iSportz Service Agreement
This iSportz Service Agreement (this “Agreement”) is entered between iSportz Inc, a Delaware corporation (or the Named Affiliate (as defined below) (“iSportz”) and Customer’s organization (“Customer”) as an authorized user of the Platform (defined below).
WHEREAS, iSportz provides, among other things, electronic registration, association, team, club, camp and sports management solution, scheduling, email marketing, staff management, donations & merchandize purchasing and membership & analytics services, web design and hosting services, search engine optimization services, and payment processing services including (but not limited to) credit card, debit card, check processing/guarantee, coupon/stored value card, ACH, and international processing.
WHEREAS, iSportz intends to make available to Customer certain services, functionality and/or solutions in an online, object-code only system configured by or to be configured by iSportz (collectively the “Platform”) through which iSportz will deliver certain services, as more specifically described in a Pricing Agreement (as defined below).
WHEREAS, Customer desires to receive access to the Platform for use according to the terms and conditions herein.
WHEREAS, the Platform is solely owned by ISportz. Access and use of the Platform is licensed, not sold. Customer hereby agrees the Platform, as well as the iSportz IP Assets, are protected by U.S. and international copyright laws and treaties, as well as other intellectual property laws and treaties.
In consideration of the foregoing and the mutual promises set forth below, the parties agree as follows:
1. Access and Use.
1.2 Use Restrictions. Customer agrees to use the Platform solely to receive the Services of iSportz and to provide access to its Authorized Users. Customer shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. Customer will not modify, copy, publish, retransmit, participate in the transfer or sale of, create derivative works of, distribute, sublicense, perform or display the Platform or any intellectual property or other material owned, licensed or developed by iSportz, including but not limited to any software, source code, object code, databases, information, communications, graphics or sounds. Customer shall not under any circumstances: copy the Platform; sublicense, distribute, modify, adapt, translate, reverse engineer, decompile, disassemble, or prepare derivative works based on the Platform; use or allow use of the Platform after the termination or expiration of this Agreement, except pursuant to a separate valid license or during a Transition Period (as defined below); allow others to use, copy, or access the Platform in connection with a service bureau, application service provider, public computer bulletin board, shareware or timeshare process, or any similar business or service; access, use, or disclose the Platform source code; remove, obscure or alter any copyright or other proprietary rights notices included in or affixed to the Platform; sell, license, disclose, or distribute the Platform, any Service, or any product designed or intended for use with or in competition with the Platform; publish or disclose the results of any benchmark tests relating to the Platform; use the Platform in applications or systems when failure of the Platform to perform could reasonably be expected to result in serious physical injury, loss of life, or material damage to property; or use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity, or that violates any applicable law. If a named affiliate of Payment Processor is specified in the Pricing Agreement (“Named Affiliate”), then this Agreement will be deemed to be made between Customer and such Named Affiliate, and
not Payment Processor.
1.3 Pricing Agreement. iSportz and Customer will delineate the services to be provided to each Customer and its Authorized Users (the “Services”) in one or more separate pricing agreements, statements of work, or service orders (each a “Pricing Agreement”) which, among other things, shall provide that Customer will pay the Fees and other charges described in such Pricing Agreement. Each Pricing Agreement shall be incorporated herein by reference. If Customer is using the Services on behalf of an Organization, “Customer” as used herein, includes the Organization. As used herein “Organization” means a national, state or local sports governing body, league, club, team, company university, school, conference or other institution, organization or entity including but not limited to those who host and/or conduct tournaments or other events.
1.4 Ownership and Intellectual Property. iSportz reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants to Customer or any third party, by implication, waiver, estoppel, or otherwise, any intellectual property rights or other right, title, or interest in or to the Platform or the Services, or any content accessible therefrom. All right, title and interest in and to the Platform and the Services and its related content are the sole property of iSportz and its successors and assigns, including any modifications thereto.
1.5 Suspension. iSportz reserves the right, without notice, (i) to revoke Customer’s or any of its Authorized Users’ user identity (“User Identity”) (user name together with a password); (ii) to require Customer or any of its Authorized Users to change its User Identity; or (iii) to deny, limit or terminate access to the Platform or any portion thereof, whether for security purposes, for violation of this Agreement, including the iSportz’ Policies, for compliance with or enforcement of any applicable law, or if Customer ceases business, has made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
1.6 Permitted iSportz Uses. iSportz supports the maintenance of the software product and -support services to clients primarily through registration fees and other service fees collected from the use of the Platform. iSportz does not provide web site only services, unless by special agreement with the Organization or its parent Organization, e.g. its association or governing body. Accordingly, subject to the terms hereof, Customer agrees to use registration services during the normal course of business when using the Platform as Customer’s primary method of processing registrations.
1.7 Organizational Decisions. iSportz is not responsible for an Organization’s administration (e.g., coaching decisions, team selections, Organization refund policies, Organization terms, etc.). An Organization’s use of the Platform does not imply iSportz’ approval or endorsement of such Organization. All questions and issues with Organization administration and policies should be directed to the Organization. Customer is solely responsible for ensuring that Customer and its Authorized Users secure their User Identity and do not share their User Identity with others. Using, or permitting the use of, the Platform under a User Identity not actually assigned to a particular individual is prohibited. Customer agrees that the Platform will be used solely for the purposes and functions contemplated in this Agreement and the iSportz Policies. Customer represents, warrants and covenants to iSportz that (a) if Customer is using the Platform or any Services on behalf of an Organization that Customer is an authorized representative of such Organization, (b) all materials provided by Customer to iSportz or uploaded, stored, processed, contained included and/or integrated in the Platform, including without limitation data and/or information forms, User Data (as defined below), and other data input by or on behalf of Customer to the Platform: (i) is accurate, (ii) has been obtained with each applicable person and entity’s consent; (iii) does not infringe on the intellectual property rights of any third party or any rights of publicity or privacy and Customer owns or have the rights necessary for the use, processing, and modification by iSportz as contemplated herein; (iv) is not offensive or obscene or in violation of any law, rule, statute, ordinance, or regulation; (v) does not violate any right of privacy or publicity; (vi) does not contain unlawful, discriminatory, libellous, harmful, obscene or otherwise objectionable material of any kind; (vii) does not encourage conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation; and (viii) does not transmit or upload to the Platform any virus, worm, defect, trojan horse, software bomb or other harmful or malicious code or feature that does or could interfere with, damage or degrade in any manner the performance or security of a Service or adversely affect another user of the Service, and (C) Customer is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, nor are Customer listed on any U.S. Government list of prohibited or restricted parties. Customer’s use of the Platform shall be subject to the “Restrictions on Use of the Websites” found in the Terms of Service.
1.8 Communications Costs of Customer. Customer is solely responsible for all of Customer’s internet, communication, device and other equipment, and any other costs associated with Customer’s use of the Platform. Use of the Platform may impact Customer’s cellular data usage or other data plan.
1.9 Third-Party Products. iSportz may from time to time make third-party products incorporated into or accessible from the Platform (“Third-Party Products”). For purposes of this Agreement, such ThirdCommented [MI4]: To discuss intent of this provision. Party Products are subject to their own terms and conditions. If Customer does not agree to abide by
the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. All right, title and interest in and to the Third-Party Products are the sole property of the applicable third-parties.
1.10 Modifications. iSportz retains the right, in its sole discretion, to update, enhance, modify or alter the Service at any time (“iSportz’ Modifications”). It shall be in iSportz’ sole discretion to determine which iSportz’ Modifications Customer receives. If Customer wants to add additional features beyond the features included in the Platform or have iSportz provide specific design, development or implementation services, Customer agrees to pay costs and fees for such features and services when charged by iSportz. iSportz will present Customer a separate statement of work confirming the details of the work, the estimated timeline to implement and the cost associated with the project (“SOW”). iSportz will proceed once both iSportz and Customer agree to and execute the SOW. Once the SOW is acknowledged, it will be deemed to be an amendment to this Agreement.
2. Payment Processing and Other Fees
2.1 Platform and Services Fees. In consideration for the rights granted to Customer under this Agreement, Customer agrees to pay certain fees related to Customer’s use of or access to the Platform and all applicable Services, including but not limited to registration processing fees, charge amounts, annual fees, one-time fixed fees, ongoing and credit card processing fees, and/or other applicable fees at the rates in effect when such fees are incurred (collectively, “Fees”). The rates for these Fees are outlined in the Pricing Agreement. Customer is responsible for paying all applicable sales, use, and other taxes for the Platform and the Services.
2.2 Payment Processing. Transactions conducted through the Platform, including transactions between iSportz and the Customer, or transactions between or among Customer and Organizations, Authorized Users, or other third parties, may involve the use of credit & debit card processing services (“Processing Services”). iSportz and Customer agree that all transactions associated with Customer that are conducted on the Platform or related to the Services and other uses of the Platform, including but not limited to, all related processing from enterprise platform, membership management, events registration, learning management, websites, mobile apps, sports management related club, team, league, fans & members (even if white labelled sites or apps through the Customer) and any P2P payments, will be processed through the Platform. iSportz is not a merchant bank or payment processor, but may engage third parties to provide or facilitate the Processing Services. Such transactions may incur or be subject to additional charges for which Customer will be responsible. Such transactions may also be subject to additional terms and conditions from third-party service providers and Customer must agree to and comply with such additional terms and conditions in order to receive the relevant Services facilitating such transactions.
2.3 Transactions Initiated by Customers. If Customer makes a registration or other payment to an Organization via the Platform, Customer agrees that such transaction is between Customer and that Organization, notwithstanding iSportz rights to impose Fees on such transactions; therefore, any refund requests or other disputes arising from or related to such transactions, including without limitation unauthorized or incorrect charges, must be made directly to the Organization. Customer agrees to defend and hold iSportz harmless from all such disputes. Any Fees charged by iSportz for the Platform or any Services are non-refundable. Customer agrees to contact iSportz in the event of a dispute before initiating a chargeback or return with Customer’s bank. In the event Customer makes any chargeback claim, iSportz may contact Customer and the Organization with regard to the claim.
2.4 Organization. All payments for transactions conducted on the Platform will be processed via the Platform and will be held by iSportz (unless Customer has set up Customer’s own third-party merchant). iSportz will transfer registration fees collected by iSportz (net of charges due to iSportz, including all applicable Fees and taxes or other governmental charges) to the designated Organization account through Automated Clearing House (“ACH”) transfer. iSportz will automatically debit against Customer’s designated Organization account all applicable Fees, taxes or other governmental charges, and/or any applicable return or chargeback fees incurred by iSportz arising from the processing and/or resolution of any return or chargeback claim relating to Customer’s Organization. All Fees debited by iSportz are non-refundable. Remittances to Customer in accordance with the foregoing process shall be made not less frequently than weekly. Customer is responsible for presenting or re-presenting to
the card issuer any challenge Customer may wish to bring to any return or chargeback claim. Customer agrees at Customer’s own expense to assist iSportz when iSportz is requested to investigate any transactions processed through the Platform that are the subject of a return or chargeback claim; however, iSportz shall have no obligation to conduct any such investigation. In the event of a return or chargeback claim, Customer is responsible for collecting any unpaid fees or charges directly from the Authorized User initiating the chargeback.
2.5 Invoiced Fees; Chargebacks. If iSportz presents Customer an invoice for Fees incurred for use of the Platform or for any Service rendered by iSportz, such invoices shall be immediately due and payable upon receipt. On the date that is 30 days following the invoice date, such Fees shall be subject to late fees and interest at a monthly rate of one percent (1%) or such lower amount as may be required by applicable law. iSportz may, but is not responsible to, assist in resolving disputes regarding refund requests or return or chargeback claims, or to assist in presenting or re-presenting any challenge to any return or chargeback claim. Customer is responsible for presenting or re-presenting to the card issuer any challenge Customer may wish to bring to any return or chargeback claim. In the event of a return or chargeback claim, Customer is responsible for collecting any unpaid fees or charges directly from the individual initiating the return or chargeback. At Customer’s sole discretion, Customer may elect to refund the Authorized User charge amounts, processing and other fees through the Service, which will be debited against a subsequent Customer ACH transfer. iSportz may charge an administrative fee with regard to any chargeback claim, regardless of the resolution outcome.
2.6 Subscription Services. From time to time, iSportz may offer the opportunity to access subscription-based Services. For such subscription-based services, you shall elect to pay recurring subscription Fees by means of automatic ACH deductions from your account on file or by means of recurring credit card transactions or such other means as iSportz may offer at inception of the subscription-based services. In addition, Fees may also be charged through third party payment systems, app-stores utilized by iSportz, or otherwise through the Platform. All Fees paid for the Services are non-refundable, regardless of whether Customer actually uses the Services. Customer is responsible for paying all applicable taxes for the Services and any other costs incurred in connection with the use of or access to the Platform. If Customer registers for a recurring subscription, Customer will continue to be charged for the Services until Customer cancels the Services. Customer may cancel a recurring subscription at any time by emailing support@iSportz.co. Include the name and email address associated with Customer’s account. Some cancellations may require Customer to contact the third-party app-store where Customer registered for the recurring subscription. Cancellation of Customer’s subscription will not release Customer from Customer’s responsibility to pay all charges incurred prior to cancellation. iSportz reserves the right to issue refunds or credits in its sole discretion. If iSportz issues a refund or credit, it is under no obligation to issue the same or similar refund in the future. All questions and requests related to the Services shall be submitted to info@iSportz.co
2.7 Processing Partners. Based on the stated processing needs of the Customer, the iSportz services chosen by the Customer and listed in the Pricing Agreement, the geographical location and currency the Customer accepts, iSportz will place the Customer with one of the approved processing partners of iSportz (“Processing Partners”). Once a Processing Partner is chosen, Customer hereby agrees to provide the necessary information required by that Processing Partner to set-up the merchant account.
3.1 Ownership of Data. As between the parties, Customer shall own all pre-existing data and other content that is contributed by Customer and Customer’s Authorized Users on the Platform (including any website text, images or other content created by or for Customer through the Platform) (“Customer IP”). Customer IP (to the extent stored in the Platform by Customer) may include participant and registration information, membership information, statistics regarding Customer’s site and usage as reported to Customer by iSportz, credit card information and other commerce-related information provided by Customer, its members and users (“Data”). Data collected in the Platform shall be subject to the iSportz’ Policies. In addition to any terms or policies that the Customer may have, Customer agrees that iSportz may, in its sole discretion, require any users of the Platform, including Customer’s Authorized Users, to expressly agree to the iSportz Policies during the member/user signup process or any time thereafter as a condition of accessing the Platform and receiving the Services. Customer hereby grants iSportz a non-exclusive, fully paid, royalty-free, perpetual, worldwide, irrevocable right and license to use, display, reproduce, modify, adapt, enhance, improve, create derivative works of, edit, translate, and distribute the Customer IP, in any manner permitted in the iSportz Policies, subject to applicable law, and otherwise as necessary to perform the obligations of this Agreement and to comply with applicable law. Customer represents and warrants that all Customer IP that is provided by Customer or on Customer’s behalf, or uploaded, stored, processed, contained included and/or integrated into the Platform by Customer or on
Customer’s behalf has been collected in accordance with applicable laws and with Customer’s and all required third parties’ full consent, and does not violate the intellectual property or privacy rights of any third party. iSportz may, contact or communicate with Customer’s members and users, regarding their individual user accounts, their login credentials, updates to the iSportz Policies or their access to and use of the Services or other features, services and products relevant to their use of the Platform.
3.2 Use of Data in Connection with Services. iSportz may use data collected or managed by iSportz through the Services (e.g., player registration and e-commerce data) (collectively, the “User Data”), to notify Customers and other users of information relevant to the products and services of iSportz and its trusted partners, for other advertising and marketing purposes and for such other purposes as may be permitted by law and the iSportz Policies (collectively, the “Data Usage Rights”). If User Data collected or managed through the Platform is provided on behalf of a third party, Customer represents, warrants and covenants that Customer has notified such third parties of this Agreement and obtained all required consents. In addition, Customer grants iSportz a limited, fully paid, royalty-free, worldwide, non-exclusive, perpetual, worldwide, irrevocable right and license use, display, reproduce, modify, adapt, enhance, improve, create derivative works of, edit, translate, and distribute the User Data: (i) for Customer’s benefit; (ii) for the purpose of performing the Services and providing the Platform; and (iii) as permitted hereunder. iSportz disclaims all warranties as to the availability of the User Data. iSportz shall have no liability or responsibility in the event that the User Data is deleted or removed from the Platform. Customer represents and warrants that all User Data that is provided by Customer or on Customer’s behalf, or uploaded, stored, processed, contained included and/or integrated into the Platform by Customer or on Customer’s behalf has been collected in accordance with applicable laws and with Customer’s and all required third parties’ full consent, and does not violate the intellectual property or privacy rights of any third party. Customer hereby consents to iSportz’ use of the User Data as provided herein. If any of the User Data uploaded, stored, processed, contained included and/or integrated on the Platform relates to children under the age of 13 (“Child Users”), Customer represents and warrants that Customer is the parent or guardian of such Child User and prior to Customer providing such User Data to iSportz, Customer, as the parent or guardian of such Child User, consents to: (i) send or store such Child User’s User Data on the Platform, and (ii) to permit iSportz to exercise its rights hereunder and under the Agreements with respect to such Child User. In the event any such Child User (or Customer as the parent or guardian thereof) elects to withdraw such consent, Customer shall promptly notify iSportz and iSportz shall remove the Child User’s User Data from the Services.
4. Term, Termination and Transition.
4.1 Term. For certain Services of iSportz, the term of this Agreement shall be in effect during the month in which you process transactions with respect to such Service. For other products and services of iSportz, the term of this Agreement shall be for the period expressly set forth in the Pricing Agreement between you and iSportz or on the sign-up page for the Service for which you have enrolled and shall commence as of the Effective Date or date of first use, whichever is earlier (“Initial Term”). Following the Initial Term, this Agreement shall automatically renew, for successive twelve (12) month periods (each a “Renewal Term” and together with the Initial Term, the “Term”), unless: (i) either Party provides the other with written notice of its intent not to renew at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term; or (ii) earlier terminated pursuant to the terms of this Agreement. Renewal Terms shall be subject to reasonable cumulative annual fee increases unless expressly modified in the Pricing Agreement or otherwise superseded by applicable contractual pricing arrangements between iSportz and a collegiate or other governing body in so far as such arrangements relate to specific service items for which Customer is an intended beneficiary
4.2 Termination. For Services of iSportz where the monthly Term is established solely through Customer’s use of the Service, either party may terminate for its convenience at any time. For those products and services of iSportz where the term is expressly stated in the Pricing Agreement, either party shall have the right to terminate this Agreement prior to the end of the Term upon a material breach of this Agreement by the other party. The non-breaching party shall provide written notice to the breaching party setting forth the basis for such party’s claim of material breach, setting forth in reasonable detail the act(s) or omission(s) or circumstances giving rise to such claim, and stating the desire of the non-breaching party to terminate if the breaching party fails to cure such breach. The breaching party shall have thirty (30) days in which to cure the breach; or commence to cure and present the non-breaching party with an acceptable remediation and cure plan if the breach is curable but cannot be cured within such thirty (30) day time period, If the breach is not cured within thirty (30) days or if the remediation and cure plan presented by the breaching party is rejected by the non-breaching party, then this Agreement shall terminate. Notwithstanding the opportunity to cure provided in the previous sentences, if the material breach is of such a nature that it may not be cured, regardless of the action taken by the breaching party or the passage of time, then the non-breaching party may terminate this Agreement effective immediately upon notice. In addition, iSportz may terminate this Agreement upon written notice for Customer’s violation of Section 1 (“Grant of License”) or failure to pay the Fees as set forth in the Pricing Agreement.
4.3 Effect of Termination. Termination of this Agreement for any reason (except the sole material breach by iSportz) shall not allow Customer a refund of Fees and Customer agrees to pay all Fees due and owing to iSportz up to and until the date: (a) Customer ceases all use of the Platform, or (b) the Term is terminated or expired in accordance with Sections 4.1- 4.2. Upon termination of this Agreement for any reason, Customer’s rights to the Platform and all Services shall terminate and Customer shall make no further use of the Platform whatsoever. Customer acknowledges that upon disconnection from the Platform, Customer shall no longer be able to use the features of the Platform including Customer’s Web Site widgets. All Customer Content shall be accessible by Customer notwithstanding termination of this Agreement for a period of thirty (30) days following termination of this Agreement for archiving by Customer or conversion to another system by Customer.
4.4 Transition Period. If this Agreement expires pursuant to Section 4.1 or if Customer terminates this agreement due to the sole material breach by iSportz pursuant to Section 4.2, Customer may request that iSportz continue to provide the Platform for up to three (3) months (the “Transitional Period”). Customer agrees to continue to pay any and all Fees associated with the Platform that are in place immediately prior to the Transition Period.
4.5 Acceleration of Payments. Any expiration or termination of this Agreement shall not release Customer from its duty to pay any amount which may be then or with the passage of time will become owing to iSportz. Furthermore, immediately upon any termination of this Agreement, all such amounts will accelerate and become due and Customer shall pay to iSportz any and all amounts that are or with the passage of time will become due and payable.
5. Confidential Information.
Each of iSportz and Customer acknowledge that either party may disclose or make available to the other party information about its business affairs, products, l intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The receiving party shall take reasonable steps to safeguard the disclosing party’s Confidential Information, and shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure shall first have given written notice to the other party and made a reasonable effort to obtain a protective order, to the extent permitted by applicable law; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, ordestroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective during the Term and will expire five years from the date this Agreement expires or is terminated; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Representations and Warranties
6.1 By Customer. Customer represents and warrants the following: (i) all information or content provided by Customer or its
Authorized Users to iSportz and/or displayed on the Platform is true and accurate in all material respects and does not infringe upon the intellectual property, privacy and/or proprietary rights of any third parties; (ii) Customer has received all necessary permission from third parties to post all content on the Platform; (iii) Customer is in compliance in all respects with all applicable laws and regulations; and (iv) Customer has the authority enter into this Agreement, to grant the rights granted herein, and to perform fully all of its obligations herein.
6.2 Warranty Disclaimer. The Platform is controlled and operated from facilities in the United States. iSportz makes no representations that the Platform is appropriate or available for use in other locations. Those who access or use the Platform from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. Customer may not use the Platform if Customer is a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Platform are solely directed to individuals, companies, or other entities located in the United States.
THE PLATFORM, THE SERVICES, AND ALL CONTENT MADE AVAILABLE THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND CUSTOMER USES THE PLATFORM AT ITS OWN RISK. FURTHERMORE, SHOULD THE CUSTOMER REQUEST THAT ISPORTZ IMPORT CUSTOMER DATA INTO THE PLATFORM, CUSTOMER ASSUMES ALL RESPONSIBILITY FOR PROVIDING THE DATA IN A FORMAT THAT MEETS THE IMPORT REQUIREMENTS OF THE PLATFORM AND PROVIDES THE FORMAT ACCORDING TO THE CUSTOMER NEEDS. ISPORTZ SHALL NOT BE RESPONSIBLE FOR ANY ERRORS IN DATA, THE QUALITY OF THE DATA, OR CORRECTIONS TO IMPORTED DATA IN THE SYSTEM. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE PLATFORM MAY NOT PERFORM OR MEET THE CUSTOMER’S OR AUTHORIZED USER’S REQUIREMENTS OR EXPECTATIONS. ISPORTZ DOES NOT WARRANT THAT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. ISPORTZ EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Customer agrees to indemnify and hold harmless iSportz from any and all losses, damages, liabilities, costs (including reasonable] attorneys’ fees) (“Losses”) resulting from any from any claim, suit, action, or proceeding arising from or relating to (a) any claim that the Customer IP, or any use of the User Data provided by Customer or its Authorized Users infringes or misappropriates any third party’s intellectual property rights or privacy rights, (b) negligence or willful misconduct by Customer or its Authorized Users; (c) use of the Platform or any Services by the Customer or its Authorized Users in a manner not authorized by this Agreement, (c) use of the Platform or any Services by Customer or its Authorized Users in combination with data, software, hardware, equipment, or technology not provided by iSportz or authorized by iSportz in writing; or (d) modifications to the Platform or any Services by Customer or its Authorized Users, provided that Customer may not settle any claim unless iSportz consents to such settlement, and further provided that iSportz will have the right, at its option, to defend itself against any such claims or to participate in the defence thereof by counsel of its own choice.
8 Limitation of Liability.
IN NO EVENT SHALL ISPORTZ ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM OR THE SERVICES, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCREASED COSTS, DIMUNITION OF VALUE, LOST PROFITS AND/OR LOSS OF BUSINESS, USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ISPORTZ KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ISPORTZ, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT DIRECTLY PAID BY CUSTOMER TO ISPORTZ HEREUNDER WITHIN THE PREVIOUS SIX MONTHS OR $100.00, WHICHEVER IS GREATER. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CERTAIN INDIVIDUALS. THIS AGREEMENT GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The following provisions shall survive termination of this Agreement for any reason: Section 1.3 (“Restrictions”); Section 1.4 (“Ownership of System and Intellectual Property”); Section 1.5 (“Ownership of Data”); Section 4.3 (“Effect of Termination”); Section 5 (“Confidentiality”); Section 6 (“Indemnification”); Section 7 (“Representations and Warranties”); Section 8 (“Limitation of Liability”); Section 9 (“Survival”) and Section 10 (“General”).
10.1 Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
10.2 Severability. In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.
10.3 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
10.4 Assignment. This Agreement and any rights and responsibilities hereunder may not be assigned or delegated by Customer, including by action of law, without the express written consent of iSportz but may be assigned by iSportz without restriction. Any assignment or delegation in violation of this Section will be void and of no effect.
10.5 Injunctive and Other Equitable Relief. The Customer agrees that the remedy at law for any breach or threatened breach of this Agreement by the Customer would, by its nature, be inadequate, and that in that event iSportz shall be entitled, in addition to damages, to a restraining order, temporary or permanent injunctive relief, specific performance, and other appropriate equitable relief, without showing or providing that any monetary damage has been sustained, and without the requirement of posting any bond or other security.
10.6 Commercial Transaction. If this Agreement is between iSportz and an Organization, Organization hereby certifies that this Agreement is a commercial transaction between two corporations or business entities and Organization’s use of the Service is for commercial purposes.
10.7 Notification Procedures and Changes to the Agreement. iSportz may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to Customer via email notice, written or hard copy notice, or through posting of such notice on the iSportz website, as determined by iSportz in its sole discretion. iSportz reserves the right to determine the form and means of providing notifications to Customers and Users, provided that Customer may opt out of certain means of notification as described in iSportz Policies. iSportz is not responsible for any automatic filtering Customer or Customer’s network provider may apply to email notifications ISportz sends to the email address Customer provides to iSportz. iSportz may, in its sole discretion, modify or update this Agreement from time to time, and so Customer should review this page periodically. When iSportz changes the Agreement in a material manner, iSportz will update the ‘last modified’ date at the bottom of this page. Customer’s continued use of the Service after any such change constitutes Customer’s acceptance of the new terms of the License Agreement. If Customer does not agree to any of these terms or any future License Agreement, do not use or access (or continue to access) the Service.
10.8 Disputes. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
a. iSportz and Customer agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
b. In the event of a dispute, claim, or controversy arising out of or in connection with Customer’s access to, and/or use of the Platform, and/or the provision of content, services, and/or technology on or through the Platform, iSportz or Customer must give the other notice of the dispute, claim, or controversy which notice will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy, and the relief requested. Customer must send any such notice to us by email to disputes@iSportz.co AND by U.S. Mail to, iSportz Inc, 956, International Parkway, Ste. 1590, Lake Mary, FL 32746 Attn: Legal Department. To the extent that iSportz has Customer’s contact information, iSportz will send any such notice to Customer by U.S. Mail or to Customer’s email address. Customer and iSportz will attempt to resolve any dispute, claim, or controversy through informal negotiation within sixty (60) days from the date that any notice of dispute, claim, or controversy is sent. Customer and iSportz shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After thirty (30) days, Customer or iSportz may resort to the other alternatives described in this Section10.8 Notwithstanding the foregoing, the notice and sixty (60)-day negotiation period required by this Section 10.8 shall not apply to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, trade secrets or other intellectual property, Confidential Information and claims of piracy or unauthorized use of the Platform.
c. Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between iSportz and Customer arising under these Terms or in connection with Customer’s access to, and/or use of the Service, and/or the provision of content, services, and/or technology on or through the Platform, if unresolved through informal discussions within sixty (60) days of receipt of notice, shall be resolved by binding arbitration to be held in the state in which Customer resides, or if Customer is an Organization, domiciled. Notwithstanding the foregoing, nothing in this Section shall be deemed as preventing iSportz from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of iSportz’ data security, Intellectual Property Rights or other proprietary rights. d. For residents outside the United States, arbitration shall be initiated in Lake Mary, FL, and Customer and iSportz agree to submit to the personal jurisdiction of any state or federal court in Seminole, FL to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
e. Customer and iSportz each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided herein) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein.
f. iSportz shall bear the cost of any arbitration filing fees and arbitration fees up to Five Hundred Dollars ($500.00). Customer is responsible for all other additional costs that Customer may incur in the arbitration including, but not limited to attorneys’ fees and expert witness costs unless iSportz is otherwise specifically required to pay such fees under applicable law. The decision of the arbitrator will be in writing and binding and conclusive on iSportz and Customer, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Customer and iSportz agree that dispositive motions, including without limitation, motions to dismiss and motions for summary judgment will be allowed in the arbitration. The arbitrator must follow the terms of this Agreement and can award the same damages and relief as a court, including injunctive or other equitable relief and attorneys’ fees. Notwithstanding the foregoing, Customer and iSportz agree not to seek any attorneys’ fees and expert witness costs unless the arbitrator finds that a claim or defense was frivolous or asserted for an improper purpose, provided that if Customer is using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Customer and iSportz understand that, absent this mandatory arbitration provision, Customer and iSportz would have the right to sue in court and have a jury trial. Customer and iSportz further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
g. If Customer’s claim is solely for monetary relief of Ten Thousand Dollars ($10,000) or less and does not include a request for any type of equitable remedy, Customer may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the JAMS Rules.
h. Customer may choose to pursue Customer’s claim in small claims court where jurisdiction and venue over iSportz and Customer otherwise qualifies for such small claims court and where Customer’s claim does not include a request for any type of equitable relief.
i. Customer has the right to opt-out and not be bound by these arbitration provisions by sending written notice of Customer’s decision to opt-out to the following address: iSportz, Inc., 956, International Parkway, Ste. 1590, Lake Mary, FL 32746 Attn: Legal Department, AND the following Email address: email@example.com. The notice must be sent within the later of thirty
(30) days of Customer’s first use of the Services or within thirty (30) days of changes to this Section being announced on the Services, otherwise Customer shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of this Section 10.8. If Customer opts-out of these arbitration provisions, iSportz also will not be bound by them. If Customer does not affirmatively elect to opt out as described above, Customer’s use of the Services will be deemed to be Customer’s irrevocable acceptance of these Terms and any changes/updates to this Section 10.8 or otherwise.
j. If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute, or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, Customer and iSportz agree to waive, to the fullest extent allowed by law, any trial by jury.
k. The terms of these arbitration provisions will apply to any claims asserted by Customer or third parties against iSportz and its affiliates to the extent that any such claims arise out of Customer’s or such third party’s access to, and/or use of the Platform, and/or the provision of content, services, and/or technology on or through the Platform.
10.9 Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
a. Customer and iSportz agree that Customer and iSportz will resolve any disputes, claims, or controversies on an individual basis, and that any claims brought under this Agreement or otherwise in connection with the Platform will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Customer and iSportz further agree that Customer and iSportz shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising under this Agreement or otherwise in connection with the Platform.
b. If any court or arbitrator determines that the class action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in Orange County, FL.
c. The terms of this Section will apply to any claims asserted by Customer against iSportz to the extent that any such claims arise out of Customer’s or its Authorized Users’ access to, and/or use of the Platform, and/or the provision of content, services, and/or technology on or through the Platform.
10.10 Entire Agreement. This Agreement, together with the iSportz Policies, the Pricing Agreements, and any amendments to the foregoing is the entire agreement between the parties which supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. This Agreement may only be modified by mutual agreement of the parties in writing.
10.11 Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Platform or any Services or any Customer IP or User Data outside the US.
10.12 US Government Rights. Each of the Platform and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Platform and the Services as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
10.13 Force Majeure. In no event shall iSportz be liable to Customer or any Authorized User, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond iSportz’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
10.14 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
10.15 Entire Agreement. This Agreement, together with the iSportz Policies and any amendments and any additional agreements Customer may enter with iSportz in connection with the Services, is the entire agreement between the parties which supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. This Agreement may only be modified by mutual agreement of the parties in writing.
This Agreement was last modified on August 04, 2022.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
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