Last Updated: April 18, 2016
SPORTRADAR US - MASTER TERMS AND CONDITIONS
THESE MASTER TERMS AND CONDITIONS, APPLY TO BOTH (1) ANY FREE TRIAL FOR THE SERVICE WHICH A CUSTOMER REGISTERS FOR ON THE SPORTRADAR US LLC (THE “COMPANY”) DEVELOPER WEBSITE AND (2) AN ORDER FORM EXECUTED BY CUSTOMER AND COMPANY.
1.1. Activation Date means the date set forth on the Order Form as the “Activation Date.”
1.2. Addenda or Addendum means additional terms and conditions which apply to specific Content or Data referenced in such Addendum.
1.3. API means an application programming interface for the Service through which a customer can obtain access to a feed of Data or Content applicable to such application programming interface.
1.4. Company Materials means, individually and collectively, the Service, Data and Content.
1.5. Content means any text, images or other content provided by Company through the Service other than Data.
1.6. Customer means (1) with respect to a Free Trial, the person or entity named in the Free Trial registration form as the “Customer” or (2) with respect to a fee based Service subscription, the person or entity named on the Order Form as the “Customer.”
1.7. Data means statistical data and other data relating to sporting events provided by Company through the Service.
1.8. Documentation means all Company documentation relating to integration with the APIs and use of the Service.
1.9. Effective Date means the date set forth on the Order Form as the “Effective Date.”
1.10. Fees means the fees payable by Customer in connection with access to and / or use of the Service, as specified in the Order Form.
1.11. Free Trial means non-commercial use of the Service provided by the Company to prospective customers for evaluation purposes pursuant to the free trial registration form found on the Company developer portal.
1.12. NHL Data has the meaning set forth in Section 2.7.
1.13. NHL Addendum means the Addendum applicable to NHL Data.
1.14. Order Form means a document executed by Company and Customer which references these Master Terms and Conditions and any applicable Addenda and sets forth the APIs subscribed to by Customer and the Subscription Period, Properties, Rate Limit, Throttle Limit, Overage Fees and Fees for each such API.
1.15. Overage Fees means the Fees payable by Customer for use of an API during a given calendar month in excess of the Rate Limit.
1.16. Personnel means Customer’s individual employees or contractors.
1.17. Property means each website, mobile device software application, Internet-connected software application or other product or service designated as a “Property” on the Order Form.
1.18. Rate Limit means the maximum number of API calls that may be made in a given thirty (30) day rolling period to a particular API, as specified in the Order Form.
1.19. Service means Company’s hosted online service through which it makes available Data and Content to its customers via APIs for storage on customer servers. For the avoidance of doubt, references to the “Service” herein include the APIs.
1.20. Subscription Period means, with respect to an API, the period of time designated as the subscription period for such API on the Order Form and any renewals thereof (as specified in Section 6).
1.21. Term means the period of time beginning on the Effective Date and ending on: (1) with respect to a Free Trial, the end of the Free Trial period as specified to Customer on the Company website at the time of registration for the Free Trial and (2) with respect to a fee based Service subscription, the date that the last-to-expire Subscription Period expires.
1.22. Throttle Limit means the maximum number of API calls that may be made per second to a particular API, as specified in the Order Form.
1.23. Unbilled Fees means the Fees payable from Customer to Company as agreed to under the terms of the Order Form for which invoice(s) have not yet been prepared or sent to the Customer or for which have not been received by the Customer.
1.24. USAT Images has the meaning set forth in Section 2.1.
2. FEE BASED SERVICE. The provisions of this Section 2 apply solely to a fee based Service subscription pursuant to an Order Form.
2.1. Provision of Service. Subject to all terms and conditions of this Agreement, Customer may access and use the Service, solely through the APIs designated in the Order Form during the applicable Subscription Periods and in accordance with all Documentation and applicable Rate Limits and Throttle Limits, for the sole purposes of: (i) Customer’s internal business use of Data and Content provided through each such API (which, for the avoidance of doubt, does not include any distribution or public display or performance of Data or Content or provision thereof to any third party unless expressly stated in the Order Form); and (ii) displaying Data and Content provided through each such API on the Properties specified for such API on the Order Form. Certain Content is licensed to the Company from USA TODAY Sports Images (such content, “USAT Images”). To the extent Customer accesses or receives any USAT Images, Customer agrees that use of such USAT Images and the foregoing license grant is subject to the additional terms and conditions set forth in Section 2.6. Company reserves the right to modify and update the features and functionality of the Service from time to time in its sole discretion. Customer agrees not to violate any applicable laws, rules, regulations or third party rights in connection with its use of the Service. Customer is responsible for all activities occurring under an API key issued to Customer.
2.2. Restrictions. Customer agrees not to, not to attempt to, nor allow any third party to: (i) copy, modify or make derivative works of the Company Materials, or make the Service available to any third party or use the Service on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Service or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the Service; (iii) disseminate performance information relating to the Service; (iv) use the Service to develop a competitive product offering; (v) remove, obscure or modify any copyright notices, bylines or other notices or attributions within the Content; or (vi) reproduce, modify, display, perform, transmit, distribute or otherwise use or exploit in any manner the Data or Content other than display on the Properties authorized for the API through which the Data or Content was obtained.
2.3. Properties. Customer acknowledges that use of the Service is provided only to enable Customer’s display of Data and Images on the Properties specified for the applicable API, and agrees not to use the Service in connection with any website, mobile application or other online service other than such Properties. Customer acknowledges that Company’s willingness to enter into this Agreement is based on the Properties as they exist as of the Effective Date, and that Company reserves the right to remove from the scope of this Agreement any Property which undergoes a material change (such as with respect to its primary purpose, distribution channel(s) or branding) upon written notice to Customer. For the avoidance of doubt, incremental feature updates, user interface redesigns and end user pricing changes do not constitute a “material change” within the meaning of the foregoing.
2.4. Suspension/Termination. Company may suspend or limit Customer’s access to or use of the Service at any time (with or without notice) without liability if Company determines such action is: (i) necessary to prevent harm to any system or network or to limit Company’s liability or (ii) Customer does not timely pay all Fees accrued in accordance with Section 4.2 below. In the event Company suspends the Agreement as a result of the Customer’s failure to timely remit all Fees when due, then immediately upon such suspension by the Company all Unbilled Fees shall be accelerated and shall become immediately due and payable and Customer agrees that a one-time charge or bank withdrawal in the amount equal to any unpaid Fees and any Unbilled Fees can be charged to Customer‘s credit card or bank account. Company may terminate the Agreement immediately without liability upon written notice if Customer attempts to access or use the Service in a manner that breaches this Agreement. In the event Company terminates the Agreement as a result of Customer’s attempt to access and use the Service in a manner that breaches this Agreement, then immediately upon such termination notice by the Company all Unbilled Fees shall be accelerated and shall become immediately due and payable and Customer agrees that a one-time charge or bank withdrawal in the amount equal to any unpaid Fees and any Unbilled Fees can be charged to Customer‘s credit card or bank account.
2.5. Third Party Services. Certain APIs provide Data or Content procured by the Company from third parties (“Third Party Material”) pursuant to agreements between Company and such third parties (such agreements, “Third Party Agreements”). Customer acknowledges that Third Party Agreements may be modified, suspended or terminated from time to time. In the event that any Third Party Agreement is modified, suspended or terminated in a manner that materially and adversely impacts or negates Company’s ability to provide any Third Party Material, then the Subscription Period for the applicable API shall be deemed to have ended on the date of such event and no further Fees shall be due hereunder with respect thereto. Company shall have no liability with respect to any such modification, suspension or termination other than as specified in this Section 2.5. Furthermore, Company may, at its sole discretion use the services of its subsidiaries or third parties as subcontractors, in particular but not solely the services of XML Team to provide its obligations hereunder. Company assures that there will be no additional charge to the Customer resulting from Company's utilisation of third party services.
2.6. USAT Images. USAT Images are provided as news photographs only and are licensed for one time editorial use. Use is restricted to editorial inclusion in Customer’s own products or those it sells in its ordinary course of business, and not for resale, trade, packaging, promotion nor advertising. Additional use requires additional payment pursuant to a separate agreement with USA TODAY Sports Images (“USATSI”). No model releases or other releases exist on any USAT Images unless the existence thereof is specified in writing by USATSI. USAT Images retrieved shall not be altered or manipulated beyond normal image enhancements or cropping. Should Customer violate the foregoing requirement, USATSI and its affiliates shall have the right to attempt to obtain appropriate corrections and remedies from Customer. Although USATSI makes every effort to ensure the accuracy and reliability of USAT Images, Customer acknowledges that USATSI is not liable for any loss, cost or damage arising out of any misuse, inaccuracies, errors or omissions in the information contained in the USAT Images or related services. USATSI retains the full copyright and ownership of its websites and systems, and the USAT Images are copyright by the photographer. The appropriate credit line that must accompany each USAT Image as indicated in the caption. If no credit line is indicated in the caption, then the credit line must read “USA TODAY Sports Images.” Customer acknowledges and agrees that upon the expiration or termination of this Agreement, Customer will use commercially reasonable efforts to remove USAT Images from its website, application, or other products and from any database or storage system. Should a Customer violate this Agreement in relation to USAT Images or violate any requirements or agreements between Customer and USATSI Sports Images, USATSI and its affiliates will have the right to attempt to obtain appropriate corrections and remedies directly from Customer and/or have Customer’s access to USAT Images terminated without notice. USATSI and its affiliates are third party beneficiaries of this Section 2.6 with the right to enforce its terms directly.
2.7. NFL Data. If Customer desires to use certain Data provided to Company from the National Football League (the “NFL Data”), and Company agrees to grant permission to use such Data to Customer, such agreement will be confirmed in the Order Form and use of such NFL Data shall be subject to the NFL Addendum located at http://developer.sportradar.us/apps/nfladdendum.
2.8. NHL Data. If Customer desires to use certain Data provided to Company from the National Hockey League (the “NHL Data”), and Company agrees to grant permission to use such Data to Customer, such agreement will be confirmed in the Order Form and use of such NHL Data shall be subject to the NHL Addendum located at http://developer.sportradar.us/apps/nhladdendum.
2.9. Accuracy and Availability.
(a) Company uses commercially reasonable efforts to ensure that Data is accurate and reasonably up-to-date in accordance with the update schedule specified in the Documentation. However, Customer acknowledges that Data collection is subject to human error and its availability may be delayed for a variety of technical and operational reasons, some of which are outside of the Company’s control, and that Company’s shall not be liable for any such errors or delays other than to correct within a reasonable time period any errors which are reported to Company by Customer in writing.
(b) Subject to this Section 2.9(b), Company shall maintain availability of the APIs of at least 99.5%, calculated monthly on a per-minute basis. Customer acknowledges and agrees that the APIs or material functionality thereof may be unavailable from time to time due to (i) third party equipment, software or service malfunctions; (ii) maintenance and update procedures or repairs (which Company shall use reasonable efforts to schedule between the hours of 2am ET and 8am ET); (iii) acts or omissions of Customer or other third parties; or (iv) causes beyond the reasonable control of Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that unavailability caused by any such circumstances shall not be considered in determining Company’ compliance with the foregoing. In the event that the APIs are not available in a given month for at least 99.5% of the time for any reason(s) other than as set forth in the foregoing (i) through (iv), Company shall use commercially reasonable efforts to resolve the issue. In the event that API availability of at least 99.5% (calculated in accordance with this Section 2.9(b)) is not maintained over any two (2) consecutive months, Customer may, as its sole remedy and Company’s exclusive liability for unavailability of the APIs, terminate this Agreement upon written notice to Company. Such written notice must be provided to the Company within 15 days following the month in which the Company failed to meet such requirements as outlined in this Section 2.9(b). Termination of the Agreement under this section does not relieve the Customer of its obligations under Section 4.2 (Payment Terms).
(c) Provided that Customer is current in its payment obligations hereunder, Company will provide commercially reasonably technical support to Customer regarding Customer’s use of the Service by e-mail and telephone (through an e-mail address and phone number provided by Company) during Company’s regular business hours, Monday through Friday (other than Company holidays).
(d) Section 2.9 herein shall be subject to any other terms and conditions that the Parties have mutually agreed upon, such as a long form service level agreement, which will be incorporated via the Order Form.
2.10 . Publicity. Customer agrees to include on the Properties a “powered by Sportradar” logo, available at developer.sportradar.us/logo, in accordance with the Documentation, during the Term, provided Customer is not then in default under any of the terms of this Agreement, including failure to pay all Fees when due. In the event of such default, Customer shall immediately cease and desist the use of “powered by Sportradar” logo. Company shall have the right to display and use Customer’s trademarks on Company’s website and marketing materials for purposes of identifying Customer as a Company customer. Within thirty (30) days after the Effective Date of this Agreement, the parties may separately or mutually issue a press release containing language agreed upon by the parties announcing that the parties have entered into a business relationship as contemplated herein.
2.11 Olympic Data. If Customer desires to use certain Data provided to Company from the International Olympic Committee (the “Olympic Data”), and Company agrees to grant permission to use such Data to Customer, such agreement will be confirmed in the Order Form and use of such Olympic Data shall be subject to the Olympic Addendum located at http://developer.sportradar.us/files/IOC_ODF_Terms_of_Use.pdf.
3. FREE TRIAL. The provisions of this Section 3 apply solely to a Free Trial.
3.1. Service. Subject to all terms and conditions of this Agreement, Customer may access and use the Service, solely through the APIs made available by the Company (in its sole discretion) and in accordance with all Documentation, solely for purposes of internally evaluating the Company Materials. Customer is not authorized, and agrees not to, use the Company Materials in connection with any commercial use or any use involving publication or display of the Data or Content in any form or media. Customer agrees not to violate any applicable laws, rules, regulations or third party rights in connection with its use of the Service. Customer is responsible for all activities occurring under an API key issued to Customer.
3.2. Restrictions. Customer agrees not to, not to attempt to, nor allow any third party to: (i) copy, modify or make derivative works of the Service, or make the Service available to any third party or use the Service on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Service or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the Service; (iii) disseminate performance information relating to the Service; or (iv) use the Service to develop a competitive product offering; (v) remove, obscure or modify any copyright notices, bylines or other notices or attributions within the Content; or (vi) reproduce, modify, display, perform, transmit, distribute or otherwise use or exploit in any manner the Data or Content other than internal use by Customer for purposes of evaluating whether Customer wants to enter into a paid Service subscription.
3.3. Suspension/Termination; No Warranties. Company may suspend and/or terminate Customer’s access to or use of the Services at any time without notice, for any reason or for no reason and without liability therefor. Company makes no representations or warranties of any kind regarding the availability of the Service or that the Data or Content shall be accurate, current or complete.
4. ECONOMIC TERMS.
4.1. Fees. No fees are due from Customer for authorized use of the Service pursuant to a Free Trial. Otherwise, Customer shall pay Company the Fees as set forth in each Order Form beginning on the Activation Date and continuing throughout the Term based on the payment schedule outlined in the Order Form. All recurring Fees under an Order Form shall be due and payable in advance of the applicable period.
4.2. Payment Terms. Company shall invoice Customer for Fees on a calendar monthly basis consistent with the Order Form, with each invoice delivered on or about the 15th day of the month for the following month’s Service. Customer agrees to pay each invoice within fifteen (15) days of the invoice date, and in no event later than the 1st day of the calendar month indicated on the Order Form, pursuant to Company’s automatic payment program by completing the billing information form, which requires automatic payments via credit card or ACH payment directly debited from a U.S. bank account. Company reserves the right to withhold API keys until the billing information form is completed and received by the Company. In the event Customer’s automatic payment(s) are declined, then Company will contact the Customer and attempt to obtain a valid credit card or ACH payment. If Customer has not provided a valid form of payment within 7 days after being contacted by the Company or if Customer’s new form of payment is declined, then Company has the right to suspend service in accordance with Section 2.4. To cancel auto payments, Customer must submit a written request to Sportradar, Attention: US Billing at 150 South Fifth Street, Suite 400, Minneapolis MN, 55402 or provide a signed letter to firstname.lastname@example.org. Requests without signatures will not be accepted. Upon receipt of Customers‘s signed request to cancel auto payments, Customer agrees that all Unbilled Fees will accelerate and become due and payable and that a one-time charge or bank withdrawal in the amount equal to any unpaid Fees and any Unbilled Fees can be charged to Customer‘s credit card or bank account immediately upon receipt of cancelation request. All payments shall be made in U.S. dollars and without any deductions or offsets for any reason. Any amounts due to Company under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Company’s net income.
4.3. Overage Fees. Company reserves the right, in its sole discretion, to charge Customer for Overage Fees on a calendar monthly basis. Overage fees will be invoiced in a month subsequent to the Overage Fees being incurred and payment for such Overage Fees will become payable consistent with Section 4.2 of this Agreement. Overage Fees for non-real time subscriptions will be based on the lesser amount of (i) the difference in pricing for the subscription package one tier above the current subscription at then current list prices, or (ii) per overages calculated at $100.00 per 1,000 API calls. Overage Fees for real time subscriptions will be included in the Order Form. Reporting shall be based solely on Sportradar or its select third party service provider maintaining the API feeds.
4.4. Use of Service. By agreeing to the Terms and Conditions, Customer is obligated to pay for the access and use of the Company Materials regardless of whether the service is utilized, integrated or otherwise.
5. OWNERSHIP. As between the parties, Company owns and retains all right, title and interest (including all intellectual property rights) in and to the Company Materials and any software, technology, materials and information acquired, created, authored, made, conceived or reduced to practice by Company (collectively, “Company IP”). Customer is not required to provide any ideas, feedback or suggestions regarding any of Company’s products or services (“Feedback”) to Company. To the extent Customer does provide any Feedback to Company, Customer hereby grants to Company a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license (with the right to grant sublicenses) to use, make, sell and otherwise exploit in any manner such Feedback without payment of any compensation to Customer.
6. TERM; TERMINATION
6.1. Term. This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect for the Term. Unless otherwise expressly specified in the Order Form, the Subscription Period for each API shall automatically renew for successive periods equal to the initial Subscription period unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the renewal date. The Fees due hereunder shall automatically adjust for each renewal Subscription Period in accordance with Company’s then-standard pricing. Standard prices are updated regularly on the Company’s website at http://developer.sportradar.us/api_pricing.
6.2. Termination. Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days after receiving written notice thereof from the other party. In addition, either party may terminate this Agreement upon written notice in the event the other party files for any form of bankruptcy, has bankruptcy proceedings filed against it that are not dismissed in such party’s favor within sixty (60) days, makes any assignment for the benefit of creditors, or dissolves or ceases to conduct business. Company may terminate this Agreement upon written notice to Customer in the event of any merger, consolidation, reorganization, change in control or sale of all or substantially all of the assets of Customer relating to this Agreement or similar transaction. Where this Agreement is entered into pursuant to a Free Trial, either party may terminate this Agreement, at any time and for any reason or for no reason, upon written notice to the other party.
6.3. Effect of Termination. All provisions herein shall terminate upon expiration or termination of this Agreement, except that Sections 1, 2.2, 2.4, 2.5, 2.6, 3.2, 3.3, 4, 5, 6.3 and 7 through 12 shall survive.
7. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement and that its entry into and performance of this Agreement shall not conflict with any other agreement, order or judgment to which it is bound.
8. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. COMPANY AND ITS LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE SERVICE WILL BE TIMELY, CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE DATA OR CONTENT SHALL BE ACCURATE, CURRENT OR MEET CUSTOMER’S REQUIREMENTS. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE COMPANY MATERIALS.
9. CONFIDENTIALITY. Each party shall keep confidential all information and materials provided or made available by the other party that is marked as confidential or proprietary or (for orally disclosed information) is identified as confidential or proprietary at the time of disclosure and confirmed in writing (including e-mail) as such within fifteen (15) days of the disclosure (“Confidential Information”). The features and functionality of the Service, any Service documentation, and any information regarding planned modifications or updates to the Service or information regarding future Company products and services constitutes Confidential Information of Company. Each party shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall disclose Confidential Information to any third party except as expressly authorized by the disclosing party. Neither party shall use Confidential Information other than for performing hereunder or as expressly authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) rightfully disclosed to the receiving party by a third party on a non-confidential basis, or (iv) developed by the receiving party without reference to Confidential Information. In addition, the receiving party may disclose Confidential Information to the extent it is required to be disclosed by law or legal process, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders. Either party may seek injunctive or other equitable relief from any court of competent jurisdiction for any threatened or actual breach of this Section 9, in addition to other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
10.1. By Company. Subject to Section 10.3 below, Company agrees to, at its own expense, defend and/or settle any claim made by a third party against Customer or its directors, officers or employees (the “Customer Indemnitees”) to the extent alleging that the Company technology underlying the Service infringes such third party’s United States patent, copyright, trademark or trade secret, and Company agrees to indemnify the Customer Indemnitees against those amounts finally awarded by a court of competent jurisdiction against the Customer Indemnitees (including damages, interest, losses, costs and expenses including attorneys’ fees) or payable pursuant to a settlement agreed to by Company with respect to such claims. If Company, in its sole discretion, believes a claim or an adverse judgment in connection with a claim described in the foregoing is likely, then Company may, at its option, (a) obtain a license from the claimant that allows Customer to continue to use the Service, (b) modify or replace the Service so as to be non-infringing, or (c) if neither (a) nor (b) is available to Company upon commercially reasonable terms, terminate this Agreement upon written notice to Customer and refund any pre-paid recurring fees on a pro-rated basis. Company shall have no obligation or liability with respect to any claim arising out of or relating to: (x) any unauthorized use of the Service by Customer; or (y) any combination or use of the Service by Customer with any non-Company software, technology or services. This Section 10.1 sets forth the entire liability of Company and the sole and exclusive remedy of Customer in the event of any claim that the Company Materials infringe any third party rights.
10.2. By Customer. Subject to Section 10.3 below, Customer agrees to, at its own expense, defend and/or settle any claim made by a third party against Company or its directors, officers or employees (the “Company Indemnitees”) to the extent resulting directly or indirectly from any breach by Customer (or any of its employees or agents) of any warranty, representation, covenant or obligation contained herein, and Customer agrees to indemnify the Company Indemnitees against those amounts finally awarded by a court of competent jurisdiction against the Company Indemnitees (including damages, interest, losses, costs and expenses including attorneys’ fees) or payable pursuant to a settlement agreed to by Customer with respect to such claims.
10.3. Procedure. Company shall have no obligation under Section 10.1 of any kind in connection with a Free Trial. Each party’s obligations under Sections 10.1 and 10.2 are conditioned on the indemnified party (“Indemnitee”) providing the indemnifying party (“Indemnitor”) with (i) prompt written notice of the third party claim, provided that failure to give notice promptly shall only relieve the Indemnitor of its obligation to the extent its defense is materially prejudiced by the delay, (ii) sole control over the defense of the claim and any related settlement negotiations, and (iii) reasonable cooperation, at the Indemnitor’s expense, in connection with such defense or settlement. The Indemnitor shall not, without the Indemnitee’s prior written consent, agree to any settlement of any the claim that does not include a complete release of the Indemnitee from all liability with respect thereto or that imposes any material obligation or restriction on the Indemnitee (other than payments to be made by the Indemnitor).
11. LIMITATION OF LIABILITY.
11.1. EXCEPT FOR A BREACH OF SECTION 2.2, SECTION 3.2 OR SECTION 9 OR WITH RESPECT TO SECTION 10, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS OR PROFITS, REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT FOR A BREACH OF SECTION 2.2, SECTION 3.2, SECTION 4 OR SECTION 9 OR WITH RESPECT TO SECTION 10, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY EVEN IF ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS AND EXCLUSIONS ARE A FUNDAMENTAL BASIS OF THE BARGAIN HEREUNDER.
11.2. Notwithstanding section 11.1 above, with respect to provision of the service pursuant to a Free Trial, Company’s aggregate liability shall not exceed one hundred U.S. dollars, regardless of the theory of liability.
12. MISCELLANEOUS. Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Company, provided that (subject to Section 6.2) no consent shall be required for such assignment in connection with a merger, consolidation, reorganization, change in control or sale of all or substantially all of the assets of Customer relating to this Agreement. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding on the parties’ assignees, transferees and successors. All notices shall be given in writing and sent by internationally recognized overnight carrier to the applicable party’s address set forth in the Order Form (or, with respect to a Free Trial, the Company’s address on the Company website and the mailing address provided by Customer in the Free Trial registration form) to the attention of the party designated by Customer in the Order Form. All notices shall be presumed to have been given one (1) business day following deposit with the courier. The parties are independent contractors with respect to each other, and neither party has any right to bind the other party. Other than as expressly set forth under Sections 2.6 and 10, nothing herein is intended to give any rights of any kind to any third parties. Company will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing. An amendment of this Agreement shall be binding upon the parties only if it is in writing and executed by both parties. No regular practice or method of dealing between the parties shall modify, interpret or supplement the express terms of this Agreement. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unaffected, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. This Agreement shall not be construed against either party as the drafter hereof. A waiver of any provision of this Agreement is only valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. Either party’s failure to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. This Agreement shall be governed in all respects by the laws of the State of Minnesota, without reference to conflicts of laws principles. The state and federal courts in Minnesota will have exclusive jurisdiction and venue under this Agreement. For any litigation, arbitration, or other proceeding whereby a party seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights, duties or obligations under this Agreement, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Agreement. This Agreement constitutes the complete agreement between the parties with respect to its subject matter, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.