Terms for End User Licence Agreement
Please read this EULA carefully, as it sets out the basis upon which we license the Software for use.
1.1 In this EULA, except to the extent expressly provided otherwise:
“App Store” means the online sales and distribution platform operated by a third party by means of which the User obtained the Software;
“App Store Terms and Conditions” means the terms and conditions of the App Store that set out any rights and/or obligations of the User in relation to the Software and/or any of the Services;
“Effective Date” means the date upon which the User downloads the Software and has deemed to have accepted the terms of this EULA;
“EULA” means this end user licence agreement, including any amendments to this end user licence agreement from time to time;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, pandemics, riots, terrorist attacks and wars);
“Hosted Services” means the hosted services that are made available by the Licensor to the User as a service via the internet and may be accessed and used by means of the Software;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Licensor” means Trident Digital Media Ltd (referred to as “WrestleTalk“) a company incorporated in England and Wales (registration number 11066431) having its registered office at Building 15, Gateway 1000, Arlington Business Park, Stevenage, Herts, UK, SG1 2FP;
“Maintenance Services” means the supply to the User of Updates and Upgrades;
“Platform” means the platform managed by the Licensor and used by the Licensor to provide the Hosted Services;
“Services” means any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA;
“Software” means the WrestleTalk mobile application;
“Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;
“Support Services” means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise;
“Term” means the term of this EULA, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
“Update” means a hotfix, patch or minor version update to the Software;
“Upgrade” means a major version upgrade of the Software;
“User” means the person to whom the Licensor grants a right to use the Software under this EULA; and
“User Data” means all data, works and materials: uploaded to or stored on the Platform by the User; transmitted by the Platform at the instigation of the User; supplied by the User to the Licensor for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the User (but excluding analytics data relating to the use of the Platform and server log files).
2.1 This EULA shall come into force upon the Effective Date.
2.2 This EULA shall continue in force subject to termination in accordance with Clause 17 or any other provision of this EULA.
3. App Stores
3.1 The terms of this EULA are between the Licensor and the User. The Licensor is solely responsible for the Software and any content produced on it.
3.2 The User acknowledges that, in addition to this EULA, the App Store Terms and Conditions shall apply to the use of the Software and the other matters contemplated in this EULA.
3.3 In the event of any conflict between this EULA and the App Store Terms and Conditions, the provisions of the latter shall take precedence.
3.4 Those provisions of the App Store Terms and Conditions that impose obligations and/or liabilities on the User in relation to the Software and/or the Services are hereby incorporated into this EULA for the benefit of the Licensor, and as such shall be enforceable by the Licensor against the User.
3.5 The User acknowledges that the operator of the App Store has rights under the App Store Terms and Conditions which may affect the exercise of the User’s rights under this EULA. Subject to Clause 16.1, the Licensor will not be in breach of this EULA as a result of, and will not be liable to the User in respect of any loss or damage arising out of, the operator’s exercise of its rights under the App Store Terms and Conditions.
4.1 The Licensor hereby grants to the User from the date of supply of the Software to the User a non-exclusive, non-transferable, worldwide and perpetual licence to use the Software on any device which can access the App Store, subject to the limitations and prohibitions set out and referred to in this Clause 4.
4.2 The User may also permit members of the User’s App Store family group to use the Software in accordance with this Clause 4 and the rules relating to family groups implemented in the App Store and/or set out in the App Store Terms and Conditions.
4.3 The User may not sub-license and must not purport to sub-license any rights granted under Clause 4.1, save to the extent expressly provided otherwise in this EULA.
4.4 Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any licence granted under this Clause 4 shall be subject to the following prohibitions:
(a) the User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software, which also includes removing the Software first from any mobile device that the User sells;
(b) the User must not alter, edit or adapt the Software;
(c) the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software;
(d) the User must not use the Software in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; and
(e) the User must not use the Software to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.
5. Source Code
5.1 Nothing in this EULA shall give the User or any other person any right to access or use the Source Code or constitute any licence of the Source Code.
6. Hosted Services
6.1 The Licensor hereby grants to the User a non-exclusive and worldwide licence to use the Hosted Services by means of the Software for the personal or internal business purposes of the User during the Term.
6.2 Except to the extent expressly permitted in this EULA or required by law on a non-excludable basis, the licence granted by the Licensor to the User under Clause 6.1 is subject to the same prohibitions as those relating to the licence of the Software and set out in Clause 4.4.
6.3 The Licensor shall use reasonable endeavours to maintain the availability of the Hosted Services to the User, but does not guarantee 100% availability.
6.4 The User must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
6.5 The User must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
6.6 All the limitations and exclusions of liability and warranties, and the special acknowledgements by the User, that are set out in this EULA and expressed to relate to the Software shall apply in respect of the Hosted Services in addition to the Software.
7. User Data
7.1 The User hereby grants to the Licensor a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the User Data to the extent reasonably required for the performance of the Licensor’s obligations and the exercise of the Licensor’s rights under this EULA. The User also grants to the Licensor the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in this EULA.
7.2 The User warrants to the Licensor that the User Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
7.3 User Data, and the use of User Data by the Licensor in accordance with these terms and conditions, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) be in contempt of any court or in breach of any court order;
(f) be in breach of racial or religious hatred or discrimination legislation;
(g) be blasphemous;
(h) be in breach of any contractual obligation owed to any person;
(i) depict violence;
(j) be pornographic, lewd, suggestive or sexually explicit;
(k) be untrue, false, inaccurate or misleading;
(l) consist of or contain any instructions, advice or other information which may be acted upon and could, if acted upon, cause illness, injury or death, or any other loss or damage;
(m) be offensive, deceptive, fraudulent, threatening, abusive, harassing, anti-social, menacing, hateful, discriminatory or inflammatory; or
(n) cause annoyance, inconvenience or needless anxiety to any person.
7.4 You must not upload by means of our Software or Hosted Services any material that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.
8. Maintenance Services
8.1 The Licensor may from time to time during the Term provide the Maintenance Services to the User but shall have no obligation to do so.
8.2 The User must apply to the Software each Update and Upgrade made available by the Licensor through the Maintenance Services.
8.3 If the User does not apply an Update or Upgrade to the Software, then the User may not be able to access the Software or Hosted Services.
8.4 The User acknowledges that the supply and licensing of Upgrades may, at the discretion of the Licensor, be subject to additional payments and/or additional terms and conditions.
9. Support Services
9.1 If a User needs any support during the Term the User may contact the Licensor at the contact details on its website www.wrestletalk.com. Users must not contact the App Store as they are under no obligation to provide Support Services.
9.2 The Licensor shall have no obligation to provide Support Services in respect of any issue caused by:
(a) any factor outside the scope of the Support Services;
(b) the improper use of the Software by the User; or
(c) any alteration to the Software made without the prior consent of the Licensor.
9.3 The User acknowledges and agrees that the Licensor gives no warranties or guarantees in relation to the outcome of the Support Services and, in particular, issues identified through the Support Services may only be resolved upon with an Update or Upgrade or, at the discretion of the Licensor, not at all.
11. Intellectual Property Rights
11.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.
11.2 In the event of any third party claim that the Software or your possession and use of the Software infringes that third party’s intellectual property rights, the Licensor, not the App Store, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.
12. Product Claims
12.1 The Licensor is responsible for addressing any claims from a User or any third party relating to the Software or the User’s possession and/or use of the Software including, but not limited to:
(a) product liability claims;
(b) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and
(c) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Software’s use of the HealthKit and HomeKit frameworks.
13. Legal Compliance
13.1 The User represents and warrants that;
(a) the User is 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
(b) the User is not listed on any U.S. Government list of prohibited or restricted parties.
14.1 The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
14.2 The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
14.5 In the event of any failure of the Software to conform to any applicable warranty, the User may notify the App Store, who, where applicable, will refund any purchase price for the Software to the User; and that, to the maximum extent permitted by applicable law, the App Store will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the Licensor’s sole responsibility.
14.6 All of the parties’ warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.
15. Third Party Terms of Agreement
15.1 The User must comply with applicable third party terms of agreement when using the Software.
16. Limitations and exclusions of liability
16.1 Nothing in this EULA will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party’s statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this EULA:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.
16.3 The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.
16.4 The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.
16.5 The Licensor will not be liable to the User in respect of any loss of revenue or income.
16.6 The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.
16.7 The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.
16.8 The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.
16.9 The Licensor will not be liable to the User for any data usage, roaming or other charges incurred by the User when accessing the internet through a mobile or other device.
16.10 The maximum aggregate liability under or in connection with this EULA (including use of any Hosted Services) whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to allowing a User to download another copy of the Software.
17.1 The User may terminate this EULA by closing their WrestleTalk account or deleting the Software.
17.2 The Licensor may terminate this EULA by giving the User written notice of termination.
17.3 The Licensor may terminate this EULA immediately:
(a) if the User commits a breach of this EULA; or
(b) if the User breaches any of the Licence restrictions.
17.4 This EULA is effective until terminated by the User or Licensor.
18. Effects of termination
18.1 Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3, 6.6, 8.4, 16, 18, 19, 20, 21 and 22.
18.2 Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.
19. User indemnity
19.1 The User shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the User of this EULA.
20.1 No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.
20.2 If any provision of this EULA is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
20.3 This EULA may not be varied except by a written document signed by or on behalf of each of the parties.
20.4 The User hereby agrees that the Licensor may assign the Licensor’s contractual rights and obligations under this EULA to any successor to all or a substantial part of the business of the Licensor from time to time or any third party, providing that, if the User is a consumer, such action does not serve to reduce the guarantees benefiting the User under this EULA. Save to the extent expressly permitted by applicable law, the User must not without the prior written consent of the Licensor assign, transfer or otherwise deal with any of the User’s contractual rights or obligations under this EULA.
20.5 The App Stores and any subsidiaries are third party beneficiaries of this EULA, and that, upon the User’s acceptance of this EULA, the App Stores will have the right (and will be deemed to have accepted the right) to enforce the terms of this EULA against the User.
20.6 This EULA shall be governed by and construed in accordance with English law.
20.8 Subject to any applicable law the courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.
21.1 In this EULA, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
21.2 The Clause headings do not affect the interpretation of this EULA.
21.3 References in this EULA to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
21.4 In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.