PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY – THEY CONSTITUTE A LEGALLY-‐BINDING CONTRACT BETWEEN YOU AND FIRSTPOINT INTERNATIONAL LTD (“FIRSTPOINT USA”). A link to these terms and conditions (this “Agreement”) is provided on FirstPoint USA’s website so that you may review them at any time. You may wish to print this Agreement for your reference.
THIS AGREEMENT APPLIES TO THE PURCHASE AND SALE OF AN FIRSTPOINT USA MEMBERSHIP AND RELATED PRODUCTS AND SERVICES THROUGH WWW.FIRSTPOINTUSA.COM (REFERRED TO AS THE “WEBSITE”).
TO AGREE TO THESE TERMS, CLICK "I ACCEPT."
For purposes of this Agreement, the term “FirstPoint USA” means FIRSTPOINT INTERNATIONAL LTD, a British limited liability company, and the term “Client” means, individually and collectively, the “Student-‐Athlete”, Student" and “Parent(s)/Guardian(s)” identified on the registration form submitted with this Agreement.
Client’s receipt of an electronic or other form of order confirmation does not signify FirstPoint USA’s acceptance of Client’s order, nor does it constitute confirmation of FirstPoint USA’s offer to sell. FirstPoint USA reserves the right at any time after receipt of Client’s order to accept, decline, or limit Client’s order for any reason, whether or not Client’s credit card has been charged. FirstPoint USA uses commercially reasonable efforts to maintain the availability of its website. However, should the website experience technical difficulties, FirstPoint USA is not responsible for orders that are not processed or accepted.
EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE OF THIS AGREEMENT, CLIENT AGREES THAT DISPUTES BETWEEN CLIENT AND FIRSTPOINT USA WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND CLIENT WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS-‐ACTION LAWSUIT OR CLASS-‐WIDE ARBITRATION.
FirstPoint USA OBLIGATIONS
Service of FirstPoint USA. Subject to the terms and conditions of this Agreement, FirstPoint USA will provide Client with the following “Basic Services”:
Optional Services. In addition to the Basic Services, FirstPoint USA may make available other “Optional Services” from time to time, which shall be subject to the terms and conditions of this Agreement, the Related Agreements and such other terms and conditions that may accompany such other Optional Services. Unless provided otherwise in the terms and conditions that accompany such other Optional Services, the Student-‐Athlete shall not be eligible for any Optional Services past the last day of such Student-‐Athlete’s senior year of high school.
Each such Optional Service shall incur payment of the additional fees identified on the relevant order page for such Optional Service. FirstPoint USA shall have no obligation to perform any such Optional Services unless and until FirstPoint USA accepts Client’s order for such Optional Services and Client is current in all payments for the Basic Services and Client has paid all additional fees applicable to all purchased Optional Services. For purposes of this Agreement, the term “Services” means the Basic Services and those Optional Services actually purchased and paid for by Client, to the extent Client remains eligible for such Optional Services. Fees for Optional Services may be modified by FirstPoint USA from time to time upon notice to Client.
Selection Process. The parties agree that FirstPoint USA will make the final determination whether the Student-‐Athlete qualifies for FirstPoint USA’s Services. The determination of which colleges and universities the Student-‐Athlete’s Recruiting Profile is sent rests solely with the discretion of FirstPoint USA.
Disclaimer. The Services provided are designed to match the Student-‐Athlete with the best collegiate opportunities. FirstPoint USA does not guarantee or promise that a scholarship or grant will be received by Client. Client shall not hold FirstPoint USA responsible for any decision, action or other matter made or taken by any college or university with respect to recruiting or any scholarship or grant, since those decisions, actions and matters rest solely such colleges and universities. IN FURTHER ACCORDANCE WITH NCAA AND NAIA RULES, FIRSTPOINT USA DOES NOT INTEND ANY OF THE SERVICES TO BE, AND SUCH SERVICES SHALL NOT BE CONSTRUED OR DEEMED TO BE, ANY ATTEMPT OR PROMISE BY OR ON BEHALF OF FIRSTPOINT USA TO PLACE THE STUDENT-‐ATHLETE WITH A PARTICULAR COLLEGE OR UNIVERSITY AND/OR A GUARANTEE OF ANY OFFER OR AWARD OF ANY SCHOLARSHIP OR GRANT AND/OR A GUARANTEE THAT A COLLEGE, UNIVERSITY, COACH AND/OR ATHLETIC DEPARTMENT WILL REVIEW THE RECRUITING PROFILE OR ANY OTHER MATERIALS OR INFORMATION RELATING TO THE STUDENT-‐ATHLETE.
Fees; Payment Obligations. Client shall pay all fees set forth on the registration form accompanying this Agreement and any other order form submitted by Client and accepted by FirstPoint USA from time to time. Except where expressly stated otherwise under the Section titled “Cancellation and Refund Policies” all fees owed and owing to FirstPoint USA are nonrefundable and non-‐cancelable.
Client represents and warrants that (i) the debit or credit card information supplied by Client to FirstPoint USA is true, correct and complete, (ii) charges incurred by Client will be honoured by Client’s financial institution or credit card company, as applicable, and (iii) Client will pay charges incurred by Client at the posted prices, including all applicable taxes, if any. All payments must be in British pounds (£).
Client authorizes FirstPoint USA to charge applicable fees to Client’s designated billing payment method. If Client’s billing payment method changes during the term of this Agreement, Client must immediately provide FirstPoint USA with the updated billing payment method by updating Client’s account profile. If FirstPoint USA is unable to charge Client’s billing payment method for an installment, FirstPoint USA may take any one or more such actions as set forth in the “Default and Remedies” section of this Agreement.
Client Obligations. Client agrees to cooperate with FirstPoint USA with respect to all aspects of the Services, including, without limitation, the preparation of information for distribution to colleges and universities. Prior to, and in order to qualify for, the distribution of the Student-‐Athlete’s scouting profile to college coaches, Client must first (i) complete all applicable preferences in the profile and (ii) upload the following to the Student-‐Athlete’s scouting profile: grade point average; a copy of official transcript (test scores if available); photograph; 3-‐5 minute highlight video; all applicable contact info; personal statement; primary position.
Client further agrees that responding to each contact from a college coach or other representative is a vital element in the process, and that not responding to a contact attempt by a college coach or other representative could substantially harm the FirstPoint USA’s relationship with that coach or representative. It is Client's responsibility to keep in contact with Client’s scouting representative and FirstPoint USA during the recruiting process. Any failure by a Client to respond to such a contact would constitute a material breach of this Agreement by Client. FirstPoint USA has no obligation to follow up with Client or to update Client or continue any part of the Services unless Client remains in compliance with its obligations under this paragraph.
Client Acknowledgements, Representations and Warranties. Client represents and warrants that all information provided on the order form and scouting profile is to the best of their knowledge true and correct and that any misleading information could damage the relationship between the FirstPoint USA and their coaches. Client has carefully read, fully understands and agrees to be bound by, all of the terms, conditions and legal consequences of this Agreement and each Related Agreement. Client represents and warrants that he and/or she has the legal capacity and authority to enter into this Agreement and each Related Agreement on his and/or her own behalf and on behalf of the Student-‐Athlete as the Student-‐Athlete’s parent or legal guardian.
CANCELLATION AND REFUND POLICIES
Client’s Right to Cancel. Client may cancel this Agreement before midnight on the third business day after entering into this Agreement by calling FirstPoint USA’s Finance Department at 0333 241 7360, with such cancellation becoming effective upon FirstPoint USA’s written confirmation to Client. AFTER SUCH TIME, CLIENT SHALL HAVE NO RIGHT TO CANCEL THIS AGREEMENT AND CLIENT SHALL REMAIN LIABLE FOR ALL FEES OWED OR OWING TO FIRSTPOINT USA, UNLESS ONE OF THE FOLLOWING TWO PARAGRAPHS APPLIES (RECRUITPROTECT GUARANTEE OR PARENTPROTECT GUARANTEE).
RecruitProtect Guarantee. If the Student-‐Athlete suffers a “career ending” injury prior to the student-‐athlete’s graduation from high school, then FirstPoint USA will approve a request for a hardship refund. In order to be eligible for a refund under this section, both of the following conditions must be met: (i) the Student-‐Athlete’s attending physician must provide a signed letter to FirstPoint USA expressly specifying that the injury suffered is “career ending” and (ii) Client is in compliance with all of its obligations under this Agreement and each Related Agreement.
ParentProtect Guarantee. If one or both of the Parents/Guardians of the Student-‐Athlete becomes involuntarily unemployed or files a Chapter 7 bankruptcy petition within one year after the date of this Agreement, then FirstPoint USA will STOP any further payments from Client’s bank account or credit card as of the date FirstPoint USA receives satisfactory proof of unemployment or bankruptcy from such Parent/Guardian. FirstPoint USA will suspend the account and Client will have the right to reactivate the account at any time in the future with no penalty. To qualify, the Parent/Guardian must supply FirstPoint USA with (i) a copy of his or her termination letter from his or her employer, along with the name and phone number of his or her immediate supervisor, (ii) if applicable, confirmation of the bankruptcy filing and (iii) proof of such Parent/Guardian’s current eligibility for unemployment benefits, as determined by FirstPoint USA in its sole discretion. Determinations as whether a Parent/Guardian who is an independent contractor or self-‐employed is involuntarily unemployed shall be made by FirstPoint USA, in its sole discretion, on a case by case basis.
PERSONAL INFORMATION NOTICE AND CONSENT
Certain Confirmations. Client represents and warrants that Client owns the entire right, title and interest (or otherwise possesses sufficient license rights) in the copyrights of the videos and photographs of the Student-‐Athlete that are provided by Client to FirstPoint USA, and that Client has the authority to grant FirstPoint USA the right and license to use such videos and photographs as permitted herein, including without limitation the right for FirstPoint USA to use such videos and photographs, in any formats and through any channels, on FirstPoint USA’s website or on third party websites, in publications, advertisements and promotional materials, in the media and at scouting/recruiting events.
EVENTS OF DEFAULT AND REMEDIES
Events of Default. Each of the following will be considered an “Event of Default” of Client:
FirstPoint USA Remedies. Upon any Event of Default, FirstPoint USA shall have the right to exercise any one or more of the following cumulative remedies:
All remedies of FirstPoint USA hereunder are cumulative and may, to the extent permitted by law, be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy. No failure on the part of FirstPoint USA to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver of same.
If FirstPoint USA turns over to a lawyer the collection of any amount due under this Agreement, then Client shall pay to FirstPoint USA all of FirstPoint USA’s expenses and reasonable lawyers’ fees and disbursements. Additionally, in the event FirstPoint USA files an action in any court to remedy Client’s default, FirstPoint USA, if successful therein, shall be entitled to recover its costs, including reasonable lawyers’ fees, incurred to enforce the terms, provisions and conditions of this Agreement and/or any Related Agreement.
Third Party Providers. FirstPoint USA may provide links to web pages and content (“Third Party Content”) and services (“Third Party Services”) of certain third parties as a service to those interested in such content and services. FirstPoint USA does not monitor, nor does it have any control over, any Third Party Content or Third Party Services. FirstPoint USA does not endorse or adopt any Third Party Content and can make no guarantee as to its accuracy or completeness. FirstPoint USA makes no representations or warranties of any kind regarding any Third Party Content or any Third Party Services, or any information contained therein, and undertakes no responsibility to update or review any Third Party Content. When leaving FirstPoint USA’s website, Client acknowledges that FirstPoint USA’s website terms and policies no longer govern, and, therefore, Client should review the applicable terms and policies, including privacy and data gathering practices, of that site. Client acknowledges that it shall use such links, Third Party Content and Third Party Services at their Client’s own risk.
Governing Law. All matters relating to the Services, this Agreement and the Related Agreements and any dispute or claim arising therefrom or related thereto (in each case, including non-‐contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of England without giving effect to any choice or conflict of law provision or rule (whether of England or any other jurisdiction). Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement or any Related Agreement.
Resolution of Disputes
Disputes. Before filing a claim against FirstPoint USA, Client acknowledges and agrees that Client will try to resolve the dispute informally by contacting FirstPoint USA - email@example.com. The parties will try to resolve the dispute via e-‐mail, but if they cannot resolve the dispute within thirty (30) days after the date of Client’s submission of such dispute, Client and FirstPoint USA agree to resolve any claims through final and binding arbitration, except as forth under the section titled “Exceptions to Agreement to Arbitrate” below.
Arbitration Opt-‐Out. Client may decline to arbitrate by contacting FirstPoint USA within thirty (30) days of the date that it first became subject to this arbitration provision (i.e.: the date you accept the Terms and Conditions of Use or enter into this Agreement, whichever is earlier). Client must send us written notice to FIRSTPOINT INTERNATIONAL LTD. Attn: Opt-‐Out Arbitration, The Innovation Centre, 1 Ainslie Road, Hillington, G52 4RU, Scotland, UK. If Client opts out, neither Client nor FirstPoint USA can require the other to participate in an arbitration proceeding.
Arbitration Procedures. All claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association (AAA). Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating to or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. The arbitration shall be held in Cook County, Illinois USA or any other location FirstPoint USA agrees to. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings.
Exceptions to Agreement to Arbitrate. Notwithstanding anything herein to the contrary, in the event (i) Client misuses and/or abuses FirstPoint USA’s website or services, (ii) Client breach the confidentiality terms set forth in any Related Agreement and/or (iii) Client infringes a third party’s intellectual property rights, FirstPoint USA may assert a claim against Client and seek injunctive relief from a court of competent jurisdiction. In the event of the foregoing, any such action shall take place exclusively in the courts situated in the England, United Kingdom and the parties hereby submit to the venue of the courts situated therein.
No Class Actions. Client may only resolve disputes with FirstPoint USA and its affiliates on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM CLIENT MAY HAVE ARISING OUT OF OR RELATING TO THE SERVICES, THIS AGREEMENT OR ANY RELATED AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Waiver; Limitation of Liability. CLIENT WAIVES, RELEASES AND HOLDS HARMLESS FIRSTPOINT USA FROM ANY AND ALL LIABILITY THAT MAY ARISE FROM THE ACCURACY, DISCLOSURE OR DISTRIBUTION OF ANY AND ALL INFORMATION IN CONNECTION WITH THIS AGREEMENT.
FIRSTPOINT USA’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ITS SUBJECT MATTER, WILL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNT OF FEES FIRSTPOINT USA HAS ACTUALLY RECEIVED FROM CLIENT UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
IN NO EVENT SHALL FIRSTPOINT USA BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST OR ANTICIPATED REVENUE, PROFITS OR LOSS OR USE OF DATA OR INFORMATION OF ANY KIND) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, EQUITY, TORT (INCLUDING ANY FORM OF NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND WHETHER OR NOT FIRSTPOINT USA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE LIMITATIONS SHALL APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, THEN FIRSTPOINT USA’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT POSSIBLE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CLIENT TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO CLIENT’S PURCHASE OF PRODUCTS AND SERVICES.
No Warranty: ALL PRODUCTS AND SERVICES IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-‐INFRINGEMENT, EACH OF WHICH FIRSTPOINT USA HEREBY DISCLAIMS.
WITHOUT LIMITING THE FOREGOING, FIRSTPOINT USA MAKES NO WARRANTY THAT THE PRODUCTS AND SERVICES IN CONNECTION WITH THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS; THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS OR SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE; OR THE QUALITY OF ANY PRODUCTS OR SERVICES WILL MEET CLIENT’S EXPECTATIONS.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO CLIENT’S PURCHASE OF PRODUCTS AND SERVICES.
Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, but if the essential terms and conditions of this Agreement for each party remain valid, binding and enforceable, then the remaining provisions of this Agreement remain in full force.
Assignment. This Agreement is personal to Client and Client may not may assign any of its rights or delegate any of its performance obligations under this Agreement, without the prior written consent of FirstPoint USA. Any purported assignment of rights or delegation of performance in violation of this Section is void. With respect to FirstPoint USA, unless there is evidence to the contrary, if there is an assignment, voluntary or involuntary, by merger, consolidation, dissolution, change of control, operation of law or any other manner, then this Agreement will be binding upon the successors and assigns of FirstPoint USA and will continue to be binding upon Client.
Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any party other than the parties to this Agreement.
Entire Agreement; Amendments. This Agreement and the Related Agreements constitute the final agreement between the parties with respect to the Services. All prior and contemporaneous oral and written communications, negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. FirstPoint USA may amend each Related Agreement from time to time in accordance with their respective terms. The parties may amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement and is signed by duly authorized representatives of each party.