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  AccessSubject 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 InformationThe 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 TerminationNeither 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/TransferNeither 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       WaiverNo 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 PartiesThe 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 InformationThe 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 TerminationNeither 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/TransferNeither 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       WaiverNo 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 PartiesThe 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.