4.1. Distribution of the Application or Service
4.1.1. Appointment. Partner hereby appoints SportsEngine as an authorized distributor of their Application or Service as part of
the SportsEngine Marketplace. Partner hereby grants to SportsEngine a worldwide, non-exclusive, royalty-free license during
the Term to: (a) allow Users to access and use the Application or Service via the SportsEngine Marketplace, and (b) access
the Application or Service via the API for the purpose of providing, at SportsEngine’s option, Frontline Support for the
Integrated Service to Users via the SportsEngine Marketplace.
4.1.2. Use of Partner Marks. During the Term, Partner hereby grants to SportsEngine a limited, non-exclusive, royalty-free license
to use the Partner Marks in order to (i) display the Application or Service in the SportsEngine Marketplace; and (ii) promote
the Application or Service in connection with the SportsEngine Marketplace. In addition, SportsEngine may from time to time,
at its sole option, identify Partner as a SportsEngine Partner in or on SportsEngine websites, sales and marketing materials,
press releases, or any other marketing communications.
4.1.3. Use of SportsEngine Marks. During the Term, SportsEngine hereby grants to Partner a limited, non-exclusive, revocable, royalty-free
license to use the SportsEngine Marks in conjunction with the Application or Service solely in order to promote the Application
or Service, and in accordance with any usage guidelines published by SportsEngine from time to time.
4.1.4. Other Activities. The parties may engage in additional joint marketing activities to promote the Integrated Service offering
on the SportsEngine Platform. Except as mutually agreed in writing, each party will pay its own costs and expenses for its
4.2. Relationship with End Users
4.2.1. EULAs. If Partner requires an End User to agree to an EULA as a condition for use of or access to the Application or Service,
Partner will include the EULA with the Application or Service and will also provide a copy of the current EULA to SportsEngine.
Partner may not change the EULA unless Partner has provided SportsEngine with at least thirty (30) days prior written notice.
Each party will immediately notify the other party if it becomes aware of any breach of any EULA. In no event will Partner
make any representations or warranties to End Users with respect to SportsEngine, the SportsEngine Platform, or any SportsEngine
products or services, or purport to represent or bind SportsEngine to any legal obligations to End Users or any other person.
4.2.2. Privacy and Data Use. Partner represents and warrants that it has the necessary permissions and consents, if any, to provide
End User Data to SportsEngine for purposes of creating integrations and/or offering the Application or Service, including
copying any or all of the End User Data as applicable for other SportsEngine Platform applications used by such End User.
Partner further represents and warrants that its delivery of such End User Data to SportsEngine will not violate any applicable
laws, regulations, published policies, or contractual obligations. Partner acknowledges that when End User Data is provided
to SportsEngine for the purposes of copying such End User Data into other SportsEngine Platform applications used by such
End User : (a) as between Partner and SportsEngine, SportsEngine has all ownership rights in such End User Data; (b) such
End User Data becomes subject solely to the terms and conditions of SportsEngine’s own privacy policies and end user terms
and agreements; and (c) SportsEngine shall be free to use such End User Data without restriction except as set forth in its
own policies, end user terms, and agreements. Partner shall at all times maintain within the Application or Service a conspicuous
4.3. Updates/Support Services
4.3.1. Support of the API and SportsEngine Platform. SportsEngine may at its option offer support services for the API and/or the
SportsEngine Platform from time to time, but the API and SportsEngine Platform are provided AS IS AND WHERE IS. SportsEngine
may update or revise the API and/or SportsEngine Platform from time to time, and such updates or revisions may adversely
affect the manner in which the Applications or Services are displayed or offered via the SportsEngine Platform. Partner will
implement and use the most current version of the API and make changes to its use of the API that are required as a result
of any updates or revisions, at its sole cost and expense.
4.3.2. End User Support. Partner will be responsible for performing all support for the Application or Service, including Frontline
Support. Partner will provide such support promptly, in a manner consistent with good industry practice, and during at least
the same hours and at the same or better service levels as Integration Partner provides support for the Application or Service
when End Users access such services directly through Partners own website, applications, or platforms.
4.3.3. Optional Assistance. SportsEngine may elect at its option to provide Frontline Support, and/or to permit End Users to submit
trouble tickets for the Application or Service to the SportsEngine Platform, and transmit such trouble tickets to Partner,
but SportsEngine has no obligation to provide any support to End Users or to play any role in Partner’s support activities.
4.4. Intellectual Property Rights
4.4.1. Integration Partner IP. As between Partner and SportsEngine, Partner owns all right, title, and interest in and to the Application
or Service and Partner Marks and the Intellectual Property Rights therein, and nothing in this Agreement will confer on SportsEngine
any right of ownership or interest in the Application or Service or Partner Marks.
4.4.2. SportsEngine IP. As between Partner and SportsEngine, SportsEngine owns all right, title, and interest in and to the SportsEngine
Platform (excluding the Application or Service and Partner Marks), the API, SportsEngine Marks, and the Intellectual Property
Rights therein, and nothing in this Agreement will confer on the Partner any right of ownership or interest in the SportsEngine
Platform, API, or SportsEngine Marks.
4.4.3. License to Feedback. Each party hereby grants to the other party a perpetual, irrevocable, worldwide, sublicensable, transferable, royalty-free,
fully-paid, right and license to use and exploit in any manner and for any purpose, all Feedback provided by a party hereunder.
4.4.4. No Other Rights Granted. Each party acknowledges that it obtains no intellectual property rights or licenses by this Agreement
except for those licenses expressly granted.
Partner may not: (i) interfere with or disrupt the API or SportsEngine Platform, or attempt to gain access to any systems
or networks that connect thereto (except as required to use the API); (ii) use the API to replicate, frame or mirror SportsEngine
properties; (iii) transfer, sublicense, lease, lend, distribute or otherwise make available the API to any third party; or
(iv) use the API in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement. Partner
may not use the API to develop (or instruct any third party to develop) a service that may reasonably be deemed to be competitive
with SportsEngine’s products and services. Partner may not use the API for purposes of monitoring the availability, performance
or functionality of any of SportsEngine’s products and services or for any other benchmarking or competitive purposes. Partner
may not (or attempt to) interfere, disrupt or disable any features or functionality that is embedded or included with the
API. Partner acknowledges and agrees that SportsEngine may monitor or audit its use of the API. Partner will make available
to SportsEngine any data, usage statistics or other information regarding its use of the API as reasonably requested by SportsEngine.
4.6.1. Term. This Agreement is effective as of the Effective Date and will continue for a period of one (1) year unless earlier
terminated in accordance with Section 4.6.2 (together with any renewal period the “Term”). The Agreement will automatically
renew for additional one (1) year periods unless either party gives written notice to the other of its intention not to renew
the Agreement at least thirty (30) days prior to the expiration of the then-current Term.
4.6.2. Termination. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this
Agreement within thirty (30) days after written notice of such breach; (b) ceases operation; or (c) seeks protection under
any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding
is instituted against such party (and not dismissed within 60 days thereafter). Termination is not an exclusive remedy and
the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have
under this Agreement, by law, or otherwise. In addition, SportsEngine can suspend Partner’s integration with the SportsEngine
Platform, use of the API, and inclusion in the SportsEngine Marketplace at any time without notice if SportsEngine believes
that the Applications or Services threaten or are likely to threaten the security or reliability of the SportsEngine Platform,
or interfere with other users of the SportsEngine Platform.
4.6.3. Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) Partner will cease any and all
use of the API and the SportsEngine Platform; (b) each party will return to the other party or destroy the Confidential Information
of the other party; and (c) upon written request, each party must certify in writing to the other party that it has returned
or destroyed all of the other party’s Confidential Information.
4.6.4. Survival. Definitions, Section 4.2.2 (Privacy and Data Use), Section 4.4 (Intellectual Property Rights), Section 4.5 (Restrictions),
Section 4.6.3 (Effects of Termination), Section 4.6.4 (Survival), 9.3 (Disclaimers), 10 (Limitations), 11 (Indemnification),
12 (Confidential Information), and 14 (General) will survive any termination or expiration of this Agreement.
4.7. Representations and Warranties/Disclaimers
4.7.1. Mutual Representations. Each party represents and warrants that (a) it is duly organized and validly existing under the laws
of the state of its organization or incorporation; (b) the execution, delivery, and performance by such party of this Agreement
are within the powers of the party, have been duly authorized by all necessary action on the part of the party, and will
not violate any law, statute, or other governmental regulation that is applicable to the party’s business, or any other agreement
or instrument to which the party is a party; and (c) it has obtained or will obtain and maintain during the Term all rights,
licenses, consents and authorizations necessary to perform its obligations as set forth in this Agreement.
4.7.2. Additional Representations of Integration Partner. Integration Partner further represents and warrants that the Integrated
Service and Integration Partner Marks do not and will not violate any applicable laws, rules or regulations or infringe the
rights, including without limitation Intellectual Property Rights, of any third party.
4.7.3. Disclaimers. THE API AND SPORTSENGINE PLATFORM ARE PROVIDED “AS IS”. SPORTSENGINE DOES NOT WARRANT THAT THE API OR SPORTSENGINE
PLATFORM WILL OPERATE UNINTERRUPTED OR BE FREE FROM DEFECTS, OR THAT THE SPORTSENGINE PLATFORM IS DESIGNED TO MEET INTEGRATION
PARTNER’S BUSINESS REQUIREMENTS. NEITHER SPORTSENGINE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE,
OR NON-INFRINGEMENT. SPORTSENGINE DOES NOT AND HAS NOT MADE ANY COMMITMENTS REGARDING THE NUMBER OF END USERS WHO WILL ACCESS
THE INTEGRATED SERVICES VIA THE SPORTSENGINE PLATFORM.
4.8. Limitation of Remedies and Damages
SPORTSENGINE WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS,
OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS),
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF
INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. SPORTSENGINE’S TOTAL AGGREGATE LIABILITY AND PARTNER’S SOLE AND EXCLUSIVE
REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING HEREUNDER, WILL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY SPORTSENGINE’S
SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF PAYMENTS MADE UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO
THE EVENT GIVING RISE TO LIABILITY. The provisions of this Section allocate risks under this Agreement between Partner and
Partner will indemnify, defend and hold harmless SportsEngine and its officers, directors, consultants, employees, successors
and permitted assigns from and against any damages, losses, and expenses (including reasonable attorneys' fees), as a result
of any third-party claim, demand or action (collectively, a "Claim") arising from any breach of any of the representations,
warranties, or covenants made by Partner hereunder. SportsEngine will promptly notify Partner in writing of any such Claim;
provided that the failure to provide such notice will not relieve Partner of its indemnification obligations hereunder except
to the extent of any material prejudice directly resulting from such failure. Partner will bear full responsibility for,
and will have the right to solely control, the defense (including any settlements) of any such Claim; provided, however,
that (i) Partner will keep SportsEngine informed of, and consult with SportsEngine in connection with the progress of such
litigation or settlement and (ii) Partner will not settle any such Claim in a manner that does not unconditionally release
SportsEngine without SportsEngine’s written consent, not to be unreasonably withheld or delayed.
4.10. Confidential Information
The Receiving Party will not: (i) disclose any Confidential Information to any third party, except as otherwise expressly
permitted herein; (ii) make any use of Confidential Information except: (a) to exercise its rights and perform its obligations
under this Agreement; or (b) in connection with the parties’ ongoing business relationship; or (iii) make Confidential Information
available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least
as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party is
liable for all acts and omissions of its employees and consultants to the extent that such act or omission would be a breach
of this Agreement if done by Receiving Party. The Receiving Party will be held to the same standard of care as it applies
to its own information and materials of a similar nature, and no less than reasonable care. The Receiving Party may disclose
the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court,
administrative agency, or other governmental body, but only if the Receiving Party provides prompt written notice thereof
to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
The Receiving Party will protect Confidential Information in the manner provided herein for five (5) years after receipt
thereof, unless such obligation ceases earlier pursuant to this Section; provided that, to the extent the Confidential Information
constitutes a trade secret under law, the Receiving Party agrees to protect such information for so long as it qualifies
as a trade secret under applicable law.
4.11.1. Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or
invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
4.11.2. Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Minnesota and the United
States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the
International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). The jurisdiction and venue for
actions related to the subject matter hereof will be the Minnesota state and United States federal courts located in Minnesota
and both parties irrevocably consent to such personal jurisdiction of such courts and waive all objections thereto.
4.11.3. Notices and Reports. Any notice or report hereunder will be in writing and will be deemed given upon delivery if sent by:
(i) personal delivery; (ii) certified or registered U.S. mail (return receipt requested); or (iii) overnight commercial delivery
service, in each case addressed as follows, or at such other addresses as may be provided in writing by the Parties:
If To SportsEngine:
Attention: Chief Financial Officer
807 Broadway ST NE, STE 300
Minneapolis, MN 55413
If to Partner:to the address set forth in the Marketplace Application, or to any available published address of Partner, attention Chief
4.11.4. Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing
by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to
enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized
representative on behalf of the party claimed to have waived.
4.11.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes
and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by
4.11.6. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership,
joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind
the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
4.11.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement
if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited
to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications
or data networks or services, or refusal of approval of a license by a government agency.
4.11.8. Assignment. Integration Partner may not assign this Agreement or any of its rights or obligations hereunder without the prior
written consent of SportsEngine, and any such assignment in violation of this Section will be void. SportsEngine may freely
assign this Agreement. This Agreement will inure to the benefit of and be binding upon the parties hereto, and their successors
and permitted assigns.
4.11.9. Headings. The headings in this Agreement are for purposes of reference only and will not in any way limit or affect the meaning
or interpretation of any of the terms hereof.
4.11.10. Counterparts. This Agreement may be executed in one or more counterparts, each of which together shall constitute one and
the same Agreement. For purposes of executing this Agreement, a facsimile (including a PDF image delivered via email) copy
of this Agreement, including the signature pages, will be deemed an original.