RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT
IN CONSIDERATION of my being permitted to products and services of Phenom Baseball (Phenom) (the “Services”), I, for myself, my personal representatives, assigns, heirs, and next of kin (referred to as "I" or "me") agree, to all the terms and conditions set forth in this agreement (the "Agreement"). I desire to use the Services provided by Phenom.
I ACKNOWLEDGE THAT I AM AT LEAST 18 YEARS OF AGE, OR AM THE CONSENTING PARENT OF AN ATHLETE UNDER THE AGE OF 18. I AM AWARE AND UNDERSTAND THAT PLAYING BASEBALL INVOLVES THE RISK OF SERIOUS INJURY OR DEATH. I ACKNOWLEDGE THAT THE SERVICES ARE DESIGNED TO PROVIDE RECOMMENDATIONS TO GUIDE PLAYER DEVELOPMENT, BUT THAT ULTIMATELY ALL DECISIONS AND ACTIVITY ARE THE MY SOLE RESPONSIBILITY. I ACKNOWLEDGE THAT EACH ATHLETE’S PERSONAL CIRCUMSTANCES MAY BE DIFFERENT AND REQUIRE THE USE OF MY PERSONAL JUDGEMENT WHETHER OR NOT THE RECOMMENDATIONS APPLY TO MY SITUATION AND IF THEY CAN BE COMPLETED BY MYSELF WITHOUT ANY INJURY OR HARM.
By using the Services, I hereby expressly waive and release any and all claims, now known or hereafter known in any jurisdiction throughout the world, against the Provider, their affiliates, organizations or associations that promote or require use of the Services, their sponsors, and their subject master experts and their officers, directors, managers employees, agents, representatives, affiliates, shareholders, members, successors and assigns (collectively, "Releasees"), on account of injury, death or property damage arising out of or attributable to my use of the Services or in youth baseball activities generally, whether arising out of the negligence of the Provider or any Releasees or otherwise. I covenant not to make or bring any such claim against the Provider or any other Releasee, and forever release and discharge the Provider and all other Releasees from liability under such claims. I hereby represent that I have full power and all requisite authority to execute this Agreement and the release of liability contained herein, and that I have not in any way assigned or otherwise transferred the claims released under the terms of this Agreement.
I acknowledge before using the services, that I have read this Release of Liability and Assumption of Risk Agreement, fully understand its terms, understand that I have given up substantial rights by signing it and have signed it freely and without any inducement or assurance of any nature and intend it to be a complete and unconditional release of all liability to the greatest extent allowed by law.
Registration Data; Account Security
You agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
Proprietary Rights for Content and Information; Limited License
Any fees to register and/or to access any of our Services shall be paid through third party payment systems utilized by us, such as a credit/debit card processor of our choice. Any fees paid for our Services are non-refundable, regardless of whether or not the User actually uses the Services. By signing up for our services you agree to abide by the terms and conditions presented when signing up/registering for the Services. You are responsible for paying all applicable taxes for the Services and any other costs incurred in connection with the use of or access to the Site.
Cancellation and Refund Policy
We reserve the right to issue refunds or credits at our sole discretion. If we issue a refund or credit, we are under no obligation to issue the same or similar refund in the future.
We reserve the right to make changes to our products at any time. If we temporarily reduce or eliminate the charge for Services that you are currently paying for under different terms, you will not be entitled to a refund.
If any or all of our digital products are temporarily unavailable, you will not receive a refund. We reserve the right to issue refunds or credits at our sole discretion. If we issue a refund or credit, we are under no obligation to issue the same or similar refund in the future.
We reserve the right to suspend or terminate your account for any reason, with or without notice and without further obligation. You will not be entitled to a refund in these circumstances.
“Phenom” and “Phenom Baseball” and other Company graphics, logos, designs, page headers, button icons, scripts and service names are trademarks, trademarks or trade dress of the Company in the U.S. and/or other countries. Company's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
User Conduct for our Website and Services
You agree not to use the Service or the Site to:
• Harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
• Use the Service or the Site in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site; upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
• Upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
• Upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; intimidate or harass another;
• Upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; use or attempt to use another's account, service or system without authorization from the Company, or create a false identity on the Service or the Site; or
• Upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose Company or its users to any harm or liability of any type.
The Service may include certain services that are available via your mobile phone, including (i) the ability to upload content to Service via your mobile phone and (ii) the ability to access certain Service features through a mobile application you have downloaded and installed on your mobile phone (collectively the "Mobile Services"). Your carrier's normal messaging, data and other rates and fees will apply. You should check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobile Services are available for your mobile devices, and what restrictions, if any, may be applicable to your use of such Mobile Services. By using the Mobile Services, you agree that we may communicate with you regarding Service and other entities by SMS, MMS, text message, through social media ccounts or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Service account information to ensure that your messages are not sent to the person that acquires your old number.
The Apps, Site and the Service may be temporarily unavailable from time to time for maintenance or other reasons. Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. The Company is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Site or combination thereof, including injury or damage to User's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Service. Under no circumstances will the Company be responsible for any loss or damage resulting from anyone's use of the Site or the Service.
THE SITE, THE SERVICE (INCLUDING THE MOBILE SERVICES) AND THE SITE CONTENT ARE PROVIDED "AS-IS" AND THE COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE SERVICE AND/OR ANY PLATFORM APPLICATIONS. COMPANY DOES NOT REPRESENT OR WARRANT THAT SOFTWARE, CONTENT OR MATERIALS ON THE SITE OR THE SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE OR SERVICE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE FROM OR THROUGH THE SERVICE AND ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
The Company reserves the right to change any and all content, software and other items used or contained in the Site and any Services and platform applications offered through the Site at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Company.
Limitation on Liability
IN NO EVENT WILL COMPANY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SITE OR THE SERVICE, OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SITE, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SERVICE, BUT IN NO CASE WILL THE COMPANY'S LIABILITY TO YOU EXCEED $1000. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO COMPANY FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM COMPANY, REGARDLESS OF THE CAUSE OF ACTION.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree to indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any content you provide through the Site, your use of the Service or the Site, your conduct in connection with the Service or the Site or with other users of the Service or the Site, or any violation of this Agreement or of any law or the rights of any third party.
THE PLAYING OF SPORTS INVOLVES THE RISK OF ACCIDENT, INJURY OR EVEN DEATH. THE ADVICE AND INFORMATION PRESENTED IN THE COMPANY’S ONLINE AND CONSULTATIVE SERVICES ARE OFFERED AS RECOMMENDATIONS, BUT IT IS IN THE USER’S HANDS TO DECIDE WHAT IS BEST FOR THEIR OWN PERSONAL SITUATION AND CIRCUMSTANCES. EVERY ATHLETE HAS AND SHOULD KNOW THEIR LIMITS. THE COMPANY AND ITS AFFILIATES ARE NOT RESPONSIBLE OR LIABLE IN ANY WAY FROM THE USE OF ANY INFORMATION, OR ANY CONSEQUENCES THAT ARISE FROM USING THE INFORMATION CONTAINED IN OR GENERATED BY OUR RECOMMENDATIONS. THE FINAL DECISION ABOUT PARTICIPATION, LEVEL OF EFFORT EXERTED, TRAINING ACTIVITIES AND SPORTS CAREER ADVICE IS ULTIMATELY THE SOLE RESPONSIBILITY OF THE ATHLETE, OR IF A MINOR, THE ATHLETE’S PARENT OR GUARDIAN.
What information does the Application obtain and how is it used?
The Applications and online tools collect data from games, practices, workouts, lessons and anywhere else athletes participate in the activity of playing baseball. Data collected includes general information about the athlete(s) being evaluated, the session during which they participated, the person recording the data, and the outcome of the session. This information is used to help the Athlete and their support group (parents, friends, family, coaches, teachers, recruiters, etc.) to better understand the results of their efforts and to help them assess needs and direct future training opportunities. The Apps also collect account information and sharing preferences of the licensed user. Phenom does not share any information about the user(s) or the data collected without the express written consent of the user, with the exception of aggregated data, which does not include personal information, which is aggregated together anonymously and used for benchmarking purposes.
User Provided Information
The Applications obtain the information you provide when you download and register the Application. Registration with us is optional. However, please keep in mind that you may not be able to use some of the features offered by the Application unless you register with us.
When you register with us and use the Applications, you generally provide (a) your name, email address, age, user name, password and other registration information; (b) transaction-related information, such as when you make purchases, respond to any offers, or download or use applications from us; (c) information you provide us when you contact us for help; (d) credit card information for purchase and use of the Application, and; (e) information you enter into our system when using the Application, such as contact information and session information.
We may also use the information you provided us to contact your from time to time to provide you with important information, required notices and marketing promotions.
Automatically Collected Information
In addition, the Applications may collect certain information automatically, including, but not limited to, the type of mobile device you use, your mobile devices unique device ID, the IP address of your mobile device, your mobile operating system, the type of mobile Internet browsers you use, and information about the way you use the Application.
Do the Applications collect precise real time location information of the device?
This Applications do not collect precise information about the location of your mobile device.
Do third parties see and/or have access to information obtained by the Applications?
Only aggregated, anonymous data is periodically transmitted to external services to help us improve the Applications and our service. We will share your information with third parties only in the ways that are described in this privacy statement.
We may disclose User Provided and Automatically Collected Information:
• as required by law, such as to comply with a subpoena, or similar legal process;
• when we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others, investigate fraud, or respond to a government request;
• with our trusted services providers who work on our behalf, do not have an independent use of the information we disclose to them, and have agreed to adhere to the rules set forth in this privacy statement.
• If Phenom is involved in a merger, acquisition, or sale of all or a portion of its assets, you will be notified via email and/or a prominent notice on our Web site of any change in ownership or uses of this information, as well as any choices you may have regarding this information.
What are my opt-out rights?
You can stop all collection of information by the Application easily by uninstalling the Application. You may use the standard uninstall processes as may be available as part of your mobile device or via the mobile application marketplace or network. You can also request to opt-out via email, at email@example.com.
Data Retention Policy, Managing Your Information
We will retain user provided data for as long as you use the Application and for a reasonable time thereafter. We will retain Automatically Collected information for up to 24 months and thereafter may store it in aggregate. If you’d like us to delete User Provided Data that you have provided via the Application, please contact us at firstname.lastname@example.org and we will respond in a reasonable time. Please note that some or all of the User Provided Data may be required in order for the Application to function properly.
We do not use the Application to knowingly solicit data from or market to children under the age of 13. If a parent or guardian becomes aware that his or her child has provided us with information without their consent, he or she should contact us at email@example.com. We will delete such information from our files within a reasonable time.
We are concerned about safeguarding the confidentiality of your information. We provide physical, electronic, and procedural safeguards to protect information we process and maintain. For example, we limit access to this information to authorized employees and contractors who need to know that information in order to operate, develop or improve our Application. Please be aware that, although we endeavor provide reasonable security for information we process and maintain, no security system can prevent all potential security breaches.
If you have any questions regarding privacy while using the Application, or have questions about our practices, please contact us via email at firstname.lastname@example.org.