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Master Services Agreement

SUMERSPORTS MASTER SERVICES AGREEMENT

This SUMERSPORTS MASTER SERVICES AGREEMENT (“MSA”) is by and between SumerSports LLC, a Delaware limited liability company (“SumerSports”), and the “Organization”, and together with SumerSports each a “Party” and collectively the “Parties”). All references to “Agreement” shall mean this MSA together with all operative Order Forms.  By use of product and services, customer or Organization is agreeing to the terms set forth in absence of an executed agreement in place between the two parties.

  1. AGREEMENT TO PROVIDE PRODUCTS AND SERVICES; ORDER FORMS

SumerSports shall provide to Organization various products and services delineated in individually executed order form instruments between the parties that reference this MSA (each, an “Order Form” and collectively “Order Forms”). The products and services to be provided to Organization by SumerSports under each Order Form shall be referred to as, respectively, “Products” and “Services”. Each Order Form shall be subject to the terms and conditions of this MSA, provided that in the event of any conflict between an Order Form and this MSA the Order Form shall control (but only to the extent of a direct conflict). An operative Order Form is an Order Form for which the Products and Services have not yet been completed (or the term for such Products and Services has not extinguished) and which has not otherwise been terminated as provided herein.

  1. DATA
    1. SumerSports Data. The Products or Services may consist of, or integrate, SumerSport’s proprietary data (“SumerSports Data”).
    2. Organization Data. The functionality of certain Products or Services may depend on the provision of data by Organization to SumerSports; accordingly, Organization will provide SumerSports with the necessary data, materials and analysis to develop and provide such Products and Services (“Organization Data”). If Organization is a member club of the National Football League, the Organization Data may include real-time data from the National Football League (including, without limitation, NFL Next Gen Stats data and film) and the sharing of any such data shall be subject to the then applicable use terms for such data (including, without limitation, Next Gen Stats (SumerSports shall sign any required Next Gen Stats vendor paperwork)). Organization shall also provide SumerSports with feedback regarding the performance and efficacy of the Products and Services, provided that such feedback shall not constitute Organization Data.
    3. PFF Data. The functionality of certain Products or Services may depend on the use of certain data provided by PFFA Acquisition, LLC (such data, the “PFF Data”, and such LLC, “PFF”) and, as a condition of the provision of such Products or Services, Organization must have a separate licensing agreement with PFF to access the PFF Data and share the same with SumerSports. Accordingly, and notwithstanding anything in the Agreement to the contrary, as a condition of the provision of such Products or Services by SumerSports to Organization, the Organization must be authorized by PFF to access the PFF Data and provide the same to SumerSports. Organization shall be responsible for any fees owing in connection with such separate licensing agreement with PFF.
  2. PRICING AND PAYMENTS

Organization shall pay all fees and expenses (“Fees”) as listed, and in the cadence and for the term set forth, in each Order Form for the Products and Services set forth therein. If an Order Form does not provide for the payment cadence of Fees, all Fees shall be payable in full in advance, provided, further, that if the term is for multiple years, the Fees for each year shall be invoiced and prepaid in connection with the commencement of the applicable year. All payments are non-refundable except as set forth in Section 7. Organization shall pay any taxes or fees, whether imposed on Organization or SumerSports, resulting from Organization’s order or purchase of Products and Services (exclusive of taxes based upon SumerSports net income). Any Fees that are greater than 15 days past due shall bear interest at the rate of one and one-half percent per month.

  1. PRODUCT PERFORMANCE

SumerSports may make modifications to the Products and Services, or particular components of a Product (including but not limited to discontinuing a Product component or Service) from time to time, and will use commercially reasonable efforts to notify Organization of any material modifications. All updates or improvements made to the Products or Services during the Term will be made available to Organization.

  1. CONFIDENTIALITY
    1. Confidential Information. “Confidential Information” means any business or technical information disclosed by or on behalf of either Party or their Affiliates to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, SumerSports Data and all non-public elements of the Products are SumerSports’ Confidential Information and the terms of the Agreement constitute Confidential Information of both parties. Confidential Information does not include: (i) information publicly known or in the public domain prior to the time of disclosure; (ii) information publicly known and made generally available after disclosure through no action or inaction of the recipient; (iii) information already in the possession of recipient, without confidentiality restrictions; (iv) information obtained by the recipient from a third party without a breach of confidentiality; and (v) information independently developed by the recipient. “Affiliates”, as it refers to a Party, shall mean such other parties that are under such Party’s control, control such Party or that are under common control with such Party.
    2. A recipient will not use the disclosing Party’s Confidential Information except as permitted under, or required to achieve the purposes of, the Agreement or to enforce rights under the Agreement and will not disclose such Confidential Information except to those of its employees, Affiliates or subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of the Agreement provided that each such employee, Affiliate or subcontractor is bound by a written agreement (or professional fiduciary obligations) that imposes use and disclosure restrictions consistent with the terms in this Section 5. Each recipient will protect the disclosing Party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to those that the recipient ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, that a Party may disclose such Confidential Information as required by applicable laws, subject to the party required to make such disclosure giving reasonable notice (if legally permitted to do so) to the other party to enable it to contest such order or requirement or limit the scope of such request. The provisions of this Section 5 will supersede any non-disclosure agreement by and between the parties (whether entered into before, on or after the effective date of this MSA).
  2. INTELLECTUAL PROPERTY AND LICENSES
    1. SumerSports Products and License. SumerSports shall be the sole and exclusive owner of all right, title and interest in and to the SumerSports Data, Services and Products (as well as any updates or improvements made to the Products or Services from time to time (including, without limitation, any improvements made at the request or suggestion of Organization)), and any and all copyright, patent rights, and other intellectual property rights and proprietary rights relating thereto. To the extent Organization or any of its Affiliates obtains any such rights in or to the SumerSports Data, Service or Products, Organization hereby, on behalf of itself and its Affiliates, assigns such rights to SumerSports. In furtherance of the provision of the Products and Services to Organization, SumerSports hereby grants Organization, during the term of each operative Order Form, a non-exclusive, limited, non-sublicensable and non-transferable license (“SumerSports License”) to, subject to the terms of this MSA and such Order Form, use (i) the Products and Services described in such Order Form and (ii) the SumerSports Data integrated in the Products and Services described in such Order Form.
    2. Organization Data and License. Organization shall be the sole and exclusive owner of all right, title and interest in and to the Organization Data. The Organization hereby grants SumerSports a non-exclusive license to use, reproduce, make derivative works of, and otherwise exploit any Organization Data during the term of the MSA as necessary to provide the Products and Services, or as otherwise permitted under the Agreement. Upon termination of the MSA, at the Organization’s request, any and all Organization Data shall be destroyed by SumerSports. Notwithstanding anything in this Agreement to the contrary, SumerSports may use Organization Data to develop, improve, operate and support its products and services (including, without limitation, to develop or train any models) provided it has been de-identified or anonymized such that it does not identify Organization or Organization’s players. Such de‑identified or anonymized data, and any data, collection of data, or model derived therefrom, shall not constitute “Organization Data” or “Confidential Information” hereunder, and SumerSports shall be permitted to retain, and continue to use, such data or any models trained thereon following termination of the MSA. Organization, at the end of any Paid, Trial or “Freemium” Term will delete and destroy any information provided by SumerSports as part of the service and not maintain or use to replicate SumerSports proprietary data or products.
    3. Organization IP. Subject to Section 10, SumerSports acknowledges and agrees that it does not have the right to use the tradename, logos, trademarks, service marks, or trade dress or other intellectual property of Organization (or its Affiliates) or any clubs that Organization (or its Affiliates) are a member of (including, without limitation, the National Football League, the National Collegiate Athletic Association, or any athletic conference) for any purpose other than to provide the Products and Services solely for Organization’s benefit.
    4. Updates and Corrections to Player Data. SumerSports shall have the right, only with the permission of the Organization, to provide to member clubs of the National Football League any updates and corrections to physical statistics and other data relating to the players of Organization.
  3. TERM
    1. MSA. This MSA is effective upon the date of the second Party to execute below and will continue in full force and effect until terminated by either Party on thirty (30) days prior written notice provided there are no operative Order Forms outstanding.
    2. Order Form. Each Order Form shall specify the term during which the Products and Services ordered in such Order Form will be provided; if the term of any Services to be provided thereunder is not specified, the term of such Services shall (i) if the Service is provided in connection with the provision of a Product, be co-terminus with the term of such Product or (ii) if the Service is a standalone Service, terminate upon completion of such Service (any Service that does not have a Fee ascribed to it will be deemed provided in connection with the provision of a Product). Each Order Form shall remain in effect until (i) the termination of the terms of all Products and Services ordered thereunder or (ii) the Order Form has been earlier terminated by a Party providing thirty (30) days prior written notice if the other Party is in material breach of the applicable Order Form (or the terms of this MSA as they pertain to such Order Form) and the breaching Party fails to cure the breach by the end of said notice period. The termination of an Order Form shall terminate all Products and Services thereunder and in the event an Order Form is terminated due to SumerSports’ material breach or by Organization pursuant to Section 7.C, SumerSports will refund to Organization that portion of any prepayments made to SumerSports related to Products and Services not yet provided.
    3. Either Party may immediately terminate the Agreement (i.e., the MSA and all operative Order Forms) if the other Party (i) becomes insolvent, (ii) makes an assignment for the benefit of its creditors, (iii) has a receiver, examiner, or administrator of its undertaking of the whole or a substantial part of its assets appointed, (iv) has an order made, or an effective resolution passed, for its administration, examinership, receivership, liquidation, winding-up or similar process or (v) ceases to conduct business.
    4. All provisions of the Agreement that by their nature should survive termination shall do so.
  4. NON-SOLICITATION

During the term of the MSA, and for twelve (12) months thereafter, Organization agrees that it will not directly or indirectly recruit, solicit or otherwise induce or attempt to induce any employee or independent contractor of SumerSports (or its Affiliates) that had direct contact with Organization while that employee or independent contractor was acting in the course and scope of his or her duties with SumerSports (or its Affiliates) to terminate his or her relationship with SumerSports.

  1. SUSPENSION

SumerSports may immediately suspend the provision of any Products or Services for which Fees remain unpaid for ten (10) or more business days after such Fees are due.

  1. PUBLICITY

During the term of the MSA, Organization authorizes SumerSports to use and display Organization’s (and, as applicable, any Programs’) name and logo (i) for public identification as a customer of SumerSports and (ii) in connection with case studies regarding the applicable Organization’s (or Program’s) experiences with the Products or Services (“Case Study”), and include the Case Study in public-facing materials.

  1. ACCEPTABLE USE POLICY

Organization agrees that: (i) Organization shall not use the Products or Services for any illegal purpose; (ii) Organization shall not use the Products or Services in a manner that infringes on the intellectual property rights of a third party; (iii) Organization shall not license, sublicense, sell, resell, use as a service bureau, transfer, assign, distribute, or otherwise use or commercially exploit the Products or Services for a third party’s benefit; (iv) Organization shall not disassemble, decompile, reverse engineer, copy, reproduce, modify, or create any derivative work of any Products or Services; (v) Organization shall not resell or otherwise charge third parties for the use of any Products or Services; (vi) Organization not shall use the Products or Services in any fraudulent manner; and (vii) the Products and Services will only be used for the purposes of, and made available to, the Program(s). “Program” means the Organization’s sports program, or, in the case Organization is an educational or similar institution with multiple sports programs, the sports program(s) specifically identified in the applicable Order Form.

 

  1. DISCLAIMER OF WARRANTY

SUMERSPORTS TRIES TO KEEP ALL OF THE PRODUCTS AND SERVICES OPERATING BUG-FREE, AND SAFE, BUT ORGANIZATION ACKNOWLEDGES THAT ITS USE OF THE PRODUCTS AND SERVICES IS AT ITS OWN RISK. SUMERSPORTS IS PROVIDING THE PRODUCTS AND SERVICES “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUMERSPORTS DOES NOT GUARANTEE THAT THE PRODUCTS AND SERVICES WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS OR THAT THERE WILL BE GUARANTEED UPTIME/AVAILABILITY. SUMERSPORTS FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY THAT PRODUCTS WILL FUNCTION WHEN INTEGRATED OR COMBINED WITH THIRD-PARTY SOFTARE PRODUCTS.

  1. LIMITATION OF LIABILITY

WITH THE EXCEPTION OF ANY UNAUTHORIZED COPYING OR DISTRIBUTION OF ANY OF THE PRODUCTS OR SERVICES, THE ORGANIZATION DATA (BY SUMERSPORTS) OR SUMERSPORTS DATA (BY ORGANIZATION), OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOOD WILL, DAMAGE TO BUSINESS REPUTATION, LOSS OF BUSINESS INFORMATION, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SUMERSPORTS’ TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ORGANIZATION FOR ANY AND ALL CLAIMS OF ANY KIND ARISING AS A RESULT OF OR RELATED TO THE AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY ORGANIZATION IN THE TWELVE MONTHS PRECEDING THE CLAIM (“CAP”), EXCEPT IN CONNECTION WITH SUMERSPORTS’ INDEMNIFICATON OBLIGATIONS PURSUANT TO SECTION 14 IN WHICH CASE SUMERSPORTS’ TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO ORGANIZATION SHALL BE TWO (2) TIMES THE CAP. NOTWITHSTANDING ANYTHING IN THIS SECTION 13 TO THE CONTRARY AND SO FAR AS PERMITTED BY LAW, SUMERSPORTS’ LIABILITY RELATED TO BETA PRODUCTS OR SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED FREE OF CHARGE, INCLUDING, WITHOUT LIMITATION, ANY PRODUCTS OR SERVICES PROVIDED DURING A FREE TRIAL PERIOD, WILL BE LIMITED TO FIVE THOUSAND ($5,000.00) DOLLARS.

  1. INDEMNIFICATION
    • Indemnification by SumerSports. SumerSports shall indemnify, hold harmless and defend Organization against any claim, demand, suit or proceeding brought against Organization by a third party arising out of or resulting from (i) a claim that the Products or Services infringe on the intellectual property rights of such third party, except where Organization’s conduct, Organization’s combination of the Product with any third-party products, or Organization’s breach of Section 11, is a cause of the alleged infringement or (ii) a breach by SumerSports of Section 5.
    • Indemnification by Organization. Organization shall indemnify, hold harmless and defend SumerSports against any claim, demand, suit or proceeding brought against SumerSports by a third party arising out of or resulting from (i) breach by Organization of the Agreement, (ii) SumerSports’ use of Organization Data provided hereunder, and (iii) Organization’s use of the Products, Services or SumerSports Data, except to the extent subject to SumerSports’ obligations under Section 14.A.
  2. SEVERABILITY

If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

  1. ENTIRE AGREEMENT; AMENDMENT; WAIVER; EXECUTION

The Agreement sets forth the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements, discussions and understandings between the Parties, whether oral or written, relating to the subject matter hereof. All terms and provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. The Agreement shall not be amended except by a writing signed by the Parties. No waiver of any provision of the Agreement shall be implied from any course of dealing between the Parties or from any failure by either Party to asset its rights hereunder on any occasion or series of occasions. The Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which, taken together, will constitute one and the same instrument. A Party’s electronic signature or transmission of any document by electronic means will be deemed to bind such Party as if signed and transmitted in physical form.

  1. GOVERNING LAW

The Agreement and any claim arising out of or in connection thereto, including, without limitation, any non-contractual disputes, acts or omissions, or claims in contract, tort, or otherwise (a “Dispute”), shall be governed under the laws of the State of Delaware, without giving effect to its conflict of law provisions. Any Dispute arising out of or relating to the Agreement shall be brought in the state or federal courts located within the State of Delaware. Each Party waives, to the fullest extent permitted by law, any objection which it may now or later have to the exclusive jurisdiction of or the laying of venue in the state or federal courts located within the State of Delaware, including any objections based upon inconvenient forum. The Parties irrevocably waive their respective rights to a jury trial.

  1. PREVAILING PARTY

In the event of any legal action in connection with a Dispute, the prevailing Party shall be entitled to recover from the non-prevailing Party all costs and expenses associated with such proceedings, including, without limitation, reasonable attorney’s fees.

  1. NOTICES

All notices will be deemed given when delivered via email to the address set forth in the Order Form provided no “bounce back” or similar non-delivery report is received by the sender.

  1. SUBCONTRACTING

SumerSports may subcontract any work under the Agreement to any third party or Affiliate without Organization’s prior written consent. Subject to the limitation of liability hereunder (including Section 13), SumerSports shall remain responsible for the performance acts and omissions of any subcontractor or Affiliate.

  1. FORCE MAJEURE

Neither Party will be liable for a delay or failure to perform this Agreement, due to and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)“): (a) acts of God, (b) acts of government, including, without limitation, any changes in law or regulations, (c) acts or omissions of third parties, (d) flood, fire, earthquakes, civil unrest, wars, acts of terror, pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within the Impacted Party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the Impacted Party’s reasonable control. This Section 21 does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery or business continuity procedures (unless that is prevented by a Force Majeure Event) or either Party’s payment obligations hereunder.

Use of the SumerSports Products and Services by any Person, Club or Organization agree to these terms as set forth unless an executed signed agreement between the parties exist, which would supersede the terms of this MSA.  Use of any product or service on a trial or “freemium” basis agree to abide by the terms of use and this MSA until such a time that an MSA is put into place between SumerSports and any person(s) or Organization(s).

  1. Prohibited Activities. Any authorization to access or use the SumerSports Services extends only to the SumerSports Services for which Customer has subscribed and remains in good standing, and for which User conduct is in conformance with these terms and any applicable Additional Terms. This includes access on a Trial or “Freemium” basis. You will not (nor will you permit any User or third party to):
  • reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive the source code underlying the SumerSports Services;
  • transfer, resell, lease, license, or assign SumerSports Services or otherwise offer the SumerSports Services on a standalone basis, or permit any third party to access the SumerSports Services, without express permission from SumerSports;
  • use or access the SumerSports Services for any purpose other than Customer’s bona fide internal business purposes;
  • use or access the SumerSports Services (1) to build, maintain or improve or while developing, maintaining or improving a similar or competitive product or service, (2) for third party research purposes, or (3) for the purpose of obtaining unauthorized access to the SumerSports Services or any data therefrom;
  • share any of your Credentials with any other person outside your Organization, or allow any other Organization to use your Credentials to access the SumerSports Services;
  • use Credentials or make your Account available to connect to Third Party Products through means not provided or approved by SumerSports;
  • develop, support or use software, devices, scripts, robots or any other means or processes (including crawlers, browser plugins and add-ons or any other technology) to scrape the SumerSports Services or otherwise copy profiles and other data from the SumerSports Services in order to enable, use, or build a similar or competitive product or service;

 

 

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