TERMS AND CONDITIONS
As a user of the StatDNA
service, each organization signed a short-form contract between their
organization and StatDNA, which identifies the costs, delivery schedules,
payment terms as agreed to be the customer and the service provider. By
signing the contract your organization also agreed to all terms and conditions
as listed below.
In addition, by using the
Service, you (and your parents if you are an underage minor) agree to the terms
of this Agreement, as stated below with you and your organization being the
"Customer" and StatDNA, LLC the "Service Provider." If you
do not agree to the terms of this Agreement please do not use the Service or
register as a member of the Service or provide any information to the Service.
This Agreement and the rules that you must follow on the Service may change
from time to time. Any changes will be posted on the Service with a new
"last updated "date indicating that changes have been made. If you
continue to use the Service after changes to this Agreement have been posted on
the Service, you are agreeing to those changes.
For, organizations
subscribing to our single-team bronze, silver or gold packages, they terms and
conditions are found in PART I. For
organizations subscribing to our platinum package, which provides data and
video access for an entire league, the terms and conditions are listed in PART II.
PART I: SERVICE AGREEMENT FOR SINGLE TEAM/BRONZE,
SILVER, GOLD PACKAGE SUBSCRIBERS
THIS SERVICE AGREEMENT,
including all exhibits (collectively,
the “Agreement”), is entered into as of first date of use of this website
(the “Effective Date”), by and between StatDNA, LLC, a Delaware limited
liability company with a principal place of business located at 41 Washington
Boulevard, Oak Park, Illinois 60302 (“Service Provider”) and the website user (“Customer”).
Service Provider and Customer may each be referred together as the “Parties”.
Preliminary Statement
A.
Service Provider is engaged in the business of reviewing video content
containing a sporting event(s), and in tagging such video content (“Tagged
Video”) for certain sport-related occurrences. Service Provider is further
engaged in the business of analyzing such Tagged Video for purposes of
generating statistical and analytical reports (the “Data”), and in the business
of providing viewing and retrieval of the Tagged Video and Data and portions
thereof.
B. Customer wishes to be provided with the Services
(specifically defined in one or more Statement(s) of Work (“SOW”) as agreed to
when signing the customer contract ("contract")by the Service
Provider and the Service Provider agrees to provide the Services to Customer on
the terms and conditions of this Agreement.
DEFINITIONS
“Access
Medium” shall mean the medium by which the Customer shall have user
authenticated access to the Tagged Video and to the Data Records by means of a
password specifically designated for Customer’s use, and shall include without
limitation, for example, CSV files, video-sharing platforms including third
party websites or software, and Service Provider’s website.
“Customer’s Electronically Stored Information” (“Customer’s ESI”) shall
include and be limited to Customer’s Video Content, Tagged Video generated from
Customer’s Video Content, and to Data Records generated from Tagged Video
generated from Customer’s Video Content, all of which have been electronically
stored on Service Provider’s owned or leased electronic media.
“Customer’s Video Content” shall mean video content provided by
Customer to Service Provider for the purpose of creating Tagged Video.
“Data Records” shall mean the statistics and the analysis performed by
Service Provider based upon the Tagged Video, and shall further include
searchable and playable Tagged Video.
"Game CSV Files" shall mean electronic files that contain
data summarizing the tagged video from each game.
“Tagged Video” shall mean video content which has been tagged by
Service Provider to tag sport-related occurrences typical of the sporting event
which is the subject of the respective Third Party’s Video Content and/or of
the Customer’s Video Content.
“Third Party Software” shall mean software used to facilitate tagging
of the Customer’s Video Content and/or the Third Party’s Video Content, wherein
such software is provided by a third party.
SECTION 1 –SERVICES
1.1 By execution of
this Agreement, Customer hereby engages Service Provider to provide Services in
accordance with this Agreement. The Services, and the time schedule for
performing such Services, are more particularly specified in one or more Statement(s) of Work (“SOW”) agreed
to by signing the Contract. . In general, the
Services include:
a. Where
Customer’s Video Content is used to create the Tagged Video, Service Provider
will use Third Party Software to create such Tagged Video.
b. Service
Provider shall provide searchable Tagged Video and corresponding Data Records
to Customer which shall be accessible via the Access Medium specified in the
Contract.
c. Service
Provider shall provide Customer with a password for viewing the Tagged Video
and Data Records.
d. Service provider will
provide customer Game CSV files for each game tagged.
1.2 Any material
changes to the Costs and/or to the scope of Services must be completed in the
form of a Change Order or other designated written document. A Change Order
shall be attached and forwarded to the service provider for attachment to the
Contract. Failure to document a material change does not alter Customer’s
payment obligations. Any services provided by Service Provider that exceed the
scope of the Services in any SOW or subsequent Change Order will be included in
the definition of “Services” if: a) the additional services result from a
delay caused by Customer; b) Service Provider provides reasonable and prompt
notice to Customer of the change in scope; or c) the change in scope is at the
request of Customer.
1.3 Access.
Subject to Customer’s
compliance with the terms and conditions of this Agreement, including payment
obligations, Service
Provider will provide authorized
end-users with access to the Customer ESI via the Access Medium during the term
of this agreement.
SECTION 2 – COMPENSATION AND PAYMENT
2.1 Costs. The
Price Schedule agreed to at the time of contract signing identifies the items
and charges, expenses, billing rates and fees by operation of this Agreement
(“Costs”). The information contained in the Price Schedule, upon signing of
this Agreement shall be fully integrated into this Agreement. As compensation
for providing the Services, Customer expressly agrees to be responsible for and
pay to Service Provider all Costs arising under this Agreement. Customer
further agrees that its payment obligations are not conditioned upon the occurrence
of an event (e.g., third party payment, insurance settlement, judgment outcome,
etc.).
2.2 Invoice &
Payment. Customer shall be provided with an “Invoice” of Service
Provider’s Costs. Such Invoice may be issued in a single installment or in
multiple installments directly from Service Provider, or where applicable, by a
third party representative of Service Provider. All first Invoices shall be
paid by Customer to the party that issued the Invoice, i.e., to Service
Provider or to the third party representative of Service Provider, prior to
Service Provider’s rendering of Services under this Agreement; while, all
subsequent Invoices shall be paid in full by Customer to the party that issued
the Invoice before Service Provider continues to render Services under this
Agreement. Where applicable, the third party representative of Service
Provider is identified at the time of the signing of the contract. Anything
contrary to this Section 2.2 shall be agreed upon in writing by both Parties
and set forth in an attachment to the Contract. Customer further agrees that in the event any amounts remain unpaid in
a timely manner under the terms of this Agreement, in addition to any other
rights Service Provider may have under this Agreement or by operation of law,
Service Provider shall have the additional rights set forth in Section 5 of
this Agreement. When applicable, Customer is responsible for all federal,
state and local taxes.
2.3 Joint and
Several Liability. If Customer consists of more than one entity, each
entity is jointly and severally liable for fees due under this Agreement. If
any entity is a party to this Agreement only in connection with a certain SOW,
that entity is jointly and severally liable only for amounts payable in
connection with that SOW.
SECTION 3 – OWNERSHIP IN DATA
AND Intellectual PROPERTY
3.1 Ownership of
Customer’s ESI. Customer shall be the exclusive owner of Customer’s ESI. Customer
grants unto Service Provider a perpetual non-exclusive, royalty free license to
access, store, reproduce, display, handle, perform, transmit, test or otherwise
use, copy, modify, prepare derivative materials, and reproduce the Customer’s
Video Content for purposes of generating the Tagged Video generated from the
Customer’s Video Content. Customer further grants unto Service Provider a
perpetual non-exclusive, royalty free license to access, store, reproduce,
display, handle, perform, transmit, test or otherwise use, copy, modify,
prepare derivative materials, and reproduce the Tagged Video generated from the
Customer’s Video Content for purposes of generating the corresponding Data
Records. With regards to the Data Records generated from the Tagged Video
corresponding to Customer’s Video Content, Customer grants unto Service
Provider a perpetual non-exclusive, royalty free, transferable license to
access, store, reproduce, display, handle, perform, transmit, test or otherwise
use, copy, modify, prepare derivative materials, and reproduce the Data Records for purposes of generating statistics
and analyses, wherein such statistics and analyses may be freely used, sold,
copied, and distributed by Service Provider provided that Service Provider
withholds in such Data Records themselves information specifying the names of
the team(s) and/or player(s) from whom such Data Records were in full or in
part generated.
3.2 Customer’s
Intellectual Property Rights and Representations and
Warrantees. Customer represents and warrants that it is the
sole and exclusive owner of any and all intellectual property rights that may
subsist in the Customer’s Video Content.
3.3 Service Provider
Intellectual Property. Except for third party software and third party
owned servers, Service Provider Intellectual Property includes
all Service Provider applications, code (source and object code forms),
software, functionality customizations (and improvement thereto), derivative
works, tools, products, content, URLs, domain names, technology, system or
network architecture, topology, scripts, user interfaces, “look and feel”,
trade secrets, copyright rights, trademarks, patent rights, know-how,
inventions and rights of priority as recognized in any country or jurisdiction
in the world. Service Provider Intellectual Property remains the
exclusive property of Service Provider or its licensors. Service Provider owns
all rights, including, without limitation, all intellectual property rights to
any Service Provider Intellectual Property developed by Service Provider or
developed jointly by the Parties.
SECTION 4 – CONFIDENTIAL
& PRIVILEGED INFORMATION
4.1 Confidential Information. The Parties acknowledge that during the Term of this Agreement they may
come into possession of or become acquainted with certain confidential
information of the other party. For Service
Provider, Confidential Information shall include all Service Provider
Intellectual Property, Customer information contacts, business information,
marketing and sales information, strategies and business processes. For both
parties it shall include all information not
generally known to the public that either derives economic value, actual or
potential, from not being generally known, or has a character such that a party
has a legitimate interest in maintaining its secrecy. Confidential Information
does not include information that (1) is in the public domain at the time a
party receives the information; (2) is known by a party prior to the Effective
date of this Agreement; or (3) becomes publicly known to a party by some means
other than as a result of breach of law or of obligations under this Agreement.
4.2 Disclosure and
Termination. Neither
Party will use, copy, adapt, alter or part with possession of any information
of the other which is disclosed or otherwise comes into its possession under or
in relation to this Agreement and which is of a confidential nature. The
Receiving Party shall only disclose Confidential Information to employees,
independent contractors, subcontractors, attorneys, accountants and investment
advisors (“Personnel”) of the Receiving Party, to the extent such Personnel
have a need to know such information for the purposes described in this
Agreement, and provided that such Personnel treat Confidential Information as
strictly confidential and with the same or greater standard of care as it uses
for its own confidential information. Each of the Parties acknowledges that
use or disclosure of Confidential Information in violation of this Agreement
may cause irreparable injury to the Disclosing Party for which other remedies
at law would be inadequate, and each of the Parties agree that a Disclosing
Party shall have the right to seek injunctive or other equitable relief as may
be necessary or appropriate to prevent any use or disclosure of the
Confidential Information in violation of this Agreement, and may also exercise
such other rights and remedies as such Disclosing Party may have at law or in
equity. Upon termination or expiration of this Agreement, or upon the
Disclosing Party’s earlier request, the Receiving Party shall either (a)
promptly deliver to the Disclosing Party all Confidential Information, any copies or partial copies thereof and material
containing Confidential Information, and certify to the Disclosing Party in
writing that it has complied with this Section; or (b) destroy all Confidential
Information and certify to the Disclosing Party in writing that it has complied
with this Section.
SECTION 5- TERM &
TERMINATION
5.1 Commencement and Termination. The term
of this Agreement shall commence upon the date of execution of this Agreement
and shall continue thereafter for a period of one (1) year unless otherwise
agreed.
Any termination of this Agreement (howsoever
occasioned) shall not affect any accrued rights or liabilities of either Party
nor shall it affect the coming into force or the continuance in force of any
provision hereof which is expressly or by implication intended to come into or
continue in force on or after such termination.
5.2 Post
Termination. Upon termination of this Agreement, Customer agrees to pay
all Costs due and owing.
SECTION 6 – REPRESENTATIONS
& WARRANTIES
6.1 Service Provider
Represents and Warrants the following. (i) Service Provider shall perform
all Services in a professional and workmanlike manner, consistent with industry
standards; and (ii) Service Provider will not knowingly infringe on, violate or
misappropriate any intellectual property right of any entity.
6.2 Customer,
Represents and Warrants the following. In addition to the representations
and warranties made above in Section 3: (i) Customer has the right and
authority to enter into this Agreement; (ii) when provided by Customer to
Service Provider, Customer authorizes Service Provider to handle, review, copy,
tag, and produce statistics of the Customer’s Video Content; (iii) Customer’s provision of or any granting of access to
the Customer’s Video Content to Service Provider and its subcontractors does not
and will not conflict with or result in a breach or default of any term or
provision of any agreement, obligation or duty to which Customer is a party or
by which Customer is bound or obligated; and (iv) any granting of access
to the Customer’s Video Content by Customer to Service Provider and its subcontractors
complies with all applicable laws, regulations, and statutes.
6.3 Disclaimer
of Warranties. Except of the express warranties set forth in Section 6.1,
Service Provider and its suppliers make no warranties or representations and
expressly disclaim all other warranties, guarantees and conditions of any kind
as they may relate to the rendering of the Services, whether express or
implied, including any implied warranties of merchantability or fitness for a
particular purpose or intended use.
SECTION 7 – INDEMNIFICATION
& LIMITATION OF LIABILITY
7.1 Indemnification.
Each party shall, at its own expense, indemnify, defend and hold the other
harmless from and against any and all damages, loss, claims, liabilities,
expenses and costs of whatever kind or nature, including, without limitation,
attorneys’ fees and litigation costs, arising out of, or relating to or
resulting from any breach of a representation, warranty or obligation in this
Agreement.
7.2 Limitation of
Liability. In no event shall Service Provider be liable to Customer under
this Agreement or otherwise, for consequential, exemplary, special, incidental,
or punitive damages including loss of revenue, loss, corruption or destruction
of Customer’s ESI, anticipated profits or lost business, replacement products
or services, or downtime costs arising out of or in connection with this
Agreement, or the Services (whether in contract, tort, negligence, strict
liability or by statute). Service Provider’s maximum aggregate liability to
Customer and all third parties for any claim related to this Agreement or the
Services shall be limited to an amount equal to the fees paid by Customer to
Service Provider with respect to the Services involved under the applicable
SOW. Customer’s remedy for any claim directly related to the Services shall be
for Service Provider, upon receipt of written notice, to use reasonable efforts
to cure the breach at its expense by re-performing or recreating the Service(s),
and failing such efforts, the return of fees paid to Service Provider for the
Services related to the breach.
SECTION 8 – GENERAL TERMS
& CONDITIONS
8.1 Jurisdiction/Venue;
Attorneys’ Fees. The validity, interpretation and performance of this
Agreement shall be governed exclusively by the laws of the State of Illinois,
with personal jurisdiction in the State of Illinois, excluding its conflict of
law rules. Any dispute, controversy or claim, whether based on contract, tort,
statute or other legal or equitable theory (including any amendments or
extensions thereto) shall be under the exclusive jurisdiction and venue in the federal courts in the State of Illinois, or in the event there is no federal subject matter
jurisdiction, in the state courts located in Cook County, Illinois.
This choice of jurisdiction and venue shall not prevent either party from
seeking injunctive relief with respect to a violation of intellectual property
rights, confidentiality obligations or enforcement or recognition of any award
or order in any appropriate jurisdiction. In the event a suit or action with
respect to this Agreement is commenced including actions for indemnification,
the prevailing party shall be entitled to recover reasonable attorneys’ fees
and other costs, (e.g., costs of appeal).
8.2 Interpretation.
This Agreement including all exhibits constitutes the entire and final
agreement between the parties and supersedes all prior or contemporaneous
written or verbal agreements and communications. This Agreement shall not be
modified except by a written agreement signed by both Parties.
8.3 Severability and
Surviving Sections. It is expressly agreed that the following sections are
intended to be severable, independent and shall survive termination or
expiration of this Agreement: Section 2, Section 3, Section 4, Section 6 and
Section 7. In the event that any provision of this Agreement is found invalid
or unenforceable pursuant to judicial decree or decision, the remainder of this
Agreement will remain valid and enforceable according to its terms.
8.4 Assignment/Transfer.
Neither Party
shall assign or transfer all or any part of its rights under this Agreement
without the consent of the other Party.
8.5 Force Majeure.
Except with respect to payment obligations hereunder, neither party shall be
liable for any delay or failure to meet its obligations pursuant to this
Agreement due to circumstances beyond its reasonable control, including, but
not limited to acts of terrorism, war, riots, insurrection, civil commotion,
power loss, fire, flood, or storm or any damage or delay which is a direct
result of such an event.
8.6 Waiver. No waiver of this Agreement shall be effective
unless in writing and signed by the waiving party. The failure of either party
at any time to require performance by the other of any provision hereof shall
not affect in any way the right to require such performance at any time
thereafter; nor shall the waiver by either party of a breach of any provision
be held to be a waiver of the other remaining terms and conditions of this
Agreement.
8.7 Relationship
of the Parties. The
Parties acknowledge and agree that the Services performed by the
Service Provider, its employees, agents or sub-contractors shall be as an
independent contractor and that nothing in this Agreement shall be deemed to
constitute a partnership, joint venture, agency relationship or otherwise
between the parties.
8.8 Threat.
Service Provider reserves the right to suspend, terminate or block access to
all or any part of the Services, if it determines there is possible immediate
and material threat to the Services.
8.9 Notice. Any notice
which may be given by a Party under this Agreement shall be deemed to have been
duly delivered if delivered by hand, first class post, facsimile transmission
or electronic mail to the address of the other Party as specified in this
Agreement or any other address notified in writing to the other Party. Subject
to any applicable local law provisions to the contrary, any such communication
shall be deemed to have been made to the other Party, if delivered by:
a. first class post, 2 days from the date of
posting;
b.
hand or by
facsimile transmission, on the date of such delivery or transmission; or
c.
electronic
mail, when the Party sending such communication receives confirmation of such
delivery by electronic mail.
8.10 This
Agreement constitutes the entire understanding between the Parties relating to
the subject matter hereof unless any representation or warranty made
about this Agreement was made fraudulently and, save as may be expressly
referred to or referenced herein, supersedes all prior representations,
writings, negotiations or understandings with respect hereto.
By using the Service,
you (and your parents if you are an underage minor) agree to the terms of this
Agreement. If you do not agree to the terms of this Agreement please do not use
the Service or register as a member of the Service or provide any information
to the Service. This Agreement and the rules that you must follow on the
Service may change from time to time. Any changes will be posted on the Service
with a new "last updated "date indicating that changes have been
made. If you continue to use the Service after changes to this Agreement have
been posted on the Service, you are agreeing to those changes.
PART II: SERVICE AGREEMENT FOR LEAGUE/PLATINUM PACKAGE
SUBSCRIBERS
THIS SERVICE
AGREEMENT, including all exhibits (collectively, the “Agreement”), is entered
into as of first date of use of this website (the “Effective Date”), by and
between StatDNA, LLC, a Delaware limited liability company with a principal
place of business located at 41 Washington Boulevard, Oak Park, Illinois 60302
(“Service Provider”) and the website user (“Customer”). Service Provider and
Customer may each be referred together as the “Parties”.
Preliminary Statement
A.
Service Provider is engaged in the business of reviewing video content
containing a sporting event(s), and in tagging such video content (“Tagged
Video”) for certain sport-related occurrences. Service Provider is further
engaged in the business of analyzing such Tagged Video for purposes of
generating statistical and analytical reports (the “Data”), and in the business
of providing viewing and retrieval of the Tagged Video and Data and portions
thereof.
B. Customer wishes to be provided with the Services
(specifically defined in one or more Statement(s) of Work (“SOW”) as agreed to
when signing the customer contract ("contract")by the Service
Provider and the Service Provider agrees to provide the Services to Customer on
the terms and conditions of this Agreement.
DEFINITIONS
“Access
Medium” shall mean the medium by which the Customer shall have user
authenticated access to the Tagged Video and to the Data Records by means of a
password specifically designated for Customer’s use, and shall include without
limitation, for example, CSV files, video-sharing platforms including third
party websites or software, and Service Provider’s website.
“League Tagged Video” shall mean video content which has been tagged by
Service Provider to tag sport-related occurrences typical of the sporting event
which is the subject of the respective Third Party’s Video Content and/or of
the Customer’s Video Content.
“League Video Content” shall mean broadcast video containing a sporting
event; such content shall include one or multiple broadcast videos featuring
teams that make-up a particular sport’s league.
“League Electronic Stored Information” (“League ESI”) shall include and
be limited to League Video Content which has been electronically stored on
Service Provider’s owned or leased electronic media, Tagged Video generated
from League Video Content (“League Tagged Video”), and to Data Records
generated from League Tagged Video (“League Data Records”).
“League Data Records” shall mean the statistics and the analysis
performed by Service Provider based upon the Tagged Video, and shall further
include searchable and playable Tagged Video. “Third Party Software” shall
mean software used to facilitate tagging of the Customer’s Video Content and/or
the Third Party’s Video Content, wherein such software is provided by a third
party.
SECTION 1 –SERVICES
1.1 By execution of
this Agreement, Customer hereby engages Service Provider to provide Services in
accordance with this Agreement. The Services, and the time schedule for
performing such Services, are more particularly specified in one or more Statement(s) of Work (“SOW”) to be
executed pursuant to and incorporated by reference to this Agreement and
attached hereto as Exhibit B. In the event that there are multiple SOWs, those
SOWs will be fully integrated into this Agreement as Exhibit B-1, Exhibit B-2,
etc. In general, the Services include:
a. Where
League Video Content is used to create the Tagged Video, Service Provider will
use Third Party Software to create such Tagged Video.
b. Service
Provider shall provide searchable Tagged Video and corresponding Data Records
to Customer which shall be accessible via the Access Medium specified in the
Contract.
c. Service
Provider shall provide Customer with a password for viewing the League Tagged
Video and Data Records.
1.2 Any material
changes to the Costs and/or to the scope of Services must be completed in the
form of a Change Order or other designated written document. A Change Order
shall be attached and forwarded to the service provider for attachment to the
Contract. Any services provided by Service Provider that exceed the scope of
the Services in any SOW or subsequent Change Order will be included in the
definition of “Services” if: a) the additional services result from a delay
caused by Customer; b) Service Provider provides reasonable and prompt notice
to Customer of the change in scope; or c) the change in scope is at the request
of Customer.
SECTION 2 – COMPENSATION AND
PAYMENT
2.1 Costs. The
Price Schedule agreed to at the time of contract signing identifies the items
and charges, expenses, billing rates and fees by operation of this Agreement
(“Costs”). The information contained in the Price Schedule, upon signing of
this Agreement shall be fully integrated into this Agreement. As compensation
for providing the Services, Customer expressly agrees to be responsible for and
pay to Service Provider all Costs arising under this Agreement. Customer
further agrees that its payment obligations are not conditioned upon the occurrence
of an event (e.g., third party payment, insurance settlement, judgment outcome,
etc.).
2.2 Invoice &
Payment. Customer shall be provided with an “Invoice” of Service
Provider’s Costs. Such Invoice may be issued in a single installment or in
multiple installments directly from Service Provider, or where applicable, by a
third party representative of Service Provider. All first Invoices shall be
paid by Customer to the party that issued the Invoice, i.e., to Service
Provider or to the third party representative of Service Provider, prior to
Service Provider’s rendering of Services under this Agreement; while, all
subsequent Invoices shall be paid in full by Customer to the party that issued
the Invoice before Service Provider continues to render Services under this
Agreement. Where applicable, the third party representative of Service
Provider is identified at the time of the signing of the contract. Anything
contrary to this Section 2.2 shall be agreed upon in writing by both Parties
and set forth in an attachment to the Contract. Customer further agrees that
in the event any amounts remain unpaid in a timely manner under the terms of
this Agreement, in addition to any other rights Service Provider may have under
this Agreement or by operation of law, Service Provider shall have the
additional rights set forth in Section 5 of this Agreement. When applicable,
Customer is responsible for all federal, state and local taxes.
2.3 Joint and
Several Liability. If Customer consists of more than one entity, each entity
is jointly and severally liable for fees due under this Agreement. If any
entity is a party to this Agreement only in connection with a certain SOW, that
entity is jointly and severally liable only for amounts payable in connection
with that SOW.
SECTION 3 – OWNERSHIP IN DATA
AND Intellectual PROPERTY
3.1 Ownership of
League ESI. Customer hereby acknowledges that Customer has a limited,
non-exclusive, revocable, and non-transferable license to the access to the
League ESI. Accordingly, Customer agrees that it shall not copy, distribute,
broadcast League ESI, or prepare derivative works based upon League ESI.
Additionally, access to League ESI shall be available via a password issued by
Service Provider and unique to Customer. Such password may only be used by
Customer and, where Customer is a sports team, by Customer’s players, coaches,
trainers, and like personnel. Customer shall not authorize use of the password
by any person or entity outside of this Agreement unless otherwise agreed to in
writing by both Parties to this Agreement. In the event that Customer becomes
aware of any acquisition and/or use of the password by a third party(ies),
Customer shall immediately inform Service Provider of such acquisition and/or
use.
3.2 Service Provider
Intellectual Property. Except for third party software and third party
owned servers, Service Provider Intellectual Property includes
all Service Provider applications, code (source and object code forms),
software, functionality customizations (and improvement thereto), derivative
works, tools, products, content, URLs, domain names, technology, system or
network architecture, topology, scripts, user interfaces, “look and feel”,
trade secrets, copyright rights, trademarks, patent rights, know-how, inventions
and rights of priority as recognized in any country or jurisdiction in the
world. Service Provider Intellectual Property remains the exclusive
property of Service Provider or its licensors. Service Provider owns all
rights, including, without limitation, all intellectual property rights to any
Service Provider Intellectual Property developed by Service Provider or
developed jointly by the Parties.
3.3 End-User
License. During the term of this Agreement, Service Provider will provide authorized end-users with access to the
respective Tagged Video and Data Records. Subject to Customer’s compliance
with the terms and conditions of this Agreement, including payment obligations,
Service Provider hereby
grants to all authorized end-users a nonexclusive, revocable, non-transferable
and limited end-user
license to access and use the Tagged Video and Data Records for the duration of
this Agreement. Service Provider reserves any rights as they concern the
respective Tagged Video and Data Records not expressly granted by Service
Provider.
SECTION 4 – CONFIDENTIAL
& PRIVILEGED INFORMATION
4.1 Confidential
Information. The Parties acknowledge
that during the Term of this Agreement they may come into possession of or
become acquainted with certain confidential information of the other party. For Service Provider, Confidential Information
shall include all Service Provider Intellectual Property, Customer
information contacts, business information, marketing and sales information,
strategies and business processes. For both parties it shall include all information not generally known to the public that
either derives economic value, actual or potential, from not being generally
known, or has a character such that a party has a legitimate interest in maintaining
its secrecy. Confidential Information does not include information that (1) is
in the public domain at the time a party receives the information; (2) is known
by a party prior to the Effective date of this Agreement; or (3) becomes
publicly known to a party by some means other than as a result of breach of law
or of obligations under this Agreement.
4.2 Disclosure and
Termination. Neither
Party will use, copy, adapt, alter or part with possession of any information
of the other which is disclosed or otherwise comes into its possession under or
in relation to this Agreement and which is of a confidential nature. The
Receiving Party shall only disclose Confidential Information to employees,
independent contractors, subcontractors, attorneys, accountants and investment
advisors (“Personnel”) of the Receiving Party, to the extent such Personnel
have a need to know such information for the purposes described in this
Agreement, and provided that such Personnel treat Confidential Information as
strictly confidential and with the same or greater standard of care as it uses
for its own confidential information. Each of the Parties acknowledges that
use or disclosure of Confidential Information in violation of this Agreement
may cause irreparable injury to the Disclosing Party for which other remedies
at law would be inadequate, and each of the Parties agree that a Disclosing
Party shall have the right to seek injunctive or other equitable relief as may
be necessary or appropriate to prevent any use or disclosure of the
Confidential Information in violation of this Agreement, and may also exercise
such other rights and remedies as such Disclosing Party may have at law or in
equity. Upon termination or expiration of this Agreement, or upon the
Disclosing Party’s earlier request, the Receiving Party shall either (a)
promptly deliver to the Disclosing Party all Confidential Information, any copies or partial copies thereof and material
containing Confidential Information, and certify to the Disclosing Party in writing
that it has complied with this Section; or (b) destroy all Confidential
Information and certify to the Disclosing Party in writing that it has complied
with this Section.
SECTION 5- TERM &
TERMINATION
5.1 Commencement and Termination. The term
of this Agreement shall commence upon the date of execution of this Agreement
and shall continue thereafter for a period of one (1) year unless otherwise
agreed.
Any termination of this Agreement (howsoever
occasioned) shall not affect any accrued rights or liabilities of either Party
nor shall it affect the coming into force or the continuance in force of any
provision hereof which is expressly or by implication intended to come into or
continue in force on or after such termination.
5.2 Post
Termination. Upon termination of this Agreement, Customer agrees to pay
all Costs due and owing.
SECTION 6 – REPRESENTATIONS
& WARRANTIES
6.1 Service Provider
Represents and Warrants the following. (i) Service Provider shall perform
all Services in a professional and workmanlike manner, consistent with industry
standards; and (ii) Service Provider will not knowingly infringe on, violate or
misappropriate any intellectual property right of any entity.
6.2 Customer,
Represents and Warrants the following. In addition to the representations
and warranties made above in Section 3: (i) Customer has the right and
authority to enter into this Agreement; (ii) when provided by Customer to
Service Provider, Customer authorizes Service Provider to handle, review, copy,
tag, and produce statistics of the Customer’s Video Content; (iii) Customer’s provision of or any granting of access to
the Customer’s Video Content to Service Provider and its subcontractors does not
and will not conflict with or result in a breach or default of any term or
provision of any agreement, obligation or duty to which Customer is a party or
by which Customer is bound or obligated; and (iv) any granting of access
to the Customer’s Video Content by Customer to Service Provider and its subcontractors
complies with all applicable laws, regulations, and statutes.
6.3 Disclaimer
of Warranties. Except of the express warranties set forth in Section 6.1,
Service Provider and its suppliers make no warranties or representations and
expressly disclaim all other warranties, guarantees and conditions of any kind
as they may relate to the rendering of the Services, whether express or
implied, including any implied warranties of merchantability or fitness for a
particular purpose or intended use.
SECTION 7 – INDEMNIFICATION
& LIMITATION OF LIABILITY
7.1 Indemnification.
Each party shall, at its own expense, indemnify, defend and hold the other
harmless from and against any and all damages, loss, claims, liabilities,
expenses and costs of whatever kind or nature, including, without limitation,
attorneys’ fees and litigation costs, arising out of, or relating to or
resulting from any breach of a representation, warranty or obligation in this
Agreement.
7.2 Limitation of
Liability. In no event shall Service Provider be liable to Customer under
this Agreement or otherwise, for consequential, exemplary, special, incidental,
or punitive damages including loss of revenue, loss, corruption or destruction
of Customer’s ESI, anticipated profits or lost business, replacement products
or services, or downtime costs arising out of or in connection with this
Agreement, or the Services (whether in contract, tort, negligence, strict
liability or by statute). Service Provider’s maximum aggregate liability to
Customer and all third parties for any claim related to this Agreement or the
Services shall be limited to an amount equal to the fees paid by Customer to
Service Provider with respect to the Services involved under the applicable
SOW. Customer’s remedy for any claim directly related to the Services shall be
for Service Provider, upon receipt of written notice, to use reasonable efforts
to cure the breach at its expense by re-performing or recreating the Service(s),
and failing such efforts, the return of fees paid to Service Provider for the
Services related to the breach.
SECTION 8 – GENERAL TERMS
& CONDITIONS
8.1 Jurisdiction/Venue;
Attorneys’ Fees. The validity, interpretation and performance of this
Agreement shall be governed exclusively by the laws of the State of Illinois,
with personal jurisdiction in the State of Illinois, excluding its conflict of
law rules. Any dispute, controversy or claim, whether based on contract, tort,
statute or other legal or equitable theory (including any amendments or extensions
thereto) shall be under the exclusive jurisdiction and venue in the federal courts in the State of Illinois, or in the event there is no federal subject matter
jurisdiction, in the state courts located in Cook County, Illinois.
This choice of jurisdiction and venue shall not prevent either party from
seeking injunctive relief with respect to a violation of intellectual property
rights, confidentiality obligations or enforcement or recognition of any award
or order in any appropriate jurisdiction. In the event a suit or action with
respect to this Agreement is commenced including actions for indemnification,
the prevailing party shall be entitled to recover reasonable attorneys’ fees
and other costs, (e.g., costs of appeal).
8.2 Interpretation.
This Agreement including all exhibits constitutes the entire and final
agreement between the parties and supersedes all prior or contemporaneous
written or verbal agreements and communications. This Agreement shall not be
modified except by a written agreement signed by both Parties.
8.3 Severability and
Surviving Sections. It is expressly agreed that the following sections are
intended to be severable, independent and shall survive termination or
expiration of this Agreement: Section 2, Section 3, Section 4, Section 6 and
Section 7. In the event that any provision of this Agreement is found invalid
or unenforceable pursuant to judicial decree or decision, the remainder of this
Agreement will remain valid and enforceable according to its terms.
8.4 Assignment/Transfer.
Neither Party
shall assign or transfer all or any part of its rights under this Agreement
without the consent of the other Party.
8.5 Force Majeure.
Except with respect to payment obligations hereunder, neither party shall be liable
for any delay or failure to meet its obligations pursuant to this Agreement due
to circumstances beyond its reasonable control, including, but not limited to
acts of terrorism, war, riots, insurrection, civil commotion, power loss, fire,
flood, or storm or any damage or delay which is a direct result of such an
event.
8.6 Waiver. No waiver of this Agreement shall be effective
unless in writing and signed by the waiving party. The failure of either party
at any time to require performance by the other of any provision hereof shall
not affect in any way the right to require such performance at any time
thereafter; nor shall the waiver by either party of a breach of any provision
be held to be a waiver of the other remaining terms and conditions of this
Agreement.
8.7 Relationship
of the Parties. The
Parties acknowledge and agree that the Services performed by the
Service Provider, its employees, agents or sub-contractors shall be as an
independent contractor and that nothing in this Agreement shall be deemed to
constitute a partnership, joint venture, agency relationship or otherwise
between the parties.
8.8 Threat.
Service Provider reserves the right to suspend, terminate or block access to
all or any part of the Services, if it determines there is possible immediate
and material threat to the Services.
8.9 Notice. Any
notice which may be given by a Party under this Agreement shall be deemed to
have been duly delivered if delivered by hand, first class post, facsimile
transmission or electronic mail to the address of the other Party as specified
in this Agreement or any other address notified in writing to the other Party.
Subject to any applicable local law provisions to the contrary, any such
communication shall be deemed to have been made to the other Party, if
delivered by:
a. first class post, 2 days from the date of
posting;
d.
hand or by
facsimile transmission, on the date of such delivery or transmission; or
e.
electronic
mail, when the Party sending such communication receives confirmation of such
delivery by electronic mail.
8.10 This
Agreement constitutes the entire understanding between the Parties relating to
the subject matter hereof unless any representation or warranty made
about this Agreement was made fraudulently and, save as may be expressly
referred to or referenced herein, supersedes all prior representations,
writings, negotiations or understandings with respect hereto.