Terms of Service
Jan. 1st, 2016
EverSport Media, Inc. ("EverSport", "we" or "us") EverSport provides an online video service offering a selection of live and recorded video, audio and chat sports content. These services including our paid subscriptions and pay-per-view offerings (collectively known as “EverSport Premium”), video player, and any other features, tools, applications, materials, or other services, offered by EverSport on any website, device or platform are referred to collectively as the “EverSport Platform” or referenced herein as the “Platform”.
Certain areas of the Site and Platform (and your access to or use of Content (defined below)) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms of Service and terms and conditions posted for a specific area of the Site, Platform or Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Platform or Content.
YOU UNDERSTAND THAT BY CLICKING THE "I AGREE" BUTTON, OR BY USING THE SITE, SERVICES (INCLUDING ANY CONTENT PROVIDED THEREIN), OR YOUR ACCOUNT, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE, SERVICES OR CONTENT. If you agree to these Terms of Service on behalf of a business, you represent and warrant that you have the authority to bind that business to these Terms of Service and your agreement to these terms will be treated as the agreement of the business. In that event, "you" and "your" will refer and apply to that business.
1. Eligibility and Registration.
In order to access certain features of the Site and Platform, and to post User Submissions, you will have to create an EverSport account and become a "Registered User". To become a Registered User you must be at least 13 years of age and only Registered Users that are at least 18 years of age may purchase Premium (defined below) access as further described in Section 6. If you are not a Registered User you may browse all areas of the Site or use the parts of the Platform that are not limited to Users only.When you register, you will be asked to choose a username and a password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party. You agree that you will be solely responsible for any activities or actions taken under your password, whether or not you have authorized such activities or actions. You will immediately notify EverSport of any unauthorized use of your password. You agree that the information that you provide to us upon registration, and at all other times will be true, accurate, current and complete. Without limiting any other terms of this Terms of Service, you may not use false identities or impersonate any other person or use a username or password that you are not authorized to use. EverSport reserves the right to require you to change your username for any reason and may do so at any time.
EverSport reserves the right, at its sole discretion, to modify, discontinue or terminate the Site and Platform, or to modify these Terms of Service, at any time and without advance notice. However, changes made to these Terms of Service will not apply to you to the extent that (i) the changes concern matters which are the subject of an actual dispute between you and EverSport as of the date the changes take effect and (ii) EverSport has actual notice of the dispute as of the date the changes take effect. If we modify these Terms of Service, we will post the modification on the Site or within the Platform or provide you with notice of the modification. We will also update the "Last Updated Date" in these Terms of Service. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Site and Platform, and if applicable, cancel your EverSport account. By continuing to access or use the Site and Platform after EverSport makes any such revision, you agree to be bound by the revised Terms of Service.
3. Termination and EverSport Account Cancellation.
a. Without limiting other remedies, EverSport may immediately terminate or suspend your access to the Site and Platform and remove any material (including User Submissions) from the Site or our servers, in the event that you breach these Terms of Service. Notwithstanding the foregoing, we also reserve the right to terminate the Site, Platform or your access thereto at any time and for any reason. In addition, EverSport may notify authorities or take any actions it deems appropriate, without notice to you, if EverSport suspects or determines, in its own discretion, that you may have or there is a significant risk that you have: (i) failed to comply with any provision of these Terms of Service or any policies or rules established by EverSport; or (ii) engaged in actions relating to or in the course of using the Site or Platform that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, EverSport Users, EverSport or any other third parties or the Site or Platform.
b. You may terminate your EverSport account at any time and for any reason by selecting "Close Account" in your account preferences. Upon any termination by a User, the related account will no longer be accessible.
c. After any termination, you understand and acknowledge that we will have no further obligation to provide the Platform. Upon termination, all licenses and other rights granted to you by these Terms of Service will immediately cease. EverSport is not liable to you or any third party for termination of the Platform or termination of your use of the Platform. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION (INCLUDING USER SUBMISSIONS) THAT YOU HAVE SUBMITTED ON THE SITE OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, EverSport will have no obligation to maintain any information stored in our database related to your account or to forward any information to you or any third party.
d. Any suspension, termination or cancellation will not affect your obligations to EverSport under these Terms Service (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
4. Copyrighted Materials: No Unauthorized Use.
YOU WILL NOT USE THE SITE OR SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. EverSport has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be infringing the rights of copyright holders.
5. Intellectual Property Rights and Ownership; Limitations.
a. Definitions. Certain types of content are made available through the Site. "Content" as used in these Terms of Service means, collectively, the text, data, graphics, images, photos and video files made available by EverSport through the Site and Platform, excluding User Submissions. "User Submissions" as used in these Terms of Service means, collectively, the text, data, graphics, images, photos and video files and other content and information which Registered Users or our other third party licensors stream, post, upload and otherwise submit to the Site and Platform, including without limitation in broadcast chats, discussion groups, message boards and Registered User created profile pages. EverSport reserves the right to remove and permanently delete any Content or User Submissions from the Site without notice. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting publishing or otherwise making available any User Submissions, emails or other materials that are believed to violate these Terms of Service.
b. Content. Subject to your compliance with these Terms of Service, you may access and use the Site, Platform, Content and User Submissions for your own personal non-commercial use. Any commercial use of the Site, Platform, Content or User Submission requires EverSport prior written approval (e.g., pursuant to additional or separate terms and conditions provided by EverSport). You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Platform, Content, User Submissions or related products and services and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Site, Content, User Submissions (other than your User Submissions). Notwithstanding you may distribute certain Content or User Submissions, solely where EverSport makes the means for distribution of such Content or User Submissions possible via an EverSport Player. EverSport and its licensors own all right, title and interest, including all worldwide intellectual property rights in the Site, Platform, Content and the trademarks, service marks and logos contained therein other than your User Submissions.
c. User Submissions.
i. License Grant. EverSport does not claim ownership rights in your User Submissions. However, by uploading, streaming, submitting, emailing, posting, publishing or otherwise transmitting any User Submission to EverSport on the Site or to the Platform, you hereby grant EverSport a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast and otherwise exploit such User Submissions in any form, medium, device or technology now known or later developed, including without limitation on third party websites and platforms where the Platform are syndicated. For example, EverSport will have the right to insert, place or include all types of advertisements within or around your User Submissions, including without limitation to running or streaming pre-rolls, mid-rolls, post-rolls, overlays, banners, campaign and companion ads and any other type of advertising units in connection with your User Submission. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to EverSport. You agree to execute and deliver such documents and provide all assistance reasonably requested by EverSport to give to EverSport the full benefit of the rights granted to EverSport by you.
ii. Limitations. You acknowledge and agree that EverSport may, at its option, establish limits concerning User Submissions, including without limitation the maximum number of days that User Submissions will remain on the Site, the maximum size of any files that may be stored on or uploaded to the Site, and the maximum disk space that will be allotted to you for the storage of User Submissions on EverSport's servers. EverSport will have no responsibility or liability for User Submissions that are deleted for any reason. EverSport will have no responsibility or liability for and you are solely responsible for creating back-ups of your User Submissions. EverSport reserves the right to change, suspend or discontinue part or all of any limits concerning User Submissions at any time, for any reason, without notice and without explanation.
iii. Disclaimer. EverSport has no ability to reasonably control the User Submissions that are uploaded, posted or otherwise transmitted using the Site or Platform and does not have any obligation to monitor such User Submissions for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the User Submissions or anything said, depicted or written by Registered Users, including without limitation any information obtained by using the Site. EverSport does not endorse any User Submission or any opinion, recommendation, or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against EverSport with respect thereto. EverSport will have no responsibility or liability to you or any third party as a result of your submissions via the Site or Platform.
6. Fees and Payment.
a. Fees for Premium content access. Access to certain premium content ("Premium") may require a subscription or pay-per-view access fee. Registered Users may be able to access Premium Content by (i) paying a subscription fee to access certain Premium content for the applicable time period ("Subscription Fee"); or (ii) paying a one-time fee to access certain Premium content at a designated time ("Pay-Per-View Fee").
b. Fees for the Platform. The Platform and its content may be made available in free or paid versions, different service levels and/or different service plans. Not all of the features and functionality of the Platform may be available in each version, service level or service plan. Separate or additional usage and/or overage charges may apply to different versions, service levels or service plans. EverSport reserves the right to change, suspend or discontinue part or all of any version, service level or service plan at any time, for any reason, without notice and without explanation.
c. In order to register for or use a paid version of the Platform or Premium access, or a version, service level or service plan, you may be required to provide EverSport with billing and account information ("Billing Information") for a credit card, payment card or another payment system, such as PayPal, for which you are authorized to approve charges (each, a "Payment Source") to allow EverSport to collect payment from you for your use of the Platform. You must provide EverSport with true, accurate, current and complete Billing Information and maintain and promptly update your Billing Information to keep it true, accurate, current and complete.
d. You authorize EverSport to automatically and immediately bill your Payment Source when charges for your use of the paid version of the Platform pr Premium charges are due, without any further action on your part or other prior notice on the part of EverSport. You assume full responsibility for such charges, even if such charges are declined or not paid by your Payment Source.
e. If your Payment Source is invalid, if charges billed to your Payment Source are declined or not paid or if you fail to pay charges for a paid version of the Platform or Premium access when due, your account may be downgraded, suspended or cancelled, at EverSport's discretion. If your account is suspended, EverSport may, but is not obligated to, maintain your account and/or related content and information, in order to allow you pay the past-due charges and restore your account. If the charges are not paid, your account may be cancelled.
f. All fees are non-refundable and non-transferable except as expressly provided in these Terms of Service. Fees and transactions you complete through the Site and Platform may include sales tax based on the bill-to address and the applicable sales tax rate in effect at the time and location your transaction is completed. You will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with any fees due by you to EverSport. There is no prorated refund of any fees upon any termination or cancellation. You agree to immediately pay any amounts accrued, but remaining unpaid, as of termination (if any).
7. Interactions between EverSport Users.
You are solely responsible for your interactions (including any disputes) with other EverSport Users. You understand that EverSport does not in any way screen EverSport Users. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Platform and disclosing personal information to other EverSport Users. You agree to take reasonable precautions in all interactions with other EverSport Users, particularly if you decide to meet an EverSport User offline, or in person. Your use of the Site, Platform, Content and any other information or other materials made available through the Site or Platform is at your sole risk and discretion and EverSport hereby disclaims any and all liability to you or any third party relating thereto. EverSport reserves the right to contact Registered Users, in compliance with applicable law, in order to evaluate compliance with the rules and policies in these Terms of Service. You will cooperate fully with EverSport to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting authorized EverSport representatives access to any password-protected portions of your EverSport account.
Without limiting the terms of Section 5(c)(iii), EverSport may in its sole discretion review and/or record broadcast chat exchanges and/or other communications engaged in via the Site or Platform, in accordance with applicable law, in order to evaluate compliance with the rules and policies set forth in these Terms of Service or as otherwise technically necessary.
8. Obligations for EverSport Users.
a. General Prohibitions. The Site and Platform may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Platform. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site or Platform:
i. Circumvent, disable or otherwise interfere with security related features of the Site or Platform or features that prevent or restrict use or copying of any Content;
ii. Modify, obscure or interfere with any portion or functionality of an EverSport Player, including but not limited to links back to the Site or Platform.
iii. Upload, stream, email or otherwise transmit (i) any User Submission to which you do not have the lawful right to copy, transmit and display (including any User Submission that would violate any confidentiality or fiduciary obligations that you might have with respect to the User Submission); (ii) any User Submission for which you do not have the consent or permission of each identifiable person in the User Submission to use the name, voice, signature, photograph, or likeness of each such person (to the extent each is implicated by the User Submission) and such consent or permission is necessary; or (iii) any User Submission that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity);
iv. Use any meta tags or other hidden text or metadata utilizing an EverSport name, trademark, URL or product name;
v. Upload, stream, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, "pyramid schemes" or any other form of solicitation;
vi. Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Site or Platform to send altered, deceptive or false source-identifying information;
vii. Upload, stream, email, or otherwise transmit, via the Site or Platform, any User Submissions that are unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contain objects or symbols of hate, invade the privacy of any third party, contain nudity (including without limitation any pornography, erotica, child pornography or child erotica), are deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitute hate speech or are otherwise objectionable in the opinion of EverSport;
viii. Upload, stream, email, or otherwise transmit any User Submissions that contain software viruses or any other computer code, files, or programs designed to (i) interrupt, destroy or limit the functionality of any computer software; or (ii) interfere with the access of any user, host or network, including without limitation sending a virus, overloading, flooding, spamming or mail-bombing the Site;
ix. Upload, stream, email or otherwise transmit any User Submissions that include code that is hidden or otherwise surreptitiously contained within the images, audio or video of any User Submissions that is unrelated to the immediate, aesthetic nature of the User Submissions;
x. Interfere with or disrupt (or attempt to interfere with or disrupt) any web pages available on the Site or Platform, servers or networks connected to the Site or Platform or the technical delivery systems of EverSport's providers or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Platform;
xi. Attempt to probe, scan or test the vulnerability of any EverSport system or network or breach or impair or circumvent any security or authentication measures protecting the Site or Platform (including any Content or User Submissions available in an EverSport Player);
xii. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Platform;
xiii. Attempt to access, search or meta-search the Site or Platform with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by EverSport or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari, or Opera), including without limitation any software that sends queries to the Site or Platform to determine how a website or web page ranks.
xiv. Collect or store personal data about other users without their express permission;
xv. Impersonate or misrepresent your affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud;
xvi. Use the Site or Platform in any manner not permitted by these Terms of Service; or
xvii. Encourage or instruct any other individual to do any of the foregoing or to violate any term of these Terms of Service.
b. Obligations to Third Parties. If you have obligations to any third party, as a non limiting example, such as under the terms, conditions or policies of a SNS, you and not EverSport are responsible for your compliance with those obligations. By allowing you to use the Site and Platform, EverSport does not suggest, warrant or guaranty that your access to any third party service in connection with your use of the Site or Platform is permitted by that third party service, nor does EverSport suggest, warrant or guaranty that your use complies with any laws or regulations that may apply to your use of any third party service. EverSport is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies or procedures applicable to your activities while you use the Site and Platform or third party service.
9. Disclaimer of Warranties.
Your use of the Site, Platform, Content and User Submissions is at your sole discretion and risk. The Site, Platform, Content and User Submissions, and all materials, information, products and services included therein, are provided on an "AS IS" and "AS AVAILABLE" basis without warranties of any kind. EVERSPORT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SITE, SERVICES, CONTENT AND USER SUBMISSIONS, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE. EverSport disclaims any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the Site or Platform; or (ii) that the Site, Platform, Content and User Submissions will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by you from EverSport, will create any warranty not expressly stated in these Terms of Service. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you.
10. Limitation of Liability.
IN NO EVENT WILL EVERSPORT, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, SERVICES, CONTENT AND USER SUBMISSIONS WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT EVERSPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT WILL EVERSPORT'S CUMULATIVE LIABILITY TO YOU EXCEED $100.
You agree to defend, indemnify, and hold EverSport, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney's fees and costs, arising out of or in any way connected with (i) your access to or use of the Site, Platform, Content and User Submissions; (ii) your violation of these Terms of Service; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party, including without limitation claims that your User Submissions are infringing.
12. Third Party Links.
The Site and Platform may provide links to third party websites or resources from the Site or Platform. You acknowledge and agree that EverSport is not responsible or liable for the availability or accuracy of, and EverSport does not endorse, such websites or resources or the content, products, or services on or available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
a. No Assignment. You will not assign these Terms of Service or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of EverSport. Any purported assignment or delegation by you without the appropriate prior written consent of EverSport will be null and void. EverSport may assign these Terms of Service or any rights hereunder without your consent.
b. Relationship of the Parties. For purposes of these Terms of Service, including if you become a Registered User and create an account, you are not an employee or agent of EverSport, and you will not represent that you are any of the foregoing. Each party will be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and will not bind or attempt to bind the other to any contract. Each party will be solely responsible for their own costs and expenses incurred in the performance of their obligations under these Terms of Service, including without limitation any expenses associated with the implementation of these Terms of Service.
c. Severability and Waiver. In the event that any provision in these Terms of Service is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of EverSport to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision.
d. Force Majeure. EverSport will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to EverSport infrastructure or connectivity to the Internet, or failure at EverSport co-location facility, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, EverSport will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.
e. Governing Law. These Terms of Service and the relationship between you and EverSport will be governed by the laws of the State of California without regard to its conflict of law provisions. You and EverSport agree to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California.
f. Entire Agreement. These Terms of Service are the entire and exclusive agreement between EverSport and you regarding the Site, Content, and Platform and supersede and replace any prior agreements between EverSport and you regarding the Site and Platform.
g. Notice. Any notice or other communication to be given hereunder will be in writing and given (a) by EverSport via email (in each case to the address that you provide), (b) a posting on the Site or (c) by you via email to [email protected] or to such other addresses as EverSport may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
h. Questions. If you have questions about these Terms of Service or would like to request a copy of these Terms of Service or any other records relating to these Terms of Service of your use of the Site and Platform, please contact EverSport at [email protected] or by sending a written request to EverSport Media, Inc. PO Box 386 Los Gatos, CA 95031-0386