2 any information obtained by you as a result of your use of the Service will be accurate or reliable; and
7.4.3 that defects in the operation or functionality of the Service will be corrected, rectified, or remedied.
7.5 Any material downloaded or otherwise obtained or accessed through the use of the Service is done at your own discretion and risk, and that you will be solely responsible for any damage, loss, or prejudice to your computer system or other device or loss of data that results from the download or access of any such material.
7.6 In order for you to make full use of the Service it may be necessary for you to use particular computer equipment or to download or install certain pieces of software. If you are unable to access all or part of the Service because of internet availability, or because you do not have access to any necessary software or equipment, this shall not constitute a breach of this TOU by us and we shall not be liable for any loss, damage or expense which may result from your inability to access the Service.
7.7 No advice or information, whether oral or written, obtained by you from us or any of our subsidiaries, affiliates, officials, employees, or personnel, or through or from the Service shall create any warranty not expressly stated in this TOU. We shall not be under any liability whatsoever in respect of any inaccuracies or omissions in the Service. All such liability is excluded by us to the fullest extent permitted by law.
7.8 You expressly understand and agree that we and our licensors shall not be liable to you for:
7.8.1 any direct, indirect, special, incidental or consequential loss or damage which may arise in respect of the Service and/or its use or non-availability;
7.8.2 loss of profit, business revenue, goodwill and anticipated savings:
7.8.3 any trading or other losses which you may incur as a result of use of or reliance upon any content;
7.8.4 the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through your use of the Service; or
7.8.5 any effect which use of the Service may have on any software you use.
7.9 Subject to the clauses above, the aggregate liability of us in respect of any loss or damage suffered by you and arising out of or in connection with the use of the Service by you and/or any third party shall not exceed the amount of £1.
7.10 You agree and acknowledge that since you have not paid for your use of the Services, that accordingly the exclusions and limitations contained in this clause 7 are reasonable. You also undertake at all times to mitigate any such damage or loss.
8.1 We reserve the right to terminate this Agreement with you at any time at our sole discretion with no liability to you.
9.1 You shall not assign, transfer or sub-license any of your rights or obligations under this TOU. We may at any time assign all or any of our rights and transfer all or any of our obligations under this TOU.
9.2 Failure or neglect by us to enforce any of the provisions of this TOU at any time shall not be construed or deemed to be a waiver of our rights nor shall this in any way affect the validity of the whole or any part of this TOU, nor prejudice our rights to take subsequent action.
9.3 If any part of any provision of this TOU shall be or become invalid, unlawful or unenforceable to any extent, then the remainder of such provision and all other provisions of this TOU shall continue to be valid and enforceable to the fullest extent permitted by law.
9.4 This TOU represent the entire agreement of you and us in relation to the subject matter of this TOU and supersedes any previous agreement between you and us in relation to the Service. Neither of you and us has relied upon any statement or representation made by the other in agreeing to enter this agreement.
10. Law and Jurisdiction
10.1 This TOU shall be construed in accordance with Northern Irish law and the parties hereby submit to the exclusive jurisdiction of the Northern Irish courts to settle any disputes which may arise in connection with this TOU.