KlubPro General Terms and Conditions – November 2018
This website is owned and operated by KlubPro Pty Ltd and will be referred to as "We", "our" and "us" in these terms and conditions. Your access to and use of all information on this website including purchase of our service/s is provided subject to the following terms and conditions.
We reserve the right to amend these terms and conditions at any time and your use of the website and software applications following any amendments will represent your agreement to be bound by these terms and conditions as amended. We therefore recommend that each time you access our website you read these terms and conditions.
The terms and conditions set out below apply to your use of the KlubPro website located at www.klubpro.com, www.klubpro.com.au and www.klubpro.co.uk (or any other address or location that KlubPro may advise), including any tools, services, functionality or data which can only be accessed by registering an Account and logging in (“KlubPro Platform”).
1.1. KlubPro Pty Ltd ABN 32 624 335 397 (KlubPro) operates the KlubPro Platform. The KlubPro Platform provides users, including sporting club officials, sporting club members and their associates, with a facility to aid the administration and management of the sporting club.
1.2. If there is an inconsistency between these terms and conditions and the terms and conditions of any of the other documents listed below, the order of priority (in descending order) will be:
1.2.1. Any provisions identified as “special conditions” found in a written agreement signed by the parties (if any) (“Customer Agreement”)
1.2.2. These terms and conditions, which are found at www.KlubPro.com, www.KlubPro.com.au, www.KlubPro.co.uk (or any other address or location that KlubPro may advise), as amended from time to time by KlubPro.
1.2.4. Any part of the Customer Agreement (if any) other than provisions identified as “special conditions”.
1.2.5. The terms of any particular User Licence purchased from time to time.
(together, the above comprise the “Agreement”).
1.3. Access and/or use of the KlubPro Platform by the Customer or any User constitutes consent to the terms and conditions of this Agreement. If you disagree with any of the items that form the Agreement you must not use the KlubPro Platform.
1.4. Your use of the KlubPro Platform includes the ability to enter into agreements and/or to make transactions electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into through, using or in relation to, the KlubPro Platform, including notices of cancellation, policies, contracts, and applications. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
1.5. KlubPro may amend these terms and conditions from time to time as follows:
1.5.1. by publishing the amended terms and conditions on our website located at www.KlubPro.com, KlubPro.com.au or KlubPro.co.uk(or any other address which we may use from time to time);
1.5.2. the amended terms and conditions will apply from the date they are published on our website;
1.5.3. if you do not agree to the amendments to the terms and conditions, you must terminate this Agreement by giving KlubPro 30 days’ notice of termination within 30 days after the amendments take effect, upon which this Agreement will terminate at the end of that termination notice period and the amended terms and conditions will not apply to you; and
1.5.4. If you continue to use the KlubPro Platform after the period of notice in your notice of termination expires, you are deemed to have agreed to the amendments and if you had previously issued a notice of termination under clause 1.5.3, you are deemed to have withdrawn that notice.
1.6. While all Fees and charges under this Agreement are payable by the Customer, each User agrees to be bound by this Agreement in consideration for KlubPro permitting him or her to access and use the KlubPro Platform under the terms and conditions of this Agreement.
1.7. Any capitalised terms that are not otherwise defined in the body of this Agreement have the meanings given in the glossary at clause 14.
2. Intellectual Property Rights
2.1. KlubPro owns all right, title and interest in and to the KlubPro Platform including, without limitation all Intellectual Property relating any part of the KlubPro Platform.
2.2. The software comprised in the KlubPro Platform is licensed, not sold, to you, and KlubPro reserves all rights to the software not expressly granted by KlubPro, whether by implication, estoppel, or otherwise
2.3. KlubPro owns all right, title and interest in and to any information, derivative works or analytics derived from the User Data.
2.4. For User Data that contains Intellectual Property owned by you or a third party (“IP Content”), you warrant that you have sufficient rights to such Intellectual Property to grant KlubPro, and you grant KlubPro, an irrevocable, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, reproduce, adapt, publish, translate and distribute any IP Content that is input, uploaded, provided, collected or obtained on or in connection with the KLIUBPRO Platform in any existing or future media. You also grant KlubPro the right to sub-license these rights, and the right to bring an action for infringement of these rights. Our rights under this paragraph are subject to the condition that we must not publish or disclose any identifiable information relating to any Customer or User.
2.5. Any content which you input, upload, send, receive, or post to and from the KlubPro Platform must not be capable of giving rise to legal action whether against you, KlubPro or a third party (in each case under any applicable law). You warrant that all such content is accurate to the best of your knowledge and belief and is either owned by you or you have obtained the prior consent of the owner of that content to input, upload or post to the KlubPro Platform, and that your input, uploading, sending, receiving or posting of the content and the licensing or provision of that content to KlubPro (including KlubPro exercising the rights granted to it) does not and will not infringe the rights of any third party, including the infringement of any third party’s intellectual property rights or rights of confidentiality or privacy
3.2. KlubPro will retain all User Data on our system for a period of seven years, following which we reserve the right to delete any or all of such User Data.
3.3. KlubPro reserves the right to use any User Data for aggregated statistical analysis and to update industry ratings for the KlubPro Platform.
4. Use of the KlubPro Platform
4.1. Certain features, functions, parts or elements of the KlubPro Platform can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
4.1.1. complete the Sign Up form on the Web Site; and
4.1.2. accept these Terms by clicking “Accept Terms and Conditions” on the KlubPro Platform Registration page, or other similar button.
4.2. When creating an Account on the KlubPro Platform a Customer will be asked to register their club by name. One a User has successfully registered a club by name, no other User may register an Account using this club name. KlubPro is not responsible for and shall have no liability for verifying the authority of a User to use the club name during registration. KlubPro may, in at its sole discretion, request additional information or proof of a person’s credentials and authority to register a club name on the KlubPro Platform. KlubPro may, at its sole discretion, prevent such User from accessing the KlubPro Platform and/or assign the use of the club name within the KlubPro Platform to another User.
4.3. Each Customer may have only one Account. If several persons need to use an Account on behalf of Customer, the Customer must designate such persons as Users. Each such User shall be subject to the restrictions set forth in these Terms and must click on “Accept Terms and Conditions” on the KlubPro Platform Registration page, or other similar button.
4.4. If the Customer has designated Users and granted them Authorization, such Users will be deemed to be authorised to act on behalf of Customer when using the Account. KlubPro is not responsible for and shall have no liability for verifying the validity of Authorisation of any User. However, KlubPro may in a its sole discretion, request additional information or proof of a person’s right and authority to act on behalf of the club and register the club name on the KlubPro Platform. If in KlubPro’s sole opinion the person is not rightfully authorised to act on behalf of the club then KlubPro may, at its sole discretion (a) prevent all Users associated with the Account in question from accessing the KlubPro Platform; and (b) allow a rightfully authorised person to re-register the club name.
4.5. The Customer or designated User uses the KlubPro Platform in a manner other than as intended, or in the opinion of KlubPro, publishes inappropriate or offensive content, KlubPro may at its sole discretion, prevent such Customer or User from accessing the KlubPro Platform.
4.6. A User may be associated with multiple Customers and Accounts. Deleting a User from one Account will not remove the User from the Platform if he/she is connected to multiple Accounts.
4.7. The Customer and any User associated with an Account must provide KlubPro with true, accurate, current, and complete information about the Customer, Users and Account and keep that information up to date.
4.8. Each Customer will be given individual login details for each User which will allow that User to use the KlubPro Platform under a Customer Licence purchased by the Customer.
4.9. A Customer Licence will apply to the Customer and the Customer’s Users during both the Free Trial and paid periods of the Subscription.
4.10. Each Customer Licence which is purchased for an annual period will expire 12 months after the invoice for the licence is first raised, unless payment is received to renew the Customer Licence. Each Customer Licence which is purchased for a monthly period will expire 1 calendar month after the invoice for the licence is first raised, unless payment is received to renew the Customer Licence.
4.11. A new Customer is entitled to a Free Trial period. This Free Trial period is typically 14 days. KlubPro reserves the right, at its sole discretion, to vary this period, without notice. The Customer’s Plan for the Free Trial will be an Annual Plan determined initially by the number of teams which the Customer nominates during the club signup process, and may be varied by the number of teams which the Customer Activates in the KlubPro Platform. The Customer is not required to provide any payment information during the Free Trial period. If the Free Trial period has expired, the Account will be automatically cancelled. In order to prevent cancellation, or to reactivate the Account, the Customer is required to select one of the available Subscription Plans and pay the Fee. If the Customer does not pay the Fee within 14 days of agreeing to do so, or with 14 days of the Free Trial period expiring, then KlubPro has the right to permanently delete the Account, including all User Data therein.
4.12. A Customer may upgrade their Subscription Plan (for example from Small Club Plan to Medium Club Plan, or from Medium Club Plan to Large Club Plan) at any time in order to increase the number of teams which the club can activate for the Account. A Customer is not permitted to downgrade their Subscription Plan at any time (for example, from Medium Club Plan to Small Club Plan). A Customer may upgrade their Subscription Plan from a Monthly billing frequency to an Annual billing frequency at any time (for example from Small Club Monthly Plan to Small Club Annual Plan). A Customer is not permitted to downgrade their Subscription Plan from an Annual billing frequency to a Monthly billing frequency after the Free Triak period has expired (for example Large Club Annual Plan to Large Club Monthly Plan).
4.13. You will use the KlubPro Platform solely as a sporting club administrative and management tool and you will not on your own account or for an associate, affiliate or third party do any of the following:
4.13.1. Publish, copy, sell, rent, lease, license, sublicense, assign, distribute, transfer or lend any part of the KlubPro Platform or any rights to access or use the services provided by KlubPro.
4.13.2. Circumvent or bypass any technological protection measures in or relating to the KlubPro Platform.
4.13.3. Modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of any part of the KlubPro Platform or the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the KlubPro Platform.
4.13.4. Copy any part of the KlubPro Platform.
4.13.5. Remove from any of the KlubPro Platform any language regarding the proprietary rights of KlubPro.
4.13.6. Download, export or re-export, directly or indirectly, the KlubPro Platform or its data where such download, export or re-export is prohibited by applicable law without appropriate licenses and clearances.
4.13.7. Use the KlubPro Platform for any personal or domestic purposes.
4.14. KlubPro has the right to suspend or revoke the Customer’s or any User’s access to the KlubPro Platform, and any licence granted in relation to the foregoing, for any breach of this Agreement, including but not limited to any failure of the Customer to pay any invoice by its due date.
4.15. The Customer is responsible for any breach of any provisions of this Agreement by any User, and the Customer must procure that each User complies with the provisions of this Agreement.
5. Technical Support
5.1. KlubPro shall provide reasonable technical support to Customer and authorized Users at the reasonable request of the Customer. KlubPro shall respond to enquiries of support from a Customer utilising the contacts set forth below as soon as reasonably possible.
5.2. The contacts for all enquiries of support are:
5.2.1. any instant messaging which may be built into the KlubPro Platform;
5.2.2. e-mail: firstname.lastname@example.org
6. Modifications to Service
6.1. KlubPro reserves the right to modify the KlubPro Platform or any part or element thereof from time to time without prior notice, including, without limitation:
6.1.1. rebranding the KlubPro Platform at its sole discretion;
6.1.2. changing or adding to the functionality of the KlubPro Platform in any way;
6.1.3. ceasing providing or discontinuing the development and support of any particular part or element of the KlubPro Platform temporarily or permanently;
6.1.4. taking such action as is necessary to preserve KlubPro’s rights upon any use of the KlubPro Platform that may be reasonably interpreted as violation of KlubPro’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity.
6.2. As applicable, Customer may be notified of such modifications when logging in to the Account. Modifications, including change in applicable rates for the KlubPro Platform, will become effective thirty (30) days before the effective date of such modification.
6.3. If the Customer does not accept the modification, the Customer shall notify KlubPro before the effective date of the modification, and these Terms will terminate on the effective date of the modification. The Customer’s continued use of the KlubPro Platform, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. KlubPro shall not be liable to the Customer or to any third person for any modification, suspension or discontinuance of the KlubPro Platform, or any part or element thereof.
7.1. KlubPro’s Fees for the use of the KlubPro Platform and related or ancillary services are as notified by KlubPro to you from time to time or as otherwise agreed in writing by you and KlubPro.
7.2. KlubPro may from time to time agree to provide you with additional products and services, additional KlubPro Platform tools and facilities, training sessions, additional levels of support over and above standard support parameters (as updated by KlubPro from time to time). The Fees payable for these services will be as determined by KlubPro from time to time, and will be invoiced to the Customer.
7.3. The Customer must pay all Fees payable under this Agreement by the relevant due date applicable to those Fees.
7.4. All Fees payable to KlubPro are exclusive of tax unless otherwise indicated. If a Fee is stated to be exclusive of tax and tax is imposed on the supply relating to that Fee, the Customer must pay to KlubPro an additional amount equal to the tax payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.
8.1. This Agreement will commence on the date the Customer first accepts the Terms and Conditions relating to this Customer Licence, and will continue until terminated in accordance with clause 8.2 or clause 8.3.
8.2. Either KlubPro or the Customer may terminate this Agreement with immediate effect if any of the following events occur:
8.2.1. if a party ceases to operate in the ordinary course of business;
8.2.2. an Insolvency Event occurs in relation to any party; or
8.2.3. a party notifies the other party of a breach of this Agreement and the party receiving such notice fails to remedy the breach within 14 days.
8.3. Either KlubPro or the Customer may terminate this Agreement at any time. If the Customer is currently on a Monthly Subscription Plan then the Agreement will end on the last day of the current Monthly Subscription period. If the Customer is currently on an Annual Subscription Plan then the Agreement will end on the last day of the current Annual Subscription period. Regardless of whether the Customer is on an Annual Subscription Plan or a Monthly Subscription Plan the Customer will not be entitled to any refund for any unused portion of the Annual or the Monthly Subscription period.
8.4. Despite termination or expiry of this Agreement for any reason, the Customer remains liable to pay all Fees and charges payable to KlubPro which were incurred prior to termination, regardless of whether any invoice has been issued prior to termination.
9.1. KlubPro represents and warrants that it has the authority to enter into this Agreement.
9.2. You represent and warrant to KlubPro each of the following:
9.2.1. You have the authority of the sporting club named in the Agreement to enter into this Agreement;
9.2.2. The sporting club named in the Agreement is a bona fide sporting club;
9.2.3. You are acquiring the services to be provided by KlubPro for the purpose of aiding the administration and management of your sporting club and are not doing so for personal, domestic or household use or consumption, or in provision of a service to or on behalf of any other person or entity; and
9.2.4. You will only use the KlubPro Platform for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party.
10. Disclaimer & limitation of liability
10.1. KlubPro makes no express warranties under this Agreement other than as set out in Clause 9.1, and KlubPro makes no express warranties in relation to the suitability for any purpose of any goods or services supplied by KlubPro.
10.2. Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, KlubPro Pty Ltd and its related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, KlubPro’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at KlubPro’s option to the re-supply of services or payment of the cost of re-supply of services.
10.3. KlubPro makes no representation or warranty as to the accuracy, appropriateness or completeness of any information that is provided directly or indirectly through or in connection with the KlubPro Platform, or that any such information has been audited, verified or prepared with reasonable care.
10.4. You expressly agree that the use of the KlubPro Platform and the services are provided on an “as is” and “as available” basis.
10.5. The KlubPro Platform requires a stable, high-speed internet connection to operate effectively. The provision and cost of the internet connection, and the selection of the provider, is your responsibility. KlubPro disclaims any and all liability arising due to any disruption to, or reduced performance of, the KlubPro Platform arising from, or relating to the quality of, interruption to or lack of any internet connectivity.
10.6. Without limiting the above, in no event shall KlubPro or its related bodies corporate or their respective officers, employees, agents, contractors, licensors or suppliers, be liable to you, the Customer, any User or any other party for any loss or damage whatsoever resulting from any:
10.6.1. errors, mistakes, or inaccuracies of content;
10.6.2. personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the KlubPro Platform;
10.6.3. any claims of negligence made against you, a User or the Customer by any other party resulting from, in connection with or in relation to the use of the KlubPro Platform;
10.6.4. unauthorised access to or use of our servers and/or any and all personal information and/or financial information stored therein;
10.6.5. interruption or cessation of service or transmission to or from the KlubPro Platform;
10.6.6. bugs, viruses, trojan horses, malware, spyware, or the like, which may be transmitted to, from or through the KlubPro Platform; or
10.6.7. or omissions in any content or for any loss or damage of any kind incurred as a result of your use of any content transmitted, posted, emailed, or otherwise made available via the KlubPro Platform, whether based on warranty, contract, tort, or any other legal theory.
10.7. Despite anything to the contrary in this Agreement, the maximum amount you may recover from KlubPro (whether by way of damages or otherwise) under, arising out of, or in connection with, the KlubPro Platform or this Agreement, is limited to $1.
11. Confidential Information
11.1. Confidential Information includes any information of a party that a receiving party knows or has reason to know is confidential (including but not limited to such information that is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, that has commercial value, or because it is not generally known in the relevant trade or industry), and such information will remain the sole property of the disclosing party.
11.2. Each party agrees that it will take all action necessary to maintain the confidential nature of the other party’s Confidential Information, and not disclose, use, modify, copy, reproduce or otherwise divulge (or permit any of the foregoing) such Confidential Information to any third party or for any purpose other than to perform this Agreement without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations in this Agreement.
11.3. The prohibitions contained in this clause 11 will not apply to the extent to which a party is required to disclose any Confidential Information by any Requirement, provided that such party:
11.3.1. to the extent that it is legally permitted to do so and it is practicable to do so, as soon as practicable (and prior to any disclosure) notify the other party of that requirement in writing; and
11.3.2. ensure that the disclosure is strictly limited to information required to comply with the applicable Requirement, and consult with the other Parties in relation to such disclosure.
12.1. You agree to indemnify, defend and hold harmless KlubPro and its related bodies corporate, and each of their respective officers, employees, agents, contractors, licensors and suppliers, from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including legal fees on a lawyer-client basis) resulting from, in connection with, arising from or in relation to:
12.1.1. the use of the KlubPro Platform by the Customer or any User;
12.1.2. your breach of this Agreement; or
12.1.3. any unauthorised use or misuse of any User Data
13.1. This Agreement is governed by the laws of Western Australia and you irrevocably submit to the exclusive jurisdiction of the courts of Western Australia.
13.2. This Agreement constitutes the entire agreement between KlubPro and you in relation to the use of the KlubPro Platform and supersedes all other (prior or contemporaneous) communications or displays whether electronic, oral or written, between KlubPro and you in relation to the KlubPro Platform.
13.3. Your use of the KlubPro Platform is conducted electronically and you agree that we may communicate with you electronically for all aspects of your use, including sending you electronic notices.
13.4. The provisions of this Agreement which by their nature survive termination or expiry of this Agreement will survive termination or expiry of this Agreement. If any part of this Agreement is held to be unenforceable, the unenforceable section is to be given effect to the greatest extent possible and the remainder will remain in full force and effect.
13.5. You must not assign any of your rights or novate your obligations under this Agreement without KlubPro’s prior written consent. If you wish to transfer your rights under this Agreement (for instance, due to your business being sold), then you must give KlubPro at least 10 days’ notice and full details of the transferee before we make any decision regarding whether to consent to such transfer.
In this Agreement, the following words have the meanings given to them below:
“Activate” refers to a Customer’s action of nominating a one or more of the Customer’s teams within the KlubPro Platform. If the Customer nominates a team as Activated then the Customer is permitted to select players for that team’s fixtures and generate graphical images for that team in the KlubPro Platform.
“Account” means the formal relationship established between KlubPro and the Customer as a result of the Customer and each of the Customer’s Users accepting the Terms and Conditions.
“Confidential Information” means:
(a) all information of a party in any form whatsoever (whether written, oral, in electronic form or otherwise) including, without limitation, ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, code, product designs, sales, cost and other unpublished financial information, product and business plans, revenues, usage rates, commercial relationships, projections, marketing data and other similar information provided by a party; and
(b) any Intellectual Property of the disclosing party;
but excludes information which:
(c) a party can show was in its lawful possession, or in the lawful possession of any of its directors, employees, contractors, agents or representatives, prior to the date of this Agreement;
(d) has been independently developed by a party without otherwise breaching the terms of this Agreement or any other confidentiality obligations owed to the other party or any third party;
(e) is now, or later becomes, information in the public domain other than through a breach of this Agreement or any other confidentiality obligations owed to the other party or any third party; or
(f) a party can show was received on a non-confidential basis from a third party which did not itself acquire the information, directly or indirectly, from another party and who was legally entitled to possess that information and provide it to the recipient.
“Customer” means the party contracting with KlubPro in the Customer Agreement, or if there is no Customer Agreement, then the entity to whom KlubPro issues an invoice for the purchase of a Customer Licence.
“Customer Licence” means the service, offered on a subscription basis, entitling a Customer and its Users to use the KlubPro Platform in relation to a number of sporting teams within the Subscription period.
“Insolvency Event” in relation to a party means:
(a) a step being taken to wind up the party;
(b) a step being taken to have a bankruptcy or insolvency trustee, receiver, receiver and manager, administrator, liquidator, provisional liquidator or any other external controller appointed to the party or any of its assets or undertaking, or such an appointment taking place; or
(c) that party becoming unable to pay its debts as and when they fall due.
“Intellectual Property” means all industrial and intellectual property rights whether protectable by statute, at common law or in equity, including all copyright and similar rights which may subsist or may hereafter subsist in works or any subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether or not registrable), rights in relation to registered or unregistered trade marks, circuit layout designs and rights in relation to circuit layouts, whether registered, registrable or unregistered, including:
(a) marks, logos, service marks, trade names, business names, internet domain names, slogans, symbols, brand names, copyright or other trade indicia;
(b) all rights in information, computer programs, User Data, code, software, know-how, processes, procedures, compositions, devices, methods, formulae, protocols, techniques, designs, drawings, trade secrets or data whether or not protectable by patent application design registration, copyright, whether unregistered, registered or registrable; and
(c) any modifications, developments, adaptations, advancements, creations and derivations of any intellectual property rights.
“Plan” means the frequency of billing and the amount that the Customer will be charged for in relation to their Subscription.
“Requirement” means any applicable law, legislation, regulation, order or notice of any court, tribunal or governmental body, prudential requirement or stock exchange listing requirement, however applying or arising.
“Subscription” means the service subscribed for by the Customer for a period of time. The Subscription is associated with a Plan.
“Terms and Conditions” means the terms and conditions which the Customer, and each of the Customer’s Users acknowledges and accepts when registering to use the KlubPro Platform.
“User” means a person who is given access to use the KlubPro Platform under the Customer’s account.
“User Data” means any information input, uploaded or posted to the KlubPro Platform by, for or on behalf of, or in relation to or in connection with, the Customer, any User or any other party.
“you” and “your” means each of the Customer and each User. If there are more than one, it means each of them separately and all of them jointly. It also includes their executors, administrators and assigns.