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Terms of Use - Effective 12/01/2010 This website, 94fifty.com and all subdomains (“InfoMotion Website”), is operated by InfoMotion Sports Technologies, Inc. (“InfoMotion”). These Terms of Use set forth the general terms and conditions of your use of the InfoMotion Website and the information, materials, products and services found at and/or related to this site (collectively, the “Services”), and is in addition to (not in lieu of) any specific terms and conditions that apply to the particular Services you access through the InfoMotion Website. You are only authorized to access the InfoMotion Website and to use the Services contained in the InfoMotion Website (regardless of whether your access or use is intended) if you agree to abide by all applicable laws, and to these Terms of Use which constitute an agreement between you (a “User”) and InfoMotion. For purposes of these Terms of Use, “Users” include any person who is a “Player,” “Parent,” “Coach,” or “Program Administrator” (all of which are defined in Section I.A. below), and any other person who uses the InfoMotion Website. If you are a User who is under the age of 18, then your Parent will have been deemed to enter into such agreement on your behalf by setting up an InfoMotion account as described below in Section I.B. For purposes of these Terms of Use, the terms “you” and “your” refer to each User of the InfoMotion Website and, with respect to Users under the age of 18, “you” and “your” refer, both individually and collectively, to the User and his/her Parent. If you do not agree with these Terms of Use, you should leave the InfoMotion Website immediately and not use the Services. As InfoMotion develops the Services and adopts new technologies to improve the Services, it is possible that these Terms of Use may change. These Terms of Use may also change for other reasons. Therefore, InfoMotion advises all Users to read these Terms of Use on a regular basis. This document is complemented by our "Privacy Policy", which should also be read regularly. If you are a Coach or Program Administrator, this document is also complemented by the terms of an Order and License Agreement which, among other things, sets forth additional responsibilities related to the Services which apply to you. These Terms of Use are organized in the following chapters: • General Overview • InfoMotion's Terms of Use • Property Rights I. General Overview A. The Services. At its core, the Services allow players (each, a “Player”) to use certain sporting devices (e.g., basketballs, other balls, and related software) that evaluate a Player’s skills, and for the data related to such use to be available via the InfoMotion Website. Specifically, InfoMotion has developed sporting devices that are embedded with motion detecting devices (collectively, the “InfoMotion Ball”) capable of collecting raw data from the user of the InfoMotion Ball (the “Performance Data”) that can be used in evaluating such Player’s skills and providing diagnostic and comparable data to the Player and others including the parent or legal guardian of a Player (“Parent”), thean authorized coach of the Player (“Coach”), and the an authorized person or personswho is involved in the operation of and/or who controlcontrols the sports program in which the Player is involved (“Program Administrator”). B. Access. In order for Players to use the Services (e.g., use the InfoMotion Ball) and to access any Performance Data, each Player (except for those Players under the age of 18) must create an online InfoMotion account by providing his/her name, e-mail address and other contact information together with his/her age, height, weight and other biographical information, plus a password. You must be 18 years or older in order to create an online InfoMotion account. If you are a Player under the age of 18, your Parent must create such an account to which you can be linked in order for the Player and/or Parent to use the Services and to access any Performance Data. Specifically, such Parent must create an account by providing his/her name, e-mail address and other contact information, together with the Player information described above, plus a password. A Parent can set-up subaccounts associated with his primary account for each such Player under the age of 18 for each child to also view his/her Performance Data. In order for Coaches and Program Administrators to use the Services and to obtain from InfoMotion any Performance Data (as well as Personal Information (as defined in our Privacy Policy) and Biographical Material (as defined in Section II.A. below)), either (i) each Coach or Program Administrator must sign and return the Purchasean individual Order and License Agreement provided by InfoMotion, and then create anhis/her own online InfoMotion account.; or (ii) an organization (which employs, supervises, controls and/or oversees such Coach(es) or Program Administrator(s)) must sign and return an Order and License Agreement provided by InfoMotion, and such Coach(es) or Program Administrator(s) must create his/her own online InfoMotion account associated with such organization. A Coach’s and Program Administrator’s use of the Services is subject to all the standard terms and conditions of the Purchase Order and License Agreement, these Terms of Use and our Privacy Policy. For example, upon termination of the license granted in the Order and License Agreement applicable to each Coach and Program Administrator, such Coach and Program Administrator is no longer permitted to use the Services or any Performance Data pursuant to such Order and License Agreement. The User is solely responsible for all of the information that he/she provides to InfoMotion as part of the registration process or otherwise, and all his/her activity on the InfoMotion Website. In this regard, User represents that all information that he/she submits is accurate, current and complete and that he/she will keep his/her information accurate, current and complete. Each party creating an account is the only and exclusive party responsible for the maintenance and confidentiality of his/her password and access to the associated account. You are solely responsible for the activity that occurs on your account, whether authorized by you or not, and you must keep your account information secure. Each User also agrees not to use the access information and/or the account of any other InfoMotion User except as permitted herein. C. Privacy and Confidentiality. InfoMotion will not share or sell the Personal Information (as the term is used in the InfoMotion Privacy Policy) of a User to third parties unless such User expressly consents to such sharing or selling, or if such sharing or selling is otherwise permitted pursuant to the InfoMotion Privacy Policy. All Personal Information will be kept confidential and safely protected, consistent with our Privacy Policy. Notwithstanding the foregoing, InfoMotion may (i) disclose and/or sell the Personal Information as part of a business transaction involving the sale, purchase, reorganization, or transfer to a third party of any of the assets of InfoMotion and/or the InfoMotion website; and (ii) disclose the Personal Information to comply with a court order, subpoena, search warrant, applicable legal requirements, or other valid legal process. D. Acceptance. By using the InfoMotion Website or the Services, the User agrees to accept the current Terms of Use and Privacy Policy. If any of the requirements of the Terms of Use (or any future changes to the Terms of Use) are unacceptable to you, you may cancel your registration by sending an email to support@94Fifty.com stating your wish to cancel your account. Your continued use of the InfoMotion Website or the Services now, or following the posting of notice of any changes in these operating rules, will indicate acceptance by you of such rules, changes, or modifications. II. InfoMotion's Terms of Use A. Performance Data and Use of InfoMotion Ball. In consideration of being able to use the InfoMotion Ball and/or to obtain a copy of selected information from the collected Performance Data (related to you or your child who is a Player), you hereby agree that (i) InfoMotion may record, collect and store the Performance Data generated from Player’s use of the InfoMotion Ball; (ii) InfoMotion is, and will be, the owner of all right, title and interest (including copyright and any and all other intellectual property rights), in and to the Performance Data, and all works incorporating the Performance Data or derived therefrom, with the unlimited right to use, reproduce, distribute, display, perform, compile, collect, and create derivative works for the Performance Data in any and all manner and media throughout the world in perpetuity in accordance with these Terms of Use; and (iii) InfoMotion may share your Performance Data, Biographical Materials and Personal Information with your Coach and/or Program Administrator subject to our Privacy Policy. You hereby grant permission to InfoMotion, including its successors, assigns and licensees to utilize Player’s age, height, weight, town/city and state of residence, and other biographical material (the “Biographical Material”) in connection with the Performance Data generated from Player’s use of the InfoMotion Ball without further consideration in any and all manner and media throughout the world in perpetuity in accordance with these Terms of Use. For purposes of these Terms of Use, “Biographical Material” does not include a Player’s complete name (i.e., complete first and last names), phone number or email address. You agree that you are using the InfoMotion Ball freely and voluntarily and consent to InfoMotion’s use of the Performance Data generated from your use of the InfoMotion Ball and your Biographical Material as provided herein. You agree that you shall have no right, title or interest (including copyright or any other intellectual property rights) in or to the Performance Data or any work which incorporates the Performance Data generated from your use of the InfoMotion Ball and/or related to your Biographical Material. Consistent with the “Limitation of Liability” section herein, you expressly release, discharge and agree to save harmless InfoMotion, including its agents, partners, employees, licensees, assigns and all other persons acting under its permission or authority from and against any and all claims which you have or may have for invasion of privacy, libel, defamation or any other cause of action arising out of InfoMotion’s recordal, collection, storage, reproduction, compilation, display, performance, publication and public dissemination of the Performance Data generated from your use of the InfoMotion Ball and your Biographical Material including, without limitation, by virtue of any errors that may occur. B. Commercial Usage Prohibition. The User may only use the InfoMotion Website and the Services (and any related content, information, and material including, but not limited to, Performance Data and information or materials derived from or incorporating Performance Data) for personal, non-commercial usage. It is strictly forbidden for you to publish, reproduce, modify, change, broadcast, distribute or make the InfoMotion Website or the Services (and any related content, information and material including, but not limited to, Performance Data and information or materials derived from or incorporating Performance Data) accessible to other parties in any way, including by making them available in other Websites, online services, bulletin boards or message boards, or paper copies unless you have obtained the prior written consent of InfoMotion or unless it is expressly permitted by terms stated by InfoMotion in the InfoMotion Website. C. Liability. It is strictly forbidden for a User to create, introduce, or advise others to create or introduce, any type of virus or malware to the InfoMotion Website or which impacts the Services, which could (or will) cause damage or other harmful effects. The content of the InfoMotion Website is only meant for informative purposes. Therefore, no information, material or content contained in this web site shall constitute advice, or substitute for professional advice. Consistent with the "Limitation of Liability" section herein, InfoMotion will not be held responsible for any damages or losses, direct or indirect, suffered by any User or other party regarding the information, material or content contained within (or referenced or linked to) the InfoMotion Website. The User is the only and exclusive party responsible for any damages, direct or indirect, that he/she may have caused to himself, InfoMotion or any other party, related to his/her usage of the InfoMotion Website or the Services. D. Cookies. The website may use cookies and other tracking mechanisms in order to improve and optimize its usage. E. Service Terms Changes. InfoMotion reserves its right to change or terminate (either temporarily or permanently) the Services and/or the InfoMotion Website for any reason at any time and without any previous notice, without incurring any liability. InfoMotion reserves its right to modify these Terms of Use without any prior notice. It is each User's sole and exclusive responsibility to keep informed of any such changes. F. Indemnity. You agree to defend, indemnify and hold harmless InfoMotion, its parents and affiliates together with their respective employees, agents, directors, officers and shareholders, from and against all the liabilities, claims, damages and expenses (including reasonable attorney fees and costs) arising out of your use of the InfoMotion Website or the Services; your failure to use the InfoMotion Website or the Services; your breach or alleged breach of these Terms of Use or your breach or alleged breach of the copyright, trademark, proprietary or other rights of third parties. G. Warranties. The Services and the InfoMotion Website (which includes all materials on this site or offered in connection with this site and/or the Services) are provided "as is" and, to the fullest extent permitted by law, are provided without warranties of any kind either express or implied. This means, without limitation, that InfoMotion, DOES NOT WARRANT that the InfoMotion Website or the Services are fit for any particular purpose; that the functions contained in the InfoMotion Website or related to the Services will be uninterrupted; that defects will be corrected; that the InfoMotion Website or the Services are free of viruses and other harmful components or that the InfoMotion Website or the Services are accurate, error-free or reliable. Some jurisdictions do not allow the disclaimer or exclusion of certain warranties or the disclaimer or exclusion of certain liabilities. To the extent that they are held to be legally invalid, disclaimers, exclusions, and limitations set forth in these Terms of Use do not apply; however, all other terms and conditions shall apply and remain in full force and effect. III. Property Rights and Limitation of Liability A. Property Rights. InfoMotion is the exclusive owner of all rights (including copyrights and any and all other intellectual property rights) in all information, material and content on the InfoMotion Website, including but not limiting to Performance Data, materials incorporating or derived from the Performance Data, any and all compilations or collections (including compilations and collections incorporating Performance Data, Personal Information and/or Biographical Material), texts, graphics, images, sounds, software applications and any other information, all of which are owned exclusively by InfoMotion, which has ownership of the copyrights on all such information, material and content, unless otherwise indicated on the InfoMotion Website or as otherwise provided herein. The copyright and other intellectual property rights of InfoMotion set forth herein extend to all reproduction or copies, obtained from the InfoMotion Website. Such rights of InfoMotion cannot be in any way transferred or assigned by User (or any other third party) to any other party(ies) and User cannot copy, modify, display, perform, publish, broadcast, distribute, execute, present or sell any information, material or content in which InfoMotion or any other third party owns the associated rights unless otherwise explicitly permitted by InfoMotion or these Terms of Use. B. Limitation of Liability. While InfoMotion does its best to ensure the optimal performance of the InfoMotion Website and the Services, you agree that you use the InfoMotion Website and the Services, and rely on information, material and content contained in this site and/or related to the Services, at your own risk. You acknowledge that InfoMotion, its parents and affiliates together with their respective employees, agents, directors, officers and shareholders, ARE NOT LIABLE for any delays, inaccuracies, failures, errors, omissions, interruptions, deletions, defects, viruses, communication line failures or for the theft, destruction, damage or unauthorized access to your computer system or network or the Services (and any information/data related thereto). In this regard, you also acknowledge that InfoMotion does not warrant that it backs-up any data. InfoMotion is not responsible for the accurateness, quality, safety, or legality regarding any information, material or contents provided by advertisers, retailers or marketing partners ("Advertiser Content"), as well as any information contained in other parties' websites. InfoMotion is not responsible for any damage or liability resulting from and/or involving the InfoMotion Website, the Services, or Advertiser Content. InfoMotion reserves its right to freely, without presenting a justification and without liability (at any time), remove or not publish any information, material, content, text, data, images, applications or programs, that InfoMotion may edit or that may be edited by a User(s). In no event shall InfoMotion, its parents and affiliates, together with their respective employees, agents, directors, officers and shareholders, be responsible or liable for any direct, indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by you or any third party, whether in an action in contract or tort, arising from or related to content located on (or accessible via) the InfoMotion Website, or related to your access to, or use of, or inability to use the InfoMotion Website, or the Services, even if InfoMotion has been advised of the possibility of such damages or losses. In no event shall InfoMotion, its parents and affiliates, together with their respective employees, agents, directors, officers and shareholders, be responsible or liable for any damages or liability whatsoever related to whether Player is or is not recruited, offered a scholarship, or asked to play or otherwise participate in an athletic program. Notwithstanding the foregoing, the total liability of InfoMotion, its parents and affiliates together with their respective employees, agents, directors, officers and shareholders, whether in contract, warranty, tort (including, without limitation, negligence), product liability, strict liability or any other theory, associated with any claim arising out of or relating to use or access to the InfoMotion Website for any reason whatsoever shall be limited to the cost, if any, of accessing the InfoMotion Website. C. Links to External Websites. InfoMotion may allow the connection to a third party website. These links allow the User to leave the InfoMotion Website. External websites are not controlled by InfoMotion, which is not in any way liable for the contents of any web site link, or any connection contained in a website with a link, or any changes made on those websites. InfoMotion only supplies these links for User's convenience, and their inclusion does not imply that InfoMotion endorses any such website. COPYRIGHT. Copyright © 2010 InfoMotion Sports Technologies, Inc. All rights reserved. Any rights not explicitly granted in these Terms of Use are reserved.
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