Effective Date: November 30, 2019
This agreement and the policies referred to herein contain the terms and conditions that apply to your access and use of the services offered by Hergott Technologies, Inc. (“Company”) through its mobile application Optimal DFS™ (“App”) and web sites, collectively, the (“Service”).
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR ANY REVISED VERSION OF THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE OR THE MOBILE APPLICATION.
1. Acceptance. Company reserves the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement at any time effective immediately upon notice via the Web Site or email. Please check this Agreement periodically for changes. Continued use of the Services following the posting of changes to this Agreement shall mean you have read and accept such changes. You separately acknowledge, agree, represent and warrant that any information provided to Company by you or through the Services is true, accurate, correct, complete and that this representation is an essential and material provision of this Agreement and that you are not withholding information, the absence of which makes any information provided misleading. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD THE MOBILE APPLICATION AND DO NOT USE THE SERVICE.
2. Age Requirement. To register for use of the Service on your own behalf, you must be at least 18 years of age. If you are under 18 years of age you may not use or register for the Services, nor may parents or legal guardians register on your behalf.
3. The Service.
3.1 Description of the Service. Company provides a platform for building lineups for fantasy sports.
You acknowledge and agree that the Service may include advertisements and that these advertisements are necessary for Company to provide the Services. You acknowledge and agree that the Service may include certain communications from Company, such as service announcements and administrative messages and, that these communications are considered part of your membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, shall be subject to the Agreement. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
3.2 Assumption of Risk. Users assume all risks associated with use of the Service. By using the Service, you acknowledge and agree that Company is not responsible for the performance of Users, nor does it have control over the accuracy, quality, timing, timeliness, legality, failure to provide, or any other aspect whatsoever of Users, nor the integrity, responsibility, reliability or any of act or omission of any User(s).
3.3 Billing & Payment. Users who subscribe to the Service shall pay a recurring subscription through the applicable mobile platform application store (e.g. Apple iOS App Store, Google Play). Company may terminate a subscribing user’s access to the app for non-payment of any amount.
3.4 Virtual Goods & Services. The purchase and use Virtual Goods (as defined below) through the Service are governed by this Agreement. Users may purchase Virtual Goods for use within the App to send/receive virtual items by engaging in certain actions in the App. Virtual items are referred to collectively as "Virtual Goods." Users shall make all purchases of Virtual Goods through a Google Play account and/or Apple iTunes account ("Third Party Account"). Company does not receive or process payments or credit card information directly. All purchases and payments are final. The prices for Virtual Goods are subject to change without notice.
Company hereby grants Users a limited, non-transferable, revocable license to use the Virtual Goods through the Service and send them to other Users for use through the Services. Regardless of the use of the terms "purchase," "buy," "sell," "order" or the like on the Service Users do not own any Virtual Goods and acknowledge that the Virtual Goods are a service of Company and that Users have only a license to use the Virtual Goods in accordance with these terms. All use of the Virtual Goods is for personal, non-commercial use only. Company will use commercially reasonable efforts to make Virtual Goods available for use within a reasonable period of time after a purchase. Company may cancel any Virtual Goods, and any license to any Virtual Goods, if a User violates this Agreement or deactivates its Account, without any obligation to compensation a User.
The length of time Virtual Goods are accessible shall be determined by Company in its sole discretion. All images and other content included as part of Virtual Goods form part of Company’s Proprietary Materials (as defined herein) and is subject to all terms and conditions regarding such Proprietary Materials. Any communications between users using Virtual Goods, or other content that Users may include with Virtual Goods are user generated content and must comply with all the terms regarding content as set forth herein. No user may reproduce, distribute, transfer, modify or otherwise use Virtual Goods in any manner other than as expressly authorized by Company. Company reserves the right to place on hold any purchase of Virtual Goods. There are no refunds, or exchanges, or credits for Virtual Goods.
5. License & Access. Provided that you are in compliance with this Agreement, Company grants you a limited, revocable, royalty-free, non-assignable, non-sublicensable license to access and make personal use of the Service and not to download (other than page caching) or modify any third-party content or the Service, except with express written consent of Company. This license does not include any resale or commercial use of the Service or its contents; any derivative use of the Service or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. You shall not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Web Site, Company or our affiliates without express written consent. You shall not use any meta tags or any other “hidden text” utilizing Company’s name or trademarks without the express written consent of Company. Any unauthorized use terminates the permission or license granted by Company. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Web Site so long as the link does not portray Company, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive matter, as determined by Company in its sole and absolute discretion. You shall not use any Company logo or other proprietary graphic or trademark as part of the link without express written permission.
5.1 Content. In this Agreement, all content comprised of music, audio, video, audio-visual works, text, graphics, artwork, images, photographs, animations, data, information, software, designs and other materials and legally-protectable elements of the Service, Company’s services, tangible or intangible, including, without limitation, the selection, sequence, “look and feel” and arrangement of items, as well as all copyrights and copyrightable elements relating to the forgoing, trademarks, service marks, brand and trade names which you may encounter or use are wholly-owned by and proprietary to Company (“Company Proprietary Materials”). All music, audio, video, audio-visual works, text, graphics, artwork, Images, photographs, animations, data, information, software, designs and other materials shall individually and collectively, be referred to as “Content.”
5.2 Access. The words “use” or “using” or “consumer” or “consuming” in this Agreement, means any time any individual, including you, directly or indirectly, with or without the aid of a machine, automated or other device, does or attempts to access, interact with, use, display, view, print or copy or use any portion, feature, function or aspect of the Service, transmit, receive or exchange data or communicate with the Service, or in any way utilize, benefit, take advantage of, or interact with any function, service or feature of the Service, for any purpose whatsoever. This Agreement does not cover your rights or responsibilities with respect to third party Content or web sites or any links that may direct your browser or connection to third party web sites or pages.
5.3 System Requirements. Use of the Service, requires Internet access (fees may apply), software (fees may apply), and may require obtaining updates or upgrades from time to time. Therefore, your ability to use the Service may be affected by these factors. You acknowledge and agree that such system requirements are exclusively your responsibility. You acknowledges that use of the Service may require the use of other hardware and software products and that such hardware and software is your responsibility.
5.4 Deleted Content. In the event that Content is removed, then it may not be downloadable from Company or the Service even if it continues to show up in search results. The link to download may be removed at any time for any reason. Company reserves the right to inform, or not inform you, of Content marked for deletion.
5.5 Representations & Warranties. You hereby represent and warrant that: (a) no part of this Agreement is or will be inconsistent with any obligation you may have to others; (b) you have the full right and authority to provide the assignments and rights granted to Company herein; (c) you have the full legal authority of the to upload Content (or any part thereof) to the Service, and (d) that the Content you upload does not and shall not infringe on any copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right or right of publicity or privacy of a third party, nor libel, slander, defame or disparage any third party.
6. Restrictions on Use. Unless otherwise noted, all Content is comprised of copyrights, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by Company. No Content from the Service may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except with express written consent of Company.
6.1 General Restrictions. You shall comply with Company’s Acceptable Use Policies, as amended from time to time. You shall not commit any of the following acts through your use of the Service:
(a) transmit any content that is hateful, or racially, ethnically or otherwise objectionable;
(b) use foul language or post links to adult-oriented Web sites;
(c) transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of unrequested solicitation;
(d) post advertising messages or solicitations, URLs containing a referral code or referral address, or links to businesses or pages with advertising, including “blind” or “hidden” referral links; or
(e) collect, store, use or disseminate personal data or information about other users in any manner whatsoever, including but not limited to, solicitation of products or services by mail, telephone or e-mail (e.g. e-mail addresses).
6.2 Restrictions on use of Content. In the event that you view, display, download or copy any audio, video, audio-visual works, text, graphics, artwork, images, photographs, animations, data or other information from the Service, You agree to the following restrictions which may be revised by Company in its sole and absolute discretion at any time:
(a) You are authorized to use the Service only for personal, non-commercial use; use of the Service does not transfer any commercial or promotional use rights in Company Proprietary Materials or any third-party Content.
(b) Content and other user-generated content (“UGC”) may be subject to technical copyright protections in addition to the copyright restrictions afforded the copyright owner by law.
(c) You shall not make any derivative use of Content.
6.3 Malicious Programs. You agree to not upload harmful or malicious images, material or other UGC which may cause damage to the functioning of the Service or may render the Service unavailable for use. You also agree to not masquerade any other UGC as that required for Company’s operations. You agree to upload virus-free UGC that will not knowingly cause malfunction in devices and machines of Company and its customers, the Service or users. You agree that the UGC can be rated or commented upon by any third party accessing the UGC. Company may also employ algorithms to display UGC on the pages of the Service along with and in relation to other UGC. Consumer ratings, comments and the display algorithms may or may not, in combination with or without each other, affect the display position of and the sales of UGC.
6.4 Responsibility for Content. You, and not Company, shall remain at all times exclusively responsible for any and all costs or claims arising out of, or related in any way to, any act or omission committed in response to, or suggested by your Content or UGC, including, but not limited to, suggestions or inducements to engage in any illegal, unsafe, scandalous, obscene, libelous or morally deviant or otherwise inappropriate behavior. You agree to immediately notify Company in writing of any claim of infringement, obscenity, incitement, or any other legal action is brought against you in connection with any of your Content or UGC. You acknowledge and agree that Company shall not be held responsible for comments or remarks posted by users of the Service.
6.5 Editorial Control. Company shall not be responsible for editing any of your Content or UGC and you shall have no editorial control over the UGC after its submission. However, Company retains the right, in its sole discretion, to delete and/or decline to use any UGC that in Company's opinion is illegal, unsafe, scandalous, obscene, libelous, morally deviant and/or otherwise of an inappropriate nature.
7. Violations. In addition to any and all remedies at law or in equity, any intentional violation of this Agreement shall give Company the right to immediately suspend or cancel Services or Accounts without further liability.
YOU SPECIFICALLY AGREE THAT ANY INTENTIONAL VIOLATION SHALL RESULT IN IMMEDIATE LIABILITY FOR LIQUIDATED DAMAGES IN THE AMOUNT OF TEN THOUSAND DOLLARS ($10,000.00) FOR BREACH OF CONTRACT, IN ADDITION TO ANY OTHER REMEDIES AVAILABLE TO COMPANY AT LAW OR IN EQUITY.
8. Intellectual Property Rights. Company is the owner of the following trade names and trademarks: “Company,” “Optimal DFS” and the Company logos. You may not use any of Company’s trademarks without express written consent.
9. Forums and Other Public Communication. “Forum” shall mean a discussion group, chat area, bulletin board, or e-mail function offered as part of the Service. You shall not upload to, distribute through, or otherwise publish through a Forum any content which is libelous, defamatory, obscene, pornographic, threatening, abusive, illegal, or otherwise objectionable that would constitute or encourage a criminal offense, intentionally violate the rights of any party, or that would otherwise give rise to liability or violate any law.
The Forums shall be used only in a noncommercial manner. You shall not, without Company’s express written approval, distribute or otherwise publish any material containing any solicitation of funds, promotion, advertising, or solicitation for goods or services. You specifically acknowledge that soliciting other guests of the Service to for any commercial product or service or other organizations is expressly prohibited.
By uploading UGC to any Forum or submitting any materials to Company, you automatically grant (or warrants that the owner of such rights has expressly granted) Company a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed throughout the universe. In addition, You warrant that all so-called “moral rights” in such UGC have been waived.
11. Indemnity. You shall indemnify, defend and hold harmless Company, its members, managers, officers, employees and agents, from and against any and all liabilities, claims, costs, assessments, fees or expenses of any kind, including without limitation defense costs and reasonable attorneys’ fees arising from or related in any way to: a) any claim which, if proved, would breach any of your warranties, representations or covenants contained in this Agreement, b) your breach of any term or condition of this Agreement, and c) any and all claims arising out of any Content or UGC submitted by you or transmitted through this Service by you that the Content or UGC infringes on or violates any copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right or right of publicity or privacy of a third party, or libels, slanders, defames or disparages any third party.
12. Term, Termination & Removal of Content.
12.1 This Agreement is effective the earlier of (i) the first date the Service is accessed by you, or (ii) you create an account (the “Effective Date”) and shall continue in effect until terminated by either party. You may terminate this Agreement at any time by destroying all materials obtained from the Service and all related documentation and all copies and installations thereof, whether made under this Agreement or otherwise. This Agreement shall terminate immediately without notice from Company if in Company's sole discretion you fail to comply with any term or provision of this Agreement. Upon termination, your right to access and use the Service shall be terminated, your account shall be terminated and you shall destroy all materials obtained from the Service and all copies thereof, whether made under the terms of this Agreement or otherwise.
12.2 Company may, at its sole discretion and at any time, discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected immediately upon notice. Further, you agree that Company shall not be liable to you or to any third party for any termination of your access to the Service.
12.3 Content or UGC may be removed by Company from the Service without prior notice upon the occurrence of any of the following: (a) Company receives notice from a third-party that the Content or UGC has been uploaded illegally or without authorization or infringes on or violates any copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right or right of publicity or privacy of a third party, or libels, slanders, defames or disparages any third party, (b) Company determines in its sole and absolute discretion that Content or UGC is inappropriate or objectionable, or (c) Company determines in its sole and absolute discretion that Content or UGC is or may inhibit, obstruct or detrimentally affect the operation of the Service.
12.4 Technical Errors Not a Breach. You acknowledge and agree that the Internet and mobile applications are sometimes unreliable, slow or inactive and that Company shall not be responsible for any delays and/or errors in the Service caused by Company’s Internet connection, equipment (including servers) failure, distributors and/or delivery services and/or by Acts of God, and/or any other cause beyond the control of Company, nor shall Company be responsible for any failure or unavailability of any Prototype(s), Content or UGC due to transmission errors and/or any other cause beyond the control of Company.
13. Jurisdiction. Unless otherwise specified, the materials in this Service are presented solely for the purpose of promoting content and other products available in the United States, its territories, possessions, and protectorates. The Service is controlled and operated by Company from its offices within the State of Illinois, United States of America. Company makes no representation that materials in the Service are appropriate or available for use in other locations. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
14. Service Guarantee. You may deactivate or terminate your account. In the event that you cancel your subscription prior to the end of your subscription period or otherwise terminate this Agreement, any fees paid for the remainder of the subscription period shall be forfeit. All sales are final. If you ‘deactivate’ your account your profile will not be displayed to other users. You may use the services if you reactivate your account and profile prior to the end of your subscription period.
15. Disclaimer. THE SERVICE, CONTENT AND MATERIALS ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
COMPANY DOES NOT WARRANT THAT THE SERVICE, CONTENT OR OTHER FUNCTIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE, CONTENT, THE WEB SITE OR THE SERVER(S) THAT MAKE THE WEB SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR THE MATERIALS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
COMPANY IS NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT OR UGC PUBLISHED ON THE WEB SITE OR IN CONNECTION WITH THE SERVICE, INCLUDING CONTENT OR UGC PUBLISHED BY USERS OF THE WEB SITE OR THE SERVICE. CONTENT TYPES AND DESCRIPTIONS ARE PROVIDED FOR CONVENIENCE, AND YOU ACKNOWLEDGE AND AGREE THAT COMPANY DOES NOT GUARANTEE THEIR ACCURACY. COMPANY IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICE. COMPANY ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF THE SERVICE. COMPANY IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT OR SOFTWARE, OR THE FAILURE OF EMAIL ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEB SITE, INCLUDING INJURY OR DAMAGE TO ANY PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB SITE OR THE SERVICE.
16. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE, EVEN IF COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU TO COMPANY, IF ANY, FOR ACCESSING THE SERVICE. ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE THAT YOU KNEW OR SHOULD HAVE KNOWN OF SUCH CLAIM.
17. Links to Outside Web Sites and Services. To the extent that the Service contains links to outside services and resources, Company does not control the availability and content of those outside services and resources. Any concerns regarding any such service or resource, or any link thereto, should be directed to the particular service or resource.
18. Copyrights and Copyright Agents. If you believe that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights have been otherwise violated, please provide Company’s Copyright Agent the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located on the site;
(d) your address, telephone number, and email address;
(e) a 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; and
(f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Company’s Agent for Notice of claims of copyright or other intellectual property infringement:
1601 W Pearson St
Chicago, IL 60622
By email: email@example.com
19.2 No Expectation of Privacy. By using the App or the Service, you acknowledge and agree that Internet transmissions are never completely private or secure. You acknowledge and agree that any message or information posted on the Service or sent to Company may be read or intercepted by others, even if there is a special notice that a particular transaction or transmission (for example, credit card information) is encrypted.
19.3 This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. You agree that any action at law or in equity arising out of or relating to this Agreement shall be litigated only in the state or federal courts located in the State of Illinois and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The parties hereby irrevocably consent to service of process in connection with any controversy by the mailing thereof by registered mail or certified mail, postage prepaid to the respective parties at their respective addresses set forth in or designated pursuant to this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.