Subscription Agreement
Effective Date December 1, 2021; Updated July 18, 2023
Welcome to the Subscription Agreement (the “Subscription Agreement”) for SportsEngine’s websites, software, mobile applications, contents, hardware, or other online products and services (including all Content therein, the “SportsEngine Services”). The SportsEngine Services are made available to you by SportsEngine, Inc. and its affiliated companies (including successors & assigns, “SportsEngine,” “we,” “us” or “our”).
This Subscription Agreement sets out the agreement between your sports governing body, federation, league, team, club, or similar entity or organization, that accesses or uses the SportsEngine Services (the “Organization”) regarding how your Organization and members can use the SportsEngine Services, and what responsibilities your Organization and SportsEngine have to each other.
This Subscription Agreement contains important information regarding your Organization’s legal rights including MANDATORY ARBITRATION, NO CLASS RELIEF, AND A WAIVER OF YOUR ORGANIZATION’S RIGHT TO A JURY TRIAL. Please read this Subscription Agreement and any other agreements or terms referenced below carefully. BY USING THE SPORTSENGINE SERVICES, ON BEHALF OF YOUR ORGANIZATION, YOU ACCEPT AND AGREE THAT YOUR ORGANIZATION WILL BE BOUND AND ABIDE BY THIS AGREEMENT AND OUR PRIVACY POLICY, which describes our privacy practices as they relate to SportsEngine Data and is incorporated herein by reference.
We trust your Organization and your Members will enjoy what SportsEngine has to offer.
1. INTRODUCTION
SportsEngine is a part of NBC Sports Next, a division of NBCUniversal Media, LLC (“NBCUniversal”). We are the Home of Youth Sports™ and provide a number of online and mobile software products and services centralizing all the tools and information that Administrators may need to manage an Organization. We provide websites, video and streaming, communication membership & financial management, event, and league/tournament management tools and much more. In addition, for some of our products, we allow Organization’s Members to access the software and services via desktop and mobile apps so they can acquire the benefits of being a member of the Organization, including their schedules, results, attendance, performance tracking functionality and lots more.
This Subscription Agreement applies to all Organizations regardless of the SportsEngine Services being used. As of the date stated above, SportsEngine operates the following brands/businesses: BracketPal, SportsEngine AES, SportsEngine HQ, SportsEngine Motion, SportsEngine Play, TeamUnify, and Tourney Machine.
2. GENERAL
2.1 Acceptance of the Subscription Agreement. You and your Organization may access the SportsEngine Services in accordance with this Subscription Agreement. You represent that you have read, understood, and that your Organization agrees to be bound by this Subscription Agreement in connection with your Organization’s access to and/or use of the SportsEngine Services. By using the SportsEngine Services, your Organization will be deemed to have agreed to this Subscription Agreement. The terms “Administrator” (as defined below), “you” and “your,” as used throughout the Agreements, apply to both you and the Organization together. You represent that you have the authority to bind your Organization and by accessing or using the SportsEngine Services, you acknowledge that the Organization accepts and agrees to be bound by the Agreements. If you do not agree with (or cannot comply with) the Agreements, then you should not proceed, and the Organization may not use or access the SportsEngine Services.
2.2 Definitions. The following definitions apply throughout the Agreements:
Organization: the sports governing body, federation, league, team, club, or similar entity or organization, that accesses or uses the SportsEngine Services.
Administrator(s): the person(s) nominated by the Organization that is responsible for or has control over the use and administration of the Organization’s use of the SportsEngine Services and includes anyone who is given administrative access to the SportsEngine Services.
Member(s): members of the Organization including athletes, parents/legal guardians of athletes, the Organization’s workforce (which includes volunteers, coaches, managers, and Administrators) or other associated persons of the Organization that benefit as end-users of the SportsEngine Services.
Organization Data: means any Personal Data that relates to the Organization’s Members that SportsEngine processes in relation to SportsEngine’s provision of the SportsEngine Services and that is not SportsEngine Data. For avoidance of doubt, Organization Data does not include SportsEngine Data even if the same data was also collected as Organization Data and any such duplicate data relating to the Organization’s Members that SportsEngine processes in relation to SportsEngine’s provision of the SportsEngine Services remains Organization Data.
SportsEngine Data: means information you provide to us directly and independently when using the SportsEngine Services, including but not limited to contact and account registration information, demographics information, interests and preferences, transactional and membership information, user-generated content, audio and video, research and feedback data, and information we collect for business-to-business relationships, including but not limited to business contact information, transactional information, demographics, and due diligence information. SportsEngine Data also includes information we collect automatically from you and / or your device, such as device information and identifiers, connection and usage, data, and geolocation.
2.3 Eligibility. By accessing or using the SportsEngine Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo (e.g., Crimea, Cuba, Iran, North Korea or Syria); and (ii) your access to and use of the SportsEngine Services will comply with the United States export control and economic sanctions requirements.
2.4 Additional Agreements. In addition to the terms of this Subscription Agreement, some areas of and the SportsEngine Services may be subject to additional terms and conditions. Any such additional terms and conditions are in addition to this Subscription Agreement and, to the extent there is a conflict between the Agreements (as defined below) and this Subscription Agreement, this Subscription Agreement will prevail with respect to such conflict; provided that in the event of any conflict between this Subscription Agreement and the Data Processing Agreement, the Data Processing Agreement will prevail. If your Organization does not agree to the applicable Agreement, you may not use the SportsEngine Services to which they apply. The following terms and conditions (where applicable) are incorporated by reference into this Subscription Agreement and shall govern your access and use of the SportsEngine Services (collectively, the “Agreements”):
Terms of Use These terms govern the Organizations’ Administrators’, Members’ and other end users’ access and use of the SportsEngine Services.
Background Screening Terms Where your Organization uses background screening and other similar services, SportsEngine affiliate National Center for Safety Initiatives, LLC (“NCSI”) provides these services separately and independently.
Payment Processing Agreement This Agreement applies where an Organization utilizes SportsEngine’s payment processing services.
Data Processing Agreement (the “DPA”) This agreement applies where SportsEngine processes personal information on behalf of the Organization as a data processor or service provider, as defined in the DPA.
SportsEngine Privacy Policy The SportsEngine Privacy Policy applies to SportsEngine’s collection and processing of SportsEngine Data.
2.5 Modifications. YOUR ACCESS TO OR USE OF THE SPORTSENGINE SERVICES IS GOVERNED BY THE THEN-CURRENT SUBSCRIPTION AGREEMENT. We may modify this Subscription Agreement and any terms of the Agreements from time to time in our sole discretion and such modification shall be effective once posted to this site. Your continued use and access to the SportsEngine Services after we post changes to this Subscription Agreement or the Agreements will be deemed acceptance of the changes. You agree to be notified of changes to this Agreement via posting of updates on our websites or mobile applications. We encourage you to check back here for any such changes from time to time. If you do not agree with (or cannot comply with) the updated terms of the Agreements, then you should not continue to use or access the SportsEngine Services, but we shall not be liable to provide a refund and/or compensate for any other losses you may incur as a result.
3. SERVICES
3.1 Availability of SportsEngine Services. Subject to compliance with the terms of the Agreements, we grant your Organization and its Members a limited, revocable, non-sublicensable, non-transferable license to access and use the SportsEngine Services for your Organization’s internal use, and only in accordance with this Subscription Agreement and the Agreements. Except as we specifically agree in writing, no element of the Content may be used or exploited in any way other than as part of the authorized SportsEngine Services made available to your Organization. We may change, suspend or discontinue any or all of the SportsEngine Services at any time for any reason without notice or liability to your Organization. We make no representations or warranties about the quality, accuracy, or availability of the SportsEngine Services, including, but not limited to blackouts, location or device-based limitations or compatibility, or Content-viewing windows.
3.2 Devices and Charges. Your Organization is solely responsible for obtaining all devices, hardware and software, internet connectivity, mobile service, and other services needed for your use of the SportsEngine Services, and you will be solely responsible for all charges related to them. Your carrier or internet service provider may charge fees for or restrict certain wireless features. SportsEngine’s provision of the SportsEngine Services is completely contingent upon your Organization’s provision of sufficient internet connectivity, including where applicable, sufficient internet connectivity to support a livestream of quality consistent with industry standards.
4. CONTENT
4.1 SportsEngine Content. The SportsEngine Services contain or reference material that is owned by us as well as third parties, including but not limited to software, images, videos, text, website designs and templates, and audio (collectively, “Content”). As between SportsEngine and your Organization, SportsEngine owns all right, title and interest in and to or has a right and license to use the copyrights, trademarks, service marks, trade names, and all other intellectual and proprietary rights throughout the world associated with the SportsEngine Services and Content, including as incorporated into User-Generated Content. Except as expressly stated in this Subscription Agreement, nothing in this Subscription Agreement shall be deemed to convey to you any right, title or interest in or to the SportsEngine Services or Content. To the extent the SportsEngine Services include an explicit authorization with respect to certain Content (e.g., the right to repost content on social media), SportsEngine hereby grants you a limited, revocable license to post or upload such Content onto your Organization’s social media account(s) without modification and in accordance with the restrictions in this Subscription Agreement or any other additional terms and conditions associated with such Content. To the extent we
authorize you to create, Upload, publicly display or publicly perform User Generated Content that is derived from our Content, we grant you a non-exclusive license to create a derivative work using the specifically referenced Content. You assign to us all rights worldwide in the work you create for the duration of copyright in the User Generated Content, in all formats and media known or unknown to date, including for use on third party sites and platforms. If such assignment is invalid, your license to create derivative works using our Content is null and void.
4.2 User-Generated Content. The SportsEngine Services may include opportunities for your Organization or others to upload, post, publish, publicly display, transmit or otherwise distribute (“Upload”) text, files, images, photos, audio, video, clips, sounds, musical works, works of authorship, or any other content or materials on or through the SportsEngine Services (“User-Generated Content”). Except as may be explicitly requested in connection with particular programs or promotions, SportsEngine is not requesting, and is unwilling to review, ideas or materials relating to characters, storylines, treatments, scripts, artwork, visual or audio-visual content, or other artistic or creative works (whether relating to pre-existing SportsEngine properties or not). Except as expressly set forth in this Subscription Agreement, your Organization shall continue to own all rights in and to your Organization’s User-Generated Content, except to the extent your Organization’s User-Generated Content contains or is otherwise derived from materials, content, or elements owned by SportsEngine or any of our affiliated companies or partners (e.g., characters or other elements created or owned by us). Your Organization is solely responsible for any third-party Content in your User-Generated Content and for the use of the User-Generated Content, including on our platforms and through the SportsEngine Services. We are under no obligation to host or serve any Content or User-Generated Content and reserve the right to remove such Content, your User-Generated Content and/or any other content at our sole and absolute discretion.
4.2.1 License to User-Generated Content. On behalf of your Organization, you hereby grant to SportsEngine a perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable through multiple tiers (including to other users of the SportsEngine Services), fully paid up, and transferable (in whole or part) worldwide license to use, reproduce, transmit, adapt, prepare derivative works based on, publicly display, publicly perform, exhibit, modify, edit, distribute, incorporate in other works, and/or otherwise exploit, in whole or in part, any User-Generated Content (including your Members’ names, images, likenesses and voices as they appear in that User-Generated Content) in any manner and any media now known or hereafter developed, without further notice to your Organization, and without the requirement of compensation or additional permission from your Organization, its Members or any other person or entity. You hereby grant on behalf of your Organization to SportsEngine the right to monetize the Content and any User-Generated Content (and such monetization may include selling or using commercial elements (e.g., pre-roll, mid-roll, post-roll, banner ads and dynamic advertising) on or within such Content or charging users a fee for access). SportsEngine shall retain any and all revenue from the sale or use of such commercial elements. This Agreement does not entitle your Organization to any payments. Your Organization represent and warrant that your Organization owns all User-Generated Content or are otherwise authorized to grant the license above.
4.2.2 Use and Distribution of User-Generated Content. You agree that SportsEngine may give your Organization attribution for its User-Generated Content, but we are not required to do so. To the extent permitted by applicable law, you hereby waive and agree on behalf of your Organization not to assert any “moral rights” or other proprietary rights in any User-Generated Content against us, our licensees, our representatives or other users.
4.2.3 Public Nature of SportsEngine Services. You acknowledge that you upload any User-Generated Content voluntarily, and have no expectation of privacy or confidentiality with respect to any User-Generated Content you Upload, and that no fiduciary relationship exists between us and you or any other party based on the User-Generated Content. We make no guarantees to remove User-Generated Content from the Services or other sites, and we may retain User-Generated Content in our backup files, including after termination of your Subscription.
4.2.4 No Responsibility for User-Generated Content. SportsEngine is not responsible or liable for any User-Generated Content and we have no obligation to investigate, monitor or correct any User-Generated Content (e.g., for accuracy or completeness) except as provided under our Infringement Policy. User-Generated Content
may not reflect the views of SportsEngine and we do not endorse any User-Generated Content that your Organization or other users upload.
4.3 Infringement Policy. If your Organization believes that any User-Generated Content is defamatory or infringes your intellectual property, please send a written notice following the rules in our Infringement Policy to request a review of the alleged infringement. Pursuant to 17 U.S.C. Section 512 as amended by Title II of the U.S. Digital Millennium Copyright Act of 1998, we reserve the right to remove your User-Generated Content.
5. RESTRICTIONS; USE OF THE SPORTSENGINE SERVICES 5.1 Prohibited Actions. Your Organization may not attempt any of the actions set forth in this list of Prohibited Actions or authorize, facilitate or induce others to do so. You recognize that Uploading unlawful material could expose your Organization to criminal and/or civil liability. Your Organization’s privilege to use the SportsEngine Services depends on your Organization’s compliance with the list of Prohibited Actions and with the terms of the Agreements. We reserve the right to revoke your Organization’s, Administrators’, and Members’ privileges to use all or a portion of the SportsEngine Services and/or take any other appropriate measures to enforce the Agreements.
5.2 Investigations, Monitoring, and User Disputes. SportsEngine may, but is under no obligation to, examine, record, copy and disclose your Organization’s use of the SportsEngine Services including as necessary to satisfy any law, regulation or governmental request. We reserve the right to take, or refrain from taking, any and all steps available to us, once we become aware of or suspect any violation of these provisions, including, but not limited to, modifying or removing any User-Generated Content, warning users, suspending users, terminating accounts, suspending and terminating subscriptions to the SportsEngine Services, blocking access to the SportsEngine Services or taking other corrective action we deem appropriate without liability. Your Organization is solely responsible for your Organization’s use of the SportsEngine Services, User-Generated Content, and any interaction with its Administrators, Members or other users of the SportsEngine Services, and we reserve the right, but shall have no obligation, to become involved in any way or to monitor disputes between your Organization, its Administrators, Members, and any other users of the SportsEngine Services.
5.3 Termination and Suspension. Termination, suspension or cancellation of your Organization’s account, subscription or access to the SportsEngine Services (collectively, “Termination”) shall not affect any right or relief to which we may be entitled, at law or in equity. SportsEngine may, in its sole discretion, at any time elect to Terminate this Subscription Agreement with your Organization, your Organization’s subscription or access to the SportsEngine Services immediately upon notice to your Organization. Upon such Termination, all rights granted to your Organization in this Subscription Agreement will automatically terminate and immediately revert to us. Such Termination shall not relieve your Organization of the obligation to pay any fees accrued or payable to SportsEngine prior to the effective date of Termination. Following such Termination, this Subscription Agreement shall remain in full force and effect with respect to your Organization’s past and future use of the SportsEngine Services, including all rights granted by your Organization to us.
5.4 Additional Obligations. Your Organization is further obligated to inform and ensure its Members:
5.4.1 are aware of and will comply with any applicable terms and conditions, including the Terms of Use and any other acceptable use policy as imposed by SportsEngine relating to the use and access to the SportsEngine Services; and
5.4.2 will provide its Members with a privacy notice explaining how the Organization handles their personal data (such policy to be consistent with applicable laws and industry best practices) and obtain any necessary permissions or consents for the Organization to provide Organization Data to SportsEngine as specified under this Subscription Agreement or as otherwise agreed by the parties.
Where the Organization fails to present any of the terms stated above, SportsEngine reserves the right to present default information that will inform the Organization’s Members to contact the Organization to identify what terms and conditions apply (including the Terms of Use). For the sake of completeness, any information presented by SportsEngine does not and should not be considered as relieving the Organization’s obligations under applicable law or this Subscription Agreement. The Organization accepts and agrees that they shall be solely responsible and liable for any of their Members and their Members’ use of the SportsEngine Services. No Member shall be deemed to be a third party beneficiary of this Subscription Agreement, and the Organization shall not make any warranties, representations or commitments to a Member which would (i) imply an endorsement by SportsEngine; (ii) purport to bind SportsEngine to any legal obligations owed by the Organization to the Members; or (iii) entitle any Member to enforce the terms of this Subscription Agreement against SportsEngine.
6. THIRD PARTY SERVICES & THIRD PARTY PLATFORM PROVIDERS
6.1 Third Party Services. The SportsEngine Services may provide links to third-party websites, widgets, software, services or other utilities (“Third-Party Services”). Third-Party Services are provided solely as a convenience to your Organization, and we are not responsible for Third-Party Services. The inclusion of a link to or other integration with a Third-Party Service on any SportsEngine Service does not imply an endorsement by or affiliation with us. Your Organization’s rights and obligations while accessing those Third-Party Services will be governed by the agreements and policies relating to the use of and made available by those Third-Party Services. We will not be responsible or liable for any confidential or personal information you provide in connection with any Third-Party Services, or loss or damage of any sort incurred as the result of any dealings with or as the result of the availability of such Third-Party Services on the SportsEngine Services.
6.2 Third Party Platform Providers. If you access or download the SportsEngine Services via an Apple, Inc., Amazon.com, Inc., Google, Inc., Microsoft Corporation, Samsung Electronics America, Inc. or any other third-party app store or platform (each a “Third-Party Platform Provider”), such Third-Party Platform Providers, shall be third-party beneficiaries to this Subscription Agreement. However, these Third-Party Platform Providers are not party to this Subscription Agreement and have no obligation to provide maintenance and/or support of the SportsEngine Services. Your Organization’s access to the SportsEngine Services through the Third-Party Platform Provider’s app stores or platforms is subject to such Third-Party Platform Provider’s then-applicable terms of service. You should read the terms of service agreements and privacy policies that apply to such third-party products.
7. PRIVACY & DATA PROTECTION
7.1 SportsEngine as a Service Provider for Organization Data. Unless otherwise specified or agreed by the parties, the Organization acknowledges and agrees that SportsEngine shall act as “Service Provider” or “Processor” under applicable Data Protection Legislation for any Organization Data and SportsEngine’s Data Processing Agreement shall apply to our processing of such Organization Data. For data for which SportsEngine is a Service Provider, SportsEngine shall act on the Organization’s instructions and shall not copy, sell or reuse the Organization Data, save as expressly permitted in this Subscription Agreement and, as applicable, the Data Processing Agreement, as updated and notified to the Organization from time to time. For avoidance of doubt, in the event that there is any duplication or overlap between the Organization Data and SportsEngine Data, each party acknowledges that it is an independent “Controller” or “Business” as defined under Data Protection Legislation with respect to such data and shall use such data in accordance with its respective privacy policy. Nothing in this Agreement shall affect Organization’s ownership and rights to use the Organization Data and all customer personal information obtained independently of the Services by the Organization, whether prior to or during the term of this Subscription Agreement.
7.2 Third Party Services & Technology Integrations. The SportsEngine Services include integrations of Third-Party Services into the SportsEngine Services, including Third-Party Services integrated into SportsEngine’s online registration process (each such Third-Party Service providers, an “Integration Partner”). Your Organization acknowledges that, unless otherwise agreed between your Organization and SportsEngine in writing, the Third-Party Services of Integration
Partners are automatically incorporated into SportsEngine’s Services, including within your Organization’s Members’ registration pathway. Organization Data may be shared with both SportsEngine and the relevant Integration Partner to enable the proper functioning of the technology, facilitate audience creation, serve personalized offers, and improve the user experience. Where Organization Data flows to SportsEngine, SportsEngine shall continue to act as a “Service Provider” or “Processor” as set out in the clause immediately above. Where Organization Data flows to the Integration Partner, the Integration Partner may act as an independent “Business” or ”Controller.” Such data sharing to the Integration Partner will be at the direction of the Member and subject to the Integration Partner’s privacy policy.
7.4 SportsEngine Data Rights. For the avoidance of doubt, SportsEngine is the data owner and controller of all SportsEngine Data. In particular, it is acknowledged that SportsEngine, and its parent NBCUniversal processes all SportsEngine Data as a Controller and a Business, and that such data may be used by other NBCUniversal brands for their own business purposes, including all purposes set forth in SportsEngine’s Privacy Policy.
7.5 Aggregated & Anonymized Data. Organization agrees that SportsEngine may process Organization Data to generate nonpersonal data by means of aggregation, pseudonymization and/or anonymization, and to use that data (along with any other similar data (e.g. anonymous survey results, general usage data or other information generated by SportsEngine under this Subscription Agreement for its own commercial purposes, such as for business planning, analytics, and to improve its products, services, systems and tools.
8. ADVERTISEMENTS & MARKETING
8.1 Advertising & Marketing. SportsEngine may sell and display commercial elements and advertisements across its platforms and the SportsEngine Services it provides to the Organization, including on Organization websites built and hosted through the SportsEngine Online Sports Website Builder. SportsEngine will retain any and all revenue obtained from the sale or use of such commercial elements or advertisements, including any personalized offers provided as a result of Third-Party Services and technology integrations detailed in Sections 6 and 7 above. SportsEngine will not deliver any advertising content that is indecent, obscene, pornographic material, hate speech, illegal subject matter or activities or other content which does not meet SportsEngine’s quality and standards as in effect from time to time. Further, the Organization acknowledges that SportsEngine may send Administrators and Members personalized and non-personalized marketing messages, subject to recipients’ marketing preferences.
9. REPRESENTATIONS & WARRANTIES
9.1 The Organization represents and warrants to SportsEngine that:
9.1.1 it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation and has the corporate capacity to enter into this Subscription Agreement and to perform each of its obligations hereunder;
9.1.2 it has duly authorized and accepted this Subscription Agreement and this Subscription Agreement constitutes a legally valid and binding obligation of it enforceable against it in accordance with its terms;
9.1.3 it shall comply with all applicable federal, state, and local laws, rules and regulations including but not limited to all Data Protection Legislation (as defined in the Data Processing Agreement), with respect to (i) any and all Organization Data; and (ii) the Organization’s use of or provision to SportsEngine of Organization Data in conjunction with the SportsEngine Services, including but not limited to marketing communications (via e-mail, in-app message, or otherwise) through the SportsEngine Services, whether by the Organization directly or an Administrator or by SportsEngine on the Organization’s behalf. Where applicable, the Organization shall comply with its obligations as a “Business” under the CCPA for all Organization Data;
9.1.4 it is the sole owner of the User-Generated Content and any other intellectual property or materials provided to SportsEngine (including any names, symbols, seals, emblems, logos, insignia, trademarks or other intellectual property) or otherwise has the legal right to Upload and license the User-Generated Content to SportsEngine as set forth in Section 4 of this Subscription Agreement;
9.1.5 the exhibition, public display, or other use of the User-Generated Content on or through the SportsEngine Services as set forth in this Subscription Agreement by SportsEngine does not violate the privacy rights, publicity rights, intellectual property or proprietary rights, contract rights or any other rights of any person or entity;
9.1.6 it has provided appropriate notices and obtained all necessary consents, releases, and/or permissions required by law (including any applicable privacy laws), including consent from a parent or a guardian before Content (including User-Generated Content) of any person under the age of 13 (“Child”) is submitted to the SportsEngine platform, in order to (i) provide SportsEngine with any Organization Data or other information about its Administrators and Members necessary for SportsEngine to provide the SportsEngine Services, carry out the activities set forth in Section 8.1, and promote the SportsEngine Services among your Organization’s Members; and (ii) Upload User-Generated Content and for SportsEngine to use, distribute and exercise the rights granted in Section 4 with respect to such User-Generated Content, including but not limited to:
(a) the name, symbol, seal, emblem, logo and insignia of each team (collectively, the “Team Marks”);
(b) the name, symbol, seal, emblem, logo and insignia of opponents to any team (collectively, the “Opponent Marks”);
(c) the name, symbol, seal, emblem, logo and insignia of the league (collectively, the “League Marks”, together with the Team Marks and the Opponent Marks, the “Marks”); and
(d) the pictorial representations, names and likenesses of, and all biographical matter concerning each of, the players, managers, coaches and officials of each team appearing in the Content (collectively, the “Names and Likenesses Materials”), for the purposes of producing, promoting, marketing and/or exhibiting the User-Generated Content and in connection with the production of all materials associated therewith; and
9.1.7 to the extent any “moral rights,” “ancillary rights,” or similar rights in or to the User-Generated Content exist and are not exclusively owned by us, your Organization agrees not to enforce any such rights as to SportsEngine, and your Organization shall procure the same agreement not to enforce from any others who may possess such rights. Your Organization agrees to pay for all royalties, fees, and any other monies owing to any person or entity by reason of any User-Generated Content posted by your Organization to or through the SportsEngine Services.
10. DISCLAIMERS AND DISPUTES
10.1 Disclaimer of Warranties. We make no representations or warranties as to the SportsEngine Services (which, for purposes of this Section 10 only, shall include the Third-Party Services) with respect to their accuracy, timeliness, reliability, availability, completeness or otherwise. WE PROVIDE THE SPORTSENGINESERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE, OUR PARENT, EACH OF OUR AFFILIATES, AND ALL SUCH PARTIES’ DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSEES AND LICENSORS (COLLECTIVELY, THE “SPORTSENGINE PARTIES”) DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, OR LIABILITY FOR FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION,
DEFECT, DELAYS IN OPERATION OR TRANSMISSION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOUR ORGANIZATION, THE ABOVE EXCLUSIONS WILL APPLY TO YOUR ORGANIZATION ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. With respect to malfunctioning software, SportsEngine’s entire liability and the Organization’s sole and exclusive remedy shall be the repair or replacement of the software.
10.2 Limitation of Liability.
10.2.1 IN NO EVENT WILL THE SPORTSENGINE PARTIES’ AGGREGATE LIABILITY TO YOU IN CONNECTION WITH SPORTSENGINE SERVICES OR THIS SUBSCRIPTION AGREEMENT EXCEED (i) THE AMOUNT (IF ANY) ACTUALLY PAID BY YOUR ORGANIZATION TO SPORTSENGINE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE THIRD-PARTY PLATFORM PROVIDERS OR THEIR RESPECTIVE AFFILIATES, VENDORS, AGENTS AND SUPPLIERS, AS APPLICABLE, GIVE ANY WARRANTY, HAVE ANY RESPONSIBILITY OR HAVE ANY LIABILITY WITH RESPECT TO YOUR ORGANIZATION’S USE OF THE SPORTSENGINE SERVICES. FURTHERMORE, NONE OF THE SPORTSENGINE PARTIES WILL BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE SPORTSENGINE SERVICES. THE FOREGOING LIMITATION APPLIES (x) WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND EVEN IF NBCUNIVERSAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (y) TO ANY DAMAGES OR INJURY ARISING FROM ANY COMPUTER VIRUS, FILE CORRUPTION, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, USE OF ANY DATA OR ANY OTHER DAMAGES.
10.2.2 BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SPORTSENGINE PARTIES’ LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. IN ADDITION, BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES, THE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOUR ORGANIZATION.
10.2.3 YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOUR ORGANIZATION INCURS ARISING OUT OF THE ACTS OR OMISSIONS OF THE SPORTSENGINE PARTIES OR YOUR USE OF THE SPORTSENGINE SERVICES ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOUR ORGANIZATION TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE SPORTSENGINE SERVICES OR THE DISPLAY, PERFORMANCE OR DISTRIBUTION OF OUR CONTENT.
10.3 Indemnification. Your Organization agrees to defend, indemnify and hold harmless the SportsEngine Parties from and against any and all claims, demands, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable legal fees and costs) arising out of or related to (i) any breach of the Agreements ; (ii) User-Generated Content; and/or (iii) your Organization’s (including its Administrators’ and Members’) use of the SportsEngine Services or any use of your account via the SportsEngine Services.
11. BINDING ARBITRATION OF ALL NON-SMALL CLAIMS DISPUTES; CLASS ACTION WAIVER; AGREEMENT TO GOVERNING LAW AND JURISDICTION
11.1 If your Organization has a Dispute (as defined below) with us that cannot be resolved informally or in small claims court, your Organization will not have the right to pursue a claim in court or have a jury decide the claim, and your Organization will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the SportsEngine Services, or engaging in any other SportsEngine Transactions or Relationships with us, your Organization agrees as follows:
11.2 “Dispute” means any complaint, dispute, or disagreement your Organization may have against us, and any claim that we may have against your Organization, whether based on past, present, or future events, arising out of or related in any way to the Agreements or regarding (i) your Organization’s use of or interaction with the SportsEngine Services, (ii) any purchases or other transactions or relationships related to your Organization’s use of the SportsEngine Services, or (iii) any data or information your Organization provides to us or we gather in connection with such use, interaction or transaction (collectively, "SportsEngine Transactions or Relationships").
11.3 Many Disputes can be resolved by an informal dialogue with our customer service staff or your account representative. If your Organization has a Dispute with us, before initiating an arbitration, you must send an individualized, written notice describing the Dispute to the customer support contact or account representative via email or contact form associated with the SportsEngine Service to which your Dispute relates. Without limiting any of our rights in Sections 3 and 5, before we initiate any arbitration, we will send your Organization a written notice using contact information we have for your Organization. Promptly following receipt of such notice, you and we will try to resolve the Dispute by individual telephone or videoconference, or in person if you and we agree. If the Dispute is not resolved within 14 days of starting this dialogue, then either you or we may initiate an action in a small claims court that has jurisdiction over the Dispute and is reasonably close to your place of residence or work, or initiate an arbitration as described below if the Dispute is ineligible to be adjudicated in small claims court.
11.4 Any Dispute that we are unable to resolve through the informal procedure described above and is ineligible for small claims court shall be resolved exclusively by final, binding arbitration ("Arbitration"). The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets or other sensitive information. Except as discussed below in clause 11.4.1, the Arbitration will be conducted before a single arbitrator administered by JAMS or its successor ("JAMS") and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures (or, if the amount in controversy exceeds $250,000, the JAMS Comprehensive Arbitration Rules And Procedures) in effect at the time the Arbitration is initiated (respectively, the "Applicable Rules"). The Applicable Rules can be found at www.jamsadr.com. This Section 11 shall not prevent any party from seeking provisional remedies (that is, a temporary restraining order or preliminary injunction) from a court of appropriate jurisdiction.
11.4.1 No Class Relief. The Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis. Except as stated above in clause 11.4.1 regarding mass arbitrations, the Arbitrator shall have no authority to consolidate or join the claims of other persons or parties who may be similarly situated. Notwithstanding any other provision of this Subscription Agreement or any applicable arbitration rules, disputes regarding the interpretation, applicability, or enforceability of this class waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration.
11.4.2 Arbitrator Will Interpret This Agreement. The Arbitrator shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of this Subscription Agreement and/or these arbitration provisions in this Section 9, including any claim that all or any part of this Subscription Agreement is void or voidable, except as expressly provided above in clause 11.4.2.
11.4.3 Location of Arbitration. The Arbitration shall be held either: (i) at a location determined under the Applicable Rules that is reasonably convenient for your Organization and is no more than 100 miles from your Organization’s place of business; or (ii) at another location you and we agree upon. If the only claims asserted in the Arbitration are for less than $25,000 in aggregate, the Arbitration may be held by telephone, video conference, or written submission.
11.4.4 Arbitration Costs. If the Arbitrator finds that the costs and fees of Arbitration will be prohibitive for your Organization as compared to the costs of litigation, we will pay as much of your Organization’s filing, arbitrator, and hearing fees in the Arbitration as the Arbitrator deems necessary to prevent the Arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your Organization’s claim(s) were frivolous or asserted in bad faith.
11.4.5 Interpretation and Enforcement of Arbitration Clause. Except for clause 11.4.2 above, if any provision of this Subscription Agreement is unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these this Subscription Agreement and shall not affect the validity and enforceability of any remaining provisions. But if clause 7.4.2 is found to be unlawful, void or for any reason unenforceable, then this entire arbitration provision shall be null and void, and neither your Organization nor we will be entitled to arbitrate any dispute between us and your Organization, and must instead bring any claims subject to clause 11.4.9 below.
11.4.6 Modification of Arbitration Clause With Notice. This version, and any modification of these arbitration provisions shall apply for claims made on or after the effective date of this version (or such modifications) even if the SportsEngine Transactions or Relationship giving rise to such claims occurred prior to this version (or such modification). If any modification is deemed to be unlawful, void or for any reason unenforceable, then the arbitration provisions effective at the time of your agreement to this Subscription Agreement shall govern any dispute or disagreement between your Organization and us regarding SportsEngine Transactions or Relationships.
11.4.7 Dispute Resolution Only If A Tribunal Has Ruled That Arbitration Is Prohibited. If a court with appropriate jurisdiction prohibits arbitration of a dispute in accordance with this Section 11, then the state or federal courts in New York shall have exclusive jurisdiction over the dispute, and to the maximum extent permitted by the mandatory laws in your Organization’s country of business, this Subscription Agreement and any dispute arising out of or related in any way to this Subscription Agreement or their subject matter or formation (including non-contractual disputes), will be governed by, and construed in accordance with, the laws of the State of New York and the United States, without giving effect to any conflict of law principles, except as provided in Section 12.1 below.
12. ADDITIONAL TERMS
12.1 Payment Processing Services. The SportsEngine Services we provide may include integrated payment processing services that can be utilized by your Organization to accept payments from Members. In order to receive these Services, your Organization is required to accept our Payment Processing Agreement and agree to pay the additional fees (“Payment Processing Fees”) that will be contained in an online order presented to the Organization. The Payment Processing Fees are charged on a per transaction basis and will differ depending on the type of SportsEngine Services your Organization is utilizing. The default pricing is contained within the Payment Processing Agreement, and the exact pricing for your Organization will be displayed online. If you are unsure or have any questions related to pricing or the SportsEngine Services, you should contact your Account Manager or our customer support team online.
12.3 Applicable Law & Venue.
12.3.1 US, Canada, & Rest of the World. Where your Organization is based in the United States, Canada or Rest of the World: this Agreement shall be governed, interpreted and construed under the laws of the United States and the State of New York without regard to any conflict of law principles. Subject to the arbitration provisions above, and other than small claims actions permitted there, any action or proceeding arising from, relating to or in connection with this Subscription Agreement will be brought exclusively in the federal or state courts located in New York County, New York, and your Organization irrevocably consents to the personal jurisdiction of such courts and agree that it is a convenient forum and that your Organization will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.
12.3.2 UK, Europe, Middle East, & Africa. Where your Organization is based in the United Kingdom, Europe, the Middle East or Africa, the formation, construction, performance, validity and all aspects of this Subscription Agreement, including any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. The parties agree that the courts
of England & Wales shall have the nonexclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Subscription Agreement or its subject matter.
12.3.3 Australia or New Zealand. Where your Organization resides in Australia or New Zealand, the formation, construction, performance, validity and all aspects of the Agreement, including any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Australia. The parties agree that the courts of the state of New South Wales, shall have the nonexclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter.
12.4 No Waiver. No failure or delay by us in exercising any right, power or privilege under this Subscription Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Subscription Agreement.
12.5 Severability. Unless otherwise expressly provided herein, the invalidity or unenforceability of any provision of this Subscription Agreement will not affect the validity or enforceability of any other provision, all of which will remain in full force and effect.
12.6 Entire Agreement. This Subscription Agreement represent the entire understanding of the parties regarding its subject matter and supersede all prior and contemporaneous agreements and understandings between the parties regarding its subject matter, and may not be amended, altered or waived except in writing by the party to be charged. The paragraph or section titles in this Subscription Agreement are for convenience only and have no legal or contractual effect.
12.7 Assignment. This Subscription Agreement is binding upon and shall inure to the benefit of parties and their respective successors, heirs, executor, administrators, personal representatives and permitted assigns. Your Organization shall not assign its rights or obligations hereunder without our prior written consent and any assignment without our consent shall be void and invalid at the outset.
12.8 Relationship of the Parties. The parties are independent contractors. This Subscription Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.9 No Third Party Beneficiaries. There are no third-party beneficiaries to this Subscription Agreement.
12.10 Electronic Notice. Your Organization consents to receive notices, including agreements, disclosures, and other communications, electronically from us at the email address you have provided. Your Organization agrees that these electronic notices satisfy any legal requirements that such communications be in writing.
12.11 SportsEngine. SportsEngine and its businesses are trading names owned and operated by SportsEngine, Inc., a corporation registered in Delaware, a part of NBC Sports Next, a division of NBCUniversal Media, LLC. We can be contacted at:
North America
SportsEngine, Inc.: 807 Broadway Street NE, Suite 300 Minneapolis, MN 55413
International
SportsEngine, Inc. (c/o SportsEngine UK Limited): City Quays 1 7 Clarendon Road Belfast Northern Ireland BT1 3BG
12.12 Designation of Agent. You hereby appoint us as your Organization’s agent with full authority to execute any document or take any action we may consider appropriate to confirm the rights granted by your Organization to us in this Subscription Agreement.
12.13 Survival. The provisions of this Subscription Agreement which by their nature should survive the termination of this Subscription Agreement shall survive such termination, including but not limited to the restrictions, disclaimers, limitations, our rights to use content, limitation of liability in Section 8, rules regarding dispute resolution in Section 9, and the general provisions in this Section 10.
13. SUPPLEMENTAL TERMS: SUBSCRIPTION SERVICES; CHARGES & FEES; AUTOMATIC RENEWAL AND PAYMENT METHOD; CANCELLATIONS AND REFUNDS; TRIAL PERIODS/PROMOTIONAL OFFERS.
13.1 The following Supplemental Terms apply to your purchase and use of SportsEngine’s paid subscription services (including, without limitation, SportsEngine Play, and SportsEngine HQ Premium) for which SportsEngine charges a periodic fee (e.g., monthly or annually), depending on the plan your Organization selects (collectively, the “SportsEngine Subscription Services”). By using any of our SportsEngine Subscription Services that we may offer currently or in the future, your Organization agrees to the terms and conditions in this Subscription Agreement and these Supplemental Terms.
13.2 Account. Your Organization must have a valid SportsEngine account to purchase a SportsEngine Subscription Service subscription (“Subscription”). By registering an account with us and using the SportsEngine Services, you confirm that the information your Organization provides during the registration process, including all identification, billing and credit card information, as well as the information already stored in the SportsEngine Services about your Organization, is accurate. Your Organization agrees to update such information promptly if it changes. Without limiting any other provision of this Agreement, if you provide any information that is untrue, inaccurate or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your Organization’s account or Subscription and refuse any and all current or future use by your Organization of any of the SportsEngine Services. Your Organization agrees not to register or subscribe for more than one account, create an account on behalf of someone else or create a false or misleading identity on any of the SportsEngine Services.
13.3 Charges & Fees.
(a) Subscription Period. Your Organization’s Subscription will provide your Organization with access to all of the content and benefits relating to the level of Subscription your Organization select for the period provided during sign-up (“Subscription Period”).
(b) Payment and Fees. Your Organization will be billed upfront for the cost of the full Subscription Period, in addition to any applicable taxes, transaction fees and other charges and fees incurred in order to access your Subscription. You must have Internet access and provide us with a current, valid, accepted method of payment (as such may be updated from time to time, “Payment Method”) for payment. If there is a problem charging your Organization’s default payment method, we may charge any other valid payment method associated with your Organization’s account. For certain Payment Methods, the issuer of your Payment Method may charge your Organization a foreign transaction fee or other charges. When you provide payment information, your Organization represent and warrant that the information is accurate and that your Organization are authorized to use the payment method provided. If your Organization does not pay any fees when due, (i) your Organization remain liable for the fees as well as any costs we incur in collecting the fees, including attorney and collections fees, (ii) your Organization authorizes us to continue charging your Organization’s chosen payment method and (iii) we may suspend or terminate your access to the SportsEngine Services.
(c) Price Increases. We reserve the right to increase charges and fees, or to institute new charges or fees at any time, upon reasonable advance notice and communicated to you through a posting on the SportsEngine
Services or such other means as we may deem appropriate from time to time (including email). Any such price increase will be applied on a prospective basis and you will be notified about the increase.
13.4 Automatic Renewal. If your Organization purchases a Subscription, you agree that your Organization’s subscription will be automatically renewed for another Subscription Period of equal length (for example, monthly or annually) at the then-current price for such Subscription and, except as otherwise stated in the applicable Supplemental Terms, unless you cancel your Organization’s Subscription, your Organization authorizes us to charge your Payment Method for the next Subscription Period. If your Organization terminates a Subscription, your Organization may be responsible for the full amount of the subscription fees for the Subscription Period in which your Organization’s termination was effective.
13.5 Cancellation & Refunds. All subscriptions are non-refundable. Your Organization may cancel its Subscription at any time via the methods outlined below. We reserve the right to collect fees, surcharges, or costs incurred before your cancellation takes effect. You can cancel your Organization’s subscription via the following methods: (1) by contacting customer service via email ([email protected]); or (2) by such other means as we may provide from time to time. If you cancel near the end of your Organization’s billing period and are inadvertently charged for the next Subscription Period's fee, contact customer service to have the charges reversed.
