BALLFROG END USER AGREEMENT

IMPORTANT:  This End User agreement (this “Agreement”) is a legal agreement between you (an individual person, who will be referred to in this Agreement at “You” or “End User”) and Ballfrog.com, LLC (“Ballfrog”) for the Software.  READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SOFTWARE.  IT PROVIDES A SUBSCRIPTION TO THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS.

By using the Software, You represent and warrant that You are an authorized user of your school, sports or civic organization which has purchased a valid subscription from Ballfrog pursuant to a SaaS Agreement.  If End user cannot make the representations above and does not agree to the terms of this Agreement, Ballfrog is unwilling to provide access to the Software to the End User.

YOU WILL BE ASKED TO REVIEW AND EITHER ACCEPT OR NOT ACCEPT THE TERMS OF THIS AGREEMENT.  IF YOU AGREE TO BE BOUND BY ALL TERMS OF THIS AGREEMENT, CLICK THE “I AGREE” BUTTON BELOW AND PROCEED TO ACCESS THE SOFTWARE.  IF YOU DO NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, BALLFROG IS UNWILLING TO GRANT YOU ANY RIGHTS TO USE THE SOFTWARE, AND YOU MUST IMMEDIATELY STOP USING THE SOFTWARE AND INDICATE YOUR REJECTION OF THIS AGREEMENT BY CLICKING THE “I DO NOT AGREE” BUTTON.

Ballfrog reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Software and/or the information contained therein.  Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement.  End User’s continued use of the Software will be deemed acceptance thereof.

1.         Subscription

1.1       Grant of Subscription.  Ballfrog hereby grants to Ed User a limited, revocable, non-exclusive, non-transferable, non-sublicenseable subscription to access and use the Ballfrog software (the “Software”) to the extent the End User remains an authorized user under the Ballfrog SaaS Agreement.  You agree to use the Software in compliance with all applicable laws, rules, and regulations.

1.2       Restrictions on Use.  End User shall not use the Software except as otherwise explicitly set forth herein.  In addition, End User shall not: (a) copy, reproduce, rent, lease, loan, make available, transfer, or distribute the Software in whole or in part; (b) alter, merge, modify, adapt, translate, sublicense, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or create derivative works of the Software; (c) attempt to gain unauthorized access to other accounts, computer systems or networks connected to any Ballfrog server through hacking, password mining or any other means, or obtain or attempt to obtain any materials or information through any means not intentionally made available through the Software; (d) remove any identification, copyright, or other notices from the Software; or (e) enable any timesharing or service bureau use of the Software for any third party.

1.3       Ownership of Software.  The Software, together with all intellectual property rights embodied therein, is owned by Ballfrog, and the Software is protected legally.  The subscription granted hereunder confers no title or ownership in the Software to End User.  Ballfrog reserves all rights not expressly granted to End User in this Agreement.

2.     End User Responsibilities.

2.1       Equipment and Internet Access.  End User acknowledges and agrees that it is solely responsible for providing all equipment necessary to access and use the Software and for End User’s access to the internet, including payment of any and all fees charged by third parties in connection with such access.

2.2       Protection of User Name and Password.  End User is solely responsible for maintaining the confidentiality of its username and password and agrees to notify Ballfrog immediately of any unauthorized use or security breach.  End User is solely responsible for any and all actions taken under End User’s account, whether or not authorized by End User.

2.3       End User Data.  End User is solely responsible for the adequacy and accuracy of all data and other information that End User inputs into the Software and the results obtained therefrom.  Should End User upload photographs, it expressly acknowledges that it has the rights to publish said images and/or is authorized to do so.  End User acknowledges that Ballfrog has the right to use all data that End User inputs into the Software for its own purposes, including sharing it with other entities for various purposes. End User has read the Privacy Policy on the Ballfrog website and assents to its terms, including but not limited to the ability of Ballfrog to use the information provided by End User to send marketing materials and other related correspondence or advertisements to End User.

3.     Disclaimer of Warranties and Limitation of Liability

3.1       Disclaimer of Warranties.  BALLFROG IS PROVIDING THE SOFTWARE TO YOU “AS IS.”  BALLFROG MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE SOFTWARD OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO END USER IN CONNECTION WITH THIS AGREEMENT.  BALLFROG EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS, NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND SUCH OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.  BALLFROG DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END USER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR THAT THE SOFTWARE WILL BE ERR0R-FREE.

3.2       Limitation of Liability.  IN NO EVENT SHALL BALLFROG BE LIABLE TO END USER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, SALES, BUSINESS, OR DATA, ARISING OUT OF OR RESULTING FROM THE USE OF THE SOFTWARE OR OTHERWISE ARISING FROM THIS AGREEMENT, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.   BALLFROG’S LIABILITY UNDER THIS AGREEMENT SHALL AT NO TIME EXCEED $500.00.

3.3       No Other Warranty.  No employee, agent, representative, or affiliate of Ballfrog has authority to bind Ballfrog to any oral representations concerning the Software.  Any representation or warranty not expressly contained in this Agreement will not be enforceable.

4.      Indemnification. End User shall defend, indemnify and hold Ballfrog and its affiliates, directors, officers, employees, and agents harmless from any and all third-party claims arising out of or related to any actual or alleged breach by End User of this Agreement or End User’s use of the Software.

5.      Term and Termination

5.1       Term.  The term of this Agreement shall commence on the date it is accepted by the End User (the “Effective Date”) and continue until the expiration of the term as set forth in the Ballfrog SaaS Agreement and Order Form, unless earlier terminated in accordance with the SaaS Agreement

5.2       Termination.  Ballfrog may terminate this Agreement immediately upon written notice to the End User of End User’s failure to comply with any of the material terms of this Agreement. Notwithstanding the preceding sentence, your rights to use and access the Software will terminate automatically if (a) the SaaS Agreement expires or is terminated for any reason or (b) you fail to comply with any of the terms and conditions contained in this Agreement.

6.         Miscellaneous Terms.

6.1       Assignment.  End User shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Ballfrog.  Subject to the foregoing, this Agreement will bind and inure to the benefit of Ballfrog, its respective successors and assigns.

6.2.      Governing Law and Venue.   This Agreement shall be governed exclusively by the laws of the State of Tennessee, without regard to conflict of laws rules.  The parties agree that any dispute arising hereunder shall be adjudicated only in federal court in the Middle District of Tennessee or in a state court located in Williamson County, Tennessee.

6.3       Relationship of the Parties.  The relationship of Ballfrog and End User established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to constitute a partnership, joint venture, or joint or common undertaking

6.2       Equitable Relief.   End User agrees that in the event of actual or threatened breach of the terms of this Agreement by End User, Ballfrog shall have the right, in addition to any other remedies available to it, to seek injunctive or other equitable relief to enjoin such acts, without posting of bond or showing of actual damages.

6.3       No Waiver.  The waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of any type.

6.4       Entire Agreement.  This Agreement and the Saas Agreement, including all addenda and all Order Forms, constitute the entire agreement between End User and Ballfrog, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral.  This Agreement may not be modified or amended by End User except in writing agreed to by the parties.  Ballfrog reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Software and/or the information contained therein.  Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement.  End User’s continued use of the Software will be deemed acceptance thereof.

6.5       Acknowledgement.  You acknowledge that You have read and understand this Agreement and that this Agreement has the same force and effect as a signed Agreement.

 

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