Terms of Service
Last updated May 15, 2024
1. INTRODUCTION.
These Terms of Service (“Terms”) shall apply all to orders and purchases of subscriptions to the Licensed Platform and other Services identified in any Order Form(s) (“Order Form”) entered into by and between MAP Sports Co-Mission LLC (“Company”) and you, a customer that has executed an Order Form (“Customer”). These Terms together with the Order Form(s), all applicable terms referred to in an Order Form, if any, and Privacy Policy (as such terms are defined below) form the full understanding and agreement between Company and Customer with respect to the subscription, provision and access to and use of the Licensed Platform and related Services (collectively the “Agreement”). By logging in or using the Licensed Platform, you agree to abide by the terms of the Agreement. Company and Customer may be referred to in these terms as the “Parties” and each as a “Party”.
The purpose of these Terms is to set forth the general terms and conditions applicable to your use of any Service (as defined below). THESE TERMS REPRESENT A BINDING AGREEMENT BETWEEN COMPANY AND CUSTOMER. CUSTOMER MUST NOT USE, OR CONTINUE TO USE, ANY SERVICE UNTIL CUSTOMER HAS CAREFULLY READ THESE TERMS. BY USING A SERVICE, CUSTOMER IS AGREEING TO THESE TERMS, INCLUDING THE LIMITATIONS OF LIABILITY SET FORTH HEREIN. If Customer does not agree with any part of these Terms with respect to a particular Service, then Customer must stop use of such Service immediately (but shall not be entitled to terminate the Agreement other than as explicitly allowed in these Terms).
2. DEFINITIONS.
The following capitalized terms will have the following meanings when used in this Agreement:
2.1 “Aggregated Data” refers to User Data and Customer Data with the following information and data removed: personally identifiable information (“PII”) such as names and addresses of Customer and/or End Users.
2.2 “Applicable Laws” means and includes any and all applicable laws, rules or regulations, including without limitation, any applicable local, state, provincial, national or international law; any applicable laws governing the collection, sharing or use of personal or private information; or any applicable regulations promulgated by any local, state, federal or other national authority.
2.3 “Application” means the Connect-ITZ application hosted by Company for Customer and End-Users and provided through a SaaS model pursuant to this Agreement, with available browser and native app formats which provide End-Users with access to and use of the Licensed Platform functionality and access and use of the Documentation.
2.4 “Authorized Person” means a person or organization with need-to-know Confidential Information, who agrees to maintain the confidentiality of such Confidential Information, and who is authorized in writing by Receiving Party to receive such Confidential Information. For purposes of this definition, employees, officers, legal counsel and accountants for Receiving Party who need to know such Confidential Information shall be deemed Authorized Persons.
2.5 “Company Website” refers to Company’s website located at https://www.connect-itz.com
2.6 “Code” means the software source code and object code for the Licensed Platform, including the executable code and object code for the Software and any and all patches, fixes, workarounds, enhancements, updates, upgrades or modifications to the Software.
2.7 “Community Guidelines” means Company’s Community Guidelines posted on Company’s Website, the terms of which may be updated from time to time.
2.8 “Content” shall mean data, information, resources, materials and other content such as text, audio, video, photographs, illustrations, graphics, and other media.
2.9 “Controller” shall have the meaning set out under Article 4(7) of the General Data Protection Regulation (“GDPR”).
2.10 “Customer Data” means data in electronic form input or collected through the Licensed Platform by or from Customers and/or their End Users, including without limitation, information uploaded by End-Users into the Licensed Platform.
2.11 “Customers System and Software” means the computers, hardware devices, networks, software and systems, network and service providers, used by Customer and End-Users which are needed to provide End Users with internet access of a required level to connect with and interact with the Licensed Platform and required to have capability, functionality, software or operating systems compatible with the standards and specifications if any, to interact with the Licensed Platform.
2.12 “Customer Subscription Fees” means the fees paid by Customers to Company for use and access to the Licensed Platform by Customers and End Users.
2.13 “Documentation” means the user manuals, Company resource center/knowledge base, email and other external-facing materials for the Licensed Platform tutorial guides, guides and for use of the tools in the Licensed Platform, training, onboarding and implementation documentation and marketing and sales materials for or related to the Licensed Platform provided by Company.
2.14 “End User” means any individual who uses and accesses the Licensed Platform dashboard with permission from Customer, such as an employee or independent contractor of Customer.
2.15 “End User Terms of Use” means Company’s End User Terms of Use which are available at https://connect-itz.com/terms-of-use/ and may be updated by Company from time to time.
2.16 “Enhancements” means any change, derivation, alteration, revision, extension or further development of an existing feature, or creation of a new capability or feature, of any component of the Licensed Platform beyond normal Updates, as provided by Company in its sole discretion
2.17 “Feedback” refers to any suggestion or idea for improving or otherwise modifying the Licensed Platform or any of Company’s applications, products or services.
2.18 “Implementation Fee(s)” means the fee or fees paid by Customer for the Implementation Services provided by Company to Customer.
2.19 “Implementation Services” means the implementation services provided by Company with respect to the Licensed Platform as described in the Order Form and/or as a supplement in an SOW for Implementation Services under this Agreement.
2.20 “Improvements” means and includes all derivative works, adaptations, enhancements, modifications, new inventions, know-how, technology and improvements whether made by or on behalf of one or both of the parties, whether alone, jointly or with third parties.
2.21 “Licensed Platform” means the functionality of the Platform and Application which Company is licensing and providing access through a SaaS model to Customer and End Users pursuant to this Agreement, including available browser and native app formats.
2.22 “Platform” means the application servers, computers, hardware, networks, devices, Software and technology licensed, owned, controlled or used by Company and offered as the platform in a SaaS model by Company pursuant to this Agreement for use by Customer and End-Users.
2.23 “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
2.24 “Privacy Policy” means Company’s privacy policy, currently posted at https://connect-itz.com/privacy-policy/, the terms of which may be updated from time to time.
2.25 “Services” means the provision and use of and access to the Licensed Platform and use of the functionalities incorporated therein.
2.26 “Software” means the software Code which operates the Licensed Platform as such may be described in the Documentation including any and all software patches, fixes, workarounds enhancements, updates, upgrades or modifications thereto.
2.27 “Subscription License Term” means the Initial Term and any Renewal Terms as more fully defined in Section 17.
2.28 “Support and Maintenance Fee” shall mean the fees payable to Company to provide ongoing support and maintenance services during the Subscription License Term as identified, if applicable for this Agreement.
2.29 “Third-Party Provider” means the owner of certain content and services, which are incorporated, integrated or used in the provision of the Licensed Platform, or for which Company acts as a licensee, user or customer.
2.30 “Updates” means all revisions, updates, upgrades, improvements, corrections, patches, bug fixes, and clarifications released on an ongoing basis to the Licensed Platform and provided for use or support of the Services including access and use of the Licensed Platform as provided by Company in its sole discretion, but specifically excluding all Versions and Enhancements.
2.31 “User Data” means data in electronic form input or collected through the Licensed Platform by or from End-Users, including without limitation, information uploaded by End-Users into the Licensed Platform
2.32 “Versions” means major changes to the Licensed Platform, beyond Updates and Enhancements, as determined by Company in its sole discretion and which are undertaken by Company and released to Customer and other customers as a new version of the Licensed Platform.
3. LICENSE AND AUTHORIZATION TO ACCESS AND USE THE LICENSED PLATFORM AND SERVICES.
3.1 License Grant. Company hereby grants to Customer the following: (i) a non-exclusive right and revocable license to use and access, and the right to authorize and provide access to End Users, to the Licensed Platform and Services set forth in an Order Form during the applicable Subscription License Term; and (ii) the right to prepare, reproduce, print, download and use copies of Documentation for internal business purposes as may be useful for any use of the Services under this Agreement during the Subscription License Term (the “Subscription License”).
3.2 End Users. Customers may authorize End Users to access or use the Licensed Platform. Each End User must agree to the terms of Company’s policies posted on Company’s Website, including but not limited to, Company’s Privacy Policy as may be updated from time to time, which is incorporated into the Licensed Platform, as well as Company’s End User Terms of Use, as a condition of and prior to becoming an End User. Use of the Licensed Platform by End Users will be governed by such policies as well as the terms of this Agreement.
3.3 Authorization Limitations and Restrictions. Customer shall not, nor shall Customer allow any other Person to, access or use the Licensed Platform or Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits, undertake or allow to be undertaken by any Person or End Users any of the following:
3.3.1 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Licensed Platform or Services to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
3.3.2 bypass or breach any security device or protection used by the Licensed Platform or Services or access or use the Licensed Platform or Services other than by an End-User through the use of his or her own then valid access credentials;
3.3.3 input, upload, transmit or otherwise provide to or through the Licensed Platform or Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code or access the Licensed Platform with any robot, spider or other automatic device or process to monitor or copy any portion thereof;
3.3.4 damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Licensed Platform or Services or Company or Third-Party Providers’ provision of services to any third party, in whole or in part or interfere with or disrupt the integrity or performance of the Licensed Platform or the content contained therein;
3.3.5 use the Licensed Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Licensed Platform;
3.3.6 share non-public Licensed Platform features or content with any third party;
3.3.7 access the Licensed Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Licensed Platform or to copy any ideas, features, functions or graphics of the Licensed Platform;
3.3.8 remove, delete, alter or obscure any trademarks, patent application or registration numbers or markings, specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other Intellectual Property or proprietary rights notices from the Licensed Platform or services, including any copy thereof; or
3.3.9 send spam or otherwise duplicative or unsolicited information using the Licensed Platform;
3.3.10 send to or store on the Licensed Platform any infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material which violates any local, state, national or foreign laws, treaties or regulations, including those related to data privacy, international communications and the transmission of technical or personal data or third-party Intellectual Property rights;
3.3.11 attempt to gain or gain unauthorized access to the Licensed Platform or its related applications, systems or networks or make any attempt to reverse engineer the Licensed Platform or modify or make derivative works based upon the Licensed Platform; or
3.3.12 otherwise access or use the Licensed Platform or Services beyond the scope of the express authorization granted in this Agreement.
3.4 Customer Information. Customer shall be solely responsible and liable for the accuracy, quality, integrity, legality, reliability, appropriateness, and completeness of, and for securing all appropriate Intellectual Property rights and other rights to use and disclose, any and all Customer Data and Content that is sent to, stored with or made available by Customer through the Licensed Platform or provided to Company (collectively, “Customer Information”). Company shall not be responsible or liable for any losses or damages arising from Customer Information, including but not limited to, retention or storage of, deletion, correction, destruction, damage, loss or failure to store any Customer Information. Customer acknowledges that Company does not own or control, and is not responsible or liable for the accuracy, quality, integrity, legality, reliability, appropriateness, or completeness of, any Customer Information that is sent to, stored with or made available through the Licensed Platform. Company retains the sole and exclusive right to review and remove or refuse to display any Content on the Licensed Platform at Company’s sole discretion. Subject to the foregoing, Customer hereby grants to Company and its Third-Party Providers and other users of the Licensed Platform a limited, royalty-free, perpetual, irrevocable, and fully sub-licensable license to retain, use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute and display all public Customer Information throughout the world in any form, media, software or technology of any kind. This does not imply a right to use private or secret Customer Information.
4. NO UP TIME GUARANTEE.
Company does not guarantee any minimum uptime with respect to the Application or Licensed Platform. Company is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
5. PAYMENT.
5.1 Pricing, Fees and Payment. Customer will pay Company all fees for the Services described in the Order Form and/or subsequent monthly invoices in the amount and frequency described in the Order Form and/or invoice, as applicable (the “Fees”). Company shall invoice Customer at the beginning of each month the amounts due for the Services on all active accounts linked to the Customer’s account. For certain Services, including but not limited to the Licensed Platform subscription, Customer shall be required to keep a credit-card on file with Company, or pay the amounts specified in the Order Form and/or invoice in advance. Unless expressly stated otherwise on the Order Form, Fees shall be due and payable upon receipt of each invoice. Customer shall pay Company a late fee of one and a half percent (1.5%) per month or such applicable rate allowed under law, on all amounts thirty (30) days past due. Company may suspend the Services for any amounts due not received within sixty (60) days of the receipt of the invoice. Company may elect to terminate this Agreement for cause, in the event that Customer fails to pay any invoice within ninety (90) days of issuance of the invoice. Payment shall be made at the address or bank account set forth on the invoice provided to Customer. Customer will pay all amounts due under an invoice in U.S. Dollars.
5.2 Taxes, Fees and Payment. Local, state or federal sales, use, value-added taxes (VAT), excise or personal property or other similar taxes or duties and any such taxes (“Taxes”) for purchase of the Services shall be in addition to the Fees identified and payable under the Order Form. Customer shall be responsible for and pay all such Taxes.
5.3 Implementation/ Set Up Fee. The Implementation Fee for the initial implementation of the Licensed Platform for Customer and Implementation Services is described in the Order Form. For any Implementation Services beyond the standard base Implementation Services covered by the initial Implementation Fees, such additional services will be provided through a SOW or separate professional services agreement.
5.4 Customer Subscription Fee(s). The Customer Subscription Fee shall be as set forth in the Order Form. The Customer Subscription Fee for subsequent Renewal Terms, after the Initial Term shall be set and calculated in Company’s sole discretion.
5.5 End-User Subscription Fees. The End-User Subscription Fee(s), if any, shall be determined by Customer at Customer’s sole discretion.
5.6 Support and Maintenance Fee(s). Any Support and Maintenance Fee(s) shall be as identified in the Order Form. The Support and Maintenance Fees cover Maintenance and Support Services that a Customer might need, that goes above and beyond the basic support included in the Customer Subscription Fee. Connect-ITZ will work on a case by case basis with Customers to determine if this is necessary. The Support and Maintenance Fee(s) shall be due at the beginning of each Subscription License Term. Failure to pay the Support and Maintenance Fee(s) shall be grounds for Company to terminate or suspend the Subscription License and access to the Licensed Platform.
5.8 Price Adjustments. Company reserves the right to change the Fees, including Customer Subscription Fee(s), and other fees, costs or applicable charges for subscription and license to use and access the Licensed Platform and receive other Services at the end of the Initial Term and each Renewal Term upon 30 days’ prior written notice to Customer. Company also reserves the right to institute new or changed Fees, costs or charges for a subsequent Subscription License Term following the end of the Initial Term or any Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email or other form of notice). The foregoing limitation shall not limit Company’s ability to charge additional fees incurred by additional licensed, leased or purchased subscriptions, licenses, Services or software, Third-Party services, additional Implementation Services, training or any additional requests by Customer. Following the Initial Term of the Agreement, the Customer Subscription Fee shall be subject to annual increases at the beginning of each Renewal Term, which shall be capped by the greater of five percent (5%) or the percentage increase in the preceding twelve-month period in consumer prices for services measured by the United States Consumer Price Index.
5.9 Disputed Invoices. In the event Customer disputes any invoice or amount due under an invoice from Company, Customer shall inform Company of the dispute by written notice to Company within fifteen (15) days of the invoice date. Such notice shall clearly identify the invoice, shall state the amount disputed and explain the basis for the dispute. Any right Customer might otherwise have had to dispute an invoice shall be deemed irrevocably waived if such written notice is not given to Company within thirty (30) days of the invoice date. In the event of a good faith dispute regarding any portion of a particular invoice, the full amount of the undisputed portion shall be timely paid to Company and Customer shall not offset, delay or withhold payment in full of any other invoice.
5.10 Recordkeeping and Reviewing. Customer shall maintain complete and accurate books of account, records, data and correspondence concerning subscriptions for access to and use of the Licensed Platform and data including identifying End-User Subscription Fee(s) and any other fees, charged, invoiced or collected by Customer and all Fees, and other costs and expenses paid to Company. Upon thirty (30) days advance written notice to Customer, Company shall have the right, at Company’s sole cost and expense to review such books, records, data and correspondence with respect the foregoing and this Agreement.
5.11 Survival of Payment Obligations. All payment obligations accrued at any time under this Agreement at any time during the Subscription License Term shall forever survive any termination or expiration of this Agreement. Immediately and automatically upon any termination or expiration of this Agreement, the entire outstanding balance of any and such accrued payment obligations shall become immediately due and payable and shall be paid in full, together with any accrued interest, not later than thirty (30) days after such termination or expiration.
6. CUSTOMER DATA, PRIVACY AND DATA PROTECTION.
6.1 Use of User Data. Unless it receives Customer’s prior written consent, Company: (i) will not access, process, or otherwise use User Data outside of the Licensed Platform other than as necessary to facilitate the use and functionality of the Licensed Platform and Services; and (ii) will not intentionally grant any third party access to User Data, including without limitation Company’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Company may disclose User Data as required by Applicable Laws or by proper legal or governmental authority. Company will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
6.2 Ownership and Treatment of User Data. As between Customer and Company, Customer is and shall remain the sole and exclusive owner of all right, title and interest in and to User Data. User Data, and any derivatives thereof, contained in the Licensed Platform shall remain the sole and exclusive property of Customer. Provided however, that Customer hereby grants to Company a license to use the User Data for the Subscription License Term, as further set forth in Section 6.3
6.3 License to User Data. Subject to the terms of this Agreement, Customer hereby grants to Company, its successors and assigns, for and during the Subscription License Term, a revocable, fully-paid up, royalty-free, transferrable, non-exclusive right and license to record, transmit, maintain, process and use User Data (“User Data License”): (i) to provide the Licensed Platform and Services to Customer; (ii) for Company usage provided that such User Data is not personally identifiable; (iii) as necessary to monitor and improve the Licensed Platform and Services (including the development of new features and functionality); (iv) to store and archive User Data in accordance with this Agreement; and (v) to create and use Aggregated Data (and, notwithstanding the foregoing the license to use Aggregated Data shall be perpetual and survive any termination of the Agreement).
6.4 The Parties agree that Customer will be a Controller of Customer’s Data, personal data or any other data of any End-User. In the event there is a need for Company to access Customer’s Data or any other data of any End-User, Company shall use commercially reasonable efforts to comply with the requirements of the Data Protection Laws as a Processor only and in respect of the activities which are the subject to the Agreement.
6.5 Privacy Policy. The Privacy Policy applies only to the Licensed Platform and Company Website, and does not apply to any third-party website or service linked to the Licensed Platform or Company Website or recommended or referred to through the Licensed Platform, Company Website or by Company’s staff.
6.6 Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Licensed Platform, Customer assumes such risks. Company offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or actions of third parties.
6.7 Security. Customer shall be solely responsible for the security of any and all User Data in Customer’s possession prior to submitting or uploading the User Data to the Licensed Platform and after receiving processed User Data from the Licensed Platform, regardless of format. Customer shall be solely responsible for any and all User Data backup procedures for the User Data apart from such data that may be temporarily stored in the Licensed Platform by Company, or backed up by Company at any Third-Party Provider server center. Customer shall be responsible for User Data in possession of Customer and End Users and all security or breaches for User Data while in Customer’s possession and others caused by acts or omissions of Customer or Customer’s End Users.
6.8 Data Accuracy. Company will have no responsibility or liability for the accuracy of data uploaded to the Licensed Platform by Customer or its End Users, including without limitation User Data and any other data uploaded by Customer or End Users. Company shall further have no responsibility or liability for the accuracy of Third-Party Provider services used as part of the Services.
6.9 Data Deletion. Company may temporarily or permanently restrict Customer’s access to User Data if Customer’s account is delinquent, suspended, or terminated for sixty (60) days or more.
6.10 Aggregated & Anonymized Data. Notwithstanding the provisions above of this Section 6.10, Company may use, reproduce or otherwise exploit Aggregated Data in any way, in its sole discretion even following termination of the Agreement.
6.11 Data Protection Compliance. Customer shall comply with the requirements of the Data Protection Laws and if Customer is not established in the European Union, nominate a representative (if applicable) based in the European Union as required by the Data Protection Laws. Customer shall not, by any act or omission do anything to put Company in breach of Data Protection Laws.
7. COMPANY RESPONSIBILITIES.
Company shall be responsible for the following:
7.1 Access. Company will provide Customer and its End Users with access to Licensed Platform pursuant to this Agreement. Company may modify the Licensed Platform in its sole discretion provided, however, that Company shall notify Customer of any modifications which would materially affect Customer’s use of the Licensed Platform. Company will engage in commercially reasonable efforts to provide Customer with advance notice of any planned Licensed Platform shutdowns or outages or other events which Company believes are likely to interrupt Customer’s access to the Licensed Platform. Updates to the Licensed Platform are considered critical to Company in improving the Licensed Platform’s performance, response, and security to the benefit of its entire customer base. Company may, in its sole discretion, subcontract with third-party providers to provide services of the Licensed Platform.
7.2 Security. As to the Licensed Platform and implementing and maintaining security systems consisting of encryption and “firewall” technologies to enable the secure transmission of data, Company may from time to time, in its sole discretion, modify or upgrade such security systems to maintain or enhance the level of security provided for the transmission of data. This does not exclude or limit the responsibility of Customer in any way as to the security required to be maintained over Customers System and Software, User Data and data transmission.
7.3 Implementation. Subject to payment of the Implementation Fees, Company will work with Customer to ensure the appropriate configuration and implementation of the Licensed Platform in accordance with the scope of implementation services described in the Order Form. Company’s provision of the Services and any support shall be contingent on Customer’s full cooperation with Company and Customer’s supplying of all information, data, consents and access as necessary for Company to implement the Licensed Platform. The Services include standard implementation consisting of setup and configuration of Customer’s Licensed Platform account and initial training on how to use the Licensed Platform. For Customers that require additional assistance and support beyond Company’s standard onboarding services, such as, but not limited to assistance with operational activities, planning and business process change management (“Integration Services”), Company and Customer may enter into a separate professional services agreement outlining the mutually agreed services and costs associated with providing such additional Integration Services. Notwithstanding the foregoing, Company shall have no obligation to provide Integration Services requested by Customer unless specifically contemplated in an Order Form, and Company reserves the right, in Company’s sole discretion to use or refer Customer to Company’s third-party service partners to provide Integration Services. Company or its third-party service partner shall make such Integration Services in accordance with any agreed specifications in a separate written agreement. Customer shall pay the costs of such Integration Services as agreed upon by the Parties in the separate written agreement.
7.4 Updates and Enhancements. Company may continuously, or from time to time, at its discretion, provide Customer with Improvements, including all updates, upgrades, enhancements, corrections, patches, alterations, revisions and new features and functionalities, as such may be made available to clients of Company in accordance with Company’s then current policies, which may include automatic updating or upgrading without any notice to Customer. Customer consents to receiving any such automatic updates, enhancements and Improvements.
7.5 Support and Maintenance Company endeavors to provide uninterrupted service to Customer. Company reserves the right to interrupt service to perform updates, Enhancements and routine scheduled maintenance. Company will notify Customer of scheduled interruptions at least forty-eight (48) hours in advance via email. In the event of unforeseen network or software failures, Company will use reasonable efforts to expeditiously repair and/or restore the Licensed Platform.
7.6 Material Customizations or Changes to the Licensed Platform. Should Customer request, at any time, material modifications, customizations, or changes to the Licensed Platform that are beyond the standard scope of functionality and configurations available in the Licensed Platform (“Material Changes”), Company and Customer will negotiate an appropriate cost, description, and schedule and incorporate these additional services or deliverables by executing an addendum or statement of work to the Order Form. Company shall make such Material Changes and refine the design and development of the customized version in accordance with such addendum or statement of work. Customer shall pay the costs of such Material Changes as agreed upon by the parties in the addendum or statement of work.
8. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
8.1 Unauthorized Access. Customer will use best efforts to prevent unauthorized access to or use of the Licensed Platform, including without limitation by protecting Customer’s passwords and other log-in information. Customer will notify Company immediately of any known or suspected unauthorized use of the Licensed Platform or breach of its security and will use best efforts to stop said breach. Customer shall be responsible and liable for any and all acts, omissions, negligence, willful acts, access, use or unauthorized use or access to the Licensed Platform.
8.2 Customer’s Hardware and Software. Customer acknowledges that it is solely responsible for the maintenance and security of Customer’s hardware and software including any personally identifiable data or User Data maintained, monitored or implemented through use of Customer’s hardware and systems. Customer will be responsible for: (i) establishing, maintaining and providing the necessary security over Customer’s hardware and software that integrate or communicate with the Licensed Platform; (ii) ensuring that all proper licenses and permissions have been obtained for Company to access, use and/or communicate with the Customer’s hardware and software and User Data; and (iii) establishing and maintaining appropriate and necessary integration between Customer’s hardware and software including, but not limited to, delivering the required User Data to Company’s server(s) and ensuring that the User Data to be transmitted in conjunction with the Licensed Platform is accurate, secure and in the format required by Company.
8.3 Compliance with Applicable Laws. In its use of the Licensed Platform and Services Customer will comply, and be responsible for compliance by End Users, with all Applicable Laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of End-User data. Customer shall be responsible for ensuring that no Applicable Laws restrict or prevent Customer’s use of the Licensed Platform in a particular community or country.
8.4 End Users and Licensed Platform Access. Customer is responsible and liable for: (i) Customer’s End Users’ use of the Licensed Platform, including without limitation unauthorized End User conduct and any End User conduct that would violate the requirements of this Agreement applicable to Customer; and (ii) any use of the Licensed Platform through Customer’s account, whether authorized or unauthorized.
8.5 Errors and Technical Issues. Customer shall promptly report to Company any errors or technical issues with the Licensed Platform, whether integrated or unintegrated into the Licensed Platform, and Company shall use commercially reasonable efforts to promptly respond to and correct any such errors or technical issues.
9. THIRD-PARTY PROVIDERS.
Customer acknowledges that Company may utilize certain Third-Party Provider-owned or controlled software, services or other content in connection with the provision of the Services and that such Third-Party Provider owned or controlled software, services and other content may be acquired and licensed directly or indirectly to Customer from such Third-Party Provider. Subject to Customer’s right to use the Third-Party Provider content as incorporated in the Services, any Third-Party Provider owned or controlled intellectual property used in the provision of the Services, shall continue to be owned or controlled by such Third-Party Provider.
10. INTELLECTUAL PROPERTY & FEEDBACK.
10.1 Definition of Intellectual Property. “Intellectual Property” means: (i) all works of authorship, including without limitation, all literary works, pictorial, graphic and sculptural works, architectural works, software, works of visual art, and any other work that may be the subject matter of copyright protection and all worldwide registrations thereof; (ii) any trademarks, service marks, brand names, trade dress, trade names, designs and any other word, symbol, device, product configuration, slogan or any combination thereof used to distinguish or identify goods or services that may be the subject matter of trademark protection, including all worldwide applications and registrations therefore and associated goodwill (“Trademarks”); (iii) any patents, invention disclosures or inventions, including all methods, business methods, processes, machines, manufactures, systems and compositions of matter, designs and any other inventions that may be the subject matter of patent protection, and all worldwide statutory or other legal protection obtained or obtainable therein and all other published and granted patents and pending applications and provisionals, reissues, divisionals, renewals, extensions, continuations, and continuations-in-part, design patents and industrial design registrations (“Patents”); (iv) all domain names, URLs, websites, and all data, content, “look and feel”, operating and underlying code or software of all websites and the Licensed Platform; (v) all trade secrets, proprietary information, data, and knowledge and experience of a technical, commercial or administrative nature, including all proprietary information, know-how, information processes, operating, maintenance and other manuals, data and databases, computer programs, including all documentation, design specifications, and flowcharts, operational and other plans, schematics and drawings, user data and lists, advertising (“Know-how”), marketing and product concepts and campaigns and other valuable or proprietary information or data (vi) all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States, or any other state, country or jurisdiction, and (vii) all worldwide statutory protection obtained or obtainable thereon on all of the preceding; all rights to enforce, enjoin or sue, any claims, judgments, causes of action or other legal and equitable rights and remedies arising out of or related to any infringement, misappropriation or violation of any of the foregoing; and all right, title and interest to claim royalties, residuals, damages and other remuneration for use of any of the foregoing rights.
10.2 Ownership of Intellectual Property Rights to the Licensed Platform and Services. Company or Company’s Third-Party Providers, as applicable, shall retain all right, title, and interest in and to the Licensed Platform and related Services, including without limitation all software used to provide the Licensed Platform and all graphics, end user interfaces, logos, trademarks and other Intellectual Property used and reproduced through the Licensed Platform and Services, including all customizations, versions, Enhancements, Updates and Material Changes thereto. Company or its Third-Party Providers, as applicable shall own all software code existing prior to, during, and after provision of the Services, including the Licensed Platform, as well as all software code developed in contemplation, installation, implementation, customization and on-going provision of the Services. Customer recognizes that the Licensed Platform and its components are protected by copyright and other Intellectual Property laws.
10.3 Patent Marking. Customer agrees to comply with the “patent” marking provisions of 35 U.S.C. § 287(a) by retaining, and not hampering with, all patent markings on the Licensed Platform and Documentation as provided by Company. Customer agrees to discard any out-of-date Documentation provided by Company, when updated Documentation is provided.
10.4 Feedback. Company has not agreed to and does not agree to treat as confidential any Feedback that Customer or End Users provide to Company, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the End User in question. Notwithstanding the provisions of Section 11 below, Feedback will not be considered Confidential Information, however if Customer transmits information that would otherwise be considered confidential information with the Feedback, such other information shall be considered Confidential Information.
11. CONFIDENTIAL INFORMATION.
11.1 Definition of Confidential Information. Both Parties acknowledge that the Agreement creates a confidential relationship between Company, Company’s Third-Party Providers and licensors of the Licensed Platform and Customer that is the basis on which Customer or Company shall provide to the other Party certain Confidential Information. The term “Confidential Information” means and includes any and all information that is confidential and proprietary to the Party disclosing the information (the “Disclosing Party”), that has been or may hereafter be provided or shown to the Party receiving the information (the “Receiving Party”) including, but not limited to, the Documentation and related materials, any pricing and Fees related to the provision of the Licensed Platform and Services and any other nonpublic, sensitive information the Receiving Party should reasonably consider a trade secret or otherwise confidential.
11.2 Exclusions from Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the Receiving Party’s possession at the time of disclosure; (ii) is independently developed by the Receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the Receiving Party’s improper action or inaction; or (iv) is approved for release in writing by the Disclosing Party. Customer is on notice that the Confidential Information may include Company’s and its Third-Party Provider’s valuable trade secrets.
11.3 Nondisclosure. The Receiving Party will not use Confidential Information for any purpose other than in connection with use of the Licensed Platform. The Parties: (i) will not disclose Confidential Information to any employee or contractor of the Receiving Party unless such person needs access to such Confidential Information in order to facilitate the use of the Licensed Platform; and (ii) will not disclose Confidential Information to any third party without the Disclosing Party’s prior written consent. Without limiting the generality of the foregoing, the Receiving Party will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Receiving Party will promptly notify Disclosing Party of any misuse or misappropriation of Confidential Information that comes to the Receiving Party’s attention. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Receiving Party will give Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party’s expense.
11.4 Injunctive Relief Available. The Parties acknowledge and agree that due to the unique nature of the Confidential Information there can be no adequate remedy at law for a breach by the Receiving Party of the Receiving Party’s confidentiality obligations under this Agreement. Accordingly, and in addition to any other legal or equitable remedies that may be available, the Disclosing Party may seek and obtain injunctive relief in any court of competent jurisdiction against a breach or threatened breach of the Receiving Party’s confidentiality obligations under this Agreement.
11.5 Termination & Return. With respect to each item of Confidential Information, the obligations of Section 11.3 above (Nondisclosure) will terminate three (3) years after termination of this Agreement; provided that such obligations related to Confidential Information constituting either Party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, the Receiving Party will return all copies of Confidential Information to the Disclosing Party or certify, in writing, the destruction thereof.
12. EXPORT.
In offering access to and use of the Licensed Platform to End-Users located outside the United States, Customer shall comply with all export and foreign tax laws of the United States, and all laws of the country in which the Licensed Platform is accessed. Customer shall indemnify, defend and hold harmless Company and its Third-Party Providers from any and all violations of such laws.
13. REPRESENTATIONS & WARRANTIES.
13.1 Mutual Representations and Warranties. Company and Customer each represent and warrant to the other that: (i) it is an entity duly formed, validly existing, and in good standing under the laws of its state or country of incorporation; (ii) it has all requisite power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) this Agreement, when executed and delivered, is a valid and binding obligation of it, and is enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, fraudulent conveyance, moratorium, liquidation, reorganization or other similar laws affecting the enforcement of creditors’ rights generally; (iv) the execution, delivery, and performance of this Agreement have been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms; and (v) this Agreement, and the performance of Company and Customer’s obligations and duties hereunder, do not and will not at any time constitute a breach of any agreement or arrangement applicable to Customer.
13.2 By Company. Company further represents and warrants that Company will use commercially reasonable efforts to provide the Services in line with industry practices and to seek to prevent computer viruses, malware, bugs, malicious code or similar items from being introduced into Customer’s System and Software through the performance of the Services; and
13.3 By Customer. Customer further represents and warrants that Customer has and will obtain all permissions and consents that are necessary in order to allow Company to perform the Services in accordance with this Agreement, including without limit, obtaining all necessary consents, licenses and permissions for Company to integrate, access and communicate with Customers System and Software and to grant the User Data License.
14. WARRANTY DISCLAIMER. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN SECTION 13 ABOVE, CUSTOMER ACCEPTS THE LICENSED PLATFORM AND SERVICES ARE BEING PROVIDED TO CUSTOMER “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, NON-INVASION OF PRIVACY, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (I) COMPANY AND ITS THIRD PARTY PROVIDER AND LICENSOR HAVE NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR END USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY OR INVASION OF PRIVACY; (II) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE LICENSED PLATFORM OR SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR OR COMPLY WITH ALL APPLICABLE LAWS; AND (III) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE LICENSED PLATFORM OR SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT USER DATA WILL REMAIN PRIVATE OR SECURE. COMPANY MAKES NO WARRANTIES WITH RESPECT TO THE THIRD-PARTY PROVIDER SERVICES.
15. INDEMNIFICATION.
Customer will defend, indemnify, and hold harmless Company and the Company Associates (as defined below) against any all losses, penalties, judgments, suits, costs, claims, liabilities, damages, settlement and expenses including, without limitation, reasonable attorneys’ fees , costs and disbursements, arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Licensed Platform or Services, including without limitation: (i) claims by End Users, Customer’s employees or Customer’s own customers; (ii) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including User Data; (iii) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, video recordings, logos or other content uploaded to the Licensed Platform through Customer’s account or Customer’s End Users, including without limitation by User Data; (iv) claims based on Customer’s failure to acquire proper permissions or licenses for Company to access, use, communicate with and/or integrate with Customers Systems and Software and/or User Data; and (v) claims resulting from a breach of the Agreement by Customer. Customer’s obligations set forth in this Section 15 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. The “Company Associates” are Company’s officers, directors, members, managers, shareholders, parents, subsidiaries, agents, successors, and assigns.
16. LIMITATION OF LIABILITY.
16.1 DOLLAR CAP. COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE LESSER OF: (I) THE FEES PAID BY CUSTOMER TO COMPANY DURING THE PREVIOUS SIX-MONTH PERIOD UNDER THE APPLICABLE ORDER FORM GIVING RISE TO SUCH LIABILITY; OR (II) THE FEES PAID BY CUSTOMER TO COMPANY DURING THE PREVIOUS THREE MONTH PERIOD.
16.2 EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
16.3 CLARIFICATIONS & DISCLAIMERS. THE LIABILITIES LIMITED BY THIS SECTION 16 APPLY: (I) TO LIABILITY FOR NEGLIGENCE; (II) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (III) EVEN IF CUSTOMER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (IV) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 16, COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR THE AVOIDANCE OF DOUBT, COMPANY’S LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS SECTION 16 APPLY LIKEWISE TO COMPANY ASSOCIATES AND COMPANY’S THIRD -ARTY PROVIDERS AND LICENSORS.
17. TERM & TERMINATION.
17.1 Subscription License Term. Unless this Agreement is terminated earlier in accordance with the terms set forth in this Section 17, this Agreement and each Subscription License shall commence on the Effective Date set forth in the first Order Form and continue for the period described in the Order Form (the “Initial Term”), provided, that, following the Initial Term, the Subscription License shall automatically renew for successive one (1) year terms (each, “Renewal Term”) until such time as one party provides the other party with no fewer than thirty (30) days advance written notice of its intent to terminate. “Subscription License Term” collectively means and includes the Initial Term and any Renewal Term(s).
17.2 Termination for Cause. Company may terminate this Agreement and Subscription License immediately upon the occurrence of any of the following events: (i) all or a substantial part of the assets of Customer are being sold or otherwise transferred to any person; (ii) Customer is being merged or consolidated with any other person; (iii) a receiver, trustee, or liquidator of Customer is appointed for any of its properties or assets; (iv) Customer admits in writing its inability to pay its debts as they mature; (v) Customer makes a general assignment for the benefit of creditors; (vi) Customer is adjudicated as bankrupt or insolvent; (vii) a petition for the reorganization of Customer or an arrangement with its creditors, or readjustment of its debts, or its dissolution or liquidation is filed under any law or statute; (viii) Customer becomes subject to the control of a competitor of Company in Company’s reasonable determination; or (ix) Customer breaches this Agreement or fails to perform any of its obligations hereunder. Customer shall promptly notify Company in writing of the occurrence of any of the events set forth in this Section.
17.3 Automatic Termination/Suspension. Due to the proprietary and valuable nature of Company’s rights in the Intellectual Property and Confidential Information associated with the Services and Licensed Platform, in the event that Customer or an End User breaches or exceeds any license or use rights of the Services or Licensed Platform or other Intellectual Property or confidentiality rights of Company, then Company shall be free, in Company’s sole discretion, to suspend the respective breaching party’s (be it Customer or the applicable End User) rights or access to the Services or Licensed Platform or terminate the agreement or applicable subscription license with respect to Customer or the End User upon written notice and without any opportunity for breaching Customer or End User having an opportunity to cure such breach. Company shall be free to seek all available legal and equitable remedies including without limitation injunctive relief.
17.4 Effects of Termination. Upon termination of this Agreement or a specific Subscription License, the Subscription License shall terminate and Customer and all End Users, as applicable, will cease all use of the Licensed Platform, and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (i) any obligation of Customer to pay fees incurred before termination; (ii) Section 10 (Intellectual Property & Feedback), Section 11 (Confidential Information), Section 14 (Warranty Disclaimer), Section 15 (Indemnification), and Section 16 (Limitation of Liability); and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose, excepting therefrom any provision granting the right to access or utilize the Licensed Platform.
18. GENERAL TERMS AND CONDITIONS.
18.1 Entire Agreement. This Agreement and the other terms referred to herein, including all Order Forms, set forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. This Agreement shall supersede any previous agreements, terms and conditions or understandings with respect to the order, sale and performance of the Services. To the extent that any of the provisions of an Order Form or statement of work and these Terms conflict, the provision of such Order Form or statement of work shall prevail and govern and control such conflict.
18.2 Independent Contractors. It is agreed that the relationship of the Parties is primarily that of licensor and licensee. During the Term, the parties shall have the relationship of independent contractors. Each party agrees that it shall not have any right to control the other Party, and shall not represent that it has any power, right or authority to control or bind the other Party or to assume or create any obligation or responsibility, express or implied, on behalf of the other party. The Parties agree that their relationship is not a joint venture, partnership, agency, employer, or franchise relationship, and that nothing in this Agreement should be construed as creating any such relationship.
18.3 Internet Delays. The Platform may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Company is not responsible for any delays, delivery failures, or other damage resulting from such problems.
18.4 Local Laws; Export Control. The Licensed Platform uses software and technology that may be subject to United States export, re-export or import control laws administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of other countries. Company and its licensors make no representation that the Platform is appropriate or available for use in other jurisdictions. If Customer uses the Licensed Platform from outside the United States of America, it is solely responsible for compliance with all applicable laws, including without limitation export, re-export and import regulations of other countries. Any diversion of Licensed Platform content contrary to applicable law is prohibited.
18.5 Force Majeure. No delay, failure, or default, other than a failure to pay Fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, gas or energy price fluctuations, pandemic, epidemic, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control. In no circumstances shall Customer’s financial hardship or condition constitute a force majeure event for purposes of this Agreement.
18.6 Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent. This Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
18.7 Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by Applicable Law, and the remaining provisions of this Agreement will continue in full force and effect.
18.8 Waiver. Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provisions. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver.
18.9 Governing Law; Prevailing Party Attorneys’ Fees. This Agreement shall be governed by the laws of the Commonwealth of Kentucky, without regards to conflicts of laws. The prevailing Party in any legal proceeding arising out of or related, directly or indirectly, to this Agreement will be entitled to an award of their reasonable attorneys’ fees and costs (including, without limitation, all taxable and non-taxable costs, and all fees and costs to determine the amount of fees and costs to be awarded) incurred prior to and at trial and for all levels of appeal.
18.10 Dispute Resolution. In the event that a dispute arises between the Parties with respect to this Agreement, authorized representative of Company and Customer will personally meet and/or discuss the dispute and they will both attempt to settle such dispute through consultation and negotiation in good faith. If the dispute still exists, the appointed executives of Company and Customer will meet to seek to resolve the dispute in good faith. If, after good faith negotiations, the Parties are unable to resolve the dispute, the Parties agree to submit the dispute to non-binding mediation. The Parties will mutually designate a mediator and share the costs of the mediation equally. The Parties may agree to replace mediation with some other form of non-binding alternative dispute resolution, such as neutral fact-finding or a mini-trial. The parties both reserve all rights and remedies available under this Agreement, and in law or at equity. If mediation is unsuccessful, the parties agree that that the state or federal courts located in Lexington, Kentucky shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Agreement or its subject matter or formation. All claims shall be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. TO THE EXTENT ALLOWED BY LAW, CUSTOMER WAIVES ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
18.11 Notice. All notices, consents, requests, instructions, approvals, and other communications made, required or permitted hereunder (each, “Notice”) shall be given in writing and delivered to the Company at its address below or to the Customer at the address set forth in the Order Form: (i) by personal delivery to the individual identified in the Order Form; (ii) by certified or registered mail (return receipt requested); (iii) by a nationally recognized courier with proof of delivery; or (iv) by electronic mail verified by return receipt or return electronic mail. The effective date of such Notice is the earlier of: (i) the date upon which any such Notice is personally received by the addressee; or (ii) five (5) business days after such Notice is sent in accordance with the terms of this Section. Any party hereto may change its address for receiving notices by written notice to the other party hereto in accordance with the terms of this Section.
If to Company:
MAP Sports Co-Mission, LLC d/b/a Connect-ITZ
Attn: Collier Mills, Manager
1999 Richmond Road, Suite 300,
Lexington, KY 40502
18.12 Counterparts. This Agreement may be executed in counterparts and each of such counterparts will be deemed to be an original and all of such counterparts together will constitute a single agreement.
18.13 Captions. The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
18.14 Conflicts. In the event of any conflict between this Agreement and any Company policy posted online, including without limitation the Privacy Policy or End User Terms of Use the terms of this Agreement will govern.
18.15 Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
18.16 Survival. All covenants, agreements, representations, and warranties made in this Agreement shall survive the execution and delivery hereof, and shall continue in full force and effect so long as any of the obligations hereunder remain outstanding, unperformed, or unpaid.
18.17 Community Guidelines. Customer agrees to adhere to the Connect-ITZ Community Guidelines available at https://connect-itz.com/community-guidelines/, as may be modified by Company from time to time.
18.18 Amendment. Company reserves the right to modify these Terms at any time. Any modifications shall be effective upon the earlier of the posting by Company of the modified Terms at this URL or direct e-mail or other notification of the changes to Customer. No oral statements or representations will constitute any waiver or modification of any term or condition in the Terms. Customer agrees to review these Terms periodically so that it is aware of any modifications. Customer’s continued use or access of the Services shall be deemed Customer’s acceptance of the modified Terms.