Clubmatic Terms of Service

October 18, 2007

These Terms of Service are part of the Clubmatic Terms of Service, found online at http://www.clubmatic.com/terms/terms.html.

1 Welcome

Welcome! We are glad you chose the Clubmatic Service for your organization or club. Please read the following terms and conditions carefully.

Clubmatic, Inc. ("Clubmatic") offers a variety of online applications ("Service") for clubs and organizations ("Club"), Club administrators, officers, and executives ("Administrator"), and Club members ("Member"). The Service includes online Member registration, online Member-only searchable roster, public and Member-only web page hosting, public and Member-only file download hosting, Member-only opt-in email lists, Member-only searchable email archives, online Member-only polls, and other applications and features. These terms and conditions apply to all features and applications provided by the Service.

3 Acceptance of Terms

Use of the Service is subject to the following terms and conditions ("Terms"), found online at http://www.clubmatic.com/terms/terms.html with the accompanying policies incorporated here by reference:

Acceptable Use Policy, found online at http://www.clubmatic.com/terms/use.html
Privacy Policy, found online at http://www.clubmatic.com/terms/privacy.html
Availability and Support Policy, found online at http://www.clubmatic.com/terms/support.html

Use of the Service constitutes acceptance of these Terms. By using the Service, you agree that you have read, understand and agree to be bound by these Terms. If you do not accept and abide by all of these Terms, you may not use the Service.

4 Changes to Terms

Clubmatic may modify or revise these Terms from time to time, for any reason, with or without notice. You agree to accept and be bound by any such modifications or revisions, even if you receive no notice. Please review these Terms from time to time so you will be apprised of any changes. Each revision of these Terms will be identified at the top of the page by its effective date.

5 Third Party Terms

Clubs using the Service may require acceptance of additional terms and conditions for Club membership. Clubmatic has no control over and accepts no responsibility or liability for any third party terms. You should check with the Club for information about additional terms. Where they conflict, these Terms shall control.

6 Registration Requirements

The Administrator must create a Club account and register with Clubmatic before any Member may use the Service. Each Member must create an account and register with Clubmatic before using the Service. The Administrator or Member ("User") must be of legal age to enter in a contract under the laws of the State of California in order to register to use the Service. You agree:

to provide true, accurate, and complete information on all registration forms ("Registration Data");
to maintain and promptly update Registration Data to keep it true, accurate, complete and current;
that all Registration Data collected about children under the age of thirteen (13) must be entered and maintained by a parent or legal guardian.

In accordance with the Children's Online Privacy Protection Act of 1998 (http://www.ftc.gov/ogc/coppa1.htm), children under the age of thirteen (13) may not use the Service.

7 Security

You are solely and fully responsible for all activity that occurs using your account or password. You are responsible for keeping your account and password confidential. You must exit from your account at the end of each session. You must inform Clubmatic immediately of any unauthorized use of your account or password, or of any other breach in security. Clubmatic employs industry standard protection and security for transmission and storage of data. Nevertheless, you agree that in no event shall Clubmatic be held liable for loss or damage arising from failures to comply with this Section 7, "Security" provisions of these Terms, or any breach of security.

8 Trial Period

Clubmatic offers a thirty (30) day trial period ("Trial Period") free of charge. The trial period starts when you create a Club account as described in the Section 6, "Registration Requirements" provisions of these Terms. The trial period expires thirty (30) days after creating the Club account, or earlier upon request by the Administrator. During the Trial Period you may use all features of the Service, free of charge. Creating a Club account in no way obligates you to use or pay for use of the Service. If at the end of the Trial Period you choose not to purchase a subscription to the Service, your access will be terminated as provided in Section 10, "Termination of Access" of these Terms. You will be able to make a complete backup of all Club data as provided in Section 3, "Backups" of the Availability and Support Policy, found online at http://www.clubmatic.com/terms/support.html until the expiration of the Trial Period.

9 Billing

Clubmatic provides the Service to the Club and its Members on an annual, semi-annual, or quarterly basis ("Service Period"). Service subscription fees are billed to the Administrator's address of record thirty (30) days in advance of the Service Period. Payment is due on the invoice date. The Club account shall be considered delinquent if payment in full is not received by the start of the Service Period. Clubmatic may immediately suspend or terminate access to the Service for any delinquent account. Clubmatic may charge a reasonable fee not to exceed an amount equal to thirty (30) days' service to reinstate a delinquent account. Service subscription fees may be adjusted from time to time. Clubmatic shall provide the Administrator with at least fifteen (15) days written notice of any change in Service subscription fees. The current Service subscription fee schedule may be found online at http://www.clubmatic.com/terms/fees.html

10 Termination of Access

Clubmatic may temporarily suspend or permanently terminate access to the Service with or without notice under certain circumstances including but not limited to:

request by the Member;
request by the Administrator;
expiration of the Trial Period;
non-payment of fees owed by the Club;
refusal to accept and abide by these Terms, including all modifications or revisions;
the User provides or Clubmatic has reasonable grounds to suspect the User has provided untrue, inaccurate, not current, or incomplete Registration Data;
violations of the Section 7, "Security" provisions of these Terms;
violations of the Acceptable Use Policy, found online at http://www.clubmatic.com/terms/use.html;
violations of the Section 4, "Usage Limits" provisions of the Availability and Support Policy, found online at http://www.clubmatic.com/terms/support.html.

Termination of Member access may include revocation or deletion of the Member account, password, rejection of any email sent to or from the Member, and any or all related data or information. Clubmatic may delete Member data immediately upon termination. Termination of Club access may result in revocation or deletion of all Member and Club accounts, rejection of any email sent to or from the Club or any Member, and any or all data, records, files and content associated with the Club, including Member rosters, web pages, files, and email archives. Clubmatic will retain all Club data for at least thirty (30) days after termination. In no event will Clubmatic be held liable for loss or damage arising from suspension or termination of access to the Service. Clubmatic proprietary rights, indemnities, limitations of liability, disclaimer of warranties and miscellaneous provisions shall survive any such termination.

11 Ownership

Clubmatic claims no ownership of any Content Posted to the Service. The Club owns all Club data, including Member rosters, web pages, files, and email archives. The Member owns any Content Posted by that Member. Clubmatic owns the Service and all software, technology, and intellectual property used to provide the Service.

12 Indemnification

You agree to hold harmless and indemnify Clubmatic, its officers, directors, agents, employees, partners, and affiliates from and against any claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages of any kind whatsoever (including, but not limited to, actual, consequential, and punitive damages), suits, judgments, litigation costs and attorneys' fees, of every kind and nature.

13 Promotion

The Club agrees that during the term of Service Clubmatic may publicly refer to the Club, orally and in writing, as a customer of Clubmatic. Any other public reference to the Club by Clubmatic shall require the written consent of the Club or Administrator.

The Club agrees that during the term of Service Clubmatic may display the Clubmatic name, logo, and URL on any Content delivered or displayed to the Club, Administrators, Members, and the general public.

The Club shall have the right to use the Clubmatic name, trademarks, service marks and logo ("Clubmatic Marks") in order to promote the Service to its Members and the general public. The Club understands and agrees that any use of the Clubmatic Marks in connection with these Terms shall not create any right, title or interest in or to the use of the Clubmatic Marks and that all such use and goodwill associated with the Clubmatic Marks shall inure to the benefit of Clubmatic.

14 Representation

You represent and warrant that:

all of the information provided by you to Clubmatic to participate in the Service is correct and current;
you have all necessary right, power and authority to accept these Terms and to perform the acts required of you hereunder;
you have all necessary right, power and authority to Post Content as per the Acceptable Use Policy, found online at http://www.clubmatic.com/terms/use.html.

15 Limited Warranty

Clubmatic represents and warrants to the Club that the Service will be performed:

in a manner consistent with industry standards reasonably applicable to the performance thereof;
at least to the same level of service as provided by Clubmatic generally to its other Clubs for the same services;
in compliance in all material respects with the Section 1, "Service Availability" provisions of the Availability and Support Policy, found online at http://www.clubmatic.com/terms/support.html.

The Club will be deemed to have accepted such Services unless the Club notifies Clubmatic in writing within thirty (30) days after performance of any breach of the foregoing warranties. The Club's sole and exclusive remedy, and Clubmatic's sole obligation, for breach of the foregoing warranties shall be for Clubmatic at its option to:

re-perform the defective Service at no cost to the Club;
issue the Club a credit in an amount equal to the current monthly Service subscription fees pro rata the duration of any Service interruption.

The foregoing warranties shall not apply to performance issues or defects in the Services:

caused by factors outside of Clubmatic's reasonable control;
that resulted from any actions or inactions of the Club, Administrators, Members, or any third parties;
that resulted from Club's, Administrator's, or Member's equipment or any third-party equipment not within the sole control of Clubmatic.

16 Disclaimer of Warranties

The Clubmatic Service is provided "AS IS" and "AS AVAILABLE" with no warranties whatsoever. Clubmatic expressly disclaims to the fullest extent permitted by law all express, implied, and statutory warranties, including without limitation any warranty of merchantability, fitness for a particular purpose, and non-infringement. Except as provided in Section 15, "Limited Warranty" of these Terms, Clubmatic makes no warranty that:

the Service will meet your requirements;
the Service will be uninterrupted, timely, secure, or error free;
information or advice obtained through the Service will be accurate or reliable;
services or goods received through or advertised on the Service will meet your expectations;
defects in the Service, if any, will be corrected.

You understand and agree that:

no advice or information given by Clubmatic or its employees shall create any warranty except as provided under Section 15, "Limited Warranty" of these Terms;
any material or data you download through the use of the Clubmatic Service is at your own discretion and risk and that you will be solely responsible for any damages to your computer system or loss of data that results from the download of such material or data.

Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.

17 Limitation of Liability

Clubmatic expressly disclaims any and all responsibility or liability for:

the accuracy, content, completeness, legality, reliability, or operability or availability of information or material displayed by the Service;
the deletion, failure to store, misdelivery, or untimely delivery of any information or material;
any harm resulting from downloading or accessing any information or material through the Service.

Under no circumstances shall Clubmatic or its officers, directors, employees, agents, partners, or affiliates be liable to any User or any Club for any direct, indirect, incidental, consequential, special, exemplary, or punitive damages whether such claim is based on warranty, contract, tort (including negligence), or otherwise (even if Clubmatic have been advised of the possibility of such damages) resulting from:

use, misuse, or inability to use the Clubmatic Service;
interruption, suspension, or termination of the Clubmatic Service;
unauthorized access to or alteration of your transmissions or data;
services, goods, information or advice received through or advertised on the Clubmatic Service or received through any links provided in the Clubmatic Service;
procurement of substitute goods or services;
lost profits or data.

Your sole and exclusive remedy for any dispute with Clubmatic in connection with the Service is the cancellation of your Member or Club account as provided under Section 10, "Termination of Access" of these Terms.

Some states or other jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you.

18 Entire Agreement

These Terms and accompanying policies constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms of Service will be effective only if in writing and signed by Clubmatic.

19 Choice of Law

These Terms shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions. You and Clubmatic agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Mateo. You acknowledge that use of the Service may result in interstate data transmissions.

20 Waiver

The failure of Clubmatic to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.

21 Severability

If any provision of these Terms is found by a court of competent jurisdiction to be unenforceable, the remainder of the Terms shall remain in full force and effect.

22 Statute of Limitations

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be permanently barred.

23 No Third Party Beneficiary

You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries.

24 Notice

Clubmatic may provide you with notices, including those regarding changes to these Terms and the accompanying policies, by email, regular mail or postings on the Service.

N.B. The section titles and numbers used in these Terms are for convenience only and have no legal or contractual effect.

Last updated Thursday, 22-Apr-2010 06:01:03 UTC