MASTER TERMS AND CONDITIONS FOR NON-BETTING SERVICES
Last Updated: March 18, 2024
SPORTRADAR US - MASTER TERMS AND CONDITIONS FOR NON-BETTING SERVICES
THESE SPORTRADAR US - MASTER TERMS AND CONDITIONS FOR NON-BETTING SERVICES (“TERMS AND CONDITIONS”) APPLY TO ANY FREE TRIAL FOR THE SERVICE OR PRODUCT FOR WHICH CLIENT REGISTERS ON THE SPORTRADAR US LLC ( "SPORTRADAR") DEVELOPER WEBSITE, ANY PRODUCT OR SERVICE PROVIDED BY SPORTRADAR PURSUANT TO AN AMENDMENT, ADDENDUM, ORDER FORM, STATEMENT OF WORK OR ANY OTHER AGREEMENT (INTERIM OR OTHERWISE) EXECUTED BY CLIENT AND SPORTRADAR GOVERNING THE PROVISION TO CLIENT OF SPORTRADAR MATERIALS SPECIFIED IN SUCH AGREEMENT (TOGETHER WITH THESE MASTER TERMS AND CONDITIONS, THE “AGREEMENT”). SPORTRADAR RESERVES THE RIGHT, IN ITS SOLE DISCRETION AND WITH OR WITHOUT NOTICE, TO CHANGE, MODIFY, ADD OR REMOVE ANY PORTION OF THESE TERMS AND CONDITIONS, IN WHOLE OR IN PART, AT ANY TIME. PLEASE CHECK THESE TERMS AND CONDITIONS PERIODICALLY FOR CHANGES.
PART ONE – GENERAL TERMS
1. Compliance with All Applicable Laws and Regulations; Licenses and Permits. Client is responsible to ensure its compliance with all applicable laws and regulations in the relevant jurisdictions. Client acknowledges and agrees to obtain any required licenses and permits for use of the Data, Products and Services. Client represents and warrants that to the best of its knowledge neither it nor any of its employees, Affiliates or Affiliate's employees, within the last five (5) years have (i) been deemed by an federal, state, local, and/or foreign governments (and all agencies thereof) ("Governmental Authority") to be a Federally Prohibited Person as defined by the U.S. Patriot Act; or (ii) has received from any federal, state, local, and/or foreign governments (and all agencies thereof) an investigative or enforcement notice that was not provided to Sportradar prior to execution of the Agreement. In the event Client had received notice, Client shall have provided Sportradar with evidence confirming compliance with such notice prior to the execution of the Agreement. If, during the Term, Client receives an investigative or enforcement notice from a Governmental Authority, Client agrees to notify Sportradar within ten (10) business days of receipt (email will suffice). "Federally Prohibited Person" shall mean any natural or legal person that is named as a "specially designated national and blocked person" on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, or any replacement website. Upon the other Party's reasonable written request, each Party agree to provide the other Party with documentation relating to its program, policies, and/or procedures such Party maintains or that is maintained by an Affiliate or authorized representative on behalf of such Party in connection with all compliance with Applicable Laws.
1.1. Anti-Corruption. In connection with its business, neither Party's Affiliate, Sportradar, nor the Party itself, nor to the knowledge of either such Party, has any employee or other person associated with or acting on behalf of such Party, directly or indirectly, used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, or made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds. Each Party warrants that such Party and any of its Affiliates and authorized representatives acting on such Party's behalf in the performance of this Agreement have complied and will continue to comply with and have not and will not commit any offense under (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended, ("FCPA"); (b) the UK Bribery Act 2010; (c) the anti-corruption and/or anti-bribery laws of the United States; or (d) any other anti-corruption law(s) ("Anti-Corruption Laws") applicable to each such Party or the jurisdictions associated with this Agreement.
1.1.1. No Improper Conduct. Each Party represents and warrants that no unlawful payments of money or anything of value have been or will be offered, promised, or paid, whether directly or indirectly, by any of its directors, officers, employees, or authorized agents acting on such Party's behalf in the performance of this Agreement, to any person, including any Government Official, for purposes including but not limited to: (a) to improperly influence any official act or decision of that person; (b) to induce that person to do or omit to do any act in violation of a lawful duty; or (c) to secure any improper benefit or favor for such Party. Each Party represents and warrants that no unlawful influence of any person for business advantage, any bribe, rebate, payoff, influence, payment, kickback or other similar unlawful payment to any person has been or will be made by any of its directors, officers, employees, or such authorized agents. As used herein, “Government Official” means: (1) any elected or appointed government official, officer, employee or person acting in an official or public capacity on behalf of a government; (ii) any official or employee of a quasi-public or non-governmental international organization; (iii) any employee or other person acting for or on behalf of any entity that is wholly or partially government owned or controlled by a government; (iv) any person exercising legislative, administrative, judicial, executive, or regulatory functions for or pertaining to government (including any independent regulator); (v) any political party official, officer, employee, or other person acting for or on behalf of a political party; and (vi) any candidate for public office.
1.1.2. Anti-Money Laundering. Each Party represents that it has complied and will continue to comply with all applicable financial recordkeeping and reporting requirements, and any and all applicable anti-money laundering laws in jurisdictions in which such Party conducts its business, including but not limited to The Bank Secrecy Act of 1976 (as amended) and the USA PATRIOT ACT of 2001 (as amended). Each Party represents that it is not under investigation by any Governmental Authority for, and has ever been charged with or convicted of, money laundering, drug trafficking, terrorist related activities, any predicate crimes to money laundering, or any violation or applicable anti-money laundering laws and/or regulations. Each Party agrees to notify the other Party of any suspicious activity of which it becomes aware relating to any provision, directly or indirectly, of this Agreement.
1.1.3. Trade Sanctions. Each Party agrees to comply with all customs, export control, antiboycott, and economic and financial sanctions laws and regulations of the jurisdiction where it is formed, the jurisdictions in which it conducts business, or any other governing bodies whose sanctions regimes may otherwise have jurisdiction over such Party. Each Party agrees that it will not export, re-export, ship, distribute, sell, resell, supply, or otherwise transfer any products, equipment, goods, technology, or software furnished by either Party to, or for end use by, any person (a) listed in any sanctions-related list of designated persons maintained by the United States Department of the Treasury's Office of Foreign Assets Control ("OFAC"), the Swiss Secretariate for Economic Affairs ("SECO"), the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; or (b) operating, organized or resident in any country or territory which is itself the subject or target of any such sanctions. Neither Party, nor any of their subsidiaries nor any director, officer, employee, agent, or Affiliate of such Party or such subsidiary (a) is a sanctioned person or entity sanctioned by the OFAC, SECO, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (b) has any assets located in jurisdictions sanctioned by OFAC, SECO, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; or (c) derives revenues from investments in, or transactions with, persons or entities sanctioned by OFAC, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom.
1.1.4. Know Your Client. As a licensed and regulated business, Sportradar is subject to comply with various legal and regulatory obligations, including the obligation to conduct certain due diligence and monitoring on certain prospective and existing Clients. Accordingly, Sportradar may require completion of a “Know-Your-Client-Questionnaire” (“KYC Questionnaire”). If a KYC Questionnaire is provided by Sportradar Client is obliged to complete the KYC Questionnaire within ten (10) business days after receipt and submit the completed KYC Questionnaire to Sportradar prior to the Parties’ execution of the Agreement. (“Return Deadline”). If by the Return Deadline, Client has not adequately completed the KYC Questionnaire, Sportradar will issue at least one reminder to Client to cure any omission(s). If Client does not thereafter promptly cure the omission(s), Sportradar may suspend or cease supplying the Product and/or Services to Client with 30 days’ notice and/or to terminate the Agreement and any other contracts Client understands and acknowledges that certain confidential, private and/or personal data will be required from Client to complete the KYC Questionnaire. Sportradar will store such information obtained in a manner that adheres to the applicable data security standards and privacy laws. Client represents and warrants that it will cooperate with any additional and reasonable due diligence request updates in connection with the Products and Services offered hereunder, and that non-compliance with Sportradar’s KYC policy or requests may be deemed a breach of the Agreement.
2. Taxes. Sportradar shall provide a validly executed Internal Revenue Service Form W-9 (certifying that it is not subject to U.S. federal backup withholding tax) to Client prior to the date of the first payment under this Agreement. If the previously delivered Internal Revenue Service Form W-9 expires or becomes obsolete or inaccurate in any respect, Sportradar shall promptly provide an updated form. If Sportradar is legally obligated to remit sales and use taxes with respect to any/all fees under this agreement, Sportradar shall provide an invoice to Client detailing the sales and use taxes imposed with respect to the fees, and Client shall pay an amount shown to be due on a correct and undisputed invoice, unless Client provides Sportradar with a valid tax exemption certificate within 7 days of the invoice issue date (in which case a revised invoice will be issued imposing no sales and use tax). For the avoidance of doubt, each of Client and Sportradar shall pay and be responsible for its own taxes based on income, gross receipts, profits or assets. The Parties shall cooperate in good faith to minimize sales and use taxes arising as a result of the rights and licenses provided under the Agreement.
3. Audit. Client shall maintain and keep for a period of at least three (3) years, complete and accurate records in sufficient detail to enable any amounts owed to Sportradar which shall have accrued hereunder to be determined. Upon the request of Sportradar, but not exceeding once in any year, Client shall permit, during normal business hours and with at least ten (10) business days' prior notice, Sportradar and its representatives to have access to all such records of Client as may be necessary to verify (i) the accuracy of the reports submitted to and fees paid or otherwise due to Sportradar hereunder and (ii) Client's compliance with the terms of this Agreement. Any such audit of Client's records shall be at the expense of Sportradar, except that if any such inspection reveals a deficiency in amounts actually paid to Sportradar hereunder in any year of five percent (5%) or more of the amount of the fees actually due to Sportradar hereunder, then the expense of such audit plus the amounts due (plus 1% interest, which shall begin accruing upon the date of the completion of the audit, and which shall compound annually), shall be paid promptly by Client to Sportradar.
4. TERM; TERMINATION
4.1. Term. Unless otherwise expressly specified in the Agreement, these Master Terms & Conditions shall be effective as of the Effective Date and shall continue in full force and effect for the Term.
4.2. Termination. Sportradar may terminate the Agreement at any time for convenience upon no less than ten (10) days' prior written notice to Client. 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. Sportradar may terminate this Agreement upon written notice to Client in the event of any merger, consolidation, reorganization, Change in Control (defined below), or sale of all or substantially all of the assets of Client 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.
4.3 Termination for Non-Compliance and Material Breach. In addition to all other rights and remedies set forth herein, either Party may terminate this Agreement (i) in part if a Party is advised directly by a Gaming Regulator to do so solely for the applicable jurisdiction within the Territory, (ii) in whole or in part if either Party’s internal regulatory compliance advisors finds just cause to reasonably believe that the other Party is unsuitable, connected to illegal activity, or an associated Gaming License would be suspended, denied, or revoked due to this Agreement, (iii) in whole if a Party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its covenants, representations, or obligations contained in this Section 6, or (iv) in whole if the failure, inaccuracy, or breach of a Party of the covenants, representations, or obligations contained in this Section continues for a period of fifteen (15) Business Days' after the non-breaching Party delivers notice to the breaching Party reasonably detailing the breach; all upon written evidence submitted to the non-terminating Party.
4.4. Early Termination. If Client terminates the Agreement or reduces or terminates for any reason other than Sportradar's uncured material breach, Client agrees to pay a termination fee. For any fixed fee Services, the termination fee will be equal to the full amount unpaid and outstanding on the fixed Fee Based Service. For any non-fixed fee Services, the termination fee will be based on the remaining unused term of the Services being terminated, in which case such termination fee shall be determined by multiplying the average of the monthly invoices for each Service being terminated received by Client during the 6-month period preceding the effective date of termination; provided, however if no monthly invoice has yet been received, the Services are not yet in production or less than six (6) months of billing has occurred, including where billing is annual, the estimated monthly billing for each Service to be received hereunder, times the balance of remaining months of the Term if early termination had not occurred, plus any credit issued by Sportradar under this Agreement, if any.
4.5. Effect of Termination. Unless otherwise expressly provided for herein, Client will cease all use and distribution of the Sportradar Materials, promptly return to Sportradar or destroy all data and databases relating to all Historical Data in its possession, provided that, in either circumstance, Client will provide written certification of compliance with these return and destruction requirements.
4.6. Survival. Any provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement, including but not limited to PART ONE, Sections 1 (Compliance with All Applicable Laws and Regulations; Licenses and Permits), 2 (Taxes), 3 (Audit), 4 (Term; Termination), 5 (Third Parties), 2.6 (Images), 2.8 (Official Media Data Addendum), 2.9 (Logos), 3.2 (Free Trial Restrictions), 3.3 (Suspension/Termination of Free Trial; No Warranties), 4 (Economic Terms), 5 (Ownership) , 7 (Term; Termination), 8 (Representations and Warranties), 9 (Disclaimer), 10 (Confidentiality), 11 (Indemnification), 12 (Limitation of Liability), 13 (Binding Agreement; Assignment) and 15 (Miscellaneous) shall survive.
5. Third Parties. To the extent Sportradar's obligations under this Agreement are dependent on the actions of a third party or entering into with an agreement with such third party, Sportradar will use commercially reasonable efforts to obtain such action or enter into such agreement [on terms determined to be reasonable in Sportradar's discretion]. If Sportradar is unable to obtain such action or maintain such agreement, Sportradar's obligations under the Agreement will immediately terminate. Without limitation to any other fee adjustment provision in this Agreement, if any such third party increases its fees to Sportradar during the term of this Agreement, Sportradar reserves the right to increase fees to Client upon thirty (30) days' notice.
6. 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 or that it is of a nature or disclosed in such a manner that a reasonable person would (in all the circumstances) consider confidential ("Confidential Information"). For the purpose of clarity, except as provided for in the exclusions to this Section, 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 Sportradar products and services constitutes Confidential Information of Sportradar. Each Party shall only share Confidential Information to its employees and agents with a need to know such information for a Party to perform its obligations under this Agreement or exercise its rights hereunder ("Representatives"). Each Party shall keep and instruct its Representatives 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 its obligations or exercising its rights hereunder or as expressly authorized by the disclosing party. Any disclosure of such Confidential Information hereunder shall not be construed as an assignment, grant, option, license or other transfer of any such right, title or interest whatsoever to the receiving party or any of its Representatives. 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 10 (Confidentiality), in addition to other remedies, as the possible inadequacy of monetary damages and irreparable harm are acknowledged.
7. SUBCONTRACTORS, ASSIGNMENT, NONSOLICITATION. Sportradar may, at its sole discretion, use subcontractors for the provision of its Services. This Agreement is binding upon the parties, their participating Affiliates and their respective successors and permitted assigns. Neither this Agreement nor any part thereof or interest therein may be sold, assigned, pledged or otherwise disposed of by Client, whether through a change of control, by operation of law or otherwise, without Sportradar’s prior written consent, provided that, subject to the terms herein, Client may, upon at least sixty (60) days prior written notice to Sportradar, assign or transfer this Agreement, including all Statements of Work then in effect, in whole but not in part, to another entity in connection with a Change of Control, provided that the proposed assignee or transferee (i) agrees in writing to the terms and conditions of this Agreement, (ii) is financially capable of fulfilling the obligations hereunder, and (iii) Client, and any other Affiliate of Client are not together or individually a competitor of Sportradar or an organization deriving more than 5% of its gross revenues from the sale or license of sports-related Data or Content. For purposes of this Agreement, and subject to the terms herein, “Change of Control” means a merger, acquisition, change of control or other consolidation by, with or of Client, including any new or surviving entity that results from such merger, acquisition, change of control or other consolidation. In the case of an assignment or transfer of this Agreement upon a Change of Control, Clients agrees that upon such occurrence, (iv) the use of the Services under the Agreement shall be limited in scope to the business that existed prior to the Change of Control (even if the Agreement purports to contain an enterprise right of use), (v) the use of the Services may not be expanded in any manner without Sportradar’s prior written consent; (vi) Sportradar may charge additional fees for any such expanded use and such fees shall be based on the pricing structure set forth in the Agreement. Sportradar may subcontract any obligations to be performed hereunder, provided that Sportradar will remain primarily liable for the performance of any such assignee or subcontractor. Client agrees not to employ (either directly or indirectly), without the prior written consent of Sportradar, any employee of Sportradar who is, or has been, within the six (6) months prior to Client agreeing to employ any employee of Sportradar, engaged directly in the performance of this Agreement.
8. MISCELLANEOUS. All notices shall be given in writing and sent by internationally recognized overnight carrier to the applicable Party's address set forth in the Agreement (or, with respect to a Free Trial, the Sportradar's address on the Sportradar website and the mailing address provided by Client in the Free Trial registration form) to the attention of the party designated by Client in the Agreement. 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 (Images) and 11 (Indemnification), nothing herein is intended to give any rights of any kind to any third parties. Sportradar 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, disease, epidemic, pandemic, quarantine, 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 the 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 New York, without reference to conflicts of laws principles. The state and federal courts in New York 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.
PART TWO – US MEDIA – GENERAL TERMS AND CONDITIONS APPLICABLE TO NON-BETTING SERVICES
1. DEFINITIONS. Capitalized terms not defined in this Section 1 shall have the meaning where defined in these Master Terms and Conditions Applicable to Non-Betting Services or in the Agreement.
1.1. Activation Date means the date set forth on the Agreement 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 Affiliate means any entity that, directly or indirectly, controls, is controlled by, or shares common control with, a Party. For purposes of this definition, “control” means the ownership, directly or indirectly, of a majority of the voting securities or other ownership interests of such entity, or the ability to direct the affairs or control the composition of the board of directors or equivalent body, of such entity.
1.4. API means an application programming interface for the Service through which a Client can obtain access to Content or Data applicable to such application programming interface.
1.5. Applicable Law(s) means any government laws, rules, regulations, regulatory license conditions, and the relevant authorities' directions, rules, standards, guidance and codes of practice in all relevant jurisdictions.
1.6. Sportradar Materials means, individually and collectively, the Service, Data (including Historical Data) and Content, none of which may be used by Client for betting purposes.
1.7. Content means any text, image(s), data and / or content from third parties or other content and solutions provided by Sportradar through the Service other than Data.
1.8. Client or Customer means the person or entity named in the Agreement as the Client or Customer.
1.9. Data means statistical data and other data relating to sporting events provided by Sportradar through the Service other than Content.
1.10. Documentation means all Sportradar documentation relating to integration with the Products and use of the Service.
1.11. Effective Date means the date set forth on the Agreement as the "Effective Date."
1.12. Fees means the fees payable by Client in connection with access to and / or use of the Service, as specified in the Agreement.
1.13. Free Trial means non-commercial use of the Service provided by the Sportradar to prospective Clients for internal testing and evaluation purposes only pursuant to registration through the free trial registration form found on the Sportradar developer portal, the Agreement and these Master Terms and Conditions.
1.14. Historical Data means historical and / or non-real-time data points and game-related statistical information for a sports league, federation, or organization. For clarity, in-progress seasons shall not be considered Historical Data.
1.15. Order Form, which is a form of an Agreement, means a document executed by Sportradar and Client which references these General and Conditions and sets forth the Products subscribed to by Client and further information such as the Subscription Period, Properties, Rate Limit, Overage Fees and Fees for each such Product.
1.16. Overage Fees means the Fees payable by Client for use of a Product during a given calendar month in excess of the Rate Limit which may be specified in the Agreement or otherwise imposed by Sportradar.
1.17. Party means the Sportradar or Client and a reference to Parties shall be a reference to Sportradar and Client.
1.18. Personnel means Client's individual employees, contractors or other third-parties associated with or performing services for the Client.
1.19. Product means any visual, editorial or data product, including but not limited to widgets, cards, API or other interface through which Client can obtain access to Content or Data.
1.20. Properties means the website and mobile device software application, as they exist at the time of execution of the Agreement, designated as a "Property" on the Agreement. Any additional Property that is not expressly included in the Agreement is not considered a Property for the purposes of the Agreement, unless otherwise agreed to in writing executed by Sportradar.
1.21. 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 Agreement.
1.22. Service means Sportradar's hosted online service through which it makes available Data and Content to its Clients via APIs for storage on Client servers. For the avoidance of doubt, references to the "Service" herein include the APIs.
1.23. Subscription Period means, with respect to a Product, the time period designated as the subscription period for such Product on the Agreement and any renewals thereof.
1.24. Term means the time period beginning on the Effective Date and ending: (1) with respect to a Free Trial, the end of the Free Trial period as specified to Client on the Sportradar 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.
1.25. Third Party means an individual or entity other than the Parties to this Agreement or their Affiliates.
1.246. Unbilled Fees means the Fees payable from Client to Sportradar as agreed to under the terms of the Agreement for which invoice(s) have not yet been prepared or sent to the Client or which have not been received by the Client.
2. FEE BASED SERVICE. The provisions of this Section 2 apply solely to a fee-based Service subscription pursuant to the Agreement.
2.1. Provision of Service. Subject to all terms and conditions of these Master Terms and Conditions and the Agreement, Client may access and use the Service solely through the Products designated in the Agreement, during the applicable Subscription Periods. Client agrees that access and use of the Service by Client will at all times be for the sole purposes of displaying Data and Content provided through each such Product on the Properties specified for such Product on the Agreement, in accordance with all Documentation, and subject to payment of all Fees, including those related to applicable Rate Limits and Overage Fees. Client acknowledges and agrees that certain Products provide Data or Content that is in turn procured by the Sportradar from third parties ("Third-Party Data or Content") pursuant to agreements between Sportradar and such third parties (such agreements, "Third-Party Agreements"). To the extent Client accesses or receives any Third-Party Images, Client agrees that use of such Third-Party Images and the foregoing license grant is subject to the additional terms and conditions set forth herein. "Third-Party Images" includes, but is not limited to content from Getty Images, USA Today, Reuters, and Associated Press.
2.2. Right to Modify. Sportradar reserves the right to modify and update the features and functionality of the Service at any 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, Sportradar shall provide to Client advance written notice. Client agrees to promptly implement and use the most current version of Sportradar's API. Sportradar will support one (1) current and two (2) prior versions of an API; all other versions of an API shall be deemed unsupported ("Unsupported API"). Client's continued access or use of the Sportradar APIs following an update or modification will constitute binding acceptance of the update. Client is responsible for all activities occurring under an API key or product credentials issued to Client and agrees to monitor the use of such key(s) utilized by Personnel. Client agrees that any Sportradar indemnification obligations in this Agreement shall not apply to Unsupported APIs.
2.3. Restrictions. Except for authorized third-parties, such as Personnel or developers, who are contractually bound by the Client to adhere to these Master Terms and Conditions, Client agrees not to, not to attempt to, nor allow any third party to: (i) copy, modify or make derivative works of the Sportradar 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 Sportradar; 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 Sportradar Materials, unless previously approved by Sportradar, in connection with, in conjunction with, or with regards to advertising, including but not limited to triggering Client ads or incorporating the Sportradar Materials into specific Client ad units, shall be considered as an act in contradiction with these Master Terms and Conditions.
2.4. Properties. Client acknowledges that use of the Service is provided only to enable Client's display of Data and Content on the Properties specified for the applicable Product, and Client agrees not to use the Service in connection with any website, mobile application or other online service other than such Properties. Client acknowledges that Sportradar's willingness to enter into this Agreement is based on the Properties as they exist as of the Effective Date, and Client agrees that Sportradar 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 Client. 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.
2.5. Suspension/Termination. Sportradar may suspend or limit Client's access to or use of the Service at any time (with or without notice) without liability if Sportradar determines such action is: (i) necessary to prevent harm to any system or network or to limit Sportradar's liability or (ii) Client does not timely pay all Fees in accordance these Master Terms and Conditions Applicable to Non-Betting Services below. Furthermore, Sportradar may terminate the Agreement immediately without liability upon written notice if Client attempts to access or use the Service in a manner that breaches this Agreement. In the event Sportradar terminates the Agreement in accordance with the terms of this Section, then all unpaid Fees shall upon the effective date of delivery of such termination become immediately due and payable and can be charged to Client's credit card or bank account.
2.6. Third-Party Services. Certain Products utilize Third-Party Data or Content. In certain circumstances, Data or Content to be provided pursuant to Third-Party Agreements may not be provided to Sportradar and therefore such Data or Content is then not able to be provided to the Client. In such circumstances, where possible, Sportradar will use reasonable efforts to provide Client with a short-term failover comprised of similar Data or Content that can be captured during the failover period. Client acknowledges and agrees 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, Sportradar shall replace the affected Third-Party Data or Content with Data or Content that is of equal or comparable value and in doing so, shall provide Client with reasonable notice but no less than fifteen (15) days advance notice. If the Sportradar is unable to replace the Third-Party Data or Content, the Subscription Period for only the applicable Product shall be deemed to terminate on the date of such event and no further Fees shall be due for use of such Third-Party Data after the termination date hereunder with respect thereto. Sportradar shall have no liability with respect to any modification, suspension or termination other than as specified in this Section. Furthermore, Client acknowledges and agrees that Sportradar may, from time to time, at its sole discretion use the services of its subsidiaries or third parties as subcontractors to provide its obligations hereunder. SportradarClientSportradar
2.7. Images. If Client licenses Third-Party Images and Sportradar agrees to grant permission to Client to use such Data and/or Content, such agreement will be confirmed in the Agreement and use of such Data and/or Content shall be subject to the Third-Party Images Addendum located at https://developer.sportradar.com/Third_Party_Images_Addendum.
2.8. Official Media Data Addendum. If Client licenses to Sportradar any official data from the National Basketball Association ("NBA"), National Hockey League ("NHL"), and / or Major League Baseball ("MLB"), and Sportradar agrees to grant permission to use such official data to Client, such agreement will be confirmed in the Agreement and use of such official data shall be subject to the following terms and conditions. https://developer.sportradar.com/Official_Media_Data_Addendum.
2.9. Logos. Nothing herein shall be deemed to confer to Client any license, right, title, or interest in or to use logos, whether or not contained within the Sportradar Materials, belonging to the sports league, federation, or organization, whether registered as intellectual property or otherwise.
2.10. No Gambling. Client will not, directly or indirectly, use the Sportradar Materials in connection with or in combination with any gambling or betting-related purposes without express written approval from Sportradar, which may be further conditioned by Sportradar.
2.11. Accuracy and Availability. Client 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 Sportradar's control, and that Sportradar 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 Sportradar by Client in writing.
2.12. Publicity. Client 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 Client 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, Client shall immediately cease the use of "powered by Sportradar" logo. Sportradar shall have the right to display and use Client's trademarks on Sportradar's website and marketing materials for purposes of identifying Client as a Sportradar Client. Within thirty (30) days after the Effective Date of this Agreement, the Parties may, subject to the Sportradar'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, Client may access and use the Service, solely through the Products made available by the Sportradar (in its sole discretion), unless otherwise agreed to in writing and in accordance with all Documentation, solely for purposes of internally evaluating the Sportradar Materials. Client is not authorized, and agrees not to, use the Sportradar Materials in connection with any commercial use or any use involving publication or display of the Data or Content in any form or media. Client agrees not to violate any Applicable Laws or third-party rights in connection with its use of the Service. Client is responsible for all activities occurring under an API key or Product credentials issued to Client and agrees to monitor the use of such key(s) utilized by Personnel.
3.2. Free Trial Restrictions. Client 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 Client for purposes of evaluating whether Client wants to enter into a paid Service subscription.
3.3. Suspension/Termination of Free Trial; No Warranties. Sportradar may suspend and / or terminate Client's access to or use of the Services at any time without notice, for any reason or for no reason and without liability therefore. Sportradar 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 and Charges. No fees are due from Client for authorized use of the Service pursuant to a Free Trial. Otherwise, subject to the other terms of these Master Terms and Conditions. Client shall pay Sportradar the Fees as set forth in each Agreement beginning on the Activation Date and continuing throughout the Term based on the payment schedule outlined in the Agreement. All recurring Fees under an Agreement are non-refundable and shall be due and payable in advance of the applicable period. Sportradar reserves the right to adjust all fees and prices (other than fees subject to a revenue share arrangement) on an annual basis equal to the greater of the twelve (12) month average of the Consumer Price Index of the United States Bureau of Labor Statistics (http://www.bls.gov) or five percent (5%). For clarity, the foregoing will not limit additional fees (and any associated fee increases) due for additional products and services that Client may purchase from Sportradar after the Effective Date. In addition, where applicable, Client agrees to pay such early termination fees and Overage Fees upon proper invoicing for same.
4.2. Payment Terms. Sportradar shall invoice Client for Fees on a calendar monthly basis consistent with the Order Form, with each invoice delivered in advance on or about the 15th day of the month for the following month's Service and in arrears for any Charges. Client agrees to pay each invoice within ten (10) 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, by submitting payment via bank transfer or through Sportradar's payment portal. Sportradar reserves the right to withhold API keys or Product credentials until the billing information form is completed and received by the Sportradar and any Fees due are successfully collected by the Sportradar. If the Sportradar has not received payment within 3 days after being contacted by the Sportradar or if Client's payment information provided on the new billing information is declined, then Sportradar has the right to suspend service. 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 Sportradar 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 Sportradar should commence any action or actions, or otherwise seek to enforce this Agreement against the Client or any guarantor, Client agrees to pay all reasonable collection and attorney(s) fees, court costs, and other expenses, incurred by Sportradar whether or not suit is filed. Client 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 Sportradar's net income.
4.4. Official Prices. Notwithstanding the foregoing, Client hereby acknowledges and agrees that the Prices agreed and applicable to any Service designated as "official" herein or in any of the accompanying documentation are valid on a season-by-season basis for the applicable sport; and Sportradar reserves the right to reasonably adjust the Prices for such "official" Service(s) no later than thirty (30) days before the start of each season during the Term, such adjustment to be confirmed in writing and agreed by Client therein. If Client does not agree to such adjusted prices then the Service to which the "official" Service relates may be terminated by either Party for convenience with Client to provide such written notice to Sportradar within 60 days of the date upon the date of such Prices adjustment notice.
4.5. Overage Fees. Sportradar reserves the right, in its sole discretion, to charge Client 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 these Master Terms and Conditions Applicable to Non-Betting Services. 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.
4.6. Use of Service. By agreeing to these Master Terms and Conditions, Client is obligated to pay for the access and use of the Sportradar Materials regardless of whether the service is utilized, integrated or otherwise.
5. OWNERSHIP. As between the Parties, Sportradar owns and retains all right, title and interest (including all intellectual property rights) in and to the Sportradar Materials and any software, technology, materials and information acquired, created, authored, made, conceived or reduced to practice by Sportradar (collectively, "Sportradar IP"). Client is not required to provide any ideas, feedback or suggestions regarding any of Sportradar's products or services ("Feedback") to Sportradar. To the extent Client does provide any Feedback to Sportradar, Client hereby grants to Sportradar 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 Client.
8. REPRESENTATIONS AND WARRANTIES.
8.1. Authority. Each Party represents and warrants to the other Party that it has the power and authority to enter into the Agreement and that its entry into and performance of this Agreement shall not conflict with any other agreement, order or judgment to which it is bound.
8.2. Use of Sportradar Materials and Third-Party Data or Content or Third Part Images. Furthermore, Client hereby represents and warrants that use of the Sportradar Materials and Third-Party Data or Content or Third-Party Images (where applicable).
8.2.1 does not violate any Applicable Laws, rules, regulations or third-party rights, including in relation to Third-Party Images;
8.2.2 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,
8.2.3. will not be used in a betting, gaming, gambling, or wagering capacity without express, written approval from Sportradar (subject to the discretion and control of Sportradar) and Client will not use the Sportradar Materials in connection with any such business, nor provide the Sportradar Materials to any third party that engages in any such business or for use in connection with any such business.
9. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SPORTRADAR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT, AND EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. SPORTRADAR 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 CLIENT'S REQUIREMENTS. SPORTRADAR DOES NOT WARRANT THE RESULTS OF USE OF THE SPORTRADAR MATERIALS.
10. INDEMNIFICATION BY CLIENT. Client agrees to, at its own expense, defend and/or settle any claim made by a third party against Sportradar or its directors, officers or employees (the "Sportradar Indemnitees") to the extent resulting directly or indirectly from any breach by Client (or any of its employees or agents) of any warranty, representation, covenant or obligation contained herein, and Client agrees to indemnify the Sportradar Indemnitees against those amounts finally awarded by a court of competent jurisdiction against the Sportradar Indemnitees (including damages, interest, losses, costs and expenses including reasonable attorneys' fees) or payable pursuant to a settlement agreed to by Client with respect to such claims.
11. LIMITATION OF LIABILITY.
11.1. IN NO EVENT SHALL SPORTRADAR, OR ANY OF ITS AFFILIATES BE LIABLE TO CLIENT OR ANY CLIENT AFFILIATE IN CONNECTION WITH THE 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 SPORTRADAR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL SPORTRADAR’S LIABILITY TO CLIENT IN CONNECTION WITH THE AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID OR PAYABLE BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. NOTWITHSTANDING THE FOREGOING, WITH RESPECT TO PROVISION OF THE SERVICE PURSUANT TO A FREE TRIAL, SPORTRADAR'S AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS, REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY EVEN IF ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS