NHL Addendum

NHL Data Addendum

 

            THIS NHL DATA ADDENDUM ("Addendum") by and between the person or entity named on the Order Form as the “Customer” and Sportradar US (“Company”), is hereby incorporated into and made part of the Master Terms and Conditions entered into between the parties.  For purposes hereof, this Addendum, the Order Form and the Master Terms and Conditions shall be referred to herein collectively as the (“Agreement”).

All other terms, covenants and conditions set forth in the Master Terms and Conditions shall be and remain in full force and effect.  Capitalized terms used in this Addendum which are not otherwise defined herein shall have the meaning set forth in the Master Terms and Conditions or the Order Form (as applicable).  In the event of any conflict between the Master Terms and Conditions or this Addendum and the Order Form, the terms of the Addendum shall control unless Customer and Company have received the NHL’s express written approval for the Order Form.

 

    1. Definitions.

1.1.  Confidential Information has the meaning set forth in Section 10 of this Addendum.

1.2.  Data Laws means any law, rule, regulation, declaration, decree, directive, statute or other legislative enactment, order, mandate, resolution or self-regulatory guideline or standard issued or enacted by any government body that relates to data, including Personally Identifiable Information, applicable to Customer, Company, or the NHL, or to which Customer, Company, or the NHL is required to submit or voluntarily submits (including any data protection or privacy law or regulation).

1.3.  Data Security Breach means any inadvertent, unauthorized, and/or unlawful processing, modification, corruption, loss, sale, rental, or destruction of NHL Data.

1.4.  NHL means the National Hockey League.

1.5.  NHL Data means any data, confidential or propriety information or materials (including without limitation NHL statistical Data) either (i) provided to Customer pursuant to this Addendum, (ii) that Customer collects, processes, generates or uses for or on behalf of customers in connection with the content provided to Customer pursuant to this Addendum or (iii) collected, processed, generated, or used by Customer in connection with its exercise of the licenses granted under this Addendum. The NHL Data may include Personally Identifiable Information.

1.6.  NHL Entities means the NHL, the National Hockey League, the National Hockey League member clubs and any subsidiaries, or any respective related entities and affiliates or licensors, including but not limited to MLB Advanced Media, L.P.

1.7.  Personally Identifiable Information means any information in any media or format, including without limitation electronic and paper records relating to an identified or identifiable individual, an “identifiable individual” being someone who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity.  Personally Identifiable Information includes an individual’s name, address, phone number, email address, Social Security number, date of birth, personal health information, or other identifiers issued by the NHL, Customer or a third party.  

    2.  Acknowledgement of Ownership.  Customer acknowledges and agrees that the National Hockey League (the “NHL”) is the sole owner of all right, title and interest in the NHL Data throughout the world.  Customer acknowledges that the compilation of data making up the NHL Data is proprietary and a trade secret of the NHL and that the display of data elements from the NHL 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 NHL Data, Customer hereby assigns and transfers such rights to the NHL.

    3.  Scope of Rights; Prohibitions.

3.1.  Subject to compliance with all the restrictions and conditions in this Addendum, Company hereby grants to Customer a non-exclusive, limited right to use NHL Data on Customer’s websites and applications on digital platforms that offer consumer-facing sports content (e.g. game centers, box scores, tickers, player profiles and editorial content, fantasy games, etc.) and to conduct internal use of the NHL Data to support the foregoing use on Customer’s websites and applications.

3.2.  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.

3.3.  Customer may not display all or substantially all of the source NHL Data at a given time or otherwise re-distribute the source NHL Data (e.g. Customer will not offer its websites or applications on a white-label basis).  Customer will display data elements from the NHL Data in accordance with any then-current NHL guidelines that may be provided and in accordance with the terms of this Agreement.

3.4.  Except as expressly permitted herein, Customer may not use, edit, modify, create derivatives, combinations or compilations of, combine, associate, synthesize, re-identify, reverse engineer, reproduce, display, distribute, disclose, sell or otherwise process NHL Data.

3.5.  Customer acknowledges and agrees that it shall not re-distribute the NHL Data or engage in any use of the NHL Data that is not intended for use by consumers.

3.6.  Customer shall not engage in any use of robots, spiders and other automated devices or processes that are used to monitor or copy content of the Customer’s site or application, including the NHL Data.

    4.  Secure Processing.  Customer shall implement reasonable data security practices and at all times be in compliance with Exhibit A of this Addendum.

    5.  Customer Terms of Use.  Customer will prominently post a link to its terms of use on its site or application.  The terms of use will include at least the following (and such other terms as Company or NHL may direct from time to time):

5.1.  The following notice of the NHL’s rights to the NHL Data (which notice may be updated from time to time by the Company or the NHL; Customer will implement the updated notice promptly after receipt of notice of the change from Company):

This service includes proprietary data of the NHL Entities which may only be used by individual consumers as part of this service for authorized purposes. Further reproduction, use, and distribution of such data is not permitted.

5.2.  A prohibition against the use of robots, spiders and other automated devices or processes that are used to monitor or copy content of the Customer’s site or application, including the NHL Data.

    6.  Term and Termination.  The term of the Addendum shall be as set forth on the Order Form; provided, however, that in no event shall any such term extend beyond June 30, 2020 (the “Term”).  Company may terminate this Addendum and/or the Agreement in its entirety at any time, including, without limitation, if (i) Customer breaches the terms of the Agreement or otherwise misuses the NHL Data or causes harm to the NHL or (ii) the NHL terminates its grant of rights to Company.  Immediately upon any termination of this Addendum or the Agreement, Customer shall cease all use of NHL Data and promptly provide to the Company or NHL all data and databases in its possession or destroy all NHL Data in its possession, in each case as directed by the NHL or Company, provided that Customer will provide prompt written certification of compliance with these return or destruction requirements.

    7.  Monitoring and Takedown.  Company and the NHL shall have the right, with reasonable notice to Customer, to audit Customer’s use of the NHL Data no more than once each year during the Term to verify compliance with the terms of the Agreement.  If Company or the NHL identifies objectionable use (as determined by Company or the NHL in their sole discretion) of NHL Data by Customer, Company will notify Customer, and upon notification to Customer by Company, Customer shall have two (2) business days to cease the objectionable use.  If Customer does not cease the objectionable use within such time period, Company may cease distribution of NHL Data to Customer and terminate this Addendum or the Agreement in its entirety and Customer agrees that neither Company nor the NHL will have any liability for any such termination.

    8.  Suspension. Company reserves the right to suspend delivery of the NHL Data to Customer if Customer is in breach of this Addendum or the Agreement or Company or the NHL otherwise have reasonable grounds for believing that Customer is misusing the NHL Data or causing harm to the NHL.

    9.  Branding.  The notice that is set forth in Section 5.1 above must also appear on the home page or screen of the Customer’s websites and applications that use the NHL Data.

10.  Confidentiality.  Customer and Company agree that during and after the Term they shall not, except as authorized by this Agreement, use for their own benefit or for the benefit of any person or entity, any information provided under this Agreement either identified as a trade secret or confidential information or which under the circumstances should reasonably be regarded by the recipient as a trade secret or confidential information, which includes the terms and conditions of this Agreement, the NHL Data, information pertaining to the NHL Entities and NHL players, the parties’ respective financial affairs and patent, trademark, trade name, service mark, copyright or other intellectual property (the “Confidential Information”).  In addition, each of Customer and Company agrees that at no time during or after the Term will it (or its employees or agents) deliver or disclose the Confidential Information or NHL Data or any derivations, modifications or portions thereof, to any third party, other than as authorized under the terms of this Agreement.  Customer will secure and protect the NHL Data using the same safeguards as Customer uses to protect other trade secrets and confidential information, but in any event safeguards that meet or exceed reasonable data security policies.

11.  Indemnification.  Customer hereby agrees to indemnify and hold harmless Company and its affiliates, directors, officers, employees, agents successors, assigns and other representatives from and against any and all third party claims for liability, loss, damage, cost and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or relating to (i) Customer’s gross negligence or willful misconduct, (ii) any breach or default by Customer of any representation, warranty, duty or obligation contained in this Agreement or (iii) any Data Security Breach.  The obligations under this Section 11 are conditioned upon the party seeking indemnification (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding (however, any failure to give prompt notice will not limit the indemnification obligations to the extent that the failure does not materially prejudice the indemnifying party) and (ii) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.

12.  Warranty Disclaimers. The NHL Data is provided on an “as is” basis and with no representation or warranty whatsoever, express or implied.  Company, NHL and NHL Entities hereby disclaim all representations and warranties as to the accuracy, merchantability and fitness for a particular purpose in relation to the NHL Data.

13.  Exclusions and Limitations of Liability. To the full extent permitted by applicable law: (a) Company, NHL and the NHL Entities are not liable for incidental, consequential, special or exemplary damages including, without limitation, lost profits or loss of data, even if advised of the possibility of such damages and (b) Company’s and the NHL and NHL Entities’ maximum aggregate liability to Customer will not exceed the total fees paid for the NHL Data for the then-current NHL season.

14.  Additional Restrictions.

14.1 To the extent Customer has purchased either only a U.S. or international subscription to NHL Data, Customer shall geo-restrict access to the NHL Data to either the U.S. or international territory (as applicable).

14.2 Customer agrees to permit disclosure of its contact information to the NHL, the NHL Entities and/or third party(ies) designated by the NHL to take over the distribution of NHL Data contemplated by the Agreement.

14.3 Customer must at all times ensure that it is in compliance with the laws of its applicable jurisdiction.

14.4 All rights and/or licenses pursuant to this Addendum or an Order Form attached hereto 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.

14.5 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;

a) Illegal gambling

b) Adult only content

c) Tobacco products

d) Firearms

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

f) Habit forming or illegal drugs

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

15.  Third Party Beneficiary.  Company and Customer hereby acknowledge and agree that the NHL is a third party beneficiary of this Agreement, including this Addendum, and that, upon Customer’s acceptance of the Agreement, the NHL will have the right (and will be deemed to have accepted the right) to enforce the Agreement against Customer as a third party beneficiary hereof.  Company may, by written notice to Customer, transfer its rights and obligations under the Agreement pursuant to a novation agreement in favor of a transferee who accepts all obligations of Company under the Agreement.  Customer shall take all necessary actions to give effect to such novation, including the execution of relevant documents. 

 

EXHIBIT A

 

DATA SECURITY REQUIREMENTS

 

Customer agrees that it shall at all times abide by the data security policy below:

 

Customer’s Data Security Obligations.

 

    1.     Security Requirements.  Customer will use commercially reasonable efforts to establish, maintain and comply with administrative, technical and physical safeguards that are designed to (i) protect the security and integrity of Customer’s network, systems and operations, Company’s or third party’s syndication platform used to redistribute the NHL Data and the NHL Data, (ii) guard against Data Security Breaches and (iii) meet industry standard practices for the protection of content such as the NHL Data. In connection with its obligation to satisfy the Security Objectives, Customer will adhere, in all material respects, to the security standards and objectives described in this Exhibit A.

    2.     Encryption.  Customer will use, and will cause its personnel to use, appropriate forms of encryption or other secure technologies at all times in connection with the processing of NHL Data, including in connection with any transfer, communication, remote access or storage (including back-up storage) of NHL Data, as authorized or permitted under the Agreement.  

    3.     Location of Data. Customer will process NHL Data (including for back-up purposes) only on servers located in the countries specified in writing by Company. 

    4.     Data Security Breaches.

(a)            Notice.  Customer will provide to Company immediate written notice of all Data Security Breaches.  Such notice will summarize in reasonable detail the impact on the NHL Data or any individuals affected by such Data Security Breach and the corrective action taken or proposed to be taken by Customer.

(b)           Remediation.  Immediately following any Data Security Breach, Customer will (i) consult in good faith with Company and the NHL regarding remediation efforts, (ii) promptly undertake any such remediation efforts, as agreed upon by the Company and Customer, including efforts to prevent the recurrence of the same type of Data Security Breach and (iii) reasonably cooperate with Company and the NHL.  Customer will be solely responsible for all costs and expenses (including administrative costs, costs of legal action and attorney engagement, and payment of fines, settlements and damages) incurred in connection with any such remediation efforts.  In the event that Customer fails to perform any such remediation efforts, Company or the NHL may perform such remediation efforts and will be entitled to reimbursement by Customer for all costs and expenses incurred by Company or the NHL in connection therewith. For the avoidance of doubt, Customer’s payment obligations pursuant to this Exhibit A will be in addition to any indemnification obligations of Customer pursuant to the Agreement.

(c)            Cooperation.  Customer will keep Company apprised of, and cooperate reasonably with Company and the NHL in connection with, Customer’s, Company’s, the NHL’s or any government body’s, regulatory authority’s or law enforcement agency’s investigation of any Data Security Breach.  In the event that Customer is required by any Data Law to make any public announcement or notify individuals regarding any Data Security Breach, Customer will notify Company of such requirement and coordinate with Company and the NHL with respect to the form and content of such public announcement or notice to individuals, the final form of which will be subject to the Company’s approval.  Except as set forth in the immediately preceding sentence, Customer will not make any public announcement or notify individuals regarding any Data Security Breach without Company’s prior written approval.

    5.     Audit.

(a)            Audit.  In addition to any other rights set forth in the Agreement, upon reasonable notice from Company, Customer will provide Company or the NHL and any of their accountants and auditors (collectively, “Auditors”) with reasonable access to, and any assistance and information that they may require with respect to, Customer, Customer’s personnel, and Customer’s systems, service locations, and NHL Data as necessary to enable Company or the NHL to audit and confirm compliance with the provisions of the Agreement and applicable Data Laws or to meet requests from Auditors, or meet other audit or information requirements.  During any such audit, Customer will provide to the Auditors all assistance reasonably required to enable the Auditors to examine all records and materials of Customer pertaining to its systems, to interview Customer’s personnel and to verify the security and integrity of NHL Data (which may include vulnerability assessments, and testing of security controls, security-related policies and standard operation procedures, and physical and logical network security).  

(b)       Costs and Customer Responsibilities.  Company will bear the full cost and expense of any audit performed by the Auditors, unless such audit discloses a Data Security Breach, in which case Customer will bear the full cost and expense of such audit.  If Company notifies Customer that any audit indicates that Customer is not in compliance with the Agreement, or is not complying with Customer’s own quality assurance and internal controls or the provisions of the Agreement, then Customer will promptly correct such problem at Customer’s sole expense.  If any audit by the Auditors results in Customer being notified that Customer or is not in compliance with any Data Law or any terms of the Agreement, Customer will promptly take actions to comply with such Data Law and the terms of the Agreement at Customer’s sole expense.