USFL APPLICATION END-USER LICENSE AGREEMENT
1. Introduction and Acceptance
2. Licensed Uses; Restrictions
2.1 The Application (including, without limitation, any software, documentation, and local files installed or utilized by the installer application) is owned by USFL and, with respect to their applicable contributions to the Application, USFL’s licensors, including content and data providers (collectively, "USFL Licensors"), and are licensed to you on a non-exclusive, non-sublicenseable, revocable basis, in the United States, on the service where the Application is made available to you, on the terms and conditions set forth herein. This USFL License defines legal use of the Application and all updates, revisions, substitutions and copies of the Application made by or for you. All rights not expressly granted to you herein are reserved by USFL or applicable USFL Licensors.
2.2 You may:
- Install and personally use the Application on a device that is supported by the Application and owned or controlled by you;
- Only use the Application, the Licensor Software and any data accessed through the Application for your own personal, non-commercial use;
- Use the Application until this USFL License is terminated by you or USFL; and
- Terminate this USFL License by discontinuing all use of the Application.
2.3 You may not, and you may not authorize others to:
- Decompile, copy, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) based on the Application, any updates or any portion thereof;
- Distribute or make the Application available over a network where it could be used by multiple devices at the same time;
- Incorporate the Application into any device manufactured by or for you;
- Use the Application outside of the United States;
- Use the Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this USFL License;
- Use or export the Application in violation of Applicable Law; or
- Sell, lease, loan, distribute, transfer, or sublicense the Application or access thereto or derive income from the use or provision of the Application, whether for direct commercial or monetary gain or otherwise, without USFL’s prior, express, written permission; and
- Assign, copy, transfer, or transmit the Application, the Licensor Software or any data obtained through the Application to any third party.
3.1 The Application is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this USFL License. USFL and USFL’s Licensors own all rights, title, and interest in and to their applicable contributions to the Application. This USFL License grants you no right, title, or interest in any intellectual property owned or licensed by USFL, including, without limitation, the Application and USFL trademarks, and creates no other relationship between you and USFL or between you and USFL’s Licensors. 3.2 The Application and its components contain software licensed from USFL Licensors ("Licensor Software") which enables the Application to perform certain functions. All rights in and to any third-party data, software, and servers are reserved and remain with the applicable third parties. You agree that such USFL Licensors and any other third parties may enforce their rights under this USFL License against you directly in their own name.
4. Support; Updates; Termination
4.1 USFL, in its sole discretion, may elect to provide you with customer support and/or software updates, upgrades, enhancements or modifications for the Application (collectively, "Support"). 4.2 USFL, in its sole discretion, may elect to use third-party entities to manage the service through which the Application is available, channel partners, associated service providers, airtime service providers and merchants of record (collectively, "Application Partners"). 4.3 Unless terminated by USFL in its sole discretion, this USFL License remains in full force and effect while you use the USFL Application. USFL may terminate your access to all (or any portion of) the Application at any time, for any or no reason, with or without prior notice or any explanation, and without liability. Furthermore, even after your access to the Application is terminated by you or USFL, this Agreement will remain in full force and effect with respect to your past and future use of the Application. If we terminate your access to the Application (or any portion of the Application) you: (1) must immediately cease any and all use of the Application and remove the Application from your device; (2) may not try to access, use or download the Application without USFL’s prior written approval. You agree that your account is non-transferable. Any rights to the Application terminate upon your death. This USFL License terminates automatically if you violate any of its terms and conditions. 4.4 USFL may change, suspend, or discontinue any aspect of the Application including, without limitation, the availability of any Support or Application feature, database, or content at any time without prior notice or liability to you. USFL may also impose limits on certain Application features or restrict your access to parts or all of the Application or Support without notice or liability. 4.5 USFL reserves the right in its sole discretion to charge fees for use of or access to any aspect of the Application or any feature(s) thereof. You will not be entitled to a refund of any unused portion of such fees or other payments if USFL suspends or terminates your account, and/or access to the Application (or any portion of the Application), due to your breach of this FSD License or violation of Applicable Law, as determined by USFL, in its sole discretion.
5. Disclaimers; Limitation of Liability
5.1 THE APPLICATION AND ANY APPLICATION FEATURE ACCESSED THROUGH THE APPLICATION ARE PROVIDED "AS-IS" AND "AS AVAILABLE" AND ANY USE THEREOF IS AT YOUR SOLE RISK AND USFL DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE APPLICATION. USFL DOES NOT REPRESENT THAT THE APPLICATION OR ANY APPLICATION FEATURE ACCESSED VIA THE APPLICATION IS APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, USFL EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USFL MAKES NO WARRANTY THAT YOUR USE OF THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE APPLICATION WILL BE CORRECTED, THAT THE APPLICATION OR THE SERVERS ON WHICH THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE APPLICATION OR THIRD-PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH LICENSOR SOFTWARE, APPLICATION PARTNERS, USER CONTENT OR THIRD-PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE. UNDER NO CIRCUMSTANCES WILL USFL OR OUR PARENTS, SUBSIDIARIES OR AFFILIATES ("USFL AFFILIATES") BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE APPLICATION, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE APPLICATION, ATTENDANCE AT AN USFL EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE APPLICATION, ANY USER CONTENT, ANY THIRD-PARTY ADVERTISEMENT OR THIRD-PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE APPLICATION, OR THE CONDUCT OF ANY USERS OF THE APPLICATION, WHETHER ONLINE OR OFFLINE. YOUR USE OF USER CONTENT, THIRD-PARTY ADVERTISEMENTS, THIRD-PARTY SERVICES AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD-PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK. 5.2 YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APPLICATION, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE APPLICATION. User Content, third-party advertisements, Licensor Software, Application Partners and their Third-Party Services do not necessarily reflect the opinions or policies of USFL or our USFL Affiliates. 5.3 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL USFL, OUR USFL AFFILIATES, USFL LICENSORS OR APPLICATION PARTNERS, ADVERTISERS, SPONSORS OR APPLICATION PARTNERS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS (COLLECTIVELY, "COMPANY ENTITIES"), WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE APPLICATION, EVEN IF USFL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, USFL’S AND THE COMPANY ENTITIES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO USFL, FOR THE APPLICATION DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM. 5.4 YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF USFL’S OR COMPANY ENTITIES’ ACTS OR OMISSIONS OR YOUR USE OF THE APPLICATION ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE APPLICATION. THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF USFL HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
6. Arbitration Agreement
6.1 USFL, including its Company Entities, predecessors in interest, successors, and assigns, and you agree that any Dispute (as defined herein) between you and USFL regarding any aspect of your relationship with USFL, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. Each of you and USFL agrees to give up the right to sue in court. The term "Dispute" is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and USFL, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term "Dispute" specifically includes, but is not limited to, any and all claims between you and USFL in any way related to or concerning this Arbitration Agreement, any other aspect of this USFL License (including their applicability and their conformance to applicable law), any products or services provided by USFL, any billing disputes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other. The only exceptions to this Arbitration Agreement are that (i) each of you and USFL retains the right to sue in small claims court and (ii) each of you and USFL may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator. Each of you and USFL also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and USFL (see paragraph 6.9 of this Arbitration Agreement below). There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow this Agreement. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages). 6.2 This USFL License, including, without limitation, the Arbitration Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of this USFL License. 6.3 Any arbitration between you and USFL will be conducted by the Judicial Arbitration and Mediation Services, Inc. ("JAMS"), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the "JAMS Rules"), as modified by this agreement to arbitrate. The arbitration shall be conducted by a single, neutral arbitrator, and if you and USFL cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules, with the participation and involvement of USFL and you pursuant to JAMS Rule 12. The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/. The Consumer Arbitration Minimum Standards are available at http://www.jamsadr.com/consumer-arbitration/. The arbitrator is bound by the terms of this USFL License. 6.4 If either you or USFL wants to arbitrate a Dispute, you or USFL must first send by mail to the other a written Notice of Dispute ("Notice") that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the USFL Service to which the Notice relates, and the relief requested. Your Notice to USFL must be sent by mail to Arbitration Notice of Dispute, 10201 W. Pico Blvd., Suite 2121/12th Floor, Los Angeles, California, 90067. USFL will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute. If you and we do not resolve the Dispute within those first 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. In addition to filing this Demand for Arbitration Form with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to USFL at the address listed above to which you sent your Notice of Dispute. 6.5 You and the USFL acknowledge and agree to abide by the following rules for arbitration: (a) YOU AND USFL MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (b) USFL will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 6.6 below; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys’ fees, except as otherwise provided in paragraph 6.8 below. 6.6 JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against USFL, you and USFL acknowledge and agree to abide by the following: a. If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), USFL will pay the filing fee on your behalf or reimburse your payment of it. b. If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but USFL will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator. c. USFL and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. USFL will not request a hearing for any claims totaling less than $10,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules. d. USFL and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules. 6.7 Regardless of how the arbitration proceeds, each of you and USFL shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions. 6.8 Each of you and USFL may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition to whatever rights you may have to recover your attorneys’ fees under Applicable Law, if you prevail in the arbitration, and if USFL failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than USFL’s highest settlement offer to resolve the Dispute, then USFL will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If USFL wins the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a Dispute or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by Applicable Law. 6.9 The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator may not order USFL to pay any monies to or take any actions with respect to persons other than you, unless USFL explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless USFL expressly agrees, the arbitrator may not consolidate other persons’ claims with yours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding 6.10 You and USFL agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court order.
6.11 With the exception of subpart (a) in paragraph (6.5) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (6.5) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this Agreement, including the provisions governing where actions against USFL must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.
7. Additional Terms