[v. January 2021]
These terms and conditions govern all rights and obligations regarding the use of the Application. These terms and conditions constitute an agreement between the User and the Provider. By downloading and using the Application, the User signifies consent to these terms.
Definitions
“Application” means the software tool used for staff and athlete communication, which may include tracking and sharing information about guest passes, locations, sports or team handbooks, team schedules and more. The application may be called the “Pocket Team” or maybe white labeled to reflect the name of the Sponsor.
“User(s)” or “you” means you, the end user, who has downloaded the Application and is authorized by the Sponsor to access and use the Application.
“Sponsor” means the organization that has entered into an agreement with the Provider through which the Provider has licensed software (including the Application and web-based features and functions such as a console, dashboard and/or an administrative portal) and provides maintenance, support, hosting and related services.
“Provider” means New Start Mobile, LLC.
“Third Party Products” means any open source and freeware components licensed or utilized by Provider and any third-party software, tools or other materials provided with, or incorporated into, or linked to the Application.
Acknowledgement
By downloading, registering to use and accessing the Application, you acknowledge and agree that:
(1) you read and understand and accept these terms and conditions;
(2) you have the authority to agree to the terms and conditions and you are either (a) over the age of 18 or (b) you are between the ages of 13 and 18 and have parental permission to do so;
(3) your use is solely for your personal, private and individual purpose;
(4) you will ensure your name, contact details and related information maintained by the Sponsor are accurate and up to date; and
(5) any data you supply, including personal information will be governed by the Privacy Policy.
If you are under the age of 13, you may not download or use the Application.
USE OF THE APPLICATION
Access and Use.
The Application is provided by download through the applicable mobile application store. Provider hereby grants the User a non-exclusive, non-transferable, non-sub-licensable, revocable license to use the Application for non-commercial purposes, subject to these terms.
The User hereby agrees that it will only use the Application for private, personal and individual uses;
User merely obtains a limited, non-exclusive license to use the Application in accordance with these terms and conditions and within the scope, duration and intended use requirements as stated in this agreement or as otherwise communicated by Provider from time to time; and
Provider may make changes, impose limits, and occasionally suspend or terminate certain aspects of the Application. Provider may also update the Application, which may not work properly if the User does not install updates. Provider may launch new products, services and features (with or without a fee) or remove any features or functionality from time to time.
Sponsor Responsibility. Provider and Sponsor have entered into an agreement for the use of the Application by and for Users. The Sponsor will be solely responsible for administering and monitoring the use of login IDs and passwords. Sponsor may create and implement a reauthorization process whereby login ID and passwords may be terminated if not used within a specific number of days. Sponsor is responsible and liable for (a) all use of the platform, and web-based features and functions such as a console, dashboard and/or an administrative portal associated with the Application; (b) whether it permits, rejects or otherwise modifies access or use of the Application by User; (c) all Content (as defined below) it makes available, distributes or transmits through the Application; and (d) all programming, dispatch, geo-location, aid or security services. Sponsor shall use reasonable efforts to make all Users aware of any provisions applicable Users use of the Application and shall cause Users to comply with such provisions.
Use Restrictions. User shall not use the Application for any purposes beyond the scope of the access expressly granted in these terms and conditions. User shall not at any time, directly or indirectly:
copy, modify, or create derivative works of the Application in whole or in part;
rent, lease, lend, sell, license, sublicense, assign, distribute, publish, publicly display, transfer, or otherwise make available the Application to anyone;
reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Application, in whole or in part; or alter, modify, enhance, make works derived from the Application or attempt to generate or access the source code for the Application (or other tools, software or products), whether by converting, translating, decompiling, disassembling or merging any part of the Application with any other software
remove any proprietary notices from the Application or change the name, trademarks, brands or logos embedded in, or used with, the Application;
permit or allow any damage, interference with, or other harm to Provider’s network, servers, systems, or other technological devices or any third-party network or system connected thereto;
use a robot, spider, scraper or other unauthorized automated means to access Provider networks, servers, systems or other technological devices or any third-party network or system connected thereto;
use the Application in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; and
store or transmit material in violation of third-party privacy rights, use the Application to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs or attempt to gain unauthorized access to the Application or its related systems or networks.
Further, User represents that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and you are not listed on any U.S. Government list of prohibited or restricted parties.
Content
Users may have the ability to submit and post information and content with the Application, including to other users and/or to the Sponsor, which content may be in any format, including any data, video, audio, photographs, location, images, text, replies, “likes,” comments, graphics, geo-data, and other materials or information (“Content”). Content can include, for example, team schedules, meetings, practice information, and User information. The User assumes sole responsibility for any Content the User submits and/or posts and you alone are liable for the consequences when you submit and/or post Content. Sponsor, and not Provider, is solely and completely responsible and liable for all Content it submits or uses with the Application.
Content Limitations: Users may not use the Application in any manner that contains, posts, shares or transmits any material that:
is false, misleading, libelous, private or other disparaging content;
is improper or unlawful;
is defamatory, offensive, obscene or otherwise objectionable;
breaches the confidence or privacy of any third-party's rights;
violates copyright, trademark or other intellectual property rights;
is misleading or misrepresents the Providers’s products or services; and/or
causes damage to Provider or brings Provider into disrepute.
Third-Party Products. The Application may contain or link to Third Party Products under license to Provider and, in certain situations; Third Party Products may require notices to other licensors and/or compliance with additional terms and conditions. If applicable, such required Third Party Product notices and/or additional terms are hereby incorporated by reference into these terms and conditions.
Connection to the Application. User shall be responsible, at its own expense, for procuring and maintaining the telecommunications, networks, peripherals and other items necessary to access the Application. User shall be solely responsible for all aspects of Internet use and connectivity. As such, the Internet connection required to use the Application, and any associated charges (e.g. mobile data expenses) incurred by the use of the Application are the User’s exclusive responsibility and made solely at the User’s expense. Transmitting and receiving real-time updates to and from the Application, requires an online (e.g. Wi-Fi, 3G, 4G) connection between a cellular device and the Internet.
Suspension. Provider may temporarily suspend User’s access to any portion or all of the Application if: (i) Provider reasonably determines that (A) there is a threat or attack on the Application; (B) User’s use of the Application, which disrupts or poses a security risk to the Application or to any other User or vendor of Provider; (C) User is using the Application for fraudulent or illegal activities; (D) subject to applicable law, Sponsor has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) the provision of the Application to User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider access to or use of any third-party services or products required to enable User to access the Application; or (iii) Sponsor’s failure to pay fees when due. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that User may incur as a result of a suspension.
Apple. If the Users uses the Application on an Apple device, then the User agrees and acknowledge that:
Apple, Inc. bears no duties or obligations to you under the Terms, including, but not limited to, any obligation to furnish you with maintenance and support;
You will have no claims, and you waive any and all rights and causes of action against Apple with respect to the Application, including, but not limited to claims related to maintenance and support, intellectual property infringement, liability, consumer protection, or regulatory or legal conformance;
Apple and Apple’s subsidiaries are third party beneficiaries of the Terms. Upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
TERM AND TERMINATION.
Commencement: These terms and conditions shall begin on the date User registers to use the Application.
Termination Period: These terms and conditions will remain in effect perpetually unless the Application is terminated, as described below.
Cancellation or Termination of Application: The User may terminate use of the Application at any time and for whatever reason. You are not obligated to advise Provider of such termination. However, if you would also like for Provider to delete your Provider account and your personal information contained in the account, please submit a request to contact@newstartmobile.com and provide your name, the Sponsor name and your username used for this Application. On receiving such a request, Provider will use reasonable efforts to delete such information and will do so in accordance with Provider’s Privacy Policy, noting that information may not be deleted immediately from any back-up systems. For more information, please read our Privacy Policy.
Termination by Provider: Provider retains the right to block User’s access to and use of the Application and discontinue use, at any time and for any reason Provider deems appropriate, at its sole and absolute discretion. Thus, Provider may terminate these terms and conditions immediately without notice to User if: (i) User fails to comply with any term or condition of these terms and conditions; and/or (ii) Sponsor is liquidated or dissolved, or becomes insolvent, or suffers a receiver or trustee to be appointed for it, or makes an assignment for the benefit of creditors or institutes or has instituted against it any proceeding under any law relating to bankruptcy or insolvency or the reorganization or relief of debtors; and/or (iii) the agreement between Sponsor and the Provider has terminated or been cancelled, such as for failure to pay fees when due.
Effect of Termination. Upon termination of these terms and conditions for any reason, User’s right to access and use the Application shall be terminated and revoked and User shall immediately discontinue use of the Application and User shall delete, destroy, or return all copies of network passwords, links and other materials providing access to the Application. Upon termination or cancellation of this agreement for any reason Provider will cease performing any actions in connection with the Application such as support, hosting, or access to the Application for, or to, the User. The sections of these terms and conditions pertaining to Termination, Ownership, Warranties, Disclaimers and Limitation of Liability, and General Provisions shall survive any termination of these terms and conditions.
OWNERSHIP AND CONFIDENTIALITY
Provider Ownership. Provider is the owner or licensee of all intellectual property rights in and to the Application and all derivative works thereof, including, without limitation all copyrights, trade secrets, patents, and trademarks. User does not acquire any right, title or interest in or to the Application except in accordance with these terms and conditions. Provider (or its licensors) shall hold all title, ownership rights, and intellectual property rights to any modifications, updates, copies, translations, improvements, adaptations or incorporations of the Application.
User Information: The collection, maintenance and use of all personally identifiable and related information about, or in connection with, Users shall be governed by the Provider’s Privacy Policy. Sponsor warrants that its collection of all data pertaining to any User is, and shall remain, in accordance with all laws and that Sponsor has, and will continue to have, all right to collect, maintain and use that data. The collection, maintenance and use of data as described in this paragraph means and includes, without limitation, obtaining data, importing data into the Application, exporting data from the Application, identifying and transmitting information about User. User shall seek any and all remedies, claims, recovery or otherwise directly and solely from Sponsor in connection with the use of User information and data.
Feedback. If User provides any comments, information or materials to Provider (by mail, email, telephone, or otherwise), suggesting or recommending changes to the Application, including without limitation, new features or functionality (collectively and individually “Feedback”), Provider is free to use such Feedback in its sole discretion and Provider shall own all such Feedback. User hereby assigns to Provider all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY.
THE APPLICATION AND ALSO USE THEREOF IS ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE HEREBY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, FEATURES, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY. The User assumes responsibility for the selection of the Application to achieve the User’s intended results, and for the use and results obtained from the Application. Provider is not liable for any damage to or loss of any programs, data, or other information or any non-Provider-branded product, embedded software or software not covered by this warranty.
Provider does not warrant that the Service will operate in an uninterrupted or error-free manner, or that it will always be available or free from all harmful components, or that it is safe, secured from unauthorized access to Provider’s computers, immune from damages, free of malfunctions, bugs or failures, including, but not limited to hardware failures, software failures and software communication failures, originating either in Provider or any of its providers.
Limitation of Liability. PROVIDER AND ITS AFFILIATES, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND AGENTS, SUBSIDIARIES, DIVISIONS, SUCCESSORS, ASSIGNS OR ANY OF ITS SUPPLIERS OR MANUFACTURERS, SHALL NOT BE LIABLE, REGARDLESS OF CIRCUMSTANCES AND REGARDLESS OF THE FORM OF ACTION, WHETEHER IN CONTRACT OR IN TORT, FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES OF ANY NATURE OR KIND WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES ARISING OUT OF OR RESULTING FROM USE OF THE APPLICATION LOST OR CORRUPTED ATHLETE OR THIRD PARTY DATA, LOST PROFITS OR LOST GOODWILL, FAILURE TO REALIZE SAVINGS OR FOR ANY CLAIM OR DEMAND AGAINST THE USER BY ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED (OR KNOWS OF OR SHOULD HAVE KNOWN OF) THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR IN ANY OTHER FORM OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE THE SERVICE, OR FROM ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SERVICE, OR FROM ANY FAULT, OR ERROR MADE BY PROVIDER’S STAFF OR ANYONE ACTING ON ITS BEHALF, OR FROM YOUR RELIANCE ON THE CONTENT OF THE APPLICATION OR FROM ANY COMMUNICATION WITH THE APPLICATION, OR WITH OTHER USERS ON OR THROUGH THE APPLICATION, OR FROM ANY DENIAL OR CANCELLATION OF YOUR USER ACCOUNT, OR FROM RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR CONTENT. IN ANY EVENT, YOUR SOLE REMEDY WILL BE LIMITED TO CORRECTING SUCH ERRORS, OR MALFUNCTIONS, AND IN LIGHT OF THE RELEVANT CIRCUMSTANCES.
User and Sponsor’s Liability. User hereby warrants that all content it uses in accordance with, or through, the Application will not result in any third party claim against Provider at any time. And, if any such claim does arise, and without limiting Provider’s other rights and remedies, Provider may immediately suspend or otherwise disable User’s access to the Application, which Provider believes relates to any such claim. If User has any
INDEMNITY.
Indemnity. User shall indemnify and save harmless, to the extent permitted by state statute, Provider from and against any and all losses, damages, expenses or claims of any nature, whatsoever, Provider may suffer or incur as a result of any breach by User of any provision of these terms and conditions. This provision shall survive the termination of these terms and conditions for any reason.
Infringement Indemnity. Provider shall indemnify, defend or, at its option, settle any claim or suit against User arising from a claim that the Application provided as part of the Application infringes any patent, trademark, copyright or trade secret, and Provider shall pay any final judgment entered against User in any such proceeding; provided Provider has sole control of such defense and/or settlement, and User promptly notifies Provider and provides Provider with reasonable assistance. If any part of the Application is, or becomes, the subject of any such proceeding (or is adjudicated to infringe), Provider may, at its expense and option, do one of the following things: (i) procure for User the right to use the Application; (ii) replace the Application with other suitable software or programs; (iii) modify the Application to make it non-infringing; or (iv) if none of the foregoing are commercially reasonable, terminate this agreement and Provider shall have no obligations under this section with respect to any claim to the extent it is based upon the combination, operation or use of the Application with software or hardware other than as specified by Provider, if such infringement would have been avoided in the absence of such combination, operation or use. This infringement indemnity does not apply to any Third Party Products.
GENERAL PROVISIONS.
Entire Agreement. The terms and conditions contained herein comprise the entire agreement and understanding between Provider and User and neither is bound by any representation or inducements not specifically set forth herein. These terms and conditions supersedes any prior representations, discussion, communications or presentations related to the Application. All other agreements existing by and between the parties on or before the Effective Date are hereby deleted in their entirety.
Severability, Modification and Waiver. If any portion of these terms and conditions is held to be void, invalid or otherwise unenforceable, in whole or part, the remaining portions of these terms and conditions shall remain in effect. This Agreement may not be modified or amended except in writing signed by an authorized representative of each party. A party’s failure to exercise any rights herein shall not constitute or be deemed a waiver or forfeiture of such rights. If a party wishes to waive its rights hereunder, it must provide written notification of its rights to the other party.
Assignment. Except in the event of Provider merger or sale of substantially all of its assets or voting securities, neither these terms and conditions nor any of the rights or duties hereunder may be assigned or otherwise transferred by either party without the other party’s prior written consent. Any act that is inconsistent with the terms of this section shall be null and void.
Notice. All notices required hereunder will be in writing and will be deemed to have been given when delivered by overnight courier or by electronic transmission with confirmed receipt of delivery, and/or three (3) days after mailing by certified or registered mail, postage prepaid, return receipt requested. All such communications to the User should be addressed to the address of the respective party set forth in the Application platform and if to the Provider to contact@newstartmobile.com.
Force Majeure. Neither party shall be liable for failure to fulfill its obligations under these terms and conditions (other than a failure to pay money) if that failure is caused, directly or indirectly, by reasons beyond its reasonable control, including flood, fire, civil disorder, government actions, war, terrorism, embargoes, labor disputes/strikes or other natural calamity or act of God.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to its choice of law rules.
No Legal Relationship. These terms and conditions and your use of the Application, including the submission of Content, do not, and shall not be construed as creating any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship in any way and of any kind between the parties hereto.
Arbitration. The User agrees to submit any and all disputes arising out of or related to the use of the Application to binding arbitration. To the maximum extent permitted by applicable law, the User and Provider agree that any disputes arising out of or related to your use of the Application will be resolved by binding arbitration pursuant to the Federal Arbitration Act.