Pelotero End User License Agreement
PELOTERO END USER LICENSE AGREEMENT
Effective Date: November 1, 2020
Welcome to the Pelotero Mobile App (“App”). This EULA governs your access and use of the App, offered by Pelotero and its subsidiaries (“Pelotero”) and related updates, upgrades and features offered by Pelotero and/or live events hosted by or in connection with Pelotero through the App (collectively “Pelotero App Services”).
BY USING THE APP AND ANY PELOTERO APP SERVICES, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE, DO NOT INSTALL THE APP OR USE THE Pelotero APP SERVICES. YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED BELOW TO RESOLVE ANY DISPUTES WITH Pelotero IN RELATION TO THIS END USER LICENSE AGREEMENT (“EULA”).
1. Pelotero Account
1.1. You need an Pelotero Account to access and use the many Pelotero App Services, including scheduling, player development programming, athlete development, and related team management services.
1.2. To create an Pelotero Account, you must have a valid email address, and provide truthful and accurate information. You must be eligible to use the Pelotero App Service for which you are registering and must be resident of a country where use of Pelotero App Services is permitted.
1.3. You must be at least 13 years of age (or such other minimum age as is applicable in your country of residence) to create an Pelotero Account. If you are aged between 13 and 18 (or the age of majority where you live), you and your parent or guardian must review this EULA together. Parents and guardians are responsible for the acts of children under 18 years of age when using Pelotero App Services. Pelotero recommends that parents and guardians familiarize themselves with parental controls on devices they provide their child.
1.4. You are responsible for the activity on your Pelotero Account. Your Pelotero Account may be suspended or terminated if someone else uses it to engage in activity that violates this EULA.
1.5. You may cancel your Pelotero Account at any time. You also may cancel a subscription to a particular Pelotero App Service at any time. Contact Pelotero’s Customer Service Department at
https://pelotero.com/customer-service/
to cancel your Pelotero Account.
2. License
The Pelotero App Services are licensed to you, not sold. Pelotero grants you a personal, limited, non-transferable, revocable and non-exclusive license to use the Pelotero App Services to which you have access for your non-commercial use, subject to your compliance with this EULA. You may not access, copy, modify or distribute any Pelotero App Service, Content or Entitlements (as those terms are defined below), unless expressly authorized by Pelotero or permitted by law. You may not reverse engineer or attempt to extract or otherwise use source code or other data from the App or any Pelotero App Services. Pelotero or its licensors own and reserve all other rights, including all right, title and interest in the Pelotero App Services and associated intellectual property rights.
3. Content and Services
3.1. The Pelotero App Services include Content and Services. Content is the software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or emanating to or from Pelotero App Services, as well as the design and appearance of our Apps and websites. All Content is either owned by Pelotero or its licensors, or is licensed to Pelotero and its licensors pursuant to this EULA.
3.2. Services are the specific functionality which you can access from the App or related websites. They can include: the intelligent program builder, interconnected calendars for athletes and coaches, messaging, billing, facility and coach scheduling, inventory and resource management, data warehouse and reporting, athlete questionnaires, and other tools to improve the athlete development process.
3.3. You will provide at your own expense the equipment, Internet connection and charges required to access and use Pelotero App Services.
4. Availability of Pelotero App Services and Updates
4.1. We do not guarantee that any Pelotero App Service will be available at all times, in all locations, or at any given time or that we will continue to offer a particular Pelotero App Service, Content or Entitlements for any particular length of time. Pelotero does not guarantee that Pelotero App Services can be accessed on all devices, by means of a specific Internet or connection provider, or in all geographic locations.
4.2. From time to time, Pelotero may update, change or modify an Pelotero App Service without notice to you. These updates and modifications may be required in order to continue to use Pelotero App Services.
5. Rules of Conduct
5.1. When you access or use an Pelotero App Service, you agree that you will not:
(a) Violate any law, rule or regulation.
(b) Interfere with or disrupt any Pelotero App Service or any server or network used to support or provide an Pelotero App Service, including any hacking or cracking into an Pelotero App Service.
(c) Use any software or program that damages, interferes with or disrupts an Pelotero App Service or another’s computer or property, such as denial of service attacks, spamming, hacking, or uploading computer viruses, worms, Trojan horses, cancelbots, spyware, corrupted files and time bombs.
(d) Interfere with or disrupt another individual’s use of an Pelotero App Service. This includes disrupting the normal functionality, chat or similar communications within a Pelotero App Service by, for example, using vulgar or harassing language, being abusive, excessive shouting (all caps), spamming, flooding or hitting the return key repeatedly.
(e) Harass, threaten, bully, embarrass, spam or do anything else to another player that is unwanted, such as repeatedly sending unwanted messages or making personal attacks or statements about race, sexual orientation, religion, heritage, etc. Hate speech is not tolerated.
(f) Publish, post, upload or distribute any content, such as a topic, name, screen name, avatar, persona, or other material or information, that Pelotero (acting reasonably and objectively) determines is inappropriate, abusive, hateful, harassing, profane, defamatory, threatening, hateful, obscene, sexually explicit, infringing, privacy-invasive, vulgar, offensive, indecent or unlawful.
(g) Post a message for any purpose other than personal communication. Prohibited messages include advertising, spam, chain letters, pyramid schemes and other types of solicitation or commercial activities.
(h) Impersonate another person or falsely imply that you are an Pelotero employee or representative.
(i) Improperly use in-game support or complaint buttons or make false reports to Pelotero staff.
(j) Attempt to obtain, or phish for, a password, account information, or other private information from anyone else on Pelotero App Services.
(k) Modify any file or any other part of the Pelotero App Service.
(l) Use exploits, cheats, undocumented features, design errors or problems in an Pelotero App Service.
(m) Use or distribute counterfeit software or Pelotero Content, including personal information related to Pelotero App users or subscribers.
(n) Sell, buy, trade or otherwise transfer or offer to transfer your Pelotero Account, any personal access to Pelotero App Services, or any Pelotero Content associated with your Pelotero Account.
(o) Use an Pelotero App Service in a country in which Pelotero is prohibited from offering such services under applicable export control laws.
(p) Engage in any other activity that significantly disturbs the peaceful, fair and respectful environment of an Pelotero App Service.
(q) Use information about users publicly available in any Pelotero App Service (e.g. on a scheduler) for any purpose unrelated to the Service.
(r) Promote, encourage or take part in any prohibited activity described above.
5.2. If you or someone using your Pelotero Account violates these rules and fails to remedy this violation after a warning, Pelotero may take action against you, including revoking access to certain or all Pelotero App Services, or terminating your Pelotero Account. In case of severe violations, Pelotero may take these actions without issuing a prior warning. When practical, Pelotero will notify you of the action it will take in response to violations of these rules or breach of this EULA.
5.3. Specific Pelotero App Services (for example billing or facility scheduling) may post additional rules that apply to your use of those services.
5.4. If you encounter another user who is violating any of these rules, please report this activity to Pelotero using the “Help” or “Report Abuse” functions in the relevant Pelotero App Service.
5.5. Pelotero may, in its discretion, monitor or record online activity or Content on Pelotero App Services and may remove any Content from any Pelotero App Service at its discretion.
6. Technical and Content Protection Measures
Pelotero utilizes certain technical or content protection measures to prevent piracy and the unauthorized copying or use of an Pelotero App Service.Pelotero utilizes certain technologies to detect and prevent misuse in connection with the use of Pelotero App Services. Pelotero may use its own or third party monitoring technologies.
7. Termination and Other Sanctions
7.1. This EULA is effective until terminated by you or Pelotero. Pelotero may terminate your access and use of any Pelotero App Services or your Pelotero Account if Pelotero determines that you have violated this EULA or that there has been otherwise unlawful, improper or fraudulent use of Pelotero App Services associated with your Pelotero Account. When practical, Pelotero will notify you of the termination. You may lose your user name and persona as a result of an Pelotero Account termination. If you have more than one Pelotero Account, depending on the type of violation or misuse, Pelotero may terminate all of your Pelotero Accounts and all related Entitlements. If your Pelotero Account is terminated, you will not have access to your Pelotero Account or Entitlements and may be barred from accessing or using any Pelotero App Service again. Upon termination, your license under this EULA also shall terminate.
7.2. Instead of termination and prior to any termination, Pelotero may issue you a warning, suspend or alter your access to a particular Pelotero App Service or your Pelotero Account, remove or revoke Entitlements at an Pelotero Account or device level, remove or delete any content which is in violation with this EULA, or ban your device or machine from accessing specific Pelotero App Services. If Pelotero takes any action described in this Section, you will not be entitled to a refund (subject to any statutory refund rights) and no Entitlements will be credited to you or converted to cash or other forms of reimbursement.
7.3. Pelotero may terminate any Pelotero App Service at any time by giving at least thirty days’ notice either via email (if available), within the affected Pelotero App Service, or on the service updates page of the app store which you used to download the App. After termination, no updates will be applied to our Apps and we can’t guarantee the App will continue be available for download via any app stores. Any App available via iCloud or other applicable app store after online service termination may be removed from iCloud or other applicable app store without further notice to you.
7.4. If you believe that any action has been taken against your Account or device in error, please contact Customer Support at
https://pelotero.com/customer-service/
.
7.5. Sections 5, 8-9, 11-15 of this EULA survive termination of this EULA.
8. Warranties; Limitation of Liability
PELOTERO APP SERVICES ARE LICENSED AND PROVIDED “AS IS.” YOU USE THEM AT YOUR OWN RISK. TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, PELOTERO GIVES NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR PRACTICE. PELOTERO DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCT OR PELOTERO APP SERVICE; THAT THE PELOTERO SERVICE WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE PELOTERO APP SERVICE WILL BE UNINTERRUPTED OR FREE FROM ERRORS, BUGS, CORRUPTION, LOSS, INTERFERENCE, HACKING, OR VIRUSES, OR THAT PELOTERO APP SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER MOBILE DEVICE YOU MAY SUBSEQUENTLY PURCHASE. PELOTERO DOES NOT WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED VIA ANY APP STORE.
9. General Terms
9.1. Entire EULA.This EULA, together with any other Pelotero terms that govern your use of Pelotero App Services, constitutes the entire agreement between you and Pelotero. The EULA may not be amended or modified unless made in writing and signed by Pelotero. The failure of Pelotero to exercise any right under this EULA shall not constitute a waiver of the right or any other right. If any part of this EULA is held to be unenforceable, all other parts of this EULA shall continue in full force and effect.
9.2. Governing Law
.
(i) This EULA is between you and Pelotero Corporation, with a principle place of business at 2100 Downing Lane, Suite B, Leander, Texas 78641; (ii) the laws of the State of Texas, excluding its conflicts-of-law rules, govern this EULA and your use of Pelotero App Services; and (iii) you expressly agree that for claims and disputes not subject to the arbitration agreement below, exclusive jurisdiction for any claim or action arising out of or relating to this EULA or Pelotero App Services shall be the federal or state courts that govern Travis County, Texas, and you expressly consent to the exercise of personal jurisdiction of such courts.
9.3. Export
.
You agree to follow U.S. and other export control laws and agree not to transfer an Pelotero App Service to a foreign national, or national destination, that is prohibited by such laws. You also acknowledge you are not a person with whom Pelotero is prohibited from doing business under these export control laws.
9.4. Changes to this EULA. Pelotero may modify this EULA from time to time, so please review it frequently. For Pelotero users who accepted a version of this EULA prior to modification, the revisions will become effective 30 days after posting at
. Your continued use of Pelotero App Services means you accept the changes. If you we make any material changes to this EULA and you decline to agree to such changes, you must not continue to use the Pelotero App or the Pelotero App Service.
10. Dispute Resolutions by Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY - IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND PELOTERO CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND PELOTERO TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. THIS MEANS THAT YOU WILL NOT BE ABLE TO BRING A CLASS, COLLECTIVE, OR REPRESENTATIVE LAWSUIT IN A COURT OF LAW BEFORE A JUDGE OR JURY CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION AGREEMENT AND ARE INSTEAD AGREEING TO SUBMIT ANY SUCH DISPUTE SOLELY ON YOUR OWN BEHALF TO AN IMPARTIAL ARBITRATOR.
10.1. This Section offers a streamlined way to resolve disputes between us if they arise. Most of your concerns can be resolved quickly and satisfactorily by logging into the Pelotero customer support interface with your Account at
https://pelotero.com/customer-service/
. If Pelotero cannot resolve your concern, you and Pelotero agree to be bound by the procedure set forth in this Section to resolve any and all disputes between us.
10.2. You and Pelotero mutually agree to forego the delay and expense of using a court of law and choose instead to benefit from the speedy, economical, and impartial dispute resolution procedure of using binding arbitration for any “Covered Claims” (as defined below) that arise between You and Pelotero, its related and affiliated companies, and/or any current or former employee, officer, or director of Pelotero or any related or affiliated company. You and Pelotero agree that this Arbitration and Class Action Waiver is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and will survive even after these Terms and Conditions (‘Terms’) and any Services terminate. Any revision to or termination of the Terms that modify or terminate this Arbitration and Class Action Waiver shall not apply to a pending arbitration, to any claim that accrued prior to the modification or termination, or to any claim that the asserting party knew about prior to the modification or termination, except as may be required by applicable law.
10.3. Claims Covered by Arbitration
Other than the exceptions in the section below, “Covered Claims” include any and all controversies, disputes, disagreements, and claims arising out of, or relating to, this EULA (including its enforcement, breach, performance, interpretation, validity, or termination), or Your access to and/or use of the Pelotero App or the provision of content, services, and/or technology on or through the App to the fullest extent allowed by law.
10.4. Claims Not Covered by Arbitration
The Covered Claims do not include (and thus shall not require arbitration of) the following types of claims that will hereafter be referred to as “Excluded Claims”: (a) any claims that cannot be required to be arbitrated as a matter of law; (b) applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including but not limited to those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (c) small claims actions demanding $10,000 or less brought on an individual basis and within a small claims court’s jurisdiction.
10.5. Arbitrability Determinations
If a party violates the agreement to arbitrate by commencing an action asserting a Covered Claim in a court of law, then the court (and not an arbitrator) shall have the authority to resolve any disputes about the interpretation, formation, existence, enforceability, validity, and scope of the this Arbitration and Class Action Waiver. If a party complies with the agreement to arbitrate and files for arbitration without filing a complaint in a court of law, then the arbitrator shall have the authority to resolve any disputes about the interpretation of this Arbitration and Class Action Waiver for purposes of discovery or the merits of the underlying claim, but shall have no authority to resolve any disputes about the formation, existence, enforceability, or validity of this Arbitration and Class Action Waiver, including the Class Action Waiver.
10.6. Informal Negotiations
You and Pelotero shall first attempt to resolve any Dispute informally for at least 30 days before initiating arbitration. The informal negotiations commence upon receipt of written notice from one person to the other (“Notice of Dispute”). The Notice of Dispute must: (a) include the full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought. Pelotero will send its Notice of Dispute to your billing or email address. You will send your Notice of Dispute to: Pelotero Corporation, 2100 Downing Lane, Suite B, Leander, TX 78641, Attention: Legal Department.
10.7. Binding Arbitration
(a) To initiate arbitration, the party desiring to pursue a legal dispute must prepare a written demand setting forth the claim(s) and deliver the written demand within the applicable statute of limitations period by hand or first class mail to: Pelotero Corporation, 2100 Downing Lane, Suite B, Leander, TX 78641, Attention: Legal Department. You and Pelotero agree that the arbitration shall be administered by the American Arbitration Association (“AAA”) before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by AAA. Except to the extent that they are modified by the rules below, if You are an individual person, the AAA Consumer Arbitration Rules that are in effect at the time of the filing of the demand (and that are available at
https://www.adr.org/sites/default/files/Consumer_R...
) will apply. Except to the extent that they are modified by the rules below, if You are not an individual person, but are an entity or company, the AAA Commercial Arbitration Rules that are in effect at the time of the filing of the demand (and that are available at
https://www.adr.org/sites/default/files/Commercial...
) will apply.
(b) The parties agree that the applicable AAA rules are modified as follows:
(i) Any arbitrator must be neutral as to all parties. Standards for the recusal of an arbitrator shall be the same standards under which trial judges are recused under Texas law.
(ii) No party is entitled to its attorneys’ fees, except as may be awarded in a matter authorized by and consistent with applicable law.
(iii) All discovery shall be subject to any and all objections available under FRCP 26(b). Each party shall avoid broad or widespread collection, search, and production of documents, including electronically stored information (“ESI”). If a compelling need is demonstrated by the requesting party, the production shall: (i) be narrowly tailored in scope; (ii) only come from sources that are reasonably accessible without undue burden or cost; and (iii) be produced in a searchable format, if possible without undue burden or cost, and which is usable by the receiving party and convenient and economical for the producing party. Where the costs and burdens of the requested discovery outweigh its likely benefit, considering the needs of the case, the amount in controversy, and the importance of the discovery in resolving the issues, the arbitrator shall deny such requests or order production on condition that the requesting party advance to the producing party the reasonable costs involved in making the production, subject to the allocation of costs in the final award.
(iv) The arbitrator shall have the authority to award the same damages and other relief that would have been available in court pursuant to the law governing the Covered Claim(s).
(v) Either party shall have the right to file motions to dismiss and motions for summary judgment/adjudication.
(vi) The arbitrator shall have the authority to issue an award or partial award without conducting a hearing on the grounds that there is no claim on which relief can be granted or that there is no genuine issue of material fact to resolve at a hearing.
(vii) The Federal Rules of Evidence shall apply to all arbitration proceedings.
(viii) For discovery purposes only, an arbitrator may consolidate claims filed by multiple individuals, each on their own behalf, in a single arbitration proceeding, or may conduct a joint hearing for efficiency purposes, so long as the arbitrator does not (a) certify (conditionally or otherwise) a collective, class, or representative action that includes individuals who have not themselves already submitted their own individual claims, or (b) authorize the issuance of notice of the arbitration to individuals on the grounds that the arbitrator or any party believes there are other individuals who are similarly situated to or share commonality with a party to the arbitration.
(ix) The arbitrator must issue a decision in writing, setting forth in summary form the reasons for the arbitrator’s determination and the legal basis therefor.
(x) The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except to preclude the same claim from being re-arbitrated between the same parties.
(xi) The parties may settle any dispute on a mutual basis without involvement of the arbitrator.
(xii) If You initiate arbitration, You will pay the first $250, and Pelotero will pay all other filing, administrative, or hearing fees. If the Pelotero initiates arbitration, Pelotero will pay all filing, administrative, and hearing fees. Regardless of which party initiates arbitration, You will remain responsible for Your attorneys’ fees and costs unless the law governing the Covered Claim provides for an award of attorneys’ fees and costs and the arbitrator determines as part of the arbitration award that You may recover a certain amount of attorneys’ fees and costs.
10.8. Class Action Waiver
Except as otherwise required under applicable law, You and Pelotero agree to arbitrate any Covered Claims only on an individual basis and hereby waive any right to bring, participate in, or receive money or any other relief from any representative, class, or collective proceeding (“Class Action Waiver”).No party may bring a claim on behalf of other individuals, and no arbitrator hearing any claim under these Terms may: (a) without the consent of all parties, combine more than one individual’s claim or claims into a single case; (b) order, require, participate in, or facilitate production of class-wide contact information or notification of others of potential claims; or (c) arbitrate any form of a class, collective, or representative proceeding.
10.9. Location
If you live in the United States, arbitration will take place at any reasonable location convenient for you. For residents outside the United States, arbitration shall be initiated in the County of Travis, State of Texas, United States of America, and you and Pelotero agree to submit to the personal jurisdiction of that court, in order to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
10.10.
If any term or condition in this Arbitration and Class Action Waiver is determined to be unenforceable or in conflict with a mandatory provision of applicable law, it shall be construed to incorporate any mandatory provision, or the unenforceable or conflicting term or condition shall be automatically severed and the remainder of this Arbitration and Class Action Waiver shall not be affected.
Provided, however, that if the Class Action Waiver is found to be unenforceable, then any claim brought on a class, collective, or representative action basis shall be adjudicated exclusively in the state and federal courts located in Austin, Texas, which shall be the exclusive forum for such claims.
You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
