Terms and Conditions - Archive July 28, 2015

Last Updated: July 28, 2015

SPORTRADAR US 
MASTER TERMS AND CONDITIONS

THESE MASTER TERMS AND CONDITIONS, INCLUDING THE NFL DATA ADDENDUM, APPLY TO BOTH (1) ANY FREE TRIAL FOR THE SERVICE WHICH A CUSTOMER REGISTERS FOR ON THE SPORTRADAR US (THE “COMPANY”) DEVELOPER WEBSITE AND (2) AN 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 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 paid 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 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  “NFL Data” has the meaning set forth in Section 2.7.

1.13  “NFL Addendum” means the Addendum applicable to NFL 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 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, contractors or other personnel.

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 paid 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  “USAT Images” has the meaning set forth in Section 2.1.

2.       PAID SERVICE. The provisions of this Section 2 apply solely to a paid 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 access 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, limit or terminate Customer’s access to or use of the Service at any time without liability therefor if: (i) Company determines such action is necessary to prevent harm to any system or network or to limit Company’s liability; (ii) Customer attempts to access or use the Service in a manner that breaches this Agreement; or (iii) Customer does not timely pay all Fees in accordance with Section 4.2 below.

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.

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 that appears below directly after these Master Terms and Conditions.

2.8       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 2.7(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 2.7(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. 

(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).

2.9     Publicity.  Customer agrees to include on the Properties a “powered by Sportradar US” logo, available at developer.sportradar.us/logo, in accordance with the Documentation.  During the Term, 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.

2.10    Press Release.  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 comtemplated 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 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.  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, with each invoice delivered on or about the 1st day of each month.  Customer agrees to pay each invoice within fifteen (15) days of the invoice date.  All payments will be made in U.S. dollars and without any deductions 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.

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.

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 (or ten (10) days for breach of Section 4) 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 becomes insolvent, 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 (with respect to accrued but unpaid amounts), 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 represents and warrants that it is not, and it will not be while subject to these Master Terms and Conditions, a bookmaker, casino, lottery, or other gaming enterprise or gambling operation, including any horse and dog tracks, off-track betting organizations, jai alai frontons, bingo parlors, or any online or mobile gambling operations or applications, that its business does not involve any of the foregoing, and that it will not use the Company Materials, including the Licensed NFL Content (if applicable), in connection with any such business, nor provide any 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  Not withstanding 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 “Legal Department” of each party.  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.  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.

 

 

 

NFL Data Addendum

            THIS NFL DATA ADDENDUM (this "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”.

            In the event of a conflict between the terms of the Master Terms and Conditions and the terms of this Addendum, the terms of this Addendum shall control.  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 NFL’s express written approval for the Order Form.

CUSTOMER UNDERSTANDS AND AGREES THAT NFL DATA MUST NOT BE USED IN CONNECTION WITH GAMBLING OR GAMBLING RELATED ACTIVITIES.

 1.  Definitions.  In this Addendum, capitalized terms shall have the meaning assigned to them herein.  Additionally, for purposes of this Addendum, the following definitions apply:

1.1            “Historical Data” means statistics and other data related to National Football League games (and players in such games) prior to the 2015 NFL season.

1.2           “Key Plays” means any of the following: (a) touchdowns, (b) interceptions, (c) long pass completions, (d) long runs, (e) fumbles, (f) field goals and (g) punts and returns. 

1.3           “League Marks” means “National Football League”, “NFL”, “National Football Conference”, “American Football Conference”, “NFC”, “AFC”, “Super Bowl”, “Pro Bowl”, the NFL Shield design, NFL Calendar Trademarks (e.g., NFL Kickoff), any branding for the NFL Data (e.g., “Next Gen Stats” or any other brand or designation identified by NFL) and other identifying words, logos, symbols, slogans and indicia used, held for use, or otherwise adopted for commercial purposes by the NFL.

1.4           “Licensed NFL Marks” means the branding for the NFL Data (e.g., “Next Gen Stats” or any other brand or designation identified by NFL) that NFL designates in writing for use for branding of NFL Data and no other NFL Marks.

1.5           “Member Clubs Marks” means the full team names, nicknames, helmet designs, uniform designs, logos, slogans and other identifying words, symbols and indicia used, held for use, or otherwise adopted for commercial purposes by the Member Clubs.

1.6           “New NGS Data Points” means any new data or insights that are (a) derived from existing NGS Content or (b) output from analysis of NGS Content or analysis of derivatives of NGS Content. 

1.7           “NFL” means NFL Enterprises LLC.

1.8           “NFL Data” means, collectively, the data delivered via the Game Statistics Information System feed in respect of National Football League games (“NFL Games”) played during the Term (“GSIS Content”) and NGS Content, in each case as identified on the Order Form. 

1.9           “NFL Entities” means the NFL, the National Football League, the National Football League member clubs (“Member Clubs”), NFL Ventures, L.P. and its subsidiaries, or any of their respective related entities and affiliates.

1.10        “NFL Marks” means the League Marks and Member Clubs Marks.

1.11        “NFL Research Product” means a Research Product that includes NFL Data and Historical Data.

1.12        “NGS Content” means the next generation statistics data feeds in respect of National Football League games played during the Term.

1.13        “Research Product” means a game preview research product, research query software tool and/or research call center service.

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

 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 NFL 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 NFL Data to support the foregoing use on Customer’s websites and applications.  Furthermore, Company hereby grants to Customer a non-exclusive, limited right to use the NFL Research Product (if such product is licensed under the Order Form) solely for Customer’s internal use only, except for posting on Customer’s websites and applications of visualizations produced by the NFL Research Product that are clearly authorized for posting as specified in the NFL Research Product.  Customer agrees and acknowledges that it shall not, directly or indirectly, make the NFL Research Product available to end users of its products or services.

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

3.3           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 NFL Data. 

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

3.5           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 NFL Data.

3.6           Customer shall not use any Silver or Gold Tier NGS Content (as identified on the Order Form) in any fantasy football game.  However, Customer may use Bronze Tier NGS Content (as identified on the Order Form) in fantasy football games; provided that such fantasy football games do not constitute “daily” fantasy games that are presented in weekly or other non-season-long formats.  For clarity, only GSIS Content may be used in “daily” fantasy games. 

3.7           No right, license or permission or interest of any kind in or to the NFL Data or any other NFL Entity or player data is or is intended to be given or transferred to or acquired by Customer, except for the specific permissions to NFL Data specified in Section 3.1 above.  Company and NFL reserve all other rights, claims and permissions to the NFL Data and no other permission shall be implied under any circumstances.

4.  Secure Processing and Remediation Efforts.  Customer shall implement reasonable data security practices, including meeting the requirements set forth on Exhibit B hereto, as the same may be updated from time to time.  If after receiving updated data security requirements Customer believes it cannot comply with such requirements within thirty (30) days, Customer must notify Company within these thirty (30) days.  Company and Customer agree to make a commercially reasonable effort to achieve a mutually agreeable solution, with any such solution subject to NFL approval. In addition, Customer shall comply with the obligations set forth in Exhibit B with respect to any Data Security Breach (as defined in Exhibit B), including the obligations relating to remediation efforts.

 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 NFL may direct from time to time):

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

5.2           This service includes proprietary data of the NFL 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.  Next Gen Stats, the NFL shield design, and other NFL-related identifying marks are trademarks of the NFL. The team names, logos, and team-related identifying marks are trademarks of the teams indicated. All rights reserved.

5.3           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 NFL 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 March 31, 2019 (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 NFL Data or causes harm to the NFL or (ii) the NFL terminates its grant of rights to Company.  Immediately upon any termination of this Addendum or the Agreement, Customer shall cease all use of NFL Data and promptly provide to the Company or NFL all data and databases in its possession or destroy all NFL Data in its possession, in each case as directed by the NFL 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 NFL shall have the right, with reasonable notice to Customer, to audit Customer’s use of the NFL Data no more than once each year during the Term to verify compliance with the terms of the Agreement.  If Company or the NFL identifies objectionable use (as determined by Company or the NFL in their sole discretion) of NFL 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 NFL Data to Customer and terminate this Addendum or the Agreement in its entirety and Customer agrees that neither Company nor the NFL will have any liability for any such termination.

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

 9.  Branding.  Customer shall reference the NFL’s advanced statistics brand (e.g., “Next Gen Stats” or any other brand or designation identified by NFL) whenever NGS Content is used.  In addition, 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 NFL Data.  Any and all use of NFL’s advanced statistics brand by Customer shall be in accordance with NFL’s trademark and style guidelines provided to Customer from time to time by Company or the NFL.

 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 NFL Data, information pertaining to the NFL Entities and NFL 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 NFL 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 NFL 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 the NFL’s data security policies, including those requirements set forth in Exhibit B.

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

 13.  Exclusions and Limitations of Liability. To the full extent permitted by applicable law: (A) Company, NFL and the NFL 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 NFL AND NFL Entities’ maximum aggregate liability to Customer will not exceed the total fees paid for the NFL Data for the then-current NFL season.

 14.  Additional Restrictions. 

14.1        Customer covenants that it (i) does not and will not engage in any gambling or gambling-related activities and (ii) will not make use of the NFL Data for any gambling or gambling-related purposes.

14.2        Customer agrees not to derive or distribute any New NGS Data Points Further, Customer shall not identify a New NGS Data Point or any compilation of New NGS Data Points with a name, trademark or other identifier unless such name, trademark or other identifier has been pre-approved by the NFL.

14.3        NGS Content may not be used to create a graphical display of the play on the field (whether in real-time or after the conclusion of the play), except for Gold Tier Customers (as identified on the Order Form) who may distribute four (4) “Key Plays” per game. “Key Plays” shall mean any of the following: (i) touchdowns, (ii) interceptions, (iii) long pass completions, (iv) long runs, (v) fumbles, (vi) field goals and (vii) punts and returns. Such graphical displays may continue to exist on Gold Tier Customer’s digital properties post-game, but in no event beyond the February 28 immediately following the Super Bowl that concludes the applicable NFL season. For clarity, substitutions of graphical displays once posted are prohibited. 

14.4        NFL Data (i) may not be overlaid on NFL Game video footage under any circumstances (e.g., even if Customer has a license to NFL Game video footage); (ii) may not be used to create interactive experiences around or in connection with any NFL-themed video programming, including NFL Game broadcasts, NFL Sunday Ticket, NFL Network, NFL RedZone and NFL-themed studio shows and, for clarity, interactive experiences will include but not be limited to the display of the NGS Content adjacent to or on top of such programming; (iii) may not be used in fitness or consumer health applications; and (iv) NGS Content may not be used in connection with any brand activation products (e.g., “Verizon LTE Fastest Player of the Day” would be prohibited) without express pre-approval by NFL.

14.5        Customer shall not sell or display advertising or sponsorships specifically against the NFL Data (e.g., “NGS Content presented by X” would not be permitted), whether as part of Customer’s website or application or as part of a frame for another service.  In addition, while run-of-site banner ads and other advertising are permissible, Customer agrees not display on any page on which NFL Data is used or appears any advertising for products and services that fall within one or more of the prohibited categories in Exhibit A at the end of this Addendum.

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

14.7        Customer shall have the right to save or otherwise archive NGS Content during Term and solely for the purposes of supporting authorized uses of NGS Content in accordance with the applicable tier (as set forth on the Order Form) and the restrictions set forth herein.  Customer shall not make available such archive in a consumer-facing manner.  Company may request, in its sole and absolute discretion, that Customer remove any such consumer-facing archive and Customer shall remove such consumer-facing archive.

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

14.9        Customer shall not use, or allow others to use, NFL Data in a manner that is or may be harmful to the NFL Entities or their players and personnel.  Customer shall not: (i) use or register any domain name that is identical to or confusingly similar to any of the NFL Marks; (ii) create, acquire, license, or support any internet keyword or search term that contains any NFL Marks or names of categories of NFL Data; or (iii) collect, use or reproduce data from any source that is linked to or combined with NFL Data except with the NFL’s express written authorization.

15.  Third Party Beneficiary.  Company and Customer hereby acknowledge and agree that the NFL is a third party beneficiary of this Agreement, including this Addendum, and that, upon Customer’s acceptance of the Agreement, the NFL 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

Prohibited Advertising Categories

(Note that examples listed within specific categories are provided for illustrative purposes only.)

 

  1. The business category of the NFL’s official sponsor(s) of the NGS Content, which will be notified to Company from time to time.
  2. Contraceptives (e.g., condoms), except to the extent otherwise expressly permitted under the pharmaceutical category.
  3. Dietary and/or nutritional supplements, products commonly referred to as “energy drinks”, and other products that contain ingredients other than vitamins and minerals for which the FDA has established recommended daily intakes, or any substance prohibited pursuant to League policies.  Health and nutrition stores are permitted, provided that they do not reference any dietary or nutritional supplements or products, energy drinks, or any prohibited substances.
  4. Distilled spirits and flavored malt beverages (e.g., Smirnoff Ice, Bacardi Silver); however, traditional malt beverages (e.g., beer) and non-alcoholic malt beverages and wine are permitted, subject to specific League guidelines.
  5. Establishments that feature nude or semi-nude performers.
  6. Firearms, ammunition or other weapons; however, stores that sell firearms and ammunitions (e.g., outdoor stores and camping stores) will be permitted, provided they sell other products and the ads do not mention firearms, ammunition or other weapons.
  7. Fireworks.
  8. Gambling-related advertising, including, without limitation, advertising for any hotel, casino or other establishment that houses gambling regardless of whether the advertising references gambling, as well as any advertising that would violate the terms of the NFL’s television agreements or policy on gambling advertising. 
  9. Illegal products or services.
  10. Movies, video games and other media that contain or promote objectionable material or subject matter (e.g., overtly sexual or excessively violent material), as determined by the NFL.
  11. Restorative or enhancement products (e.g., “male enhancement” products), except to the extent otherwise expressly permitted under the pharmaceutical category.
  12. Sexual materials or services (e.g., pornography or escort services).
  13. Social cause/issue advocacy advertising, unless otherwise approved in advance by the NFL.  If approved, only general advertising will be permitted (e.g., advertising units).  Sponsorships, including, but not limited to, program segment sponsorships and other types of branded programming enhancements are prohibited.
  14. Tobacco products (e.g., cigarettes, cigars, pipe tobacco, chewing tobacco and snuff).
  15. Advertisements for pharmaceutical products (both prescription and over-the-counter (non-prescription)) are permitted only under the following terms and conditions:

 

(a)  Only general advertising will be permitted (e.g., advertising units).

(b) Sponsorships, including, but not limited to, program segment sponsorships and other types of branded programming enhancements are prohibited; provided that in limited circumstances sponsorships by over-the-counter pharmaceutical products may be permitted with the prior written approval of the NFL.

(c)  Categories of permitted/prohibited pharmaceutical products (both prescription and over-the-counter) may be modified by the NFL at any time.

(d) Advertising for over-the counter pharmaceuticals is generally permissible (provided they do not otherwise fall in a category listed above)

(e)  Advertising for prescription medications is permitted currently in only the following categories: 

  • Aesthetic Products (e.g., Botox, Latisse)
  • Analgesics (Non-Opioid Only ) (e.g., Celebrex, Mobic)
  • Antibacterials (e.g., Zithromax, Levaquin)
  • Anticoagulants/Platlet Modifying Agents (e.g., Pradaxa, Plavix)
  • Anticonvulsants/antiepilepsy (e.g., Neurontin)
  • Antidementia / Alzheimer’s Agents (e.g., Aricept)
  • Antidepressants / Anxiolytics (e.g., Cymbalta, Lexapro, Zoloft)
  • Antifungals (e.g., Diflucan)
  • Antigout Agents (e.g., Zyloprim)
  • Anti-Insomnia Agents (e.g., Lunesta, Ambien)
  • Anti-Inflammatory Agents (Non-Steroidal Only) (e.g., Deltasone)
  • Anti-Migraine Agents (e.g., Topamax, Treximet)
  • Antineoplastics/Oncology Agents (e.g., Rituxan, Gleevec)
  • Antiparasitics (e.g., Malarone, Stromectol)
  • Anti-Parkinson / Movement Disorder Agents (e.g., Requip, Mirapex)
  • Antispasticity Agents (e.g., Zanaflex)
  • Antivirals (e.g., Kaletra, Zovirax, Tamiflu)
  • Blood Glucose Regulators / Diabetes Medications (e.g., Januvia)
  • Cardiovascular Agents (including Cholesterol Reducing) (e.g., Lipitor, Cestor, Norvasc)
  • Dental and Oral Agents (e.g., Aphthasol)
  • Dermatological Agents (e.g., Taclonex)
  • Gastrointestinal Agents (including Inflammatory Bowel Disease Agents) (e.g., Nexium, Asacol)
  • Genitourinary Agents (including Erectile Dysfunction and Prostate Medications) (e.g., Flomax, Viagra)
  • Hair Renewal and Growth (e.g., Propecia)
  • Immune Suppressants / Immunomodulators (e.g., Humira, Orencia, Enbrel)
  • Metabolic Bone Disease Agents (including Anti-Osteoporosis Agents) (e.g., Boniva)
  • Multiple Sclerosis Agents (E.g., Betaseron, Ampyra)
  • Ophthalmic Agents (e.g., Restasis)
  • Oral Contraceptives (e.g., Loestrin 24)
  • Otic Agents (e.g., Auralgan)
  • Pancreatic Enzyme Replacement Agents (e.g., ZenPep)
  • Respiratory Tract Agents (Allergy and Asthma Medications) (e.g., Advair, Spiriva, Pulmicort)
  • Smoking Cessation Products (e.g., Chantix), but specifically not including “electronic cigarettes”
  • Vaccines (e.g., Gardasil, Fluvirin, Zostavax)

 

(f)  Advertising for medical devices is permitted currently in only the following categories: 

  • Aesthetics (e.g., dermal fillers for facial wrinkles)
  • Cardiovascular (e.g., coronary stents)
  • Dental (e.g., dental implants)
  • Drug Delivery Devices (e.g., diabetes pumps)
  • Ear, Nose, and Throat (e.g., sleep disorder breathing products, hearing aids)
  • Ophthalmic (e.g., intraocular lenses for cataracts)
  • Orthopedic (e.g., knee/hip replacements)


 

EXHIBIT B

 

DATA SECURITY REQUIREMENTS

 

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

I.  Definitions.

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 NFL, or to which Customer, Company, or the NFL is required to submit or voluntarily submits (including any data protection or privacy law or regulation).

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

NFL Data” means any data, confidential or propriety information or materials (including without limitation NFL 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 NFL Data may include Personally Identifiable Information.

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 NFL, Customer or a third party.   

II. Customer’s Data Security Obligations.

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 syndication platform used to redistribute the NFL Data and the NFL Data, (ii) guard against Data Security Breaches, (iii) satisfy the requirements for certification under ISO 27001 (the “Security Objectives”), and (iv) meet industry standard practices for the protection of content such as the NFL 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 B.

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 NFL Data, including in connection with any transfer, communication, remote access or storage (including back-up storage) of NFL Data, as authorized or permitted under the Agreement.  

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

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 NFL 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 NFL 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 NFL.  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 NFL may perform such remediation efforts and will be entitled to reimbursement by Customer for all costs and expenses incurred by Company or the NFL in connection therewith. For the avoidance of doubt, Customer’s payment obligations pursuant to this Exhibit B 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 NFL in connection with, Customer’s, Company’s, the NFL’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 NFL 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.

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 NFL 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 NFL Data as necessary to enable Company or the NFL 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 NFL 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.

 

Prior Version – August 4, 2014