BIOMECH SENSOR LLC
BIOMECH PUTTING ANALYSIS SYSTEM
IMPORTANT NOTICE: Read this License Agreement (“Agreement”) carefully before using the BioMech Putting Analysis System (“Putting App”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU WILL NOT BE ABLE TO USE THE PUTTING APP. Please scroll down and read all of the following terms and conditions carefully before using the Putting App. This is a legal agreement between you (“You” or “you”) and BioMech Sensor, LLC (“BioMech”). If You agree to be bound by all of the terms and conditions, click the “Agree” button. By clicking “Agree”, You are agreeing on Your own behalf and/or on behalf of Your company or organization to the terms and conditions stated below. If You do not or cannot agree to the terms of this Agreement, do not click “Agree”. By purchasing a license for the Putting App, You agree to be bound by the terms of this Agreement.
- DEFINITIONS. Definitions appear at the end of this Agreement in Section 12.
- LICENSE RIGHTS.
2.1 License. BioMech grants to You a nonexclusive, nontransferable, limited license to Use the Putting App during the Subscription Term. The Putting App may not be transferred, sold, assigned, redistributed, sublicensed or otherwise conveyed (whether by operation of law or otherwise) to another party. The Putting App will not work unless you buy a Sensor. You can buy one here [LINK].
2.2 BioMech Content.
- Subject to your compliance with this Agreement, BioMech grants you a limited, non-exclusive, non-transferable license to access and view any BioMech content presented in the Putting App. You have no right to sublicense the license rights granted in this Section 2, and you have no right to further redistribute, resell, or commercialize the Putting App in any manner whatsoever without the express written permission of BioMech (which it shall grant, or not grant, in its sole discretion).
- You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sublicense, offer in a timesharing or distributed environment, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Putting App, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by BioMech or its licensors, except for the licenses and rights expressly granted in this Agreement.
2.3. Consent to Use of Data. You agree that BioMech may collect and use your technical data and related information (“Technical Data”), including without limitation, information about your device, system and application software, and peripherals (if any) that BioMech collects to facilitate provision of the Putting App to you. BioMech may use Technical Data, as long as it is in a form that does not personally identify you, to improve its products, or to provide services to you.
2.4. Reservation of Rights. You agree to comply with the “Usage Rules” in the App Store Terms of Service (as Apple defines such terms). Apple has no obligation under this Agreement other than as expressly set forth herein. BioMech reserves any and all rights and licenses in and to the Putting App not expressly granted herein.
- FEES AND PAYMENT.
3.1 Initial Subscription. Fees for the subscription to the Putting App are collected at the time of your confirmation of purchase from the App Store. The fee covers your license to the Putting App for the Subscription Term. The price you pay depends on the subscription you select. You made the selection for your subscription type prior to accessing this Agreement.
3.2 Renewal Subscription. Your subscription will auto-renew for Renewal Terms for the subscription type you selected unless you turn off the auto-renew feature in your App Store account at least twenty-four (24) hours prior to you auto-renewal date (“suspend auto-renew”). You will be advised of any changes in price of the Putting App before your subscription auto-renews.
3.3 Other Payment Terms. One you have subscribed to the Putting App, there may be separate in-app purchase options available to you. This Agreement will also apply to any in-app purchases you choose to make. There is a separate purchase price for the Sensor. You will pay all applicable sales, use, value added, personal property, or similar taxes, tariffs or governmental charges, exclusive of those based upon BioMech’s income and corporate taxes. You will reimburse BioMech for all reasonable costs incurred (including reasonable attorneys’ fees and the maximum interest allowed by law) in collecting past due amounts.
- SUPPORT SERVICES.
4.1 The payment of fees includes email support and online support that is accessible within the Putting App, as well as any Updates to the Putting App during the Subscription Term.
4.2 You understand and agree that some Updates may be subject to additional terms and conditions that will be made available to You on the BioMech website at the time that You download such Updates. You acknowledge and agree that the provisions of this Agreement shall apply to all Updates.
“Confidential Information” shall include the Putting App (including methods or concepts utilized therein) and all information identified by BioMech as proprietary or confidential. Confidential Information shall remain the sole property of BioMech and shall not be disclosed to any third party without the express written consent of BioMech. Except with respect to the Putting App, items will not be deemed Confidential Information if (i) available to the public other than by a breach of an agreement with BioMech; (ii) rightfully received from a third party not in breach of any obligation of confidentiality; (iii) independently developed by You without access to the Confidential Information as proven by Your written records; or (iv) if proven to have been known to You at the time of disclosure through Your written records. You shall immediately inform BioMech if You are required to produce Confidential Information by operation of law, and if so requested by BioMech, shall provide reasonable assistance to BioMech in seeking to limit such production. The obligations of confidentiality under this Agreement shall continue for two (2) years following termination of this Agreement with respect to non-trade secret Confidential Information and for as long as Confidential Information that is trade secret remains trade secret under applicable law.
- PROPRIETARY RIGHTS AND OWNERSHIP.
6.1 Intellectual Property. All of the patent, trademark, copyright, trade secret, know how, and other intellectual property rights in the Putting App, along with its Updates, Documentation and all copies thereof are owned by BioMech. You acquire only the non-exclusive, non-transferable right to Use the Putting App as permitted herein, and do not acquire any rights of ownership in the Putting App.
6.2 Your Profile.
a. Your BioMech profile will be created for your use based upon the personal information you provide to us. You may not have more than one (1) active BioMech profile. You agree to provide accurate, current and complete information during the profile setup process and to update such information to keep it accurate, current and complete. BioMech reserves the right to suspend your BioMech profile and your access to the Putting App if any information provided during the profile setup process or thereafter proves to be inaccurate, fraudulent, or otherwise in violation of this Agreement.
b. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your BioMech profile, whether or not you have authorized such activities or actions. You will immediately notify BioMech of any unauthorized use of your BioMech profile.
6.3 Profile Information.
a. BioMech may, in our sole discretion, permit you to post, upload, publish, submit or transmit profile information that includes and may expand upon the personal information that you provide to BioMech and from which BioMech creates your profile (“Profile Info”). By making available any Profile Info on or through the Putting App, or through BioMech promotional campaigns (if any), you hereby grant to BioMech a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Profile Info to use or further the use of the Putting App. BioMech does not claim any ownership rights in any Profile Info and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any Profile Info.
b. You acknowledge and agree that you are solely responsible for all Profile Info that you make available through the Putting App. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Profile Info that you make available through the Putting App and you have all rights, licenses, consents and releases that are necessary to grant to BioMech the rights in such Profile Info, as contemplated under this Agreement; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Profile Info or BioMech’s use of the Profile Info (or any portion thereof) on, through or by means of the Putting App will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- User Conduct.
7.1 You understand and agree that you are solely responsible for compliance with any and all laws, rules, and regulations that may apply to your use of the Putting App. In connection with your use of the Putting App, you may not and you agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court;
- use manual or automated software, devices, services, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” any services, including the profile screens (called the “People Directory”), contained within the Putting App;
- other than as described in Section 2.2, use the Putting App for any commercial or other purposes that are not expressly permitted by this Agreement, or in a manner that falsely implies BioMech endorsement, partnership or otherwise misleads others as to your affiliation with BioMech;
- copy, store or otherwise access or use any information contained on the Putting App for purposes not expressly permitted by this Agreement;
- infringe the rights of BioMech or the rights of any other person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
- interfere with or damage the Putting App, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- use the Putting App to transmit, distribute, post or submit any information concerning any other person or entity without their permission;
- use the Putting App in connection with the distribution of unsolicited commercial email (“spam”) or advertisements;
- “stalk” or harass any other user of the Putting App, or collect or store any personally identifiable information about any other user purposes;
- recruit or otherwise solicit any use to join or use third-party services or websites that are competitive to BioMech;
- recruit or otherwise solicit any Member to join third-party services, applications or websites, without our prior written approval;
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
- use automated scripts to collect information from or otherwise interact with the Putting App;
- engage in disruptive, circumventive, abusive or harassing behavior in any area or aspect of the Putting App;
- post, upload, publish, submit or transmit any content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
- systematically retrieve data or other content from the Putting App to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- attempt to probe, scan, or test the vulnerability of any BioMech system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by BioMech or any of BioMech’s providers or any other third party (including another user) to protect the Putting App or its content;
- attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to get at or get to, the Putting App source code or any of its software; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
7.2 BioMech has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. In addition, and as set in this Agreement, a range of actions may be taken against you, including but not limited to deactivation of your BioMech profile, or canceling your subscription, for a violation of this Section or this Agreement.
- OTHER TERMS.
8.3 Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Putting App (“Feedback”). You may submit Feedback by emailing us, through the “Contact” section of the App, or by other means of communication. You acknowledge and agree that all Feedback you give us will be the sole and exclusive property of BioMech and you hereby irrevocably assign to BioMech and agree to irrevocably assign to BioMech all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback. At BioMech’s request and expense, you will execute documents and take such further acts as BioMech may reasonably request to assist BioMech to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
8.4 Copyright Policy. BioMech respects copyright law and expects its users to do the same. BioMech’s policy is to terminate the accounts of users who repeatedly infringe, or who are believed to be repeatedly infringing the rights of copyright holders.
8.5 Export Control. You may not use, export, or re-export the Putting App except as permitted under U.S. law. Further, you shall not export or re-export the Putting App to any US-embargoed country or anyone on the US Treasury Department’s Specially Designated Nationals List or the US Department of Commerce’s Denied Persons or Entity Lists. By using the Putting App, you represent and warrant that you are not located in any such country or included on any such list.
- NO WARRANTY AND LIMITATIONS ON LIABILITY.
9.1 THE PUTTING APP IS BEING PROVIDED TO YOU AS-IS WITH NO WARRANTY OF ANY KIND. BIOMECH DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY OF INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, AND CONDITIONS OF MERCHANTABLE QUALITY, WHETHER ARISING BY STATUTE OR IN LAW OR AS A RESULT OF A COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NO WARRANTY IS MADE REGARDING THE RESULTS OBTAINED FROM THE PUTTING APP, THAT THE PUTTING APP WILL BE ERROR FREE, THAT ALL ERRORS IN THE PUTTING APP WILL BE CORRECTED, OR THAT THE PUTTING APP’S FUNCTIONALITY WILL MEET YOUR REQUIREMENTS.
9.2 LIMITATIONS ON LIABILITY. TO THE FULL EXTENT PERMITTED BY LAW, NEITHER BIOMECH, ITS SUBSIDIARIES, NOR ANY OF ITS LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OR INACCURACY OF DATA, LOSS OF BUSINESS, LOSS OF PROFITS OR EXPECTED SAVINGS, LOSS OF OR DAMAGE TO GOODWILL OR ANY OTHER FORM OF EXPECTATION BENEFIT, OR LOSS OR DAMAGE ARISING FROM ANY LIABILITY RELATED TO THIS AGREEMENT OR FOR BIOMECH’S PERFORMANCE OR NONPERFORMANCE OBLIGATIONS HEREUNDER, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF BIOMECH AND ITS SUBSIDIARIES, IF ANY, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE PUTTING APP OR RELATED SERVICES SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID IN THE PRIOR SIX (6) MONTHS FOR THE PUTTING APP. LICENSORS OF SOFTWARE COMPONENTS INCLUDED IN PUTTING APP SHALL NOT BE LIABLE FOR ANY DAMAGES IN CONNECTION WITH THIS AGREEMENT.
- TERM AND TERMINATION.
10.1 This Agreement becomes effective on the date You download the Putting App from the App Store continues until terminated. This Agreement will automatically renew for an additional renewal terms that are the same length as your initial term unless you suspend the auto-renew function within your App Store account.
10.2 BioMech may terminate this Agreement if You breach or fail to comply with any terms in this Agreement. You may terminate the license at the end of a Subscription Term or Renewal Term by suspending auto-renew within your App Store account. The fees are non-refundable; however we will follow the App Store’s policy regarding returns and refunds. We will automatically turn off your access to the Putting App at the end of the Subscription Term or Renewal Term in which you terminated this Agreement, or immediately if you seek and receive a refund through the App Store. Sections 3, 6.1, 6.3, 9, 10.2, 10.3, 11.4, 11.5, 11.6, and 12 shall survive termination of this Agreement.
10.3 BioMech may delete your: (a) data that is entered into, or collected by, the Putting App, or (b) data that is collected by the Sensor, and stored as part of the Putting App at any time after termination, without notice to you.
11.1 Neither this Agreement nor any license granted hereunder may be assigned by You (whether by operation of law or otherwise). Any such purported assignment shall be void.
11.2 This Agreement is the entire agreement of the parties and supersedes all previous and contemporaneous communications, representations, or agreements regarding the subject matter hereof. This Agreement may be modified only in writing signed by both parties.
11.3 BioMech shall not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of: acts by You, acts of God or the public enemy, war, terrorism, riots, strike, embargo, acts of civil or military authority, unavailability of communications facilities or energy sources, or any other cause that is beyond the reasonable control of BioMech.
11.4 All notices relating to this Agreement shall be in writing and delivered to the other party by overnight delivery service or first class prepaid mail with return receipt requested (in the case of BioMech to the attention of its General Counsel).
11.5 If any provision of this Agreement is determined to be invalid by any court of final jurisdiction, then it shall be omitted and the remainder of the Agreement shall continue to be binding and enforceable. In addition, the court is hereby authorized to enforce any provision of the Agreement that the court otherwise deems unenforceable, to whatever lesser extent the court deems reasonable and appropriate, rather than invalidating the entire provision. Except where otherwise provided, the waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of any further right under this Agreement.
11.6 This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Virginia without regard to its conflict of laws. Jurisdiction and venue over any dispute arising under this Agreement shall lie exclusively within the state and/or federal courts of United States of America, and each of the parties hereby irrevocably submits to the jurisdiction of the state and federal courts in Richmond, VA. Neither the United Nations Convention on the International Sale of Goods, nor the Uniform Computer Information Transactions Act shall apply to this Agreement.
11.7 If You have any questions concerning this Agreement, claims regarding the Putting App and its compliance with any legal, consumer protection, or other regulatory requirements, or wish to send a notice as described in Section 11.4, write to BioMech Sensor, LLC at 2820 Waterford Lake Drive, Suite 105, Midlothian, VA 23113, or email us at email@example.com.
11.8 Apple and its subsidiaries are third party beneficiaries to this Agreement. Upon your acceptance of this Agreement, Apple will have the right to enforce this Agreement against you.
- “Agreement” – This agreement, together with any addenda, attachments or supplements hereto.
- “App Store” – Apple’s App Store™, the host electronic store for the Putting App. App Store purchases are made through your iTunes account.
- “Documentation” – Support reference materials found on within the Putting App.
- “Putting App” – the BioMech Putting Analysis System that includes the software in the App and in the Sensor, and online data storage.
- “Renewal Term” – the term for which you auto-renew your license to the Putting App. Unless you change the settings for the Subscription Term in your App Store account, the Renewal Term will be identical to the Subscription Term.
- “Sensor” – BioMech’s proprietary device that attaches to the putter and takes measurement data regarding a user’s putting stroke for use by the Putting App.
- “Subscription Term” – the duration of Your license to the Putting App that You select when you download the Putting App from the App Store. A Subscription Term may be one month, or one year, in your discretion.
- “Support” – The technical support available to You as specified within the Putting App.
- “Updates” means error corrections, maintenance releases and major version releases of the Putting App made available to BioMech customers.
- “Use” – to load, view, print, update, access, utilize, or store the Putting App.