END USER LICENSE AGREEMENT
This is a End-user License Agreement (“ELA”) for Basketball IntelliGym(tm) software (the “Software”) between ACE – Applied Cognitive Engineering Inc (“ACE”) and the End-user (“User”). IMPORTANT: READ CAREFULLY – In cases where the User received the Software in conjunction with a license agreement between ACE – Applied cognitive Engineering and the User’s basketball team (“Primary License Agreement” or “PLA”), this ELA is governed by the Primary License Agreement. Otherwise, the User is bound by the terms and conditions of this ELA. Terms used in this ELA and not otherwise defined herein shall have the meanings assigned to them in the PLA. To the extent that there is a conflict among any of these terms and conditions applicable to the Software, the terms and conditions of the PLA prevails. BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE PLA AND/OR THIS ELA. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL, COPY OR USE THE SOFTWARE.
Subject to the terms and conditions contained herein, ACE has granted Customer a limited, non-exclusive and non-transferable license to use the Software, in object code executable format, by each of the named players assigned by ACE (the “Players”). This license includes not more than one copy of the Software for each of the Players. For purposes of this License Agreement, the term “use” means the use of the Software, in object code executable format, by the Players, for the sole purpose of their cognitive training for basketball.
User shall not:
(i) authorize any person other than the Players to use the Software, or transfer, sublicense or otherwise distribute the Software to any third party;
(ii) copy or reproduce the Software or any part thereof;
(iii) modify, improve, make derivative works of, publicly perform, publicly display, make, have made, sell, offer to sell or import the Software;
(iv) rent, lease or loan the Software to any third party (including but not limited to offering the functionality of the Software to third parties) or authorize any third party to do the same; (v) disassemble, decompile, or reverse engineer any portion of the Software; or
(vi) remove or alter any proprietary notices associated with the Software.
All rights, title and interest in and to the Software, including without limitation all patents, copyrights, trade secrets, trademarks, and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”) in and to the Software documentation, all training data, and all other materials related thereto are and shall remain the exclusive property of ACE. If you are installing the Software on behalf of an organization other than your own, prior to installing any of the Software, you must confirm that the User (whether an individual or a single entity) has received, read and accepted these terms and conditions.
ACE warrants that during the Term the Software will be free of defects which substantially and adversely affect the Software operation. ACE’s sole and exclusive obligation under this warranty is to use reasonable commercial efforts to correct or work around errors, replace defective media or replace the Software with functionally equivalent Software. This obligation is for 12 months as of the date the Customer has purchased the Software. THE LIMITED WARRANTY SET FORTH ABOVE IS THE ONLY AND SOLE WARRANTY MADE BY ACE UNDER THIS AGREEMENT. ACE MAKES AND CUSTOMER RECEIVES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE, AND HEREBY DISCLAIMS THE SAME. Without derogating from the above, Customer agrees that in no event will ACE’s liability in connection with the Software or any services provided under this Agreement, whether arising in contract, tort or under any other legal theory (including, without limitation, negligence or strict liability) exceed the amounts actually paid to ACE by Customer under this Agreement. In no event shall ACE be liable for any direct indirect, incidental, consequential, special, punitive or exemplary damages, lost profits, revenue, data, data use or claims by third parties, even if ACE has been advised of the possibility of such damages.
DATA COLLECTION, PRIVACY AND CONFIDENTIALITY
The User is aware and agree that personal training data is gathered by ACE. Except if specifically permitted by the User, ACE shall keep all the User’s training data confidential, and use it only for statistical analysis and for producing reports for the User and/or associated parties such as a parent or the Team’s Coaching Staff.