IMPORTANT! PLEASE READ CAREFULLY.
This End User License EULA (this “EULA”) constitutes a legal agreement between you (“You”) and SSAM Sports, Inc., d/b/a 4D Motion Sports (“4D Motion”). This EULA specifies the terms under which You may use 4D Motion’s mobile application (the “App”) which is made available to You by 4D Motion. Please read this EULA carefully before installing the App, because by installing the App, clicking “I Agree,” or otherwise manifesting your assent to this EULA, You acknowledge that You have read, understood, and agree to be legally bound by the terms of this EULA and the Privacy Policy, which is hereby incorporated by reference (collectively, this Agreement”) and You represent and warrant that You are at least 13 years old or older. If you are under age 18 but above 13 you are permitted to use the App, provided you do so with the consent of a parent or legal guardian who accepts the Agreement on your behalf. If You do not agree to (or cannot comply with) all of the terms of this EULA, do no install or use the App. 4D Motion may change the terms and conditions of this EULA from time to time with or without notice to You. In any event, You will be required to affirmatively accept any revised EULA prior to next logging-in to your account.
By accepting this EULA, You represent and warrant that (i) You are not located in a 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; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
For the purposes of this EULA, the App is defined to include the object code for the App; the data, databases, and data structures incorporated into the App; all associated media and printed materials; online or electronic documentation; and any updates and upgrades that replace or supplement the App that are not distributed with a separate license. Capitalized terms not defined in this EULA shall have the meaning set forth in our Privacy Policy which is hereby incorporated by reference.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. License to Use the App. Subject to the terms and conditions of this EULA, 4D Motion grants to You a limited, non-transferable, non-exclusive license, without the right to sublicense, to download and use the App on any device that You own or control in accordance with the terms and conditions set forth in this EULA. Furthermore, with respect to any App accessed through or downloaded from the Apple, Inc. (“Apple”) application store (“Apple App”), You will use the App only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. 4D Motion reserves all rights in and to the App not expressly granted to You under this EULA. When using the App, You must comply with all applicable third party terms of service.
2. Restrictions on Use. You will not (and you will not permit any third party to): (i) use the App on any device that You do not own or control, (ii) rent, lease, lend, sell, redistribute or sublicense the App, (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the App or of any files contained in or generated by the App; (iv) copy, modify, adapt or translate the App, (v) remove or modify any proprietary marking or restrictive legends of the App, or (vi) use the App other than as expressly permitted herein or in violation of any applicable law, rule or regulation. Any failure to comply with this Section 2 or any other terms and conditions contained herein will result in the automatic termination of this license and the reversion of the rights granted to You hereunder to 4D Motion.
3. Pairing Code. If You have purchased the 4D motion system from 4D Motion (“4D Motion System”), You will receive a pairing code from 4D Motion (“Pairing Code”). The Pairing Code will enable You to physically connect your 4D Motion System to the App on your mobile device. You can pair up to the Permitted Number of Mobile Devices set forth in the Terms and Conditions you accept when You purchase the 4D Motion System.
4. Proprietary Rights and Data.
4.1. 4D Motion IP. As between You and 4D Motion, 4D Motion and its licensors own all right, title and interest in and to the App, including all intellectual property rights in and to the App, and the software and technology used by 4D Motion to provide the App features and functionality (collectively, the “4D Motion IP”). No license or other right is granted in connection with the 4D Motion IP herein except for the rights specifically set forth herein. By using the App, You (i) acknowledge, and agree not to contest 4D Motion’s proprietary rights in the App; and (ii) agree not to disclose any confidential information of 4D Motion regarding the App (including the App itself) or that is otherwise disclosed to You in connection with this EULA, unless such disclosure is expressly allowed by this EULA.
4.2. Global Swing Bank Data. As between You and 4D Motion, 4D Motion owns all right, title, and interest in and to the professional and amateur level swing data made available to You through the App (the “Global Swing Bank Data”), together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilation, and derivate works thereto, including all copyrights and other intellectual property rights thereto. 4D Motion hereby grants you a non-exclusive, non-transferable, non-sublicensable limited license during the term of this EULA to use the Global Swing Bank Data solely as necessary to use the App.
4.3. Motion Data. As between You and 4D Motion, 4D Motion owns all right, title, and interest in and to the data that is generated by your use of the App (“Motion Data”), together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilation, and derivate works thereto, including all copyrights and other intellectual property rights thereto.
4.4. Your Data. As between You and 4D Motion, You own all right, title, and interest in and to any data (including any Personal Information) that you input through the App (“Your Data”). You hereby grant 4D Motion, a non-exclusive, non-transferable license during the term of this EULA to use Your Data as reasonably necessary to provide the App in accordance with this EULA.
4.5. Aggregated Data. You hereby agree that 4D Motion may combine Your Data and Motion Data, with other data (including from other users of the App), and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the “Aggregated Data”). 4D Motion shall be the sole owner of the Aggregated Data and, notwithstanding anything to the contrary, shall be free to use and disclose the Aggregated Data for purposes including, but not limited to, publicizing usage of the 4D Motion App, providing information on general industry trends, and providing benchmarking data to 4D Motion customers. Aggregated Data shall not identify you as the source of any specific piece of data, and shall not include any personally identifiable information.
5. Consent to Collection and Use of Device Information. When You use the App, 4D Motion’s licensor, Notch Interfaces, Inc. (“Notch”) that provides the hardware, and firmware components of the 4D Motion System may collect certain technical data and related information, including but not limited to, the usage statistics, hardware configuration, problem/fault data, version number of the 4D Motion System, and the information about which tools and/or services in the 4D Motion System are being used and how they are used (collectively, the “Device Information”). The Device Information will not include any personally-identifiable information. Notch shall own all right, title and interest in and to the Device Information and Notch’s use of the Device Information shall be governed by Notch’s privacy policy available at https://wearnotch.com/privacy_policy.
6. Registration. If you would like to use the App, you will need to download the App from the Apple App Store or the third party app store through which the App is made available to You. Upon downloading or accessing the App, You will be required to register by creating an account. During the registration process, You will be asked to provide your name and e-mail address and create a user name and password for your account. You represent and warrant that all login information You submit is truthful and accurate and You will maintain the accuracy of such information. You are responsible for the confidentiality of your account. You will promptly inform 4D Motion of any need to deactivate your account.
7. Term and Termination. The term of this EULA will commence upon your acceptance and will continue until terminated in accordance with this Section. You may terminate this EULA at any time by permanently removing the App from your device. 4D Motion may terminate this EULA at any time and without any liability immediately upon notice to You, in the event that (i) 4D Motion’s agreement with Apple Inc. or the third party app store expires or is terminated, (ii) 4D Motion decides to no longer make the App available or (iii) You violate any of the terms of this EULA. Upon termination of this EULA, your right to use the App will immediately cease, and 4D Motion will immediately disable your Pairing Code.
8. Fees. The license granted hereunder is currently for free, however, 4D Motion may in the future charge a fee for certain features and/or uses or in-app purchases upon notice to You. Please be aware that your use of the App may require and utilize internet connection or data access. You agree to be solely responsible for any third party service provider or carrier charges associated with your internet or data usage.
9. Confidentiality. You acknowledge that the App contains proprietary and confidential property of 4D Motion and/or 4D Motion’s licensors. The App, the 4D Motion IP and the Global Swing Bank Data, whether in tangible or intangible form, that is marked or designated as confidential or that, under the circumstances of its disclosure, should reasonably be considered confidential shall be collectively referred to herein as “Confidential Information.” You shall use the Confidential Information solely for carrying out the purposes of this Agreement and for no other purpose, and You shall use at least the same degree of care in safeguarding the Confidential Information as You use in safeguarding your own Confidential Information, subject to a minimum standard of reasonable diligence and protection.
10. Representations and Warranties; Disclaimers.
10.1. Your Representations and Warranties. You represent, warrant and convenant that: (i) You have the right to provide Your Data to 4D Motion for the purposes set forth herein; (ii) You have and will comply with all applicable laws in your use of the App; and (iii) You have obtained all rights, consents, authorizations and permissions necessary in connection with disclosure of Your Data to 4D Motion for use by 4D Motion, and the disclosure of Your Data to 4D Motion is not and will not be a violation of the applicable laws.
10.2. 4D Motion’s Disclaimers. YOU ACKNOWLEDGE AND AGREE THAT THE APP IS PROVIDED “AS IS,” “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND. 4D MOTION AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WITH REGARD TO THE APP, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF NONINFRINGEMENT OF THIRD PARTY RIGHTS AND THE IMPLIED REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
11. Limitation of Liability. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) 4D MOTION SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE APP, EVEN IF 4D MOTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE APP SHALL BE LIMITED TO THE TOTAL LICENSE FEES YOU HAVE PAID TO 4D MOTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. THE APP MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OMISSIONS. 4D MOTION IS NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR OTHER ERRORS LISTED ON OR OMITTED FROM THE APP. 4D MOTION RESERVES THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE APP AT ANY TIME WITHOUT NOTICE.
12. Indemnification. You will defend, indemnify and hold harmless 4D Motion, its affiliates, and each of its and their respective officers, directors, shareholders, employees, agents, and contractors from and against any and all liabilities, losses, damages, claims, causes of action, and expenses (including reasonable attorneys’ fees and disbursements) in connection with any third party claim resulting from or based upon: (i) your breach of this Agreement; (ii) your misuse of the App; or (iii) your violation of any third party intellectual property or privacy rights.
13. Apple Specific Terms. The following terms apply when you download the App from Apple App Store. These terms are in addition to all other terms contained in this EULA. You acknowledge and agree that: (i) this EULA is entered into by and between You and 4D Motion, and 4D Motion, and not Apple, is solely responsible for the App and content thereof; (ii) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App; (iii) Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to any product liability claims, any claim that the App fails to conform to any applicable legal or regulatory requirement, and any claims arising under consumer protection or similar legislation; (iv) in the event of any third party claim that the App or your possession and use of that App infringes any third party’s intellectual property rights, as between 4D Motion and Apple, 4D Motion, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this EULA; (v) in the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the App to You and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and as between 4D Motion and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of 4D Motion.
14. Export Laws. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported, without proper authorization pursuant to U.S. law, (i) into (or to a national or resident of) any country, or to a person, subject to U.S. economic sanctions or other trade controls applicable to the App; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Commerce Department’s Denied Persons List, Unverified Parties List, Entities List, or the U.S. State Department’s list of Debarred Parties; or (iii) otherwise in violation of or as prohibited by the laws, rules, regulations or administrative orders of the U.S., or any unit, agency or department thereof. By using the App, You represent and warrant that You are not located in, under control of, or a national or resident of any such country or on any such list or order, or subject to any such prohibition.
15. Third Party Beneficiary. For App downloaded from Apple App Store, Apple, Inc. and its subsidiaries are third party beneficiaries of this EULA and any one of them will have the right (and will be deemed to have accepted the right) to enforce this EULA against You as a third party beneficiary hereof.
16. Binding Arbitration. In the event of a dispute arising under or relating to this Agreement or the App (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website http://www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where You reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent 4D Motion from seeking injunctive relief in any court of competent jurisdiction as necessary to protect 4D Motion’s proprietary interests.
17. Class Action Waiver. You agree that any arbitration or proceeding shall be limited to the Dispute between 4D Motion and You individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
18. Miscellaneous. This Agreement is governed by the internal substantive laws of the State of New Jersey, without respect to its conflict of laws provisions. If this Agreement is terminated in accordance with the Termination provision above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Restrictions on Use,” “4D Motion IP,” “Motion Data,” “Aggregated Data,” “Confidentiality,” “4D Motion’s Disclaimers,” “Limitation of Liability,” “Indemnification,” “Third Party Beneficiary,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
The relationship of the parties is one of independent contractors. This Agreement sets forth the entire agreement of the parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between them with respect to its subject matter. You may not assign this Agreement without the prior, written consent of 4D Motion. This Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and assigns. A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights.