SECOND PLAY SPORTS
1. Marketplace. “Marketplace” means the 2nd Play Sports mobile application solution (commonly referred to as an “app”) intended to establish a virtual, social marketplace for the sale, purchase, and gifting of sports equipment, along with any and all products, software, and services contained therein (which may include advertisements or listings from retail stores in addition to listings from private individuals), and any support applications, updates, revisions, extensions, and derivatives thereof, including without limitation, online versions or other variations. Licensor shall determine the scope and content of the Marketplace at all times, in Licensor’s sole and absolute discretion.
4. Licensee Responsibility. Licensee is responsible for arranging legal, safe, and secure location to exchange items sold, purchased, or gifted through the Marketplace, for example only and without limitation, the parking lot of a police station or other populated public location during daylight hours, and/or (b) the cost and proper packaging associated with shipping any goods agreed by Licensee and another user to be shipped. Licensee shall ensure it obtains and maintains any and all required permits and permissions for hauling and storing any goods to be transported or stored by Licensee. Licensee shall be responsible for any and all parking citations traffic citations, charges in connection with towing or immobilization, and any other citations, fees, or charges accrued or incurred by Licensee in connection with any transactions originating from the Marketplace.
6. Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT USE OF THE MARKETPLACE IS AT LICENSEE’S OWN RISK, AND THAT LICENSOR DOES NOT ENDORSE OR GUARANTEE ANY CONTENT, PRODUCT, OR SERVICE THAT IS SUBMITTED TO THE MARKETPLACE, AND LICENSEE HAS NO CONTROL OVER AND IS NOT RESPONSIBLE FOR THE ACTIONS OR BEHAVIOR OF OTHER USERS OF THE MARKETPLACE OR MEMBERS OF THE PUBLIC. Licensee acknowledges that in using the Marketplace, Licensee may be exposed to content from a variety of sources, and such content may be inaccurate, offensive, or objectionable, and Licensor is not responsible for the accuracy, usefulness, safety, sensibility, decency, or intellectual property rights of or relating to such content. Licensee agrees that Licensor, its employees, agents, advisors, officers, directors, members, and shareholders, are not and shall not be liable for any losses, damages, or liabilities arising out of or relating to Licensee’s use of the Marketplace or engagement in transactions originating from or within the Marketplace, including without limitation any losses or damages from loss, theft, or damage to property or persons, including without limitation any personal injuries sustained by Licensee or Licensee’s employees, contractors, guests, family members, or invitees. Licensee assumes full responsibility for any such injuries, losses, or damages, except in the event of fraud or willful misconduct by Licensor.
7. Indemnification. LICENSEE WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS LICENSOR, ITS EMPLOYEES, AGENTS, 34786MEMBERS, AND SHAREHOLDERS, FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, COSTS, EXPENSES, AND LIABILITIES OF ANY KIND OR NATURE WHATSOEVER, WHETHER CAUSED BY OR INCURRED BY LICENSEE, OR OTHERWISE, ARISING FROM OR RELATING TO LICENSEE’S USE OF THE MARKETPLACE OR ENGAGEMENT IN TRANSACTIONS HAVING AN ORIGIN IN THE MARKETPLACE, OR FROM ANY FAILURE OF LICENSEE TO COMPLY WITH ANY OF THE TERMS OR OBLIGATIONS HEREIN, INCLUDING WITHOUT LIMITATION RECOVERY OF LICENSOR’S COSTS AND ATTORNEY’S FEES AS PROVIDED IN SECTION 20 (ATTORNEY’S FEES AND COSTS), ALL EXCEPT IN THE EVENT OF FRAUD OR WILLFUL MISCONDUCT ON THE PART OF LICENSOR. LICENSEE WAIVES ANY CLAIMS AGAINST LICENSOR FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES.
8. No Insurance. Licensor does not provide any insurance coverage for the marketplace or for goods or services sold, purchased, or gifted via the marketplace. It is Licensee’s responsibility to provide, or obtain for itself or from the other user in a marketplace transaction, any insurance coverage relating to marketplace transactions. Licensee shall be solely responsible for any and all costs and expenses not covered by insurance.
16. Amendment. The Agreement may not be modified or amended except in writing by both parties.
17. Construction and Interpretation. The captions in the Agreement are inserted only as a matter of convenience and in no way affect the terms or intent of any provision of the Agreement. All phrases, pronouns, and other variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular, or plural, as the actual identity of the organization, person, or persons may require. No provision of this Agreement shall be construed against any party hereto by reason of the extent to which such party or its counsel participated in the drafting hereof. If any term or provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and shall continue in full force as if the invalid provision never existed. Whenever possible, each part of this Agreement shall be interpreted in such a manner as to be valid under applicable law, and in accordance with the parties’ intent. The invalidity or unenforceability of a particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. Construction and interpretation shall not favor one party or the other based on which party drafted such term or provision.
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