Terms of Use

CREWNERD and CREWNERD VIEWER

Welcome to CrewNerd and CrewNerd Viewer, location-mapping and athletic training tools for rowers and paddlers offered by Performance Phones, LLC (the “Company”). The CrewNerd and CrewNerd Viewer applications and related website are referred to as the “Services”. Users of the Services (referred to as “you” “your” “User” or “Users”) do so under these Terms of Use.

BY ACCESSING, BROWSING AND/OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT CONSENT TO THESE TERMS OF USE, THEN YOU SHOULD CEASE USING THE SERVICES IMMEDIATELY.

THE SERVICES ARE AVAILABLE FOR INDIVIDUALS AGE 13 YEARS OR OLDER. IF YOU ARE 13 OR OLDER BUT UNDER THE AGE OF 18, THEN YOU AGREE TO REVIEW THE AGREEMENT WITH YOUR PARENT(S) OR GUARDIAN(S) TO ENSURE THAT BOTH YOU AND YOUR PARENT(S) OR GUARDIAN(S) UNDERSTAND AND CONSENT TO THESE TERMS OF USE.

1. PRIVACY POLICY. The Company Privacy Policy, available at http://www.performancephones.com/privacy.html, is hereby incorporated into these Terms of Use by reference. Please read the Privacy Policy carefully for disclosures relating to the Company’s collection and use of your personal information and geographic location information.

2. LICENSE TO USE THE SERVICES. Subject to these Terms of Use, the Company grants to the User a non-exclusive, non-transferable, revocable license to use the Services, including any updates or upgrades made available to User by the Company, for personal, non-commercial use. Except as expressly authorized by Company, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Services.

3. OWNERSHIP AND PROPRIETARY RIGHTS. As between the Company and User, the Company owns all intellectual property rights in the Services, including the Company’s website, the source and object code of the Services, all graphics, designs, and visual interfaces. The trademarks “CrewNerd”, “CrewNerd Viewer”, and all other trademarks, service marks, and trade names displayed on the Services, are the property of the Company, its affiliates, or their respective third party licensors.

4. PAYMENT TERMS. Your right to access the Services is further conditioned on your agreement to pay any fees due for and incurred by your use of the Services, in such amounts as indicated in the Services for the download of Services applications or the uploading of User Content (as defined below). The Company will administer and apply your payments received via, and subject to the terms of, such third party payment providers as utilized by the Company from time to time.

5. SUPPORT. Company will provide such account and technical support to User on such terms as indicated in the Services for the download of Services applications or the uploading of User Content.

6. USAGE RULES. Your use of the Services is further subject to your agreement that you will not: (a) use the Services or any personal information or location information displayed to harass, abuse, defame, threaten or defraud other Users, or, except as permitted by the Services, collect, attempt to collect, or store location information or personal information about other Users; (b) use the Services for any commercial or non-private use; (c) use the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control; (d) impersonate any person or entity, falsely claim an affiliation with any person or entity with regard to the Services; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, features that prevent or restrict use or copying of any content, or features that enforce limitations on use of the Services; (e) intentionally interfere with, or damage operation of the Services, or any User’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code; (f) attempt to gain unauthorized access to the Company’s website or the Services, other accounts, computer systems or networks connected to the Company; or (g) use any robot, spider, scraper or other automated means to access the Services for any purpose.

7. THE COMPANY RESERVES THE RIGHT TO DISABLE YOUR USE OF OR ACCESS TO THE SERVICES, OR REMOVE ANY USER CONTENT, WITHOUT ANY NOTICE IN THE EVENT OF NON-COMPLIANCE WITH THESE TERMS OF USE.

8. USER CONTENT. The information, including data, text, files, graphics and other materials that a User uploads to the Services through a third party social network system (e.g., Facebook) (a “Network”) is referred to as “User Content.” When you upload, transmit or otherwise supply User Content to the Services, you expressly grant Company a royalty-free, world-wide, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, display, translate, or distribute such User Content to provide the Services to you and other Users. The Company does not assert any real ownership over User Content. Rather, subject to the rights granted to Company in these Terms of Use, you retain full ownership of any and all of your User Content. By uploading User Content, you expressly agree that you are solely responsible for the transmission, accuracy, completeness, and publication of that User Content, and that Company bears no responsibility, legal or otherwise, for such User Content. You are responsible for all User Content posted under your Network account, and for adjusting your account settings, specifically your privacy settings, that permit you to display and/or share your User Content on a Network. Posting User Content via the Internet inherently poses the risk of unintended disclosure and access by third parties to the User Content. The Company is not responsible for any such disclosure and you acknowledge that you do so at your own risk. THE COMPANY DOES NOT CONTROL THE CONTENT OF ITS USERS AND DOES NOT HAVE ANY OBLIGATION TO MONITOR SUCH CONTENT FOR ANY PURPOSE. USERS ACKNOWLEDGE THAT THEY ARE SOLELY RESPONSIBLE FOR ALL CONTENT AND MATERIAL THAT THEY PROVIDE TO COMPANY AND ANY NETWORK.

9. INFRINGING CONTENT. The Company reserves the right to remove any User Content that is alleged to infringe the copyright of a third party or otherwise violates your rights. If you believe that your User Content has been copied and posted on the Services in a way that constitutes copyright infringement, or if you believe that your rights have otherwise been violated by the Services, please notify us at legal@performancephones.com and provide the Company with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest or the person whose rights have been violated; (b) a description of the copyrighted work that you claim has been infringed or the particular rights violated; (c) if applicable, a description of where the material that you claim is infringing is located on the Services; (d) your address, telephone number, and email address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law or with regard to the rights violated; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate.

10. OTHER USE TERMS. Your use of the Services is further subject to any terms of use and/or privacy policy of any Network through which you use the Services, and your download of the Services application(s) is subject to the terms of any end user license agreement and/or terms of service to which you agreed or were subject to at the time of download.

11. LIMITATIONS ON COMPANY’S LIABILITY; DISCLAIMERS. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY HAS OFFERED THE SERVICES AND SET ITS PRICES IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH BELOW. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND COMPANY. THE SERVICES AND ANY RELATED THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND COMPLIANCE WITH ANY NON-U.S. PRIVACY LAWS. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. YOU ACKNOWLEDGE AND AGREE THAT WHEN YOUR USE OF THE SERVICES IS AT YOUR OWN RISK.

THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND EXEMPLARY DAMAGES, ARISING FROM THE SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE SERVICES, OR ANY PORTION THEREOF, YOUR EXCLUSIVE REMEDY SHALL BE TO CEASE USING THE SERVICES.

12. INDEMNIFICATION. You agree to indemnify, defend, and hold the Company, and its representatives, agents, suppliers and partners harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, arising out of or related to a breach by User of these Terms of Use, the violation of any applicable privacy or intellectual property laws. The Company reserves the right, at a given Users expense, to assume the exclusive defense and control of any matter for which such User is required to indemnify Company, and said User agrees to cooperate with our defense of these claims.

13. THIRD PARTY SITES. The Services may contain links or access to web sites not operated or maintained by the Company, including a Network. Such links or access is provided solely as a convenience to you and not as an endorsement by the Company of the contents of such third party sites. The Company is not responsible for the content of the sites of others and makes no representation regarding the content or accuracy of materials on such sites. Your use of such sites or a Network is at your own risk, and you waive any and all claims against the Company related to such use.

14. GOVERNING LAW; JURISDICTION. These Terms of Use shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to the Terms of Use or the Services shall be filed only in the state or federal courts in and for the County of King, Washington, and you consent and submit exclusively to the personal jurisdiction of such courts for the purposes of litigating any such action. Notwithstanding the foregoing, however, the Company shall have the right to commence and prosecute any legal or equitable action or proceeding before any U.S. court of competent jurisdiction to obtain injunctive or other equitable relief in the event that, in the opinion of Company, such action is necessary or desirable.

15. OTHER TERMS. If any provision of these Terms of Use is determined to be unenforceable for any reason, then that provision shall be deemed severable from the Terms of Use and shall not affect the validity and enforceability of any remaining provisions. A provision of the Terms of Use may be waived only in writing. The failure of any party at any time to require performance of any provision of the Terms of Use shall in no manner affect such party’s right at a later time to enforce the same. The Terms of Use and any rights and licenses granted hereunder, may not be transferred or assigned by a User, but may be assigned or transferred by Company without restriction. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification contained in these Terms of Use, shall survive any termination of the Terms of Use, or any termination of a User’s account or use of the Services. These Terms of Use, and all agreements or policies referenced herein, set forth the entire agreement between the Company and you relating to your use of the Services.

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