THESE TERMS (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN WEAVE IO, LLC. A DELWARE LLC DOING BUSINESS UNDER THE TRADE NAME “WEAVE.IO”, (“WEAVE”), AND GOVERN USE OF THE SERVICE BY USER (“User”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING A ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY TAKING ANY STEPS TO SET-UP, CONFIGURE, INTEGRATE WITH, OR USE THE SERVICE, USER AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT: YOU ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY; IN SUCH A CASE, REFERENCES TO “USER” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY.
IF YOU DO NOT HAVE THE AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE.
WEAVE MAY MODIFY THIS AGREEMENT OR OTHER TERMS REFERENCED IN THIS AGREEMENT AT WEAVE’S DISCRETION AT ANY TIME BY POSTING THE CHANGES ON WEAVE’S WEBSITE, BY SENDING NOTICE VIA AN EMAIL TO THE EMAIL ADDRESS USER PROVIDES UPON REGISTRATION, BY INCLUDING A MESSAGE ON AN INVOICE, OR BY ANYOTHER NOTICE METHOD AS WOULD REASONABLY COME TO USER’S ATTENTION.
USER’S SOLE RECOURSE IF IT DOES NOT ACCEPT THE MODIFICATION IS TO TERMINATE THE SERVICE IN ACCORDANCE WITH SECTION 11. THE REVISED AGREEMENT WILL BECOME EFFECTIVE FIVE (5) DAYS FOLLOWING USER NOTIFICATION UNLESS USER EXPRESSLY ACCEPTS THE REVISED AGREEMENT EARLIER. USER’S CONTINUED ACCESS TO AND USE OF THE SERVICE AFTER THE MODIFICATION HAS COME INTO EFFECT CONSTITUTES ITS ACCEPTANCE OF THE MODIFICATION AND USER AGREES THAT (I) USER WILL BE DEEMED TO HAVE ACCEPTED THE MODIFICATION, WITH NO ADDITIONAL WRITTEN AGREEMENT OR EXPRESS ACKNOWLEDGEMENT REQUIRED; AND (II) USER WILL CONTINUE TO BE RESPONSIBLE FOR APPLICABLE FEES UNLESS USER TERMINATES THIS AGREEMENT IN ACCORDANCE WITH SECTION 11. USER IS RESPONSIBLE FOR REGULARLY REVIEWING THE WEAVE WEBSITE FOR ANY MODIFICATION TO THIS AGREEMENT.
If you subscribe to a trial subscription by executing an Order Form or clicking an online box, this agreement will also govern that trial subscription.
“Activity” shall mean a game, sport, training or fitness program or regime, athletic event or competition as specified in the Order Form for which USER desires to use the Service to manage the communication, actions and performance of its Teams.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with USER. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Athlete” means someone who physically participates in or is intended or desired to participate in USER’s Activity. An Athlete is a User and a member of USER’s Team.
“USER Content” means photos, text, web page layouts, graphics, artwork, video, sound, trade names, trademarks, service marks, logos, titles, characters owned by USER or its Affiliates provided by USER or its Affiliates to WEAVE for use in conjunction the Service. USER Content does not include WEAVE Content.
“USER Data” means any information collected by USER and input into the Service in regard to each User, or generated by USER in its use of the Service with regard to a Team’s participation in an Activity.
“Documentation” means the standard user guide that WEAVE generally makes available to its USERs in connection with the Service.
“WEAVE Content” means (i) on-screen layouts, product categories, product descriptions, text, graphics, artwork, video, sound or other tangible artistic or textual material whether or not used or provided for use for the Service, that are created by, owned by, licensed to (other than through this Agreement) and/or controlled by WEAVE or any WEAVE Affiliate; (ii) any materials, including without limitation, software and copyright-able works of any nature, that WEAVE or its Affiliates contributes to the Service in performance of this Agreement; and (iii) any and all HTML formatting code, source and object code, programming code and software, as well as all text, images, video, audio, and other data, products, services, advertisements, promotions, URLs, keywords and other navigational elements, links, pointers, technology and software, including any modifications, upgrades, updates, and enhancements provided by WEAVE to implement the Service in connection with this Agreement or otherwise. For the avoidance of doubt, it is expressly agreed and understood that articles and other content created by or on behalf of WEAVE or its Affiliates during the Term for use with the Service shall be deemed WEAVE Content, but excluding, in any case, any USER Content and USER Data that may be contained in such articles or other content.
“Service” shall mean the mobile online web-based application set forth in an Order Form and provided by WEAVE to USER.
“Staff” shall mean non-Athletes who track, coach, instruct, monitor or support a Team in their performance of an Activity.
“User” means an individual who is authorized by USER to use the Service, for whom USER have ordered the Service, and to whom USER (or WEAVE at your request) have supplied a user identification and password. Users can be either Athletes or Staff assigned to a particular Team.
2.1 Provision of Service. WEAVE shall use commercially reasonable efforts to (1) make the Service available to USER pursuant to this Agreement and all Order Forms during the Subscription Term, (2) provide technical support for the Service through two (2) Users identified to WEAVE as individuals responsible for USER side User support and the coordination of technical requests for the configuration and use of the Service during WEAVE’s normal business hours, and (3) provide such other services as may be described in the Order Form.
2.2 Users. USER shall purchase subscriptions for the Service on a per Team per Activity basis. Within the same Team, USER may reassign Users from time to time to new Users provided the new Users replace former Users who no longer use or need access to the Service and for whom USER has de-activated all information and data from the Service.
2.4 USER Storage Allotment. WEAVE includes in the Service a maximum Team USER data storage allotment (“Standard Storage Allotment”). In the event USER uses, or is likely to use, in excess of the Standard Storage Allotment, USER must purchase additional storage allotment at WEAVE’s then current standard list price. WEAVE shall have the right to limit USER’s usage to the Standard Storage Allotment until such time as USER purchases additional storage.
2.5 Trial Use. If you are participating in a Trial subscription as indicated in the Order Form, WEAVE will make the Services available to USER on a trial basis until the earlier of (a) the end of the free trial period as indicated on the Order Form or (b) the start date of any Service subscriptions ordered by USER. Any USER Content or USER Data entered into the Service or provided to WEAVE will be permanently lost unless your purchase a subscription to the same services as those covered by the trial prior to the end of the trial period. NOTWITHSTANDING SECTION 9, DURING THE FREE TRIAL THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. USE GUIDELINES
3.1 USER shall use the Service during the Subscription Term in accordance with this Agreement and shall not license, sublicense, sell, resell, rent, lease, transfer, assign distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to its Team. USER agrees it shall not, and its Team(s) shall not, use the Service or provide USER Content: (i) to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) in violation of any applicable federal, state, local or international laws or regulations, including but not limited to the Children’s Online Privacy Protection Act, Family Education Rights and Privacy Act, and relevant data privacy laws; (iii) to send or store infringing, obscene, threatening, harassing, libelous, defamatory or otherwise unlawful or tortious material, including material harmful to children; (iv) in connection with or to promote illegal activity or the offering for sale of illegal weapons or substances, or the promotion or publication of any material that may violate hate crime laws, (v) which of any other person or entity including, but is not limited to, digitization of music, movies, photographs or other copyrighted materials or software; (vi) to upload to the Service or use the Service to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (vii) to export software or technical information in violation of U.S. or other relevant export control laws (viii) to interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (viv) to attempt to gain unauthorized access to the Service or its related systems or networks. USER is responsible for all activity that occurs in its Team accounts and for its’ Team compliance with this Agreement. USER shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all USER Content and USER Data. WEAVE DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE CONTENT OF THE SERVICES AND SPECIALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR CONTENT WITHIN THE SERVICE OR USER CONTENT. Without limiting any of its other remedies, WEAVE reserves the right to suspend or terminate USER’s use of the Services or USER’s use or uploading, posting, transmission, display, performance or distribution of objectionable USER Data or USER Content.
3.2 Access Grant; Ownership. Subject to the terms of this Agreement and the applicable Order Form, WEAVE grants USER a nonexclusive, nontransferable license to access and use the Service during the Subscription Term. Except for the limited rights expressly granted to USER hereunder, WEAVE reserves all rights, title and interest in and to the Service, the underlying software, the WEAVE name, logo, tagline and other trademarks and various domains (collectively “WEAVE Technology”) and the WEAVE Technology is covered by intellectual property rights owned or licensed by WEAVE (“WEAVE IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in the WEAVE IP Rights are granted to the USER, and all such rights are hereby expressly reserved.
3.3 USER Restrictions. USER shall not (i) modify, copy, display, republish or create derivative works based on the Service or the underlying software; (ii) modify, copy or create derivative works of the Service or any content; (iii) frame, scrape, link to or mirror any content forming part of the Service; (iv) reverse engineer the Service or the underlying software; or (v) access the Service or allow others to access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. USER shall use diligent efforts to prevent unauthorized access to, or use of, the Service, and notify WEAVE promptly of any such unauthorized access or use.
4. USER LICENSE GRANTS; OWNERSHIP
4.1 License Grant; Ownership. USER grants to WEAVE and its Affiliates a non-exclusive, perpetual, worldwide, sub licensable, license to copy, distribute, publish, transmit, display, perform, edit, modify, translate, reformat and otherwise use the USER Content and USER Data to the extent necessary to provide the Service, subject to the terms of this Agreement. As between WEAVE and USER, USER owns all rights, title and interest in and to all USER Content and USER Data. WEAVE shall not access USER’s User accounts, including USER Data or USER Content, except to (i) respond to service or technical problems, (ii) confirm compliance with the terms of this Agreement or to audit use for invoicing purposes; (iii) satisfy any applicable law, regulation, legal process or governmental request; (iv) detect, prevent, or otherwise address fraud, security or technical issues; (v) to provide the Service or (vi) otherwise at USER’s direction or request.
4.2 Aggregate USER Data Use; Suggestions. Notwithstanding any other provision in this Agreement, WEAVE may retain, collect and use USER Data and related statistics for all Teams, as well as general usage, traffic patterns, and various other data in aggregate form, provided that such information does not identify USER or its Users specifically. WEAVE shall have the right, without limitation, to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by USER or its Users relating to the features, functionality or operation of the Service.
5. THIRD PARTY APPLICATIONS OR CONTENT
5.2 CONFIDENTIAL INFORMATION; DISCLOSURES; REMEDIES. Each party shall protect the other party’s Confidential Information from unauthorized disclosure in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event using less than reasonable care. No obligation of confidentiality applies to information that (i) is or becomes generally known to the public without breach of any obligation owed to the party making a disclosure (“Disclosing Party”); (ii) was, prior to disclosure, already known to the party to whom information is disclosed (“Receiving Party”) or lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without any obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) must be disclosed to a court or a government agency pursuant to a subpoena or other valid order where the Recipient shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Except with prior written permission of the Disclosing Party, the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
6 WARRANTY; DISCLAIMERS
6.1 Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. WEAVE represents and warrants that: (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service will perform materially in accordance with WEAVE’s Documentation under normal use and circumstances. USER represents and warrants that: (a) it owns or otherwise has sufficient rights in the USER Content and USER Data to grant to WEAVE the rights granted in this Agreement under all applicable laws; (b) if USER’s Team include Users younger than 14 then USER warrants it is in compliance with all applicable laws including the Children’s Online Privacy Protection Act and any other applicable laws and if USER Users are students of an educational institution, USER Data and USER’s use of the Service is in compliance with The Family Educational Rights and Privacy Act and any other relevant federal or state legislation. If the end user is a student athlete and their personal data is subject to the Family Educational Rights and Privacy Act then you warrant that you have obtained the student athlete or their parents/guardian consent for the disclosure and use of personal data as required by FERPA or the personal data provided is exempt from a consent requirement pursuant to FERPA or any other applicable law.
6.2 Disclaimer of Warranties. EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NO WARRANTY IS GIVEN THAT THE SERVICE PROVIDED HEREUNDER WILL BE CONTINUOUSLY AVAILABLE OR ERROR FREE.
7. MUTUAL INDEMNIFICATION
7.1 Indemnification by WEAVE. WEAVE will defend USER against any claim, demand, suit or proceeding made or brought against USER by a third party alleging that the use of the Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and WEAVE will indemnify you for any damages, attorney fees and costs finally awarded against USER as a result of such claim or under a court-approved settlement of such claim provided USER (i) notifies WEAVE promptly upon learning that the claim may or has been asserted, (ii) gives WEAVE sole control over the defense of the claim and any negotiation for its settlement or compromise (except that WEAVE may not settle any claim against USER unless it release USER of liability) and (iii) USER provides WEAVE with all reasonable assistance If a claim described in this Section may or has been asserted, USER will permit WEAVE, at WEAVE’S option and expense, to (i) procure the right to continue using the Service, (ii) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance, or (iii) if WEAVE in good faith determines that options (i) and (ii) are not practicable, WEAVE may terminate this Agreement effective immediately upon written notice to USER and refund to USER the unused prepaid portion of the Subscription Fee. This indemnity does not cover infringement claims based on or arising from (i) combination, operation, or use of the Service with products, services, software programs, hardware, data, equipment, or other items or products not supplied by WEAVE or other than according to this Agreement or WEAVE’s online help documentation, if infringement would have been avoided without such combination, operation, or use; (ii) USER required configuration, designs and specifications; or (iii) any claim resulting from or related to the USER Data or USER Content. This Section states WEAVE’s entire liability and USER’s exclusive remedy for any claim of intellectual property infringement.
7.2 Indemnification by USER. USER shall defend WEAVE and its Affiliates against any claim, demand, suit or proceeding made or brought against WEAVE alleging that the USER Content, USER Data or the Users use of the Service (1) infringes a party’s property, privacy, publicity or other rights; (2) is defamatory, slanderous or is violative of any federal, state or local law or regulation applicable to USER and its use of the Service; (3) breaches this Agreement and USER shall indemnify WEAVE against any loss, damage, liability or costs (including reasonable attorneys’ fees) incurred in connection with claims made or brought against WEAVE. Promptly upon receiving notice of a Claim, WEAVE shall (a) give USER prompt written notice of the claim; (b) give USER sole control of the defense and settlement of the Claim (provided that USER may not settle or defend any claim unless it unconditionally releases WEAVE of all liability and does not impose any monetary obligation or disruption to the Service); and (c) provide to USER, at USER’s cost, all reasonable assistance in the defense or settlement of such claim.
7.3 LIMITATION OF LIABILITY. NEITHER PARTY, NOR ITS AFFILIATES, AGENTS, LICENSORS OR SUPPLIERS, SHALL, UNDER ANY CIRCUMSTANCES, HAVE ANY LIABILITY TO EACH OTHER, ANY USER OR OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, DOWNTIME OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER ARISING OUT OF BREACH OR FAILURE OF AN EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
IN NO EVENT WILL THE AGGREGATE LIABILITY THAT WEAVE, ITS AFFILIATES, AGENTS, LICENSORS OR SUPPLIERS MAY INCUR IN ANY AND ALL ACTIONS OR PROCEEDINGS EXCEED THE SUBSCRIPTION FEES PAID BY USER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
8.1 Publicity. WEAVE may use USER’s standard graphics, trademarks, logos, imagery and name, in accordance with USER’s trademark guidelines in WEAVE’s general promotional, advertising and marketing materials, including the posting of any such materials on WEAVE’s website or within the Service. In addition, with USER’s prior consent, WEAVE may issue a press release relating to this Agreement.
8.2 Export Control. The Service, related technical information, documents and materials are subject to the United States Export Administration Regulations and other applicable export and anti-terrorism laws and regulations. USER agrees to comply with the requirements established under these controls and USER will not export, re-export or transfer directly or indirectly the Service, or any related technical information, documents or materials, or any direct product thereof to any destination, company or person restricted or prohibited by these controls.
8.3 Notice. All notices required hereunder shall be in writing and sent to the address stated in the Order Documents or to such other address notified to the other party in writing. Notices are deemed to have been given (i) on the date delivered by courier, or (ii) if by certified mail return receipt requested, on the date received. For notices directed to the USER as part of WEAVE’s general USER base, WEAVE may give notice by means of a general publication on the Service, by electronic mail to the e-mail address notified by USER to WEAVE, or by written communication sent by first class mail or pre-paid post to USER’s address indicated in the Order Document. Notices to the general USER base are deemed given upon the expiration of 48 hours after publication on the Service or mailing by first class mail or pre-paid post, or 8 hours after sending by email.
8.4 Waiver; Enforceability. Any waiver or modification of this Agreement or any Order Document is effective only when made in writing by WEAVE. If any provision of this Agreement or the Order Form is held by a court of competent jurisdiction to be unlawful, void, or unenforceable, such declaration shall not affect the validity or enforceability of the remaining provisions.
8.5 Assignment. USER may not assign or transfer its rights or duties in whole or in part to a third party without written consent of WEAVE. WEAVE may assign its rights and/or obligations hereunder, upon notice to USER, to (i) a related party, or (ii) an unrelated party pursuant to an assignment, conveyance of assets, a merger, consolidation or other corporate reorganization. A transfer in violation of this Section is void.
8.6 Force Majeure. If WEAVE is prevented or delayed in the performance of any of its obligations in this Agreement or any applicable Order Form by any event beyond its reasonable control, such as but not limited to natural disasters, flood, fire, explosion, accidents, strikes or labor disputes, the inability to procure materials from the usual sources of supply, acts or restraints of government, requisition or order of any governmental authority relating to the use or destination of the Service, or failure of internet service providers or hosting facilities, and WEAVE notifies USER thereof specifying the matters constituting force majeure together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue, WEAVE is excused from performance or punctual performance as the case may be for so long as such cause of prevention or delay continues.
8.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to the conflict of law principles thereof. The Parties irrevocably and unconditionally agree that any legal proceeding arising under or in connection with this Agreement, except for those seeking injunctive relief, will be brought exclusively in the law court located in Boston, Massachusetts.
8.8 Survival. Upon termination or expiration of this Agreement, the following provisions shall survive: Sections 1, 3, 4, 5, 6, 7, 8 and Exhibits to the extent relevant to the surviving sections.
8.9 Entire Agreement. This Agreement and the Order Forms constitute the entire understanding of the parties with respect to the subject matter herein and supersede any prior proposal, representation or written agreement. WEAVE shall not be bound by any other provisions in USER’s purchase orders , online procurement or invoicing portals or other documents which are inconsistent with or in addition to the provisions hereof, except when expressly agreed to in writing by an authorized representative of WEAVE.
Oct 2020 rev.