Terms and Conditions

Last Updated: August 11, 2017

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) ANY ORDER FORM EXECUTED BY CUSTOMER AND COMPANY.

1. DEFINITIONS.

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 Content or Data 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, image(s), third party material or other content and solutions 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 other than Content.

1.8.     Documentation means all Company documentation relating to integration with the Products 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 internal testing and evaluation purposes only pursuant to the free trial registration form found on the Company developer portal and these Master Terms and Conditions.

1.12. Order Form means a legally binding document executed by Company and Customer which references these Master Terms and Conditions and sets forth the Products subscribed to by Customer and further information such as the Subscription Period, Properties, Rate Limit, Overage Fees and Fees for each such Product.

1.13. Overage Fees means the Fees payable by Customer for use of a Product during a given calendar month in excess of the Rate Limit.

1.14. Personnel means Customer’s individual employees, contractors or other third parties associated with or performing services for the Customer.

1.15. Product means any visual, editorial or data product, including but not limited to widgets, cards, API or other interface through which a Customer can obtain access to Content or Data.

1.16. Properties means the website and mobile device software application, as they exist at the time of execution of this Agreement, designated as a “Property” on the Order Form. Any additional Property that is not expressly included in the Order Form is not considered a Property for the purposes of this Agreement, unless otherwise agreed to in writing by the Company.

1.17. 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.

1.18. 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.

1.19. Subscription Period means, with respect to a Product, the period of time designated as the subscription period for such Product on the Order Form and any renewals thereof.

1.20. 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.

1.21. 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.

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 Products designated in the Order Form during the applicable Subscription Periods and in accordance with all Documentation and applicable Rate Limits, for the sole purposes of displaying Data and Content provided through each such Product on the Properties specified for such Product on the Order Form.  Certain Products 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”).  To the extent Customer accesses or receives any Third Party Material, Customer agrees that use of such Third Party Material and the foregoing license grant is subject to the additional terms and conditions set forth herein. Third Party Material includes but is not limited to content from Getty Images, USA Today, Reuters, and Associated Press.  Company reserves the right to modify and update the features and functionality of the Service from time to time in its sole discretion, provided that, for any upgrade to the Service that results in a new feed being created to replace an existing feed, Company shall provide to Customer 90 days advance written notice.  Customer is responsible for all activities occurring under an API key or Product credentials issued to Customer and agrees to monitor the use of such key(s) utilized by Personnel.

2.2.     Restrictions.  Except for authorized third parties, such as Personnel or developers, who are contractually bound by the Customer to adhere to these terms and conditions, 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 other 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; (vi) create, produce or otherwise generate internal products, commercials, advertisements, interactive displays or other digital content without the prior written approval of Company; or (vii) 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 Products through which the Data or Content was obtained; or (viii) any use of the Company Materials, unless previously approved by Company, in connection with, in conjunction with, or with regards to advertising, including but not limited to triggering Customer ads or incorporating the Company Materials into specific customer ad units, shall be considered as an act in contradiction with these Terms and Conditions.

2.3.     Properties.  Customer acknowledges that use of the Service is provided only to enable Customer’s display of Data and Content on the Properties specified for the applicable Product, 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 Properties which undergo 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 in accordance with Section 4.2 below.  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 unpaid Fees shall become immediately due and payable and can be charged to Customer‘s credit card or bank account.

2.5.     Third Party Services.  Certain Productss utilize Third Party Material (as defined in Section 2.1). In certain circumstances, Data or Content provided pursuant to Third Party Agreements (as defined in Section 2.1) may not be provided to Company and therefore such Data or Content is not able to be provided to the Customer. In such circumstances, where possible, Company will provide Customer with a short-term failover comprised of similar Data or Content that can be captured during the failover period.  Customer acknowledges that Third Party Agreements may also be modified, suspended or terminated from time to time.  In the event that any Third Party Agreement is modified, suspended or terminated, Company shall replace the affected Third Party Material with Data or Content that is of equal or comparable value and in doing so, shall provide Customer with reasonable notice but no less than 15 days advance notice.  If the Company is unable to replace the Third Party Material, the Subscription Period for only the applicable Product 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 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 to provide its obligations hereunder. Company assures that there will be no additional charge to the Customer resulting from Company's utilization of third party services.

2.6.     Images and News.  If Customer licenses Third Party Material and Company agrees to grant permission to Customer to use such Data and/or Content, such agreement will be confirmed in the Order Form and use of such Data and/or Content shall be subject to the Third Party Material Addendum located at https://developer.sportradar.com/Third_Party_Material_Addendum.

2.7.     NFL Data.  If Customer licenses the NFL 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 https://developer.sportradar.com/NFL_Addendum.

2.8.     NHL Data.  If Customer licenses any NHL 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 following terms and conditions;

a)        All rights and/or licenses pursuant to this Agreement shall be subject and subordinate to: (i) the NHL Constitution; (ii) the NHL By-Laws; (iii) all other rules, regulations, interpretations, procedures, policies, and resolutions of NHL; (iv) any agreement between or among NHL, its affiliates (including member clubs) and/or other parties in furtherance of NHL business or interests or as otherwise authorized directly or indirectly by the NHL Board of Governors, the NHL Commissioner, or the NHL Constitution or By-Laws; all as the same may now exist or hereafter be amended or enacted and all as they may be interpreted by the Commissioner.

b)        Company and the NHL have the unconditional right to require Customer to block the distribution of some or all of the NHL Data on a specific third party website in the event that such website promotes any of the following;

i.         Illegal gambling

ii.         Adult only content

iii.         Tobacco products

iv.         Firearms

v.         Extreme fighting sports events (e.g. ultimate fighting, cage fighting)

vi.         Habit forming or illegal drugs

vii.         “900” or “976” numbers that bill the caller (e.g. sexually explicit or intimate phone services, phone services directed primarily at children)

 

2.9.     NBA Data.  If Customer licenses the NBA Data provided to Company from the National Basketball Association (the “NBA 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 NBA Data shall be subject to the NBA Addendum located at https://developer.sportradar.com/NBA_Addendum.

2.10.  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 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 2.10(b), Company shall maintain availability of the Products of at least 99.5%, calculated monthly on a per-minute basis, with the exclusion of tracking data (i.e. NFL NGS, NBA tracking data etc). Any tracking data, as prescribed by Sportradar in its sole discretion, shall maintain availability of at least 95%, calculated monthly on a per-minute basis. Customer acknowledges and agrees that the Products 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 a Product is not available in a given month for at least 99.5% and/or tracking data is not available in a given month for at least 95% 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 availability (calculated in accordance with this Section 2.10(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 Product or tracking data, terminate use of and access to that individual Product or tracking data, 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 2.10(b).  Termination of the individual Product and/or tracking data under this section does not relieve the Customer of its obligations prior to termination, under Section 4. For the avoidance of doubt, any termination right in this Section 2.10, as well as the calculation of Product availability, shall be considered on an individual Product (and/or tracking data) basis.

(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 (through an e-mail address provided by Company) during Company’s regular support hours of 9am – 3am ET.  Such hours of operation may be amended from time to time at the Company’s sole discretion.

2.11 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 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, subject to the Company’s advance written approval, 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.

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 Products made available by the Company (in its sole discretion), unless otherwise agreed to in writing 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 or Product credentials issued to Customer and agrees to monitor the use of such key(s) utilized by Personnel.

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 therefore.  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 are non-refundable and 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 within the required payment schedule section of the Order Form, pursuant to the Company’s automatic payment program, by completing the billing information form (to be provided by Company to Customer following a fully executed Order 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 or Product credentials until the billing information form is completed and received by the Company and any Fees due are successfully collected 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 the Company has not received payment within 3 days after being contacted by the Company or if Customer’s payment information provided on the new billing information is declined, then Company has the right to suspend service in accordance with Section 2.4.  All payments are non-refundable and shall be made in U.S. dollars 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.  In the event Company should commence any action or actions, or otherwise seek to enforce this Agreement against the Customer or any guarantor, Customer agrees to pay all reasonable collection and attorney(s) fees, court costs, and other expenses, incurred by Company whether or not suit is filed.  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.  Unless otherwise expressly specified in the Order Form, this Agreement shall be effective as of the Effective Date, and shall continue in full force and effect for the Term. 

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, 2.7, 2.8, 2.9, 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.  Furthermore, Customer hereby represents and warrants that use of the Company Materials and Third Party Material (where applicable) 1) does not violate any applicable laws, rules, regulations or third party rights, including in relation to Third Party Material, 2) will not be combined or displayed in conjunction with any material which is obscene, pornographic, defamatory, or otherwise illegal, or which advertisement for any product or service that is obscene, pornographic, defamatory or otherwise illegal, 3) will not be used in relation to or in connection with illegal gambling and Customer will not use the Company Materials in connection with any such business, nor provide the Company Materials to any third party that engages in any such business or for use in connection with any such business.

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.  INDEMNIFICATION.

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.

 

Previous version: April 18th 2016