END USER TERMS OF Service
BEFORE USING SPORTSDIGITA’S SUBSCRIPTION SERVICES (AS DEFINED BELOW), PLEASE READ THESE END USER TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” THEREIN (“CUSTOMER”) AND SPORTSDIGITA, LLC, IDENTIFIED AS “SUPPLIER” THEREIN, PURSUANT TO WHICH THE CUSTOMER RECEIVES THE RIGHT TO ACCESS AND USE SPORTSDIGITA’S SUBSCRIPTION SERVICES (THE “ORDER FORM”). THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND SUPPLIER, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION BY SUPPLIER AND CUSTOMER OF THE ORDER FORM (THIS “AGREEMENT”).
Supplier reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify these Terms and to impose new or additional rules, policies, terms, or conditions on Customer’s use of the Subscription Services. Supplier will communicate changes to these Terms by posting the new version of the Terms on its website at https://www.thedigideck.com/end-user-terms-service/ or as otherwise determined by Supplier in its sole discretion, or as otherwise required by applicable law, at which time such updated Terms will be immediately effective. Customer’s continued use of the Subscription Services after such notification of changes to these Terms will constitute Customer’s acceptance of any and all such changes.
1.2. Confidential Information. “Confidential Information” is as defined in Section 5 herein.
1.3. Documentation. “Documentation” means all generally-available written, published materials that are accessible at https://support.sportsdigita.com/, and explain or facilitate the use of the Subscription Services, including, without limitation, user manuals, standard operational manuals or instructions, training materials, programming manuals, system manuals, and specifications, which may be updated from time-to-time.
1.4. Hosting Services. “Hosting Services” includes the hosting of Customer’s Digideck and related assets. Hosting Services includes use of a reasonable amount of storage and bandwidth and are included in the Subscription Fees for the Software. Notwithstanding the foregoing, Supplier reserves the right, upon notice to Customer, to set commercially reasonable storage and bandwidth limits. Customer may purchase the use additional storage and bandwidth for an additional agreed upon Subscription Fee.
1.5. Malicious Code. “Malicious Code” means any viruses, worms, spyware, poison pills, time bombs, backdoors, drop dead dates or other destructive or disabling devices that are intended to do harm and that are within the Software upon its delivery to Customer.
1.6. Master Deck. ”Master Deck” is defined on an Order Form.
1.7. Order Form. “Order Form” means a written purchase document pursuant to which Supplier agrees to provide and Customer agrees to purchase specified Subscription Services.
1.8. Service Levels. “Service Levels” means the availability of the Software during the Subscription Term as set forth in Section 12 herein.
1.9. Services. “Services” means (a) the creative and set up services package purchased by Customer, (b) any fixed fee custom design services purchased by Customer, (c) Training, (d) Hosting Services, and/or (e) custom software development, all as more fully-described on an Order Form.
1.10. Software. “Software” means the Digideck platform software in object code format and Sportsdigita API, if applicable, licensed on a subscription basis as part of the Subscription Services, and as more fully-described on each Schedule. The term “Software” also includes the Documentation, and any updates, upgrades, enhancements, or fixes to the Software and Documentation that are provided by Supplier to its customers from time to time.
1.11. Subscription Fees. “Subscription Fees” means the fees to be paid by Customer in connection with the Subscription Service for the duration of the Subscription Term.
1.12. Subscription Term. “Subscription Term” means the period identified in an Order Form during which Supplier is entitled to use the Subscription Service.
1.13. Subscription Service. “Subscription Service” means the products and services made available to and purchased by Customer pursuant to this Agreement on a subscription basis and as identified on each Order Form, specifically, one or more of the following, access to the Software, Support, and Services.
1.14. Support. “Support” means the maintenance and technical support provided by Supplier with respect to the Software, as described in Section 3 herein.
1.15. Training. “Training” shall mean (i) the telephone and web demo training Supplier may provide to Customer and its Users, and (ii) any additional onsite training Customer elects to purchase, all as more fully-defined in Section 4 herein.
1.16. User. “User” means Customer’s employees and other designated third parties such as agents, consultants, and contractors who are authorized by Customer to use the Subscription Services up to the number of Users specified on an Order Form.
- LICENSE GRANT; OWNERSHIP
During the Subscription Term specified on the Order Form, Sportsdigita grants to Customer a worldwide, non-exclusive, revocable, non-transferable, non-sublicenseable right and license to use, copy, load, run, have run, and display the Software (collectively the “Use”). The Use includes the right, subject to the conditions and restrictions set forth herein to use the Subscription Services to create a specified number of Master Decks by the number of named Users licensed by Customer as set forth in the Order Form. Customer may use the Subscription Services to prepare additional Master Decks and allow additional named Users access for an additional Subscription Fee. Incremental User and Master Deck licenses purchased during a Subscription Term will have a Subscription Term that is co-terminus with the Subscription Term of previously purchased Master Deck and User licenses and Fees shall be prorated through the expiration of such Subscription Term. Customer shall use the Subscription Services solely for its business purposes, subject to the Restrictions set forth herein.
Customer grants Sportsdigita, subject to Customer’s prior written or email approval, an ongoing right (a) to use Customer’s name or logo in customer lists and marketing materials to communicate that Customer utilizes the Subscription Services; and (b) to use Customer’s Digideck for marketing and promotional purposes. If Customer intends to disclose information about Customer’s purchase(s) (such as dollar amount of sale, project timelines, or project objectives) in conjunction with use of Customer’s name, logo, and/or Digideck, then Sportsdigita will obtain Customer’s prior written or email approval.
Customer shall not access or use any portion of the Subscription Services, except as expressly licensed to Customer; disassemble, decompile or otherwise reverse engineer all or any portion of the Software; use the Subscription Services for any unlawful purposes; export the Software, or allow access to the Software in violation of applicable laws and this Agreement; except as permitted in this Agreement, sublicense, relicense, distribute, disclose, rent or lease the Software, or any portion thereof, for third party use; or, modify, adapt or use the Software to develop any software application, whether intended for resale or otherwise, which uses the Software in whole or in part.
Except as otherwise agreed in this Agreement, no one shall construe this Agreement to convey or otherwise transfer title to any proprietary rights in the Subscription Services to Customer.
Support related to the Software is included in the Fees paid for use of the Software during the Subscription Term and shall be provided in accordance with the policy set forth at https://www.thedigideck.com/support-policy.Such Support policy may be modified by Supplier from time-to-time, provided that any such changes shall not materially diminish Support during the Subscription Term.
Sportsdigita will, if ordered by Customer, provide Training to Customer and its Users on the use of the Software. Sportsdigita will conduct Training at times agreed upon by the parties and as described in the Order Form. Fees for Training are non-refundable. Customer may cancel Training at any time prior to the day on which it was to have been conducted. The parties will cooperate in good faith to reschedule the Training. Customer will compensate Sportsdigita for any resulting unrecoverable out-of-pocket expenses in the event of the cancellation.
As used in this Agreement, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Sportsdigita’s Confidential Information includes, without limitation, its products and services and the terms of this Agreement.
Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party.
Each party agrees that it shall use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Both parties will use commercially reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party shall provide the other with prior written notification thereof, shall provide such party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Both parties agree to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.
In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Both parties shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
Customer agrees to pay Sportsdigita for the access and use of the Software and Services in accordance with the payment or pricing schedule contained in the Order Form.
- INVOICING; PAYMENT; TAXES.
Sportsdigita will invoice Customer upon execution of an Order Form. Sportsdigita’s invoice will identify the Software and Services, the Customer’s purchase order number, if applicable, and the Subscription Fees. Subscription Fees will be billed annually, in advance upon each annual anniversary of the Effective Date during a Subscription Term.
With respect to any Subscription Fees associated with use of the Software, Customer agrees to pay Sportsdigita within 30 days of the date of Supplier’s undisputed invoice. Subscription Fees associated with Services shall be immediately due and payable by Customer in order to initiate Sportsdigita’s performance of the Services. Customer will be responsible for all reasonable, pre-approved out-of-pocket expenses related to Sportsdigita’s performance of the Services.
Customer may make payments to Sportsdigita via (a) company check, (b) ACH through Sportsdigita’s online system, or (c) credit card which will be subject to a 3% convenience fee, unless otherwise prohibited by law.
Customer shall be responsible for the payment of all applicable taxes, customs fees and regulatory certifications, local tax withholdings, inspection fees mandated by the country of export, courier or shipping fees, and duties properly due and payable related to Software and Services, with the exception of taxes imposed on the income of Sportsdigita. Prices do not include any sales, use, excise, transaction, or other similar taxes. If such taxes are applicable, Sportsdigita will separately state them on the invoice. All invoices and payments for Order Forms will be in USD, unless otherwise stated on an Order Form.
- LIMITED WARRANTIES.
Sportsdigita warrants to Customer that during the Subscription Term the Software will not contain Malicious Code and the Software will substantially conform in all material respects to, and perform substantially in accordance with, the Documentation. If Customer believes the warranty stated in this section has been breached, Customer must notify Sportsdigita in writing of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and Sportsdigita will, in Sportsdigita’s sole reasonable discretion, (i) promptly correct the non-conformity, at Sportsdigita’s expense, or (ii) terminate this Agreement and refund a prorated amount of the Fees prepaid by Customer for the Software from the date on which Customer notified Sportsdigita in writing of any such breach of warranty. Unless otherwise prohibited by applicable law, this is Customer’s sole and exclusive remedy.
Sportsdigita warrants to Customer that Services will be performed in a professional manner in accordance with industry standards for like services. If Customer believes the warranty stated in this section has been breached, Customer must notify Sportsdigita in writing of the breach no later than thirty (30) days following the date the Services were performed, and Sportsdigita will promptly correct or re-perform the Services, at Sportsdigita’s expense. Unless otherwise prohibited by applicable law, this is Customer’s sole and exclusive remedy.
EXCEPT AS MENTIONED IN THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT SPORTSDIGITA DOES NOT MAKE ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. SPORTSDIGITA DOES NOT WARRANT THAT THE SOFTWARE AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE.
Sportsdigita shall indemnify, hold harmless and defend Customer and its affiliates, and their respective directors, officers, shareholders, members, employees, consultants, representatives, agents, successors and assigns (each, an “Indemnitee”) from and against any and all third party claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses, including reasonable and actual attorneys’ fees (collectively referred to as Losses), so long as these Losses (or actions regarding the Losses) are based on, arise out of, or are related to a claim that the Subscription Services infringe any U.S. patent, copyright, trade secret, database right, or other intellectual property or proprietary right of any third party; provided, however, that Sportsdigita shall have no obligation to indemnify any Indemnitee for Losses or Claims pursuant to this paragraph to the extent that such Losses or Claims arise out of: (a) Customer Materials; (b) use of the Subscription Services in combination with non-Sportsdigita software, data or equipment if the infringement would not have existed but for such use or combination; or (c) any modification or derivation of the Subscription Services not specifically authorized in writing by Sportsdigita.
If the Subscription Services, or any component thereof, is finally adjudged to so infringe, or in Sportsdigita’s opinion is likely to so infringe, Sportsdigita shall, at its option, either: (1) procure for Customer the right to continue using such infringing component(s), (2) modify the Subscription Services to make it noninfringing or replace any infringing component with a functionally equivalent component that does not infringe, or (3) refund the Fees paid, less reasonable depreciation. The foregoing states the entire liability of Sportsdigita and the exclusive remedy for Customer relating to infringement or claims of infringement by the Subscription Services.
Customer shall promptly notify Sportsdigita in writing of any Claim for which indemnification is available under this Agreement, shall give Sportsdigita control of the defense and settlement of such Claim, and shall provide all reasonable assistance in connection therewith. Sportsdigita shall not, without the prior written agreement of Customer, agree to any settlement of a Claim that does not release the Indemnitee from all liabilities and obligations with respect to such Claim or imposes injunctive or other equitable relief against the Indemnitee or involves an admission of fault or wrongdoing by an Indemnitee.
- EXCLUSIONS/LIMITATIONS OF LIABILITY
NEITHER PARTY IS LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THOSE FOR BUSINESS INTERRUPTION OR LOSS OF PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES. EACH PARTY’S LIABILITY TO THE OTHER WILL NOT EXCEED THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE PREVIOUS 12 MONTHS . THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS OR SPORTSDIGITA’S INDEMNIFICATION OBLIGATIONS.
Each party (a “non-breaching party”) shall have the right to terminate this Agreement by delivering written notice to the other party (the “breaching party”) if the breaching party fails to make a payment when due or commits a material breach of this Agreement, which remains uncured after thirty (30) days’ written notice of such breach from the non-breaching party.
- AVAILABILITY OF SERVICE
During the Subscription Term, Sportsdigita agrees that the Software will perform in accordance with the Subscription Service Levels described at https://www.thedigideck.com/sla, which such Service Levels may be modified from time-to-time by Supplier during the Subscription Term. Any changes shall be pre-approved in writing by Customer.
- GENERAL PROVISIONS.
a. SEVERABILITY. Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be deemed severed from this Agreement, and all other provisions will remain in full force and effect.
b. GOVERNING LAW. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the applicable laws of the State of Minnesota, excluding its conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
c. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and understanding between Sportsdigita and Customer regarding the subject matter hereof and supersedes any previous or contemporaneous communications, representations, proposals, commitments, understandings, negotiations, discussions, understandings, or agreements (including non-disclosure or confidentiality agreements), whether oral of written, regarding the same subject matter.
d. EXCUSABLE DELAY. Neither party will be liable to the other for a failure to meet obligations due to causes beyond the parties’ reasonable control, so long as the non-performing party makes commercially reasonable efforts to resume performance as soon as possible. The party claiming excusable delay shall immediately inform the other party in writing.
e. WAIVER. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by a party will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed. b.
f. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
g. SURVIVAL. Notwithstanding this Agreement termination, those obligations which by their nature are intended to survive such expiration or earlier termination shall survive including without limitation, the Sections titled “Indemnification”, “Confidentiality”, “Exclusions/Limitation of Liability”, “Termination”, “License Grant; Ownership”, “Waiver”, “Governing Law”, “Severability”, and “Entire Agreement”.
h. NO JOINT VENTURE. This Agreement shall not be construed as creating any partnership, joint venture or agency relationship between Sportsdigita and Customer. Neither party shall have the authority to obligate or bind the other in any manner.
i. ASSIGNMENT. . Neither party can assign its rights or obligations under this Agreement without the other’s prior written consent. However, prior written consent is not required if Supplier assigns this Agreement, or portion thereof, to one of its Affiliates or to a third party successor-in-interest. This Agreement is binding upon the parties’ respective successors and permitted assigns.
j. NO THIRD PARTY BENEFICIARIES. No third-party beneficiaries are intended or shall be construed as created by this Agreement.
k. EXPORT COMPLIANCE. Customer may not use or otherwise export or re-export the Software, Documentation and Services except as authorized by United States law and the applicable laws of the jurisdiction in which the Software, Documentation and Services were obtained. In particular, but without limitation, the Software, Documentation and Services may not be exported or re-exported (i) into any U.S. embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, Documentation and Services, Customer represents and warrants it is not located in any such country or on any such list.