Official Media Data Addendum

Last Updated: May 2st, 2019

Official Media Data Addendum

 

This Official Media Data Addendum (“Addendum”) is entered into by and between the Parties and governs Sportradar’s provision of official data from a sports league, federation, or organization in the United States by Sportradar and licensed by Customer in the Agreement.  This Addendum shall be incorporated into by reference and governed by the Agreement between the Parties. To the extent a conflict arises between the terms of this Addendum and the Agreement, the terms of this Addendum shall prevail. This Addendum shall run conterminously with the Agreement.

 

1. Definitions.

a. “Advanced Statistics” shall mean the proprietary technology and associated data belonging to the designated and applicable sports league, federation, or organization, including, without limitation for demonstrative purposes, the NBA Player Tracking Data and MLB Statcast Data.

b. “League Intellectual Property” shall mean the (i) content, (ii) Marks, (iii) photos, and (iv) any other intellectual property (and the associated rights) owned (by operation of law and/or pursuant to any other agreement) by or exclusively licensed to the league, federation, or organization, or any of the teams.

c. “Marks” shall mean names, logos, symbols, designations, emblems, designs, trade dress and uniforms and all identifications, labels, insignia or indicia thereof, belonging to the sports league, federation, or organization in which the mark references, whether registered as intellectual property or otherwise.

d. “Official Data” shall mean each API and/or data feed and/or other compilation, including research tools (i.e. Radar360), consisting of official data provided by Sportradar and designated as such and licensed by Customer under the Agreement, as applicable, either for the National Basketball Association (“NBA”), National Hockey League (“NHL”), and/or Major League Baseball (“MLB”).

e. “Restricted Ad Categories” shall mean any gambling, pornography, drugs, tobacco, political statements, obscene content, firearms, extreme fighting events (including sporting fighting events), habit forming and/or illegal drugs, sexually explicit or intimate phone services, phone services directed primarily at children, adult or reputationally sensitive topics, and/or any other illegal activity identified by Sportradar and communicated to Customer from time to time.

2. Ownership. Customer acknowledges and agrees that neither Sportradar nor Customer retains full ownership of the Official Data and the applicable sports league, federation, or organization is the sole owner of all right, title and interest in the Official Data, League Intellectual Property, Marks, and Advanced Statistics (collectively, “Official Content”) throughout the world. Customer acknowledges that the compilation of data making up the Official Data is proprietary and that the display of data elements from the Official Data does not change the status or ownership of the compilation.  To the extent that Customer obtains any ownership rights by operation of law to the Official Content, Customer hereby assigns and transfers such rights to the applicable league, federation, or organization asserting ownership hereunder.

3. Scope of Rights. Sportradar hereby grants to Customer a limited, revocable, worldwide, non-sublicensable, and nontransferable right to use, display, distribute, transmit, publicly perform, and otherwise present the Official Data and/or Advanced Statistics for media and editorial purposes and non-commercial use only, in accordance with this Addendum and only to the extent permissible by and in compliance with all applicable laws and regulations. The rights granted under this Addendum do not include any further rights of exhibition, distribution or transmission other than in accordance with the terms of the Agreement.

4. Limitations and Reservation of Rights.

  1. Customer shall not use the Official Content in any way that either alone or in combination with other intellectual property or content (including, without limitation, photos or match footage) competes with the live or near-live viewing of any broadcast, stream, or other applicable sports league, federation, or organization-sanctioned audiovisual distribution of a live match (e.g. a live or near-live graphical simulation or re-creation of any game or material portion thereof).
  2. Customer shall not use the Official Content in connection with or in combination with (i) any gambling or betting related purposes, (ii) electronic gaming (e.g. simulated video games or electronic trading cards), (iii) promotional, sweepstakes, sponsorships, entitlements, commercials, or other advertorial content. Customer shall not use the Official Data and/or Advanced Statistics to create any new or derivative data points, whatsoever, without express, written approval from Sportradar. 
  3. Sportradar expressly excludes from its grant of rights hereunder any League Intellectual Property and Marks, including those name, image, and likeness rights of any team and/or player. Use of such Official Content shall be at Customers own risk and/or based on Customer’s acquisition of rights therefore pursuant to a separate agreement with the applicable rights holder.
  4. In no event shall Customer reflect the Official Content against the Restricted Ad Categories and/or in an unfavorable or distasteful manner with respect to the applicable sports league, federation, or organization, or any of its respective affiliates. Customer shall not engage in any activities in furtherance of the rights granted under this Addendum that will give rise to liabilities on the part of the applicable sports league, federation, or organization and/or any of its respective affiliates under any applicable law.
  5. Customer shall not use or commercially exploit any rights granted hereunder (i) in a way that has a deceptive or misleading effect, (ii) in a way that compromises or reflects unfavorably upon the good name, goodwill, reputation or image of the respective sports league, federation, or organization, or any of the teams or any player, (iii) in a manner that tarnishes any Marks, or (iv) in a manner reasonably likely to result in the unauthorized use of any League Intellectual Property. 
  6. Customer shall be solely responsible, at its sole expense, to obtain all approvals of all governmental authorities and other relevant regulatory authorities which may be necessary in connection with its performance of, and the distribution of the Official Content.

5. Term. The term of this Addendum shall run conterminously with the Agreement between the Parties and shall expire or terminate in accordance with the provisions of the Agreement. 

6. Termination and Suspension. Customer acknowledges and understands that (i) in no event shall the term of this Addendum extend beyond the period of time Sportradar remains the official provider of such Official Data and/or Advanced Statistics, the termination of which shall be communicated to Customer by Sportradar within a commercially reasonable period of time prior to such termination, (ii) Sportradar may suspend or terminate provision of Official Content at any time at the direction of the respective sports league, federation, or organization if Customer is found to be (x) using the Official Content in a manner inconsistent with this Addendum or applicable law, (y) Customer is a party to pending, threatened, or ongoing litigation or arbitration with the applicable sports league, federation, or organization and such litigation or arbitration is reasonably likely to adversely affect either party’s commercial interests, or (z) Sportradar, for any reason, is no longer the official provider of the Official Content.

7. Disclaimer; Representations and Warranties. Customer acknowledges and agrees that neither Sportradar nor any sports league, federation, or organization (including its affiliates, teams, and/or players), except as provided herein, makes any express or implied warranties to Customer regarding the Official Content and that Sportradar provides the Official Data and Advanced Statistics to Customer “AS-IS,” with no warranties of accuracy, completeness, or timeliness other than as set forth in this Addendum.  Sportradar and the respective sports league, federation, or organization (including its affiliates, teams, and/or players) disclaims all warranties with regard to the Official Data and Advanced Statistics, whether express or implied, including any implied warranties of fitness for a particular purpose, merchantability, merchantable quality, or non-infringement. Sportradar and the respective sports league, federation, or organization (including its affiliates, teams, and/or players) do not warrant the results of Customer’s use of the Official Content.

8. Indemnification. Customer shall be solely responsible for, and shall defend, hold harmless and indemnify Sportradar and the respective sports league, federation, or organization, its teams, and its respective affiliates (including owners, directors, governors, officers, employees and agents) of which it licenses Official Data under this Addendum and the Agreement, against any third party claims, demands, disputes, causes of action or damages, including reasonable attorneys’ fees (collectively, “Claims”), arising out of or relating to any:

  1. (i) distribution, advertisement, promotion, possession, operation, data display, or any other use of the Official Content (collectively, “General Use,”) which is, in each case, (x) other than in accordance with these rights and/or (y) not in compliance with any applicable laws; and/or (ii) activities in furtherance of the purpose of this Addendum and/or activities undertaken in connection or association with any General Use and that give rise to any liabilities on the part of the respective sports league, federation, or organization and/or the teams under any applicable laws, and
  2. any breach or alleged breach of this Agreement for the Official Content.

9. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS ARISING OUT OF UNAUTHORIZED USE OF LEAGUE INTELLECTUAL PROPERTY, UNDER NO CIRCUMSTANCES SHALL SPORTRADAR, THE NBA, NHL, MLB (OR THEIR RESPECTIVE AFFILIATES, TEAMS, AND/OR PLAYERS) BE LIABLE TO ANY OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM BREACH OF THIS ADDENDUM, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS; IN NO EVENT WILL THE LIABILITY OF, SPORTRADAR, THE NBA, NHL, MLB (OR THEIR RESPECTIVE AFFILIATES, TEAMS, AND/OR PLAYERS) TO THE CUSTOMER 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.

10. Third Party Beneficiary. Sportradar and Customer hereby acknowledges and agrees that the relevant and respective sports league, federation, or organization owning the Official Content is a third party beneficiary of these rights, and that, upon Customer’s acceptance of the Addendum, the league, federation, or organization will have the right (and will be deemed to have accepted the right) to enforce the Addendum against Customer as a third party beneficiary. Customer further acknowledges and agrees that Sportradar may modify, amend or supplement these terms and conditions from time to time at the sole discretion of the sports leagues, federation, or organization. Sportradar may, by written notice to Customer, transfer its rights and obligations under the Addendum pursuant to a novation agreement in favor of a transferee who accepts all rights and obligations of Sportradar hereunder. Customer shall take all necessary actions to give effect to such novation, including the execution of relevant documents.