COACHMEPLUS TERMS OF SERVICE AND END USER LICENSE AGREEMENT
The university, high school, athletic academy, gym, or other organization with which you (“You”) are affiliated (the “Coaching Organization”) has licensed software (the “Software”) from Virtuvia LLC (“CoachMePlus”) that will assist the coaches and athletic staff at the Coaching Organization (“Coaches”) and you (“You”) with monitoring and tracking workout, conditioning, testing, nutrition and other relevant performance related information to be shared between You and the Coaching Organization athletic staff (including your Coaches). The Software may be accessed by web browsers from a personal computer, a downloadable/installable mobile application for smart phones and tablets, and most other online communication methods. “Software” also includes updates and upgrades which may be provided by CoachMePlus as well as accompanying manual(s), packaging and other written materials, electronic or on-line materials or documentation, and any and all copies of such software and related materials. CoachMePlus may also provide certain services (“Services”) including, without limitation, hosting the Software on its servers and providing other support services from time-to-time to You and/or the Coaching Organization. The following terms of service set forth in this end user license agreement (this “EULA”) constitute an agreement between You and CoachMePlus and govern your use of the Software and Services (collectively, the “CoachMePlus Services”). The Coaching Organization has also executed a license agreement with CoachMePlus for use of the CoachMePlus Services (the “CoachMePlus Organization License”). In the event that the Coachmeplus Organization License with the Coaching Organization is terminated, this EULA will terminate immediately, and You will no longer be able to use the CoachMePlus Services. THE SOFTWARE IS LICENSED, NOT SOLD. YOUR USE OF THE SOFTWARE (AS SPECIFIED BELOW) IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS EULA. BY INSTALLING, USING OR ACCESSING THE COACHMEPLUS SERVICES OR ANY MATERIALS INCLUDED IN OR WITH THE COACHMEPLUS SERVICES, YOU HEREBY ACCEPT THE TERMS OF THIS EULA. IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, DO NOT INSTALL THE SOFTWARE, USE OR ACCESS THE COACHMEPLUS SERVICES.
LICENSE GRANT. Subject to the terms and conditions of this EULA, CoachMePlus hereby grants You a non-exclusive, non-transferable, non-sublicensable, limited right and license (the “License”) to use, on a single device at any one time, the CoachMePlus Services for your personal, non-commercial use for testing, workout, conditioning, and/or nutrition monitoring and tracking (“Approved Athletics Related Use”) only. The rights granted herein are subject to your compliance with this EULA and are limited to those expressly granted by CoachMePlus to You in this EULA. All rights not expressly granted to You in this EULA are reserved by CoachMePlus.
LICENSE TERM. The term of your license under this EULA commences on the date that You accept this EULA and install or otherwise use the Software and/or Services and ends on the earlier date of (i) your disposal of the Software and/or Services, (ii) your ceasing to be a student at the Coaching Organization,(iii) CoachMePlus’s termination of this EULA, (iv) termination of the Coachmeplus Organization License, or (v) a material breach of this EULA by You.
OWNERSHIP. CoachMePlus retains all right, title and interest in and to the CoachMePlus Services, including, but not limited to, the Software and all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights related to the CoachMePlus Services, whether registered or not and all applications and derivatives thereof. The CoachMePlus Services may not be copied, reproduced, distributed, rented, leased, sold, licensed, sublicensed, assigned, published, transferred, or otherwise made available in any manner or medium, in whole or in part, without prior written consent from CoachMePlus.
2. THIRD PARTY SERVICES AND/OR LINKS
CoachMePlus Services may include third party data, exercises, and recovery and rehabilitations recommendations (collectively, “Third Party Data”). Third Party Data can include data from measurement devices, athletic data feeds, and wearable fitness sensors. Third Party Data can also include fitness and mobility and scoring evaluation methodologies with associated exercise recommendation such as Functional Movement Systems (FMS) and similar organizations. By using the CoachMePlus Services, You acknowledge and agree that CoachMePlus makes no representations or warranties regarding such Third Party Data and that CoachMePlus will have no liability arising from Your use of any Third Party Data.
3. GENERAL LICENSE CONDITIONS
The CoachMePlus Services may include measures to control access to the CoachMePlus Services, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this EULA. You may not interfere with such access control measures or attempt to disable or circumvent such security features. If You disable or otherwise tamper with the technical protection measures, the CoachMePlus Services will not function properly. The CoachMePlus Services require an internet connection to access the CoachMePlus Services or its internet-based features, authenticate the Software, or perform other functions. In order for certain features of the CoachMePlus Services to operate properly, You will be required to have and maintain (a) an adequate internet connection and/or (b) a valid and active account with an online service as set forth in the documentation related to CoachMePlus Services. By using the CoachMePlus Services, You acknowledge and agree that any fees that are related to your accessing CoachMePlus Services (such as data transfer fees, internet services fees, etc.) are your responsibility and that you are responsible and liable for all uses of the CoachMePlus Services, whether such use is permitted by or in violation of this EULA. You shall be solely and fully responsible for the security of all passwords provided by CoachMePlus to You and for any and all actions taken using them.
4. INFORMATION COLLECTION AND USE
CoachMePlus acknowledges that, with the exception of the license granted below, it has no right, title or interest in i) any of Your messaging information or communications amongst You, Coaches, and the Coaching Organization, ii) video or video content that You, Coaches, or the Coaching Organization upload into the Software, or iii) any athlete information in which You may be identified or with which Your name is attached, all of which shall be considered “Confidential Information.” You hereby grant to CoachMePlus a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the foregoing and perform all acts with respect to the foregoing as may be necessary for CoachMePlus to provide the CoachMePlus Services to You and your Coaching Organization and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display the foregoing as incorporated within the De-Identified Information (as defined below). All Confidential Information provided or made available to, or existing on CoachMePlus servers is, at the time it is made available and thereafter shall remain, strictly confidential, and shall not be used except as strictly necessary to provide the CoachMePlus Services, disclosed or disseminated in any way by CoachMePlus. Notwithstanding the foregoing, Confidential Information that has been de-identified such that all athlete names (including Your name), Coaching Organization Names, team associations, coach’s notes, coach’s commentary and critiques, video or other uploaded files, conditioning coach’s workout prescriptions, and any other information that would allow a reasonable person to identify individuals or Coaching Organizations are removed (“De-Identified Information”) shall not be deemed “Confidential Information”. Such De-Identified Information may be used by CoachMePlus solely for sports science research, and data warehousing.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE COACHMEPLUS SERVICES AND THIRD PARTY DATA ARE PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. COACHMEPLUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, ACCURACY OF DATA (INCLUDING BUT NOT LIMITED TO LOCATION DATA), MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COACHMEPLUS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE COACHMEPLUS SERVICES AND THIRD PARTY DATA WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT, THAT OPERATION OF THE COACHMEPLUS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT YOU MAY NOT EXPERIENCE, FROM TIME-TO-TIME, INTERRUPTIONS OR CESSATIONS OF COACHMEPLUS SERVICES, AGAINST RECEIPT OF ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE COACHMEPLUS SERVICES, OR THAT THE COACHMEPLUS SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY SOFTWARE, SYSTEM OR OTHER PRODUCT OR SERVICES, OR BE SECURE, ACCURATE, COMPLETE. NO ORAL OR WRITTEN ADVICE PROVIDED BY COACHMEPLUS OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
6. LIMITATION OF LIABILITY AND INDEMNIFICATION
LIMITATION OF LIABILITY: IN NO EVENT WILL COACHMEPLUS BE LIABLE FOR: (a) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, ENHANCED, PUNITIVE DAMAGES OR CONSEQUENTIAL DAMAGES ; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE RESULTING FROM POSSESSION, ACCESS, USE OR MALFUNCTION OF THE COACHMEPLUS SERVICES, INCLUDING BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS EULA OR THE COACHMEPLUS SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT COACHMEPLUS, COACHMEPLUS’S LICENSORS OR CHANNEL PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS LIMITATION OF LIABILITY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS EULA GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. IN NO EVENT SHALL COACHMEPLUS, COACHMEPLUS’S AFFILIATES, COACHMEPLUS’S LICENSORS’ OR CHANNEL PARTNERS’ AGGREGATE LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE ACTUAL PRICE PAID BY COACHING ORGANIZATION DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM DIVIDED BY THE NUMBER OF PERSONS ASSOCIATED WITH THE COACHING ORGANIZATION USING THE COACHMEPLUS SERVICES. COACHMEPLUS IS NOT LIABLE FOR ANY INJURIES THAT YOU MAY SUSTAIN DURING THE COURSE OF A WORKOUT THAT IS PRESCRIBED TO YOU BY YOUR COACH, TRAINER, NUTRITIONIST OR ANOTHER AGENT OF THE COACHING ORGANIZATION OR ACTS OR ACTIONS OF THE COACHING ORGANIZATION, OR THE COACHING ORGANIZATION’S COACHES, TRAINERS, OR OTHER AGENTS OF THE COACHING ORGANIZATION. THE COACHMEPLUS SERVICES ARE CONTROLLED AND OFFERED BY COACHMEPLUS FROM OUR FACILITIES IN THE UNITED STATES OF AMERICA. COACHMEPLUS MAKES NO REPRESENTATIONS THAT COACHMEPLUS SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. IF YOU ACCESS OR USE THE COACHMEPLUS SERVICES FROM OTHER JURISDICTIONS, YOU DO SO AT YOUR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
(a) CoachMePlus Indemnification.
(i) CoachMePlus shall indemnify, defend, and hold You harmless from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses“) incurred by You resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim“) that the CoachMePlus Services, or any use of the CoachMePlus Services in accordance with this EULA, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that You promptly notify CoachMePlus in writing of the claim, cooperates with CoachMePlus, and allows CoachMePlus sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, You agree to permit CoachMePlus, at CoachMePlus’s sole discretion, to (A) modify or replace the CoachMePlus Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for You to continue use. If CoachMePlus determines that neither alternative is reasonably available, CoachMePlus may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to You.
(iii) This Section will not apply to the extent that the alleged infringement arises from: (A) use of the CoachMePlus Services in combination with data, software, hardware, equipment, or technology not provided by CoachMePlus or authorized by CoachMePlus in writing; (B) modifications to the CoachMePlus Services not made by CoachMePlus; or (C) data supplied by You (“Your Data”) or the Coaching Organization; or (D) Third Party Data.
(b) Your Indemnification. You shall indemnify, hold harmless, and, at CoachMePlus’s option, defend CoachMePlus from and against any Losses resulting from any Third-Party Claim that Your Data, or any use of Your Data in accordance with this EULA, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Your (i) negligence or willful misconduct; (ii) use of the CoachMePlus Services in a manner not authorized by this EULA; (iii) use of the CoachMePlus Services in combination with data, software, hardware, equipment or technology not provided by CoachMePlus or authorized by CoachMePlus in writing; or (iv) modifications to the CoachMePlus Services not made by CoachMePlus, provided that You may not settle any Third-Party Claim against CoachMePlus unless CoachMePlus consents to such settlement, and further provided that CoachMePlus will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION SETS FORTH YOUR SOLE REMEDIES AND COACHMEPLUS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE COACHMEPLUS SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
7. PROHIBITED USAGE OF COACHMEPLUS SERVICES
The License granted in this EULA expressly limits your use of the CoachMePlus Services to those activities reasonably related to Approved Athletics Related Use. Any other use of the CoachMePlus Services is expressly prohibited. Examples of prohibited uses of CoachMePlus Services include, without limitation, activity that: promotes an illegal or unauthorized copy of another person’s copyrighted work; attempts to gain unauthorized access to any servers; furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities; solicits passwords or personal identifying information for commercial or unlawful purposes; attempts to impersonate another person; uses the account, username, or password of another user at any time or permits any third party to access the CoachMePlus Services; copies or distributes the Software without CoachMePlus’s consent; makes CoachMePlus Services available to multiple users using one password; reverse engineers, decompiles, disassembles, translates, decodes, prepares derivative works based on or otherwise modifies the CoachMePlus Services, in whole or in part; removes, obscures or modifies any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the CoachMePlus Services; is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; harasses or advocates harassment of another person; distributes hate promoting materials; contains nudity, violence, or offensive subject matter or exploits people in a sexual or violent manner; results in the sale of illegal goods or services or commercially exploits the CoachMePlus Services; defames or invades the privacy of any person; promotes false or misleading information or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; misrepresents the source of ownership of the CoachMePlus Services; transports, exports or re-exports (directly or indirectly) into any country forbidden to receive such CoachMePlus Services; or scrapes, builds databases or otherwise creates permanent copies of content returned from the CoachMePlus Services
8. OTHER TERMS AND CONDITIONS
TERMINATION: This EULA will terminate automatically if You fail to comply with its terms and conditions. In such event, You must immediately destroy all copies of the Software and all of its component parts and cease and desist from accessing or using any CoachMePlus Services. With regards to Software delivered on a physical storage medium, upon termination of this EULA, You shall destroy the Software and all copies and reproductions of the Software and delete and permanently purge the Software from any client server or computer on which it has been installed.
COACHING ORGANIZATION AS THIRD PARTY BENEFICIARY: The Coaching Organization is a third-party beneficiary of Section 4 of this EULA and shall have the right to use the data provided by You for management, analysis, measurement, and storage of a broad array of training information provided by You through the Software including strength and conditioning workouts, athletic testing data, video information, surveys, and information reported from third party measurement devices.
EQUITABLE REMEDIES: You hereby agree that if the terms of this EULA are not specifically observed, CoachMePlus will be irreparably damaged, and therefore You agree that CoachMePlus shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, with respect to your breach of any of the terms of this EULA, in addition to any other available remedies.
FORCE MAJEURE: In no event shall CoachMePlus be liable to You, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond CoachMePlus’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, epidemics, pandemics, public health emergency, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
MISCELLANEOUS: This EULA represents the complete agreement concerning CoachMePlus Services between the parties and supersedes all prior agreements and representations between them. No amendment to or modification of this EULA is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. CoachMePlus reserves the right, at its discretion, to change, modify, add or remove portions of this EULA by posting the updated EULA on CoachMePlus’s website. You will be deemed to have accepted such changes by continuing to use the CoachMePlus Services. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this EULA shall not be affected.
GOVERNING LAW AND DISPUTE RESOLUTION: This EULA will be governed by the laws of New York State without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any dispute arising hereunder shall be exclusively venued in the state and federal courts located in Erie County New York and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
IF YOU HAVE ANY QUESTIONS CONCERNING THIS EULA, YOU MAY CONTACT support@CoachMePlus.com.