This Agreement provides to you the right to use the Mobile App and the Onside Sports Service as set forth herein, and incorporates by this reference the Apple Store Terms of Service located at www.apple.com/legal/itunes/us/terms.html#SERVICE (the "Apple Terms of Service"), which are hereby made a part hereof as though fully set forth herein. This Agreement will also govern any updates and/or upgrades to the Mobile App that are made available by Onside Sports to you, unless such upgrades are accompanied by a separate license agreement, in which case the terms of that license agreement will govern your use of such update or upgrade.
You must be at least eighteen (18) years of age to access the Mobile App and Onside Sports Service, and by using them you represent and warrant that: (i) you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement and (ii) you are at least 18 years old. We reserve the right to determine eligibility.
Onside Sports reserves the right to modify the terms and conditions of this Agreement from time to time. If Onside Sports makes any material change to this Agreement, we will post a prominent notice within the Service and send you an e-mail, indicating that the Agreement has been revised and setting forth the effective date of such revision. Please read carefully the modified version of the Agreement before continuing to use the Mobile App and the Onside Sports Service. If you do not agree to the modified version of the Agreement, your only remedy will be to cease using the Mobile App and the Onside Sports Service.
1.1 License Grant. Onside Sports hereby grants you a limited, non-exclusive, revocable, non-transferable, right and license, without the right to grant or authorize sublicenses, to:
(a) install and use the Mobile App on any Apple Device owned or controlled by you, solely for your own, non-commercial use; and
(b) access and use the Onside Sports Service through the Mobile App.
1.2 Registered Users. In order to gain access to some parts of the Onside Sports Service (including for using the Onside Sports Service to guess the outcome of events listed in the Onside Sports Service ("Picks") and other forms of participation), you are required to register for an account on the Onside Sports Service using your email, Facebook or Twitter account, that is accessed by a username and password ("Account"). In registering for your Account, you agree (i) that the information you provide to us in connection with your registration will be current, complete and accurate, (ii) not to choose a user name that violates any law or the intellectual property rights of others, or is offensive; provided that we reserve the right to reject the use of any user name for any reason or no reason, (iii) not to transfer, sell, convey or assign the right to use your Account to any third party without our prior written consent and (iv) not to permit any third party to use your user name and password to access your Account. You further agree that you are responsible for the conduct of any party that uses your Account, whether or not authorized by you, and for any breach of the security of the Onside Sports Service related to the use of your user name and/or password.
1.3 Features and Modifications. Onside Sports reserves the right to change features and functions of the Mobile App and/or the Onside Sports Service at any time and without notice to you.
1.4 Fees. Some aspects of the Mobile App or the Onside Sports Service may require you to pay a fee, and you agree that you will provide accurate and complete payment information to the third-party payment provider used by Onside Sports. You further agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. Onside Sports may revise the pricing for the Mobile App, the Onside Sports Service or any item associated therewith at any time. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes due and payable. Onside Sports may, from time to time, modify, amend, or supplement its fees and fee-billing methods, and such changes shall be effective immediately upon posting in this Agreement or elsewhere on the Onside Sports Service. If there is a dispute regarding payment of fees to Onside Sports, your Account may be closed without warning or notice, at the sole discretion of Onside Sports.
1.5 Use Restrictions and Prohibited Conduct. You may only use the Mobile App and the Onside Sports Service in accordance with the terms and conditions of this Agreement and all applicable law. Without limiting the generality of the foregoing, you specifically agree that:
(a) You may not: (i) use the Mobile App on any Apple Device that you do not own or control; (ii) distribute or make the Mobile App available over a network; (iii) rent, lease, lend, sell, redistribute or sublicense the Mobile App or access to the Onside Sports Service; (iv) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the Mobile App or the Onside Sports Service, or any part of either of them (except to the extent any of the foregoing restrictions are not permitted by applicable law or by the licensing terms governing use of any open source components included with the Mobile App).
(b) You may not use the Mobile App or the Onside Sports Service, for (i) posting any: (1) information which is incomplete, false, inaccurate or not your own, (2) trade secrets or material that is copyrighted or otherwise owned by a third party unless you have a valid license from the owner which permits you to post it or (3) material that infringes on any other intellectual property, privacy or publicity right of another; (ii) impersonating another person; (iii) engaging in or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any city, state, national or international law or regulation, or which fails to comply with accepted Internet protocol; (iv) transmitting or communicating any content which, in the sole and exclusive discretion of Onside Sports, is deemed offensive, including, but not limited to, language that harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, or racially, ethnically, or otherwise objectionable; (v) spamming chat, whether for personal or commercial purposes, by disrupting the flow of conversation with repeated postings of a similar nature; (vi) participating in any action which, in the sole and exclusive judgment of Onside Sports, defrauds any other user of the Onside Sports Service, including, but not limited to, by "scamming" or "social engineering;"; or (vii) "gaming the game" by participating in any action which, in the sole and exclusive judgment of Onside Sports, "exploits" an undocumented aspect of the Mobile App or Onside Sports Service in order to secure an unfair advantage over other users.
(c) You may not: (i) violate or attempt to violate the security of the Onside Sports Service or Onside Sports' system or network security, including, without limitation, the following: (ii) access data not intended for users of the Onside Service, or gain unauthorized access to an account, server or any other computer system; (iii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; (iv) attempt to interfere with the function of the Onside Sports Service, host or network, including, without limitation, via means of submitting a virus to the Onside Sports Service, overloading, "flooding", "mailbombing", "crashing", or sending unsolicited e-mail, including promotions and/or advertising of products or services; (v) forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting or (vi) deploy to the Onside Sports Service any robot, spider, site search/retrieval application, or other application designed to retrieve, index or "data mine," information from the Onside Sports Service.
1.6 Ownership and Licenses.
(a) Intellectual Property Rights.
(i) Mobile App and Onside Sports Service. Except for the limited license and rights granted in this Section 1, Onside Sports and its licensors reserve all right title and interest in and to the Mobile App and the Onside Sports Service, including all Intellectual Property Rights therein and thereto, and no other right or license is granted to you by implication, estoppel or otherwise. You may not remove or alter any trademark or logo, or any copyright or proprietary notice on or in the Mobile App, and you obtain no right or license to the foregoing.
(ii) Suggestions and Feedback. You hereby grant to Onside Sports a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Mobile App and/or the Onside Sports Service any suggestions, enhancement requests, recommendations or other feedback related to either of them that you may provide, directly or indirectly, to Onside Sports.
(b) Game Assets. Through your use of the Mobile App and the Onside Sports Service or the Site, you may accumulate virtual assets associated with your Account, including, without limitation, objects, currency, items, and/or other value or status indicators (collectively, "Game Assets"). You acknowledge and agree that such Game Assets are merely data associated with your Account and are owned solely and exclusively by Onside Sports, and that you acquire no interest therein. You further acknowledge and agree that Onside Sports has the right, in its sole and absolute discretion, to delete, alter, move, remove, or transfer any and all Game Assets, in whole or in part, at any time and for any reason, with or without notice to you, and without incurring any liability to you.
(c) Content. You hereby grant to us a non-exclusive, perpetual, irrevocable, royalty-free, fully paid up right and license to use, reproduce, distribute, publicly display, prepare derivative works from any and all data, information, images, sounds, videos, audio files, communications, materials and other content (collectively, "Content") that you upload, store, process or transmit in connection with your use of the Mobile App and the Onside Sports Service, as may be required, in our sole discretion, to provide and operate the Onside Sports Service and to (i) to satisfy any applicable law, regulation, legal process or governmental request; (ii) to enforce the terms of this Agreement or any other agreement; (iii) to protect the legal rights and remedies of Onside Sports; (iv) where someone's health or safety may be threatened; or (v) to report a crime or other offensive behavior. In addition, you also hereby irrevocably waive, to the greatest extent permissible under applicable law, any moral rights, droit morale, or similar rights you may have in such Content under the laws of any jurisdiction.
1.7 Consent to Monitoring. Onside Sports does not, and cannot, pre-screen or monitor all Content. However, its representatives may monitor and/or record your communications when you are using the Mobile App and the Onside Sports Service, and you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the submission of any Content. Onside Sports does not assume any responsibility or liability for content that is generated by other users of the Onside Sports Service. Onside Sports has the right but not the obligation, in its sole discretion, to edit, refuse to post, or remove any Content.
2.1 Warranty Disclaimer. THE MOBILE APP AND THE ONSIDE SPORTS SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TO GREATEST THE EXTENT PERMITTED BY APPLICABLE LAW, ONSIDE SPORTS AND ONSIDE SPORTS' LICENSORS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES THAT THE MOBILE APP AND THE ONSIDE SPORTS SERVICE ARE FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE, ACCURATE OR NON-INFRINGING. YOU BEAR THE ENTIRE RISK OF USE OF THE MOBILE APP AND THE ONSIDE SPORTS SERVICE. ONSIDE SPORTS AND ONSIDE SPORTS' LICENSORS DO NOT WARRANT THAT YOUR USE OF THE MOBILE APP OR THE ONSIDE SPORTS SERVICE WILL BE ERROR FREE OR UNINTERRUPTED, OR THAT THE FEATURES AND FUNCTIONS OF THE MOBILE APP OR THE ONSIDE SPORTS SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT DEFECTS IN THE MOBILE APP OR THE ONSIDE SPORTS SERVICE WILL BE CORRECTED. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES. IF YOU RESIDE IN ONE OF THESE JURISDICTIONS, THIS DISCLAIMER MAY NOT APPLY TO YOU.
2.2 Gambling Disclaimer. The Mobile App and the Onside Sports Service are available for entertainment purposes only, and are not intended to, and may not, be used for gambling. You may not use the Mobile App or the Onside Sports Service to risk your money or other property on the outcome of such events. You acknowledge and agree that the Game Assets you acquire for your Account through use of the Onside Sports Service have no monetary value and may not be redeemed for cash or any other item of value. Specifically, you acknowledge and agree that any virtual currency, including "stars" made available as part of the Onside Sports Service is not a real currency or financial instrument, may not be used to satisfy any financial obligation and will not be recognized as a financial obligation by Onside Sports to you or any third party. You may not transfer, sell, loan or lease to any party, other than another user as permitted by the Onside Sports Service, any virtual currency provided through the Onside Sports Service.
3.1 Term. This Agreement shall be effective upon the installation of the Mobile App by you, and shall continue in effect until terminated under Section 3.2 below, provided that Onside Sports reserves the right to refuse service to anyone for any reason at any time.
(a) By Onside Sports. In the event of any breach by you of this Agreement, this Agreement shall automatically and immediately terminate, without the requirement of notice or action by Onside Sports. In addition, Onside Sports, in its sole discretion, has the right to suspend or terminate your Account and your access to the Onside Sports Service, for any reason at any time.
(b) By You. In the event of any breach by Onside Sports of this Agreement, your sole remedy shall be to cease using the Mobile App and the Onside Sports Service. In addition, you may terminate your Account at any time.
(c) Effect of Termination. Any termination of your Account will result in the deletion of your Account and the content in it, and the termination of your access to the Onside Sports Service. The provisions of Sections 1.5, 1.6, 2, 3.2(c), 4 and 6 of this Agreement shall survive any termination of this Agreement.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ONSIDE SPORTS AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE MOBILE APP, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, OR PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES. IF YOU RESIDE IN ONE OF THESE JURISDICTIONS, THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
5.1 DMCA Notice. If you are a copyright owner or an agent thereof and believe that any content posted on the Onside Sports Service infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
Onside Sports' designated Copyright Agent to receive notifications of claimed infringement is email@example.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
5.2 Counter-Notice. If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, Onside Sports may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Onside Sports' sole discretion.
5.3 Account Termination Policy. Onside Sports will terminate your Account if, under appropriate circumstances, you are determined to be a repeat infringer. Onside Sports reserves the right to decide whether content violates this Agreement for reasons other than copyright infringement, such as, but not limited to, other intellectual property violations, pornography, obscenity, etc. Onside Sports may at any time, without prior notice and in its sole discretion, remove such content and/or terminate your Account for submitting such material in violation of this Agreement.
6.1 Apple. You acknowledge that this Agreement is between Onside Sports and you, and that neither Apple nor any of its subsidiaries are a direct party to this Agreement. Apple has no obligation to provide you with any updates, maintenance or support services for the Mobile App. Onside Sports is solely responsible for the content, features, functions and performance of the Mobile App. Notwithstanding the foregoing, Apple is a third-party beneficiary to this Agreement. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as an express third-party beneficiary of this Agreement.
6.2 Assignment. You may not assign this Agreement, in whole or in part, without the prior written consent of Onside Sports, which consent may be granted or withheld by Onside Sports in its sole and absolute discretion.
6.3 Export Control. You acknowledge that the goods, software and technology acquired from Onside Sports are subject to U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations ("ITAR") (22 C.F.R. Parts 120-130 (2010)); the Export Administration Regulations ("EAR") (15 C.F.R. Parts 730-774 (2010)); the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, and the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended. You may not use or otherwise export or re-export the Mobile App except as authorized by United States law and the laws of the jurisdiction in which the Mobile App was obtained. You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
6.4 Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, except for its rules regarding conflicts of laws. In any litigation arising out of this Agreement, the parties hereby submit to the jurisdiction of, and waive any venue objections against, the state and federal courts in San Francisco, California
6.5 Government Rights. The Mobile App is "Commercial Computer Software," as that term is defined in 48 C.F.R. 2.101, and as the term is used in 48 C.F.R. Part 12, and is a Commercial Item comprised of "commercial computer software" and "commercial computer software documentation". If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the Mobile App under this Agreement and in any Subcontract under which this commercial computer software and commercial computer software documentation is acquired or licensed.
6.6 Indemnification. You hereby irrevocably agree to indemnify, defend and hold Onside Sports, its affiliates, directors, officers, employees and agents harmless from and against any and all losses, costs, damages, liabilities and expenses (including attorneys' fees) arising out of or related to your use of the Mobile App and/or the Onside Sports Service.
6.7 Linked Sites. Onside Sports reserves the right, at its discretion at any time, to deny any request, or rescind any permission granted, to link to the Onside Sports Service, and to require termination of any such link. You may be able to link to third party websites ("Linked Sites") from the Onside Sports Service. Linked Sites are not, however, reviewed, controlled or examined by Onside Sports in any way and Onside Sports is not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply Onside Sports' endorsement of, or association with, the Linked Sites. In no event shall Onside Sports be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites.
6.8 Location. We control and operate the Onside Sports Service from our offices in the United States of America and Canada, and all information is processed within the United States and Canada. We do not represent that the Onside Sports Service and its content are appropriate or available for use in other locations. Persons who choose to access and use the Onside Sports Service from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
6.9 Non-Waiver. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.
6.11 Product Questions/Support, Comments, Claims and Contact Information. We, and not Apple, are responsible for addressing any questions, comments or claims relating to the Mobile App and/or your use of the Mobile App, including but not limited to: (i) product maintenance and support; (ii) product liability claims; (iii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iv) claims arising under consumer protection or similar legislation. If you have any comments or questions, please contact Onside Sports at:
715 Bryant Street, Suite 101
San Francisco, CA, 94107
6.12 Severability. The parties agree that each provision of this Agreement is intended to be construed to be enforceable to the fullest extent possible. If any provision or part of a provision of this Agreement is held to be unlawful, void, or unenforceable, that provision or part of the provision shall be deemed severable from this Agreement and not affect the validity and enforceability of any remaining provisions.
6.13 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Mobile App and supersedes any prior or contemporaneous understandings and agreements between you and us related to its subject matter.
Copyright © Pickstream, Inc. DBA Onside Sports 2013. Onside Sports is not affiliated in any way with Major League Baseball, the National Football League, the National Basketball Association, the National Hockey League, or the National Collegiate Athletic Association. Product names, logos, brands or other trademarks displayed or referred to within Onside Sports are the property of their respective owners and do not represent any affiliation, sponsorship or otherwise with Onside Sports.