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YOUR PARTICIPATION IN HEAD2HEAD BASEBALL CONSTITUTES YOUR ACKNOWLEDGMENT AND AGREEMENT THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO THE TENNANTS OF THESE TERMS.
Please read this Service Agreement carefully. Together with the Guidelines for Acceptable Use and the Privacy Statement, it governs your use of the Head2Head Baseball Game, communication and transaction services (collectively called the "Service") provided to you by WhatIfSports.com, Inc. ("WhatIfSports"). This Agreement, the Guidelines and the Privacy Statement supersede all prior communications and agreements with regard to their subject matter;
1.1. By completing the enrollment process to become a subscriber of the Service or by using the Service or any software provided by WhatIfSports ("Software") other than to read this Agreement, you agree to accept the terms of the Agreement (including the Guidelines and the Privacy Statement) as if you had signed it. WhatIfSports may change this Agreement at any time; such changes will be effective immediately upon transmission of notice by e-mail, postal mail, posting on the WhatIfSports Web site or any other means. Each time you use the Service reaffirms your acceptance of the then-current Agreement. If you do not wish to be bound by this Agreement, you may discontinue using the Service and the Software and immediately terminate your account as set forth below.
2. Your Obligations
2.1. You agree to provide WhatIfSports with accurate, current and complete information, to the extent required by WhatIfSports for your registration as a subscriber of the Service or at any time thereafter, and to maintain and to update this information as required to keep it accurate, current and complete. You agree in your enrollment and in your use of the Service not to impersonate any other person or entity, and you represent that you are either 13 years of age or older, or have obtained consent to use the Service from your parent or guardian.
2.2. You are responsible and liable for any activity by any person who uses your account with the Service. Other users of your account will be bound by this Agreement as if they were you. You are responsible for maintaining the confidentiality of your password and for any liability resulting from disclosure of your password. You agree that, upon becoming aware that your password or account is (or possibly is) being used without authorization, you will immediately change your password and notify WhatIfSports by sending e-mail to [email protected].
2.3. You are responsible for obtaining and maintaining the equipment and telephone services necessary to access and use the Service and for any telephone charges associated with connecting to and using the Service, including without limitation any telephone charges associated with the transmission to or from your computer of any information sent by or on behalf of WhatIfSports, including without limitation information of the types specified in Section 2.4 below.
2.4. You expressly permit and authorize WhatIfSports (and such third parties as may be authorized by WhatIfSports, subject to the Privacy Statement) to furnish you, electronically when you use the Service or by any other means selected by WhatIfSports, information prepared by WhatIfSports or by (or on behalf of) other entities, including advertising information and solicitations. You acknowledge that any such information, advertisements and solicitations are an inseparable part of the Service, and you understand and agree that the furnishing of such information, advertisements and solicitations to you cannot be terminated unless the Service is also terminated. Some third parties furnishing you with advertisements and solicitations through the Service may permit you to "opt out" of receiving such communications from them, in which case you can do so by following the instructions they provide. However, WhatIfSports is not responsible for any such party's failure to comply with its own "opt out" policies, nor does WhatIfSports endorse the views or content of any third party advertisements or solicitations. All such advertisements and solicitations will be understood to be "requested" by you through the act of using the Service, and each time you use your account reaffirms such request. WhatIfSports's policies relating to privacy and the collection and use of subscriber information are set forth in the Privacy Statement, which forms an integral part of this Agreement.
2.5. You agree in using the Service to comply with WhatIfSports's Guidelines for Acceptable Use. You acknowledge that the Service is provided only for personal use by you, and not for corporate or excessive commercial use or for use by organizations or other groups of users.
2.6. You agree that WhatIfSports may establish general practices and limits concerning use of the Service. You acknowledge that WhatIfSports may restrict or limit the use of third party software or services in connection with the Services. You also acknowledge that WhatIfSports reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
3.1. You acknowledge that information, communications, photographs, video, graphics, software, music, sounds and other materials may be accessible to you through your use of the Service. You further acknowledge, however, that WhatIfSports does not have the capability to monitor, review, restrict, edit or remove materials made available by third parties on the Internet, and you agree that you must evaluate, and bear all risks associated with, the use of any materials, including any reliance on the accuracy, completeness, or usefulness of such materials. The fact that WhatIfSports provides a link to a particular Web page is not an indication that we endorse that site's policies or the content or products available from that particular site.
3.2. You acknowledge that materials available through the Service may be protected by copyright, trademarks, and other intellectual property rights. You agree that your use of such materials is governed by all applicable laws and regulations, and by any further restrictions placed on such materials by their owners or licensors.
3.3. You acknowledge that the Service may provide certain public areas (e.g. message boards, forums, chat areas), and that WhatIfSports is a distributor (and not a publisher) of information disseminated by persons using the Service. By posting, uploading or transmitting material to any such area, you are requesting WhatIfSports and/or its partners to make such material available to others, and you are acknowledging that placing such material in a public area will result in copies of such material being transmitted to others. By posting, uploading or transmitting material to any public area, you (i) grant to WhatIfSports and/or its partners a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license (including the waiver of any moral rights) to use, reproduce, modify, adapt, publish, distribute, display, and create derivative works from, such material (in whole or in part) and to incorporate it into other works in any form, media or technology (whether now known or later developed) and (ii) warrant that the owner of any rights in the material, including intellectual property and moral rights, has waived such rights and has given you the right to grant the license described above.
4. Software License
4.1. WhatIfSports grants to you a personal, non-transferable, non-exclusive license to use the Software (in object code form only) to access the Service subject to the terms and conditions of this Agreement. The Software is licensed, not sold, to you by WhatIfSports and may be used only to connect to the Service from the United States of America and such other locations as WhatIfSports may authorize.
4.2. You may not copy nor archive the Software, and you may not distribute copies of the Software to third parties. Further, you acknowledge that you will not sell, transmit or otherwise dispose of any copy for compensation or as part of a commercial offer.
4.3. You agree not to translate, reverse engineer, reverse compile, disassemble or make derivative works from the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software including, without limitation, for the purpose of obtaining unauthorized access to the Service or disabling features of the Software or Service. Except as may be permitted by WhatIfSports, you agree not to access the Service by any means other than through the interface that is provided by WhatIfSports or its partners for use in accessing the Service.
4.4. The Software includes certain cryptographic software that may be subject to any applicable export controls, including the U.S. Export Administration Act. The Software may not be exported to any country or to any foreign entity or "foreign person" to the extent prohibited under applicable government regulations. By downloading or using the Software, you are acknowledging and agreeing to the foregoing limitations on your right to export or re-export the Software, and are also representing and warranting that you are neither on any applicable government's lists of export precluded parties nor otherwise ineligible to receive software containing cryptography that is subject to any applicable export controls.
4.5. You acknowledge that WhatIfSports and its suppliers retain all title, rights (including, without limitation, intellectual property rights) and interest in the Software, except as expressly licensed in this Agreement. All rights in the content, information and materials accessed through use of the Software are the property of the applicable content owner and may be protected under intellectual property and other applicable laws. You agree that WhatIfSports's suppliers are direct and intended third party beneficiaries of this Agreement.
5.1. As a subscriber of the Service you are solely responsible for any charges to your account and any activities conducted through your account. By using a credit card or other payment method to pay for any billable portions of the Service, you expressly authorize WhatIfSports or its agents to charge all fees and other charges incurred in connection with your service to the credit card or other payment method you have designated, and such authorization will remain valid unless revoked by you pursuant to Section 8.2. If you use a credit card and WhatIfSports does not receive payment from the card issuer or its agents, you agree to pay all amounts due upon demand by WhatIfSports. Fees are non-refundable, except as otherwise provided in this Agreement.
5.2. You may change your designated payment method by contacting WhatIfSports in the manner specified for that purpose on WhatIfSports's Web site or by contacting WhatIfSports support at [email protected]. WhatIfSports reserves the right to accept other forms of payment or to modify the forms of payment it will accept. If WhatIfSports elects to authorize alternative or additional methods of payment, your designation of such a method of payment will be deemed to be an authorization to WhatIfSports to bill you, in a manner appropriate to your designated payment method, for all fees and other charges incurred in connection with your service.
5.3. If WhatIfSports is unable to charge your credit card on your 30 day renewal cycle, your account will be marked as canceled and you will be notified via email to your address on record with WhatIfSports. If you believe that a billing discrepancy has occurred, you must notify WhatIfSports within 90 days after the date of the relevant account statement from your credit card issuer or financial institution or such amounts will be deemed to have been accepted by you. You agree to release WhatIfSports from any liability for any error or discrepancy that is reported to WhatIfSports after such period.
5.4. Your subscription to any billable portion of the Service will continue and renew automatically, unless terminated by WhatIfSports or until you notify WhatIfSports pursuant to Section 8.2 of your decision to terminate your subscription. WhatIfSports reserves the right at any time to change its fees and charges for use of portions of the Service, to institute new or additional fees, and to change its policies, methods, and procedures with respect to pricing, billing, cancellations, and surcharges. Although WhatIfSports expects to provide e-mail or other notice to you prior to increasing the price you pay for the Service, WhatIfSports shall not be required to do so before making any of the changes described. You may obtain current pricing information as well as information about policies, methods and procedures with respect to pricing, billing, cancellation and surcharges (i) through WhatIfSports's Web site, or (ii) by sending e-mail to [email protected]. WhatIfSports may modify the means of accessing rates and billing information in its sole discretion.
5.5. In addition to fees for your subscription to any billable portion of the Service, you agree to pay all sales, use, value-added, personal property or other governmental taxes or levies imposed on fees for the Service or goods or services that you purchase through the Service.
6. No Warranties
6.1. You agree that use of the Service is at your sole risk.
6.2. With respect to information, goods and services provided or accessed on or through the Service or otherwise available on the Internet, WhatIfSports (i) has no responsibility or obligation with respect to (and does not endorse) any information, good or service, (ii) makes no warranties whatsoever (express or implied) with regard to any information, good or service (including, without limitation, warranties of accuracy, completeness, usefulness, merchantability, safety or fitness for a particular purpose), (iii) will not be a party to a transaction between you and any other user of the Service and (iv) will not be liable, under any circumstance, for any loss, cost or damage arising directly or indirectly from any act or omission of any person or from any information, good or service; except to the extent the foregoing may not be disclaimed under law. WhatIfSports does not assume liability to subscribers or others for any failure to enforce the Guidelines.
6.3. WHATIFSPORTS AND ITS PARTNERS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE NOR MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICE. WHATIFSPORTS DOES NOT GUARANTEE CONNECTIVITY AT ANY TIME, FOR ANY LENGTH OF TIME OR AT ANY SPEED. THE SERVICE AND THE SOFTWARE ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES WHATSOEVER (EITHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WHATIFSPORTS DOES NOT WARRANT THAT WHATIFSPORTS SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY INTERNET SERVICE OR WHATIFSPORTS SERVICES IN PARTICULAR. NO ORAL ADVICE OR WRITTEN (INCLUDING ELECTRONIC) INFORMATION PROVIDED BY WHATIFSPORTS, ITS EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS OR AUTHORIZED USERS WILL CREATE A WARRANTY, NOR SHOULD YOU RELY ON ANY SUCH ADVICE OR INFORMATION.
6.4. UNDER NO CIRCUMSTANCES (INCLUDING NEGLIGENCE AND FUNDAMENTAL BREACH) WILL WHATIFSPORTS OR ANYONE ELSE INVOLVED IN PROVIDING THE SERVICE OR SOFTWARE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES FROM OR THROUGH THE USE OF OR INABILITY TO USE THE SERVICE OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. WHATIFSPORTS' ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE OR THE SERVICE WILL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU DURING THE PRIOR 30 DAY SERVICE PERIOD AND/OR TOKENS PURCHASED, IF ANY. THE TERMS OF THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN JURISDICTIONS WHICH RESTRICT LIMITATION OF LIABILITY PROVISIONS, WHATIFSPORTS' LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THIS LIMITATION WILL APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
You agree to indemnify and hold harmless WhatIfSports and its affiliates and their respective officers, directors, employees and agents against any liability, damages or other expenses (including attorneys' fees and costs) arising from your use of the Service (including, without limitation, your dissemination of any information on the Service).
8.1. WhatIfSports may terminate your access to the Service and your account at any time, for cause or for no cause, with or without written (including electronic) notice. Upon termination, you will have no right to continue to use the Service or access any stored content on the Service (and any such content will be forfeited).
8.2. You may cancel billing for your service at any time by using the subscription cancellation option available on the WhatIfSports.com website or by using such other means as WhatIfSports may make available from time to time, provided that you will remain liable for any fees to which you have committed at the time of registration. CANCELATION WILL BECOME EFFECTIVE AT YOUR NEXT BILLING CYCLE. YOU WILL HAVE ACCESS TO THE SERVICE UNTIL THAT TIME. If you are dissatisfied with this Agreement or any terms, policies, or practices of WhatIfSports in operating the Service, any content available through the WhatIfSports Service, or any change to any of the foregoing, your sole recourse is to cancel your service. Deleting your account from WhatIfSports's central computers or removing the Software from your computer will not cancel billing for your service.
9.1. The failure of either you or WhatIfSports to insist upon or enforce strict performance by the other of any provision of the Agreement will not be construed as a waiver of any provision or right. Neither the course of conduct between you and WhatIfSports nor trade practice will act to modify any provision of the Agreement.
9.2. If any provision of this Agreement is held to be unenforceable for any reason, that provision will be reformed only to the extent necessary to effect the original intentions of the parties, and the remainder of this Agreement will remain in full force and effect.
9.3. This Agreement and its enforcement will be governed by, and construed in accordance with, the laws of the State of Ohio, without regard to conflicts-of-law principles. You consent to the exclusive jurisdiction of the state and federal courts situated in the State of Ohio in connection with any action arising under this Agreement or relating to the Service or Software, and to having any judgment or order from such jurisdiction recognized in any other court, tribunal or other governmental body in order to have the same enforced against you. Any cause of action brought by or on behalf of you with respect to this Agreement, the Service or Software must be commenced within one year after the claim or cause of action arose.
9.4. Information for California Residents. Under California Civil Code Section 1789.3, users that are residents of California are entitled to the following consumer rights information: the Complaint Assistance Unit of the Division of Consumer Services may be contacted in writing at 400 R Street, Suite 1080, Sacramento, CA 95814 or by telephone at (916) 445-1254. 9.5. For the purposes of this Agreement, references to "including" shall mean "including, without limitation," unless such language is already set forth.
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