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END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is a legal agreement between Barry Nash & Company (“BNCO”) and the end user (“You”, “Your”, or “End User”) of the Website and Software Application as defined herein. BNCO and End User are sometimes referred to herein individually as “Party” and collectively as “Parties”.
This Agreement governs End User’s use of any BNCO Website or Software Application, including but not limited to BNCO’s HeadCoach Proprietary Online Coaching Portal, and all variations of, and documentation related to the same. For the avoidance of doubt, this Agreement is not meant to replace, but rather to augment the Television Coaching Agreement and/or the Website and Software License Agreement that may already be in place between BNCO and End User or an Affiliate of End User.
By copying, installing, executing, or using all or any portion of any BNCO Website or Software Applications, you accept all the terms and conditions of this Agreement. If You do not agree to the terms of this Agreement, do not use the Website or Software Application. This Agreement is enforceable against You and any legal entity that obtained or provided access to the Website or Software Application and on whose behalf it is used.
As used in this Agreement, the following terms shall have the meanings and definitions as explicitly stated as follows:
a. “Affiliate” means, with respect to a Party, any corporation, company, joint venture, partnership, firm, subsidiary, or other entity or individual doing business, employed, contracted, directed, authorized, or otherwise associated with such Party.
b. “End User Data” means any data related to an End User provided by or to End User or End User that is collected by, processed by, or provided to, BNCO in connection with providing services to End User and End User related to the Software Applications or Website.
c. “Services” means collectively BNCO’s services, including services provided through the Website, the Software Applications, or any other software product, and any add-ons, improvements, modifications, derivative works, updates and upgrades thereto.
d. “Software Applications” means and includes any mobile device application or other software-based program other than the Website used by End User to obtain access to the HeadCoach Proprietary Online Coaching Portal or any other service provided by BNCO to End User.
e. “Website” as used herein means and includes the web address https://www.tvheadcoach.com/ or any other website providing End User access to the HeadCoach Proprietary Online Coaching Portal.
II. License Grant
a. BNCO License to End User. Provided that and for so long as End User is in full compliance with the terms and conditions of this Agreement, and End User and Affiliate of End User are in full compliance with any Television Coaching Agreement and/or the Website and Software Application License Agreement that may be in place, BNCO hereby grants to End User, a revocable, non-transferable, non-exclusive limited license, without any right to sublicense, during the Term (as defined herein) to install, execute, and use the Website and Software Applications (including, unless otherwise stated, any updates, changes, modifications, additional and new features and functionalities, and upgrades thereto that BNCO, in its sole discretion, may provide to End User hereunder) solely for End User’s use in accordance with the terms and conditions of this Agreement. This is understood to include, subject to the terms and conditions herein, End User’s use of the Services provided by the Website and Software Application on End User’s computers or other electronic devices on or off End User’s premises.
b. End User License to BNCO. End User grants to BNCO a worldwide, limited-term license to host, copy, transmit, and display End User Data and other data End User submits to BNCO for BNCO to provide Services to End User related to the Software Applications and Website in accordance with this Agreement. End User further grants BNCO a perpetual, irrevocable right to maintain, access, use, and disclose de-identified or aggregated data for any purpose.
III. Changes to Services.
BNCO may alter or remove functionality from the Website or Software Applications without prior notice to End User. End User’s use of any new features and functionality added to the Website or Software Applications may be subject to additional or different terms relating to such new features and functionality, if such terms are provided to End User.
IV. End User’s Obligations
a. Compliance. End User recognizes that End User’s use of the Website and Software Applications will be governed by this Agreement, along with any Television Coaching Agreement and/or the Website and Software Application License Agreement that may be in place between BNCO and End User or an Affiliate of End User. End User recognizes that End User must comply with the terms and conditions set forth in this Agreement, as well as the Television Coaching Agreement and/or the Website and Software Application License Agreement, if applicable, and End User further acknowledges it is solely responsible for the same. End User acknowledges that a violation by End User of this Agreement, or of the Television Coaching Agreement and/or the Website and Software Application License Agreement by End User or an Affiliate of End User, can result in the termination of End User’s use of the Website and Software Applications.
b. Unauthorized Use & Access. End User will prevent unauthorized use of the Services and shall take affirmative steps to terminate any such unauthorized use of which it becomes aware. BNCO will not be held liable for any losses or damages resulting from unauthorized use of the Services, Website, or Software Applications by End User. End User shall promptly notify BNCO of any unauthorized use of, or access to, the Services, Website, or Software Applications of which End User becomes aware. End User is responsible for maintaining the confidentiality of End User passwords required to obtain access to the Services.
V. Restrictions on Use of BNCO Services
End User will not do any of the following as related to the Services, Website, or Software Applications:
a. Offer for sale or lease, sell, resell, lease or in any way transfer the Services, or otherwise use the Services for a third-party’s benefit without BNCO’s prior, written consent;
b. Copy or replicate any Services, Website, Software Application, any component thereof, or any content provided to End User through the Services, Website, or Software Applications;
c. Develop any improvement, modification, or derivative works of the Services, Website, Software Applications or any content provided to End User through the same, or include any portion thereof in any other service, website, software application, or other offering;
d. Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code or underlying ideas or algorithms of the Services, Website, Software Applications, or any software or other component used therein;
e. Attempt to modify, alter, tamper with, repair or otherwise create derivative works of any Services, Website, or Software Application;
f. Attempt to create a substitute for, or service substantially similar to, the Services, Website, or Software Application through access to or use of the Services, Website, or Software Applications or any component or portion thereof;
g. Access or attempt to access other accounts hosted by BNCO or other computer systems or networks not covered by this Agreement, for which End User does not have permission;
h. Remove, attempt to remove, alter, attempt to alter, obscure, or attempt to obscure, any proprietary rights notices associated with the Services, Website, or Software Applications;
i. Access the Services, Website or Software Applications in any manner not expressly provided for by BNCO, including any attempt to hack or interfere with the Services, Website, or Software Applications in any fashion or circumvent or disable the Services, Website, or Software Applications, or any component or portion thereof.
VI. End User Warranty
As a condition of End User’s use of the Services, Website, and Software Applications, End User represents, warrants, and covenants that End User will not use the Services, Website, or Software for any improper or illegal services, including but not limited to any of the following:
a. Knowing infringement of the intellectual property or proprietary rights, or rights of publicity of any third party;
b. Violation of local, state, and/or federal laws, regulations, rules or ordinances;
c. Compromising information and data security or confidentiality;
d. Violation of privacy or constitutional rights of any End User, or any other individuals or entities.
VII. Third Party Requests
End User acknowledges and agrees that the End User is responsible for responding to a request from a third party for records relating to End User’s use of, or Content contained within, the Services, Website, or Software Applications. End User shall provide notice of any such request (including through a subpoena or other legal process) it receives to BNCO and shall, to the extent allowed by law, include BNCO in the response and compliance process.
VIII. Support and Maintenance
End User shall provide BNCO with notice of any issues that are particular to the Services, Website, or Software Applications, and BNCO shall use commercially reasonably efforts to fix any such issues as promptly as is practicable. End User will, at its own expense, be responsible regarding issues that are particular to End User’s computers or other electronic devices on or off End User’s premises. If End User cannot resolve any such support issue, BNCO will use commercially reasonable efforts to work with End User to resolve the issue, but management and administration of End User’s computers or other electronic devices on or off End User’s premises, as well as End Users’ End User-issued or personal electronic or mobile devices is the responsibility of the End User and not BNCO.
a. Use of Confidential Information. Each Party undertakes not to disclose to any third party any information obtained from the other Party that is designated as proprietary or confidential or which, by its nature, is apparent that it should be regarded as confidential or proprietary ("Confidential Information"), except that BNCO may access, disclose and share such Confidential Information of End User only to the extent necessary in order to provide the Services hereunder. Each Party agrees that it shall use the same degree of care that it utilizes to protect its own confidential information of a similar nature, but in no event less than reasonable care, to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. The confidentiality obligation in this Section does not apply to such information that (a) was lawfully in the receiving party’s possession before receipt from the disclosing party; (b) is or becomes a matter of public knowledge through no fault of the receiving party; or (c) was independently developed or discovered by the receiving Party without the benefit of any Confidential Information of the disclosing Party. Furthermore, Confidential Information of the other Party may be disclosed insofar as such disclosure is necessary to allow a party to comply with applicable law, with a decision by a court of law or to comply with requests from government agencies that such party determines require disclosure, but then only after first notifying the other party of the required disclosure, unless such notification is prohibited. End User shall promptly notify BNCO of any actual or suspected misuse or unauthorized disclosure of BNCO’s Confidential Information.
b. Survival. The foregoing confidentiality obligation survives termination of this Agreement for a period of five (5) years; provided that End User’s obligations hereunder shall survive and continue in perpetuity after termination with respect to any Confidential Information that is a trade secret under applicable law.
X. Intellectual Property Rights
a. Limited Use of Intellectual Property. Except for the limited license rights expressly provided herein, this Agreement does not grant End User any rights, implied or otherwise, to the BNCO’s copyrights, patents, trademarks, trade secrets, logos, domain names, brand features, or other intellectual property rights without the express written consent of BNCO. No title to, or ownership of, or other right in or to any such intellectual property, the Services, Website, or Software Applications is granted or transferred to End User or its End Users under this Agreement. Nor is End User granted any right to replicate, modify, translate, adapt, reverse engineer, or otherwise create any derivative works or improvements on the Services, Website, or Software Applications or to use any such intellectual property in the creation of its own website, software application, or services reasonably similar to those being provided by End User by virtue of this Agreement.
b. Retention of Rights. Specifically, BNCO retains all rights, title and interest in and to the entirety of its intellectual property, the Services, Website, Software Applications, and any source code or other related documentation or material provided by BNCO, and all copies, modifications, and derivative works thereof. For the avoidance of doubt, use of the Services, Website, and Software Applications by End User is properly allowed through the license granted herein, and no sale or ownership rights are being conveyed to End User under this Agreement. BNCO maintains the entirety of said ownership, and is under no restrictions by this Agreement to grant any other customer rights the same as or similar to those rights of use granted to End User herein.
THE SERVICES ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR ANY APPLICABLE TELEVISION COACHING AGREEMENT, BNCO MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY HERETO, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES SET FORTH IN THIS AGREEMENT.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, BNCO DOES NOT WARRANT THAT THE SERVICES WILL MEET ALL REQUIREMENTS OF END USER, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE SERVICES WILL BE CORRECTED. FURTHER, BNCO IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM THE MODIFICATION, MISUSE OR DAMAGE OF ANY OF THE SERVICES NOT DELIVERED BY BNCO. BNCO DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO THIRD PARTY SOFTWARE OR OTHER NON-BNCO SERVICES.
a. By End User. End User will indemnify, defend, and hold harmless BNCO from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a claim regarding End User’s: (i) misuse of the Services, Website, or Software Applications; (ii) non-performance of any obligation herein or in any other written agreement between BNCO and End User or an Affiliate of End User; (iii) breach of any part of this Agreement or violation of any applicable laws; (iv) misuse of End User data; (v) violation of any privacy rights or other rights of the other; or (vi) action, inaction, negligence, gross negligence, or other culpable conduct.
b. Possible Infringement. If BNCO believes the Services infringe or may be alleged to infringe a third party's intellectual property rights, then BNCO may at it sole discretion: (i) obtain the right for End User, at BNCO’s expense, to continue using the Services; (ii) provide a non-infringing replacement with substantially similar functionality; (iii) modify the Services so that they no longer infringe; (iv) or discontinue the Services.
XIII. Limitation of Liability
BNCO SHALL NOT BE LIABLE TO END USER OR ANY OTHER THIRD PARTY WITH RESPECT TO ANY PRODUCT, SERVICE OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR ANY PUNITIVE, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT, IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR ANY OTHER CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE PARTIES AGREE THAT THE AGGREGATE AND CUMULATIVE LIABILITY OF BNCO FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO BNCO UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE INITIATION OF ANY CLAIM FOR DAMAGES.
XIV. Term and Termination
a. Term. This Agreement will remain in effect for the Term (as defined herein) or until the Agreement is terminated as provided below. The “Term” is understood to mean the period starting on End User’s first use of the Services, or the acceptance of this Agreement, whichever is sooner, and continuing for the entire length of time during which either (whichever is later): (1) End User either uses, or has access to, the Services, Website, or Software Applications; or (2) any Television Coaching Agreement or any Website and Software License Agreement that may already be in place between BNCO and End User or an Affiliate of End User remains in place.
b. Termination. BNCO may terminate this Agreement for cause if End User is in material breach of the Agreement, or if End User or an Affiliate of End User is in material breach of any Television Coaching Agreement or Website and Software License Agreement that may be in place, and End User or Affiliate of End User fails to cure that breach within Thirty (30) days after receipt of written notice of such breach. BNCO may terminate this Agreement without cause upon Ninety (90) day written notice to End User. End User may terminate this agreement by ceasing use of the Services. Upon any termination with or without cause by either Party: (i) the rights granted by BNCO to End User will cease immediately; and (ii) after a commercially reasonable period of time, BNCO may delete any data relating to End User or any End User Data.
c. Survival. The following provisions of this Agreement shall survive any termination or expiration of this Agreement: Sections I, IV, V, VI, VII, IX, X, XI, XII, XIII, XIV, and XV.
XV. Additional General Terms and Conditions
a. Entire Agreement. This Agreement, together with any Television Coaching Agreement or Website and Software License Agreement that may already be in place between BNCO and End User or an Affiliate of End User, constitute the entire agreement between BNCO and End User with respect to the subject matter herein, and supersedes all prior and contemporaneous proposals, statements and agreements. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid or unenforceable for any reason, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will negotiate in good faith a replacement provision to replicate the intention of such provision to the maximum extent permitted under applicable law.
b. Notices. Notices must be sent via first class, airmail, electronic mail or overnight courier to the following and are deemed given when received: To BNCO: Barry Nash & Company 1110 North Oak Cliff Boulevard Dallas, TX 75208 email@example.com
c. Governing Law. This Agreement shall be governed by the law of the State of Texas, and all claims arising out of or related to this Agreement or the Services being provided subject to this Agreement shall be brought exclusively in Federal or State Courts in Dallas County, Texas, and the Parties expressly consent to venue and personal jurisdiction in any such court.
d. Assignment. End User may not assign or transfer any part of this Agreement without the written consent of BNCO. BNCO may not assign this Agreement without providing notice to End User, except BNCO may assign this Agreement without such notice to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
e. No Relationship. No agency, partnership, joint venture or employment is created between the Parties as a result of this Agreement. Except as specifically provided herein or in the Television Coaching Agreement or Website and Software License Agreement, neither Party is authorized to create any obligation, express or implied, on behalf of the other Party, nor to exercise any control over the other party’s methods of operation.
f. Force Majeure. If either party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, hardware failure, interruptions or failure of the Internet or third-party network connections, such party will be excused from performance for the period of the delay and for a reasonable time thereafter.
g. Third-Party Beneficiaries. Except as explicitly provided herein, there are no third-party beneficiaries to this Agreement.
h. Modification and Waiver. No waiver, amendment or modification of any provision of this Agreement shall be effective unless in a writing, signed by both Parties. No failure or delay by either Party in exercising any right, power or remedy under this Agreement shall operate as a waiver of such right, power or remedy. No waiver of any term, condition or default of this Agreement shall be construed as a waiver of any other term, condition or default. This Agreement will not be supplemented or modified by any course of dealing between the Parties.