OnTheBall

ON THE BALL GLOBAL PTY LTD (ACN 602 345 737) TERMS OF SERVICE

These Terms of Service were last updated on 27 February 2018.

These ON THE BALL GLOBAL PTY LTD (ACN 602 345 737) (“OTBG”) Terms of Service (the “Agreement”) are an agreement between the person (“Customer”) visiting, browsing, accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the OTBG Services

The Agreement between OTBG and the Customer is entered upon the earlier occurrence of when the Customer:

  1. first uses any part of the OTBG Services; or
  2. agrees to be bound by this Agreement (the “Effective Date”).

OTBG offers a software-as-a-service product and a mobile device software application (the “Application”) that provides access to training videos and other related fitness services, as may be changed from time-to-time by OTBG as more fully described on www.ontheballglobal.com collectively, the “OTBG Services”).

BY USING THE OTBG SERVICES (INCLUDING THE WEBSITE www.ontheballglobal.com), THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THIS AGREEMENT, AS AMENDED FROM TIME-TO-TIME. IF THE CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, THE CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE OTBG SERVICES. THE CUSTOMER REPRESENTS AND WARRANTS TO OTBG THAT THE CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT.

Definitions

OTBG Services” has the meaning set out in the introductory paragraphs to this Agreement.

"OTBG Software"means OTBG’s software product made available under the name “OTBG” and any updates provided as part of the OTBG Services.

Customer Data” means any data, information, content, records, and files that Customer loads, receives through, transmits to or enters into the OTBG Services.

Fees” has the meaning set out below.

Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.

Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.

Personal Information” means information about an identifiable individual.

"Post-Term Period"has the meaning ascribed to it below.

"Technical Support Services"means the support services described below.

"Website "means any websites used by OTBG to provide the OTBG Services, including the website located at www.ontheballglobal.com

"Usage Data"has the meaning ascribed to it below.

TERMS

  1. Provisioning of the OTBG Services: subject to the Customer’s compliance with the terms and conditions of this Agreement, OTBG will make the subscribed OTBG Services available to the Customer on the terms and conditions set out in this Agreement.
  2. Restrictions on Use: the Customer must not itself, and will not permit others to:
    1. sub-license, sell, rent, lend, lease or distribute the OTBG Services or any intellectual property rights therein or otherwise make the OTBG Services available to others;
    2. use the OTBG Services to permit timesharing, service bureau use or commercially exploit the OTBG Services;
    3. use or access the OTBG Services in violation of any applicable law or intellectual property right, in a manner that threatens the security or functionality of the OTBG Services, or for any purpose or in any manner not expressly permitted in this Agreement;
    4. use the OTBG Services to create, collect, transmit, store, use or process any Customer Data:
      1. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
      2. that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
      3. that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity),
    5. modify the OTBG Services;
    6. reverse engineer, de-compile or disassemble the OTBG Services;
    7. remove or obscure any proprietary notices or labels on the OTBG Services, including brand, copyright, trademark and patent or patent pending notices;
    8. access or use the OTBG Services for the purpose of building a similar or competitive product or service; or
    9. perform any vulnerability, penetration or similar testing of the OTBG Services;
  3. Suspension of Access, Scheduled Downtime, Modifications: OTBG may, at its absolute discretion suspend the Customer’s access to or use of the OTBG Services or any component thereof for any reason including:
    1. for scheduled maintenance;
    2. if the Customer violates any provision of this Agreement; or
    3. to address any emergency security concerns; or
    4. to modify the OTBG Services
  4. The Customer is required to accept all patches, bug fixes and updates made by or on behalf of OTBG to the OTBG Services.
  5. Licensed Third Party Technology: the OTBG Services may contain or require the use of Licensed Third Party Technology. The Customer will accept and comply with the license terms applicable to Licensed Third Party Technology. Except for Licensed Third Party Technology expressly identified in this Agreement as provided by OTBG, the Customer is responsible for separately obtaining or licensing such technology. OTBG reserves the right to modify the functionality of the OTBG Services if Licensed Third Party Technology is no longer available on reasonable terms.
  6. Control Software and Analytics Tools: the OTBG Services also include control software that regularly transmits certain usage data, including but not limited to, licensing, system and service performance data, to OTBG to verify compliance with the terms of this Agreement and to improve OTBG’s products and services. The Customer acknowledges that OTBG may use such control software as well as third party web analytics tools (such as Google Analytics) that serve cookies or similar tracking technologies through the OTBG Services, on end user devices, to collect diagnostic and usage related information (“Usage Data”). Customer hereby provides its consent to OTBG to use cookies or tracking technologies served by those web analytics tools, in a manner that is consistent with industry practice.
  7. Ownership; Reservation of Rights:
    1. The Customer retains all ownership and intellectual property rights in and to Customer Data. The Customer grants to OTBG a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit Customer Data to provide the OTBG Services. OTBG may collect and analyse data and other information (including, without limitation, Usage Data) relating to the provision, use and performance of the OTBG Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and during and after the Term of this Agreement, OTBG may:
      1. use such data and information to improve and enhance the OTBG Services and for other development, diagnostic and corrective purposes in connection with the OTBG Services and other OTBG offerings; and
      2. disclose such data in connection with its business and in accordance with the Privacy Policy.
    2. OTBG or its licensors retain all ownership and intellectual property rights in and to:
      1. the OTBG Services;
      2. anything developed or delivered by or on behalf of OTBG under this Agreement; and
      3. any Modifications to the foregoing (i) and (ii).
    3. All rights not expressly granted by OTBG to Customer under this Agreement are reserved.
  8. Privacy: The Customer agrees to OTBG’s access, use, collection, storage and disclosure of Customer’s Personal Information for the purposes authorized under this Agreement. The Customer understands that Personal Information will be treated in accordance with OTBG’s privacy policy located www.ontheballglobal.com (the “Privacy Policy ”).
  9. Customer User Account: OTBG will issue an account (a “Customer User Account User Account”) to the Customer. The Customer will only use the OTBG Software and OTBG Services through the Customer User Account. The Customer will not share the Customer User Account or any information obtained through the Customer User Account with any other person. The Customer will promptly notify OTBG of any actual or suspected unauthorized use of the OTBG Software or OTBG Services. OTBG reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorised purpose
  10. Support: OTBG uses service availability monitoring equipment to monitor the OTBG Services on a 24 hours a day, 365 days a year basis. The Customer will generally have access to OTBG’s technical support from 10 AM to 6 PM PST Monday through Friday (excluding statutory and public holidays observed in Australia): (i) via email at The. The Customer will consult the documentation and trouble-shooting information made available by OTBG (including on the Website) prior to contacting OTBG for support. OTBG reserves the right to limit Customer’s access to support if Customer does not comply with these terms or uses an excessive amount of support.
  11. Fees and Payment: Fees for the OTBG Services are described on the Website and in the Application (the “Fees”) and are payable based on the frequency identified in the subscription plan that Customer selects. The Customer will pay the Fees owed by Customer (including any additional fees for Customer’s use of the OTBG Services identified to Customer in advance) in accordance with this Agreement. Unless otherwise noted, all Fees are payable in advance.
  12. Automatic Payment: unless the Customer provides OTBG with reasonable notice, upon renewal of the Customer’s subscription, the Customer authorises OTBG’s third party processors to charge the debit card, credit card or other payment account on file for Customer for the same subscription plan (or the most similar subscription plan if Customer’s subscription plan is no longer available) at the then current subscription Fees plus any applicable taxes. Unless otherwise requested by the Customer, OTBG will process the Customer payments using the same billing cycle as the Customer’s current subscription.
  13. Changes to the Fees: while OTBG does not anticipate that it will increase Fees for existing customers, OTBG reserves the right to change the Fees and institute new charges upon providing not less than 60 days prior notice to Customer.
  14. Cancellation and Refunds: the Customer agrees:
    1. They may cancel the OTBG Services and request a refund of the Fees paid by Customer within 48 hours of signing up for such OTBG Services by contacting OTBG as described in this Section, in which case the subscribed OTBG Services will immediately terminate as of the date that OTBG provides such refund. If the Customer chooses to cancel the OTBG Services, the Customer must submit a cancellation request via the same method the Customer used to sign up for the OTBG Services, as further described in the following link www.ontheballglobal.com
    2. Any cancellation made after the 48 hour period described in the first sentence will become effective as of the Customer’s next payment period and the Customer will continue to receive the OTBG Services paid for by Customer until such date.
    3. Any cancellation made less than 24 hours prior to the scheduled payment period termination date will become effective as of Customer’s next payment period, and the Customer will continue to receive the OTBG Services paid for by the Customer until such date.
    4. While OTBG is under no obligation to do so, in certain limited circumstances OTBG may in its sole discretion provide Customer with a pro rata refund of the Fees following the 48 hour period described above, in which case the subscribed OTBG Services will immediately terminate as of the date that OTBG provides such pro rata refund.
  15. Disputed Invoices or Charges: if the Customer believes OTBG has charged the Customer incorrectly, Customer must contact via www.ontheballglobal.com OTBG within a reasonable time after having been charged by OTBG in order to request an adjustment or credit, and OTBG will review any identified charges upon notice from Customer. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
  16. Late Payment: the Customer may not withhold or setoff any amounts due under this Agreement. OTBG reserves the right to suspend Customer’s access to the OTBG Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection including all legal costs howsoever incurred (if any).
  17. Taxes: the Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of OTBG.
  18. Suspension: any suspension of the OTBG Services by OTBG pursuant to the terms of this Agreement will not excuse the Customer from its obligation to make payments under this Agreement.
  19. Third Party Payment Processors: the Customer will pay the Fees using a valid credit card, debit card or other payment account (e.g. PayPal) accepted by OTBG. By using the OTBG Services, Customer authorizes OTBG’s third party payment processor to post a pre-authorized charge for the Fees and to charge Customer’s credit card, debit card or other payment account for the Fees. The Fees do not include any payment processing fees assessed by OTBG’s third party payment processors for which the Customer will be solely responsible. By using the OTBG Services, Customer authorizes OTBG’s third party payment processors to deduct and send directly to OTBG any amounts owed to OTBG pursuant to this Agreement. Third party payment processors are not subcontractors or agents of OTBG and any disputes between Customer and a third party processor regarding any payments or lack thereof are between Customer and the third party payment processor. OTBG and its third party payment processors are not responsible for the transmission or processing of any payments the Customer makes pursuant to its use of the OTBG Services. The Customer’s use of the payment services provided by OTBG’s third party payment processors may be subject to additional terms and conditions made available to the Customer by such payment processors
  20. Confidential Information: for the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognise as being confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
  21. Confidentiality Covenants: the Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
  22. Exceptions to Confidentiality: notwithstanding Section 8(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of OTBG, to potential assignees, acquirers or successors of OTBG if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of OTBG.
  23. Deletion of Confidential Information: within 30 days of the expiration or termination of this Agreement, Customer will return or destroy OTBG’s Confidential Information.
  24. Customer Warranty: the Customer represents and warrants to, and covenants with OTBG that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable OTBG to provide the OTBG Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to OTBG and to or from all applicable third parties.
  25. GENERAL DISCLAIMER: OTBG DOES NOT WARRANT THAT THE OTBG SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE OTBG SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE OTBG SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OTBG TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OTBG HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, OTBG EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE OTBG SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

  26. Medical Disclaimer: the OTBG Services provided hereunder are not designed or intended to be a substitute for professional medical advice, diagnosis or treatment and should not be used as a replacement or substitute for professional medical advice, diagnosis, treatment or judgment. Customer acknowledges and agrees that medical treatment decisions will not be made by OTBG nor through the usage of the OTBG Services but remain based entirely upon health care providers’ professional medical judgement and in accordance with generally accepted standards of medical practice, including without limitation, verifying conclusions and outputs of the OTBG Services, confirming the accuracy of life-threatening information and verifying critically important results.
  27. Indemnity: the Customer will defend, indemnify and hold harmless OTBG, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (iii) use of the OTBG Services (or any part thereof) by Customer in combination with any third party software, application or service. Customer will fully cooperate with OTBG in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of OTBG.
  28. Limitation of Liabilities: The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
    1. AMOUNT: IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF OTBG IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE OTBG SERVICES IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF OTBG IN CONNECTION WITH THIS AGREEMENT EXCEED TEN CANADIAN DOLLARS ($10) OR THE EQUIVALENT IN LOCAL CURRENCY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL OTBG’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
    2. TYPE: TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL OTBG BE LIABLE TO CUSTOMER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES
  29. Term: this Agreement will commence on the Effective Date and continue to be in effect until terminated in accordance with this Agreement (the “Term”). Customer’s subscription for the OTBG Services subscribed by Customer will automatically renew upon the applicable payment date unless Customer cancels such OTBG Services prior to such date.
  30. Termination for Convenience: the Customer may cancel its subscription to the OTBG Services at any time in accordance with Section 7(d) above. If OTBG in its discretion makes available to the Customer a limited free version of the OTBG Services, this Agreement will continue to apply to Customer’s use of such OTBG Services to the extent applicable. Either Party may terminate this Agreement at any time by: (i) in the case of OTBG, providing advance written notice to Customer of not less than 30 days; and (ii) in the case of Customer, removing the Application, deleting all Customer User Accounts and ceasing to use all OTBG Services (whether on a paid or free basis).
  31. Additional Termination Rights: OTBG may immediately terminate this Agreement and cancel the Customer’s access to the OTBG Services if Customer breaches this Agreement or if OTBG reasonably believes that Customer has a negative effect on the OTBG Services or OTBG’s image.
  32. Post-Termination Obligations: except as provided in this Section, Customer will no longer have rights to access or use the OTBG Services upon termination of this Agreement.
  33. Survival: The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement.
  34. Notices: Notices sent to either Party will be effective when delivered in person or one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent: (i) if to OTBG, to the following address: via www.ontheballglobal.com (ii) if to Customer, to the current postal or email address that OTBG has on file with respect to Customer. OTBG may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with OTBG current at all times during the Term.
  35. Assignment: the Customer will not assign this Agreement to any third party without OTBG’s prior written consent. OTBG may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
  36. Choice of Law: this Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the State of Victoria, Australia in its exclusive jurisdiction. This choice of jurisdiction does not prevent OTBG from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
  37. Export Restrictions: the Customer will comply with all export laws and regulations that may apply to its access to or use of the OTBG Services.
  38. Construction: except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of OTBG in this Agreement means the right of OTBG to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the Customer.
  39. Force Majeure: neither Party will be liable for delays caused by any event or circumstances beyond OTBG’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving OTBG’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites.
  40. Severability: Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
  41. Waiver: a waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
  42. Independent Contractors: OTBG’s relationship to the Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
  43. Entire Agreement: This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral.
  44. Amendments: no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
  45. Technical Safeguards. OTBG maintains appropriate technical, physical and administrative safeguards to protect against unauthorized destruction, loss, alteration or disclosure of the Customer Data.

Apple App Store Additional License Terms

If the Application is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of this Terms of Use:

The parties acknowledge this Terms of Use is concluded between you and us, and not with Apple. The responsibility for the Application and content thereof is governed by this Terms of Use.

Notwithstanding anything else in this Terms of Use, you may use the Application only on or through an Apple device that you own or control

You and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Application.

In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Application (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Terms of Use.

Any claim in connection with the Application related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation is governed by this Terms of Use, and Apple is not responsible for such claim.

Any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights will be governed by this Terms of Use, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.

You represent and warrant that you are not: (i) located in any 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; or (ii) listed on any U.S. Government list of prohibited or restricted parties.

You may contact us in writing regarding any notices, questions, complaints, or claims with respect to the Application.

via www.ontheballglobal.com Apple is a third party beneficiary to this Terms of Use and may enforce this Terms of Use against you.

If any of the terms and conditions in this Terms of Use are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement or the App Store Terms of Service as of the Effective Date, the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.

Google Play

If the Application is provided to you through the Google Inc. (Google Inc. together with all of its affiliates, “Google”) Google Play, the following terms and conditions apply to you in addition to all the other terms and conditions of this Agreement: You acknowledge that Google is not responsible for providing support services for the Application.

If any of the terms and conditions in this Terms of Use are inconsistent or in conflict with Google’s Google Play Developer Distribution Agreement as of the date this Terms of Use was accepted, the terms and conditions of Google’s Google Play Developer Distribution Agreement will apply to the extent of such inconsistency or conflict.