Master License Agreement Team Performance

This Master License Agreement (the “MLA”) is made and entered into by and between Stats Perform (as identified on any Work Order executed by the Parties) and the Licensee (as identified on any Work Order executed by the Parties). This MLA is made effective as of the date that the Work Order that references this MLA, as executed by Stats Perform and Licensee, takes effect (the “Effective Date”). In the event of any conflict between this MLA and any Work Order, the Work Order shall prevail. Each of Stats Perform and Licensee may be referred to herein as a “Party” or the “Parties.” The Parties hereby agree to the foregoing and as follows:

1.Definitions

1.1 In this Agreement the following terms have the meanings given to them in the relevant section of the Work Order:

1.2 In this Agreement:

Affiliate means, in relation to a Party, any entity or person that is Controlled by that Party, or with whom that Party is under common Control.

Authorisation Codes means the codes or passwords given by Stats Perform to enable the Licensee’s Users to access the Platform and Service(s).

Confidential Information means any information or data relating to the “disclosing party” or its Affiliates, or the business affairs and activities of that Party and its Affiliates’, which is disclosed by the disclosing Party or its agents or otherwise comes to the knowledge of the “receiving party”, save for information which: (a) is or becomes available to the public otherwise than by a breach of this Agreement; or (b) is or becomes available to the receiving party from other sources free of restriction as to its use or disclosure.

Content means such content as is provided or otherwise made available to the Licensee as part of the Service(s) (including, without limitation (and as applicable), any and all such data content (also referred to herein as Data or Data Content) and any and all such other audio and/or visual content).

Control means the right of one person or entity, or two or more persons and/or entities acting in concert, (the first person) to procure (directly or indirectly) that the affairs of another person are conducted in accordance with the wishes of the first person.

Data or Data Content has the meaning set out in the definition of the term ‘Content’ above.

Data Controller shall have the meaning given under Data Protection Legislation.

Data Protection Legislation means all data protection and privacy laws applicable to the processing of personal data in connection with the Platform-Accessed Services, including, where applicable, the General Data Protection Regulation ((EU) 2016/679) and European Directive 2002/58/EC (as amended by Directive 2009/136/EC) and all other applicable laws at the European level in force from time to time relating to data protection, privacy, and the processing of personal data, and all local laws adopting, implementing, amending or replacing the above.

Data Rights Controller means any rights holder, agency or other person involved in the control, management or exploitation of any rights to or in respect of any match or event.

Data Use Licence means an additional licence from a third party in order to use certain Data Content (which may involve the payment of a fee).

Defect means a failure of the Platform and/or Service(s) to operate in accordance with the description of the same hereunder in all material respects.

Event of Force Majeure means any cause beyond a Party’s reasonable control, including but not limited to any act of God, war, industrial action, act of government, terrorism or threat of terrorism, failure of hardware, power or telecommunications, fire, flood, explosion, injunctions or judgments.

Fees means all fees to be paid by Licensee under this Agreement, as set forth in each applicable Work Order.

Good Industry Practice means the degree of skill, competence, diligence, prudence and foresight which could reasonably and ordinarily be expected from a skilled and experienced person complying with the applicable legal requirements and practice, engaged in the same type of undertaking under the same or similar circumstances as the relevant Party.

Hardware means any physical product delivered to Licensee by Stats Perform pursuant to a Work Order.

Information means any information provided to the Licensee pursuant to the terms of this Agreement including, but not limited to, information provided to the Licensee via the Platform which has been obtained or collated from newspapers, publications, web sites and/or other third-party sources. For the avoidance of doubt, references in this Agreement to ‘Content’ include any and all Information.

Insolvent means that the relevant Party: (a) is insolvent or other steps are taken for its winding up (save for a solvent winding-up or dissolution for the purposes of a bona vide voluntary reconstruction or amalgamation); or (b) if an encumbrancer takes possession of or a trustee, receiver, liquidator or similar officer is appointed in respect of all or any part of its business or assets; or (c) any distress execution or other legal process is levied, threatened, enforced upon or sued out against any of such assets.

Intellectual Property Rights means all copyright and other intellectual property rights howsoever arising and in any media, whether or not registered or capable of registration, including patents, trade marks, service marks, trade names, domain names, design rights, database rights and any applications for the protection or registration of these rights and all renewals, revivals and extensions of such rights throughout the world.

Licensee Data means the data inputted by the Licensee into the Platform and Service(s), including without limitation the Licensee Delivered Material and any data or content needed by Stats Perform to deliver the Service(s).

Licensee Intellectual Property means, as applicable: (i) the Licensee’s official emblem and logos; and (ii) Licensee Data, the Intellectual Property Rights in which, in each case, are owned (as between the Licensee and Stats Perform) by the Licensee.

Licensee System means the Licensee’s computer system including without limitation PCs, internet service provision and network which will be used to access the Platform and Service(s).

Licensed Materials means, collectively, the proprietary data, information and/or services, including all Intellectual Property Rights therein, described on the Work Order, including any amendments thereto, which has been executed by the Parties during the Term, unless otherwise stated in the Work Order.

Normal Working Hours means 9.00am to 6.00pm UK local time during each day other than a Saturday, Sunday or a public holiday in England.

Official Provider means a third party (or third parties) with whom a Data Rights Controller has entered into an exclusive arrangement for the collection and/or supply of Data from an event.

Personal Data shall have the meaning given under Data Protection Legislation.

Platform means, where Platform-Accessed Service(s) are provided to the Licensee hereunder, the online software platform and selected services provided by Stats Perform to the Licensee including without limitation an exclusively hosted Licensee-branded private section of the Platform for access by the Licensee’s Users.

Processing shall have the meaning given under Data Protection Legislation and the term Process shall be construed accordingly.

SportVU System means collectively, (i) the Hardware necessary to operate the SportVU Software, and (ii) the SportVU proprietary software necessary to process information and generate Optical Data (the “SportVU Software”).

Term shall have the meaning set forth in clause D1.1.

Third Party Service means the Content products and services supplied by Tru Media, specifically ISF ProVision.

Tru Media means Tru Media Networks Inc, a company whose registered address is 656 Beacon St, Boston, MA, 02215 and who is the supplier of Third Party Service.

Tru Media Terms is defined in clause D3.5.

Unacceptable Content means material that is or contains anything which may: (a) be offensive, blasphemous, obscene or otherwise unlawful; or (b) infringe the rights including the Intellectual Property Rights of any person.

Update means a new release of or update to the Platform and/or Service(s) which resolves a Defect and/or gives the Platform and Service(s) additional functionality and/or performance without additional charge.

User means each named Licensee user who is permitted to access and uses each product, module and/or Service(s) provided on the Platform (the number of such permitted users being as set out in the Work Order).

“Work Order” shall mean any ordering document (which may be titled as a “Work Order” or “Order Form” or other similarly-named variation) executed by both Parties, subject to the terms of this Agreement, setting forth the Service(s) to be licensed by Stats Perform to Licensee.

1.3 References to clauses are to clauses in this Agreement (unless the context otherwise requires).

1.4 Headings are inserted for convenience only and will not affect the construction of this Agreement.

1.5 Any words preceded by including, in particular, for example or other similar phrases will be without limitation.

1.6 References to persons will be deemed to include natural persons, companies and other bodies corporate, unincorporated associations, partnerships, firms and government bodies, governments, states and any other organisations (whether or not in each case having separate legal personality).

The following provisions of Section A below apply only to the Data Feeds.  The provisions of Section B below apply only to the Platform-Accessed Services.  The provisions of Section C below apply only to the Delivered Products.  Save where expressly stated below, Section D applies to Data Feeds, Platform-Accessed Services and Delivered Products.

SECTION A: Data Feeds

A1     Content restrictions

A1.1  General restrictions.  Where Stats Perform is required (by the relevant Data Rights Controller) to impose any additional conditions, restrictions or terms of use in relation to any Content, Stats Perform shall notify the Licensee of the same in writing and the Licensee undertakes to comply with any and all such additional conditions, restrictions or terms of use.

A2     Delivery of Service

A2.1  Technical requirements. The receiving of and/or accessing of the Service(s) and/or Content by the Licensee will be: (a) the responsibility of the Licensee and at the Licensee’s cost; and (b) in accordance with any technical requirements notified to the Licensee by Stats Perform in the applicable Work Order as may be updated from time to time.

A2.2  Delivery Method. The Licensee acknowledges that in order to provide a more effective or efficient provision of the Service(s), Stats Perform may need to alter the Delivery Method provided that Stats Perform will inform the Licensee in writing in advance with at least thirty (30) days’ notice where the change is likely to have a material effect on the Licensee’s business.

A2.3 Licensee Delivered Material. In the event the Services require Licensee to deliver content (video or otherwise) (“Licensee Delivered Material”) to Stats Perform for the prompt delivery of the Services then Stats Perform’s obligation to provide the Services shall be subject to Licensee’s provision of the Licensee Delivered Material (as may be detailed in any applicable Work Order). Stats Perform shall have no obligation to deliver the Services depended on Licensee Delivered Material absent the prompt delivery by Licensee. Licensee further represents and warrants it has the rights to provide to Stats Perform the Licensee Delivered Material to Stats Perform pursuant to the delivery obligations found in any applicable Work Order.

A3     Content

A3.1  Control. The Licensee will: (a) ensure that Content is accessible only by persons authorised by the Licensee; (b) implement technological safeguards in accordance with Good Industry Practice to prevent the reception, broadcast, copying, retransmission or use of the Content and/or the Service(s) by any unauthorised person; and (c) on becoming aware of any unauthorised use of or access to the Content, promptly notify Stats Perform and take such action as may be necessary to prevent or stop such unauthorised use or access.

A3.2  Permitted Usage only. Without prejudice to the provisions of the Work Order, the Licensee shall not at any time during the Term or thereafter publish, distribute, supply or otherwise make available any of the Content on any external Licensee services or otherwise (or otherwise utilise the Services and/or the Content hereunder in any way or for any purpose other than the agreed Permitted Usage).

A3.3. Data Use Licences. The Licensee may need to obtain a Data Use Licence in order to use, or to continue to use, certain Data Content.  The Licensee will be solely responsible at its own cost for obtaining any such Data Use Licence(s) and shall thereafter (at its own cost) maintain such licence(s) and comply with the terms of the same.

A3.4  Third party appointed as an Official Provider. A Data Rights Controller may at any time during the Term appoint an Official Provider in respect of an event. Where a Data Rights Controller appoints a third party (i.e. not Stats Perform) as an Official Provider, then Stats Perform may suspend or discontinue the provision of Data Content related to that event without compensation or liability to the Licensee. In the event that the Data Content suspended by Stats Perform in accordance with this clause A3.4 forms a substantial part of the Service(s), then the Parties shall negotiate in good faith a change to the level of the Fees to reflect such suspension.

A3.5  Stats Perform appointed as an Official Provider. Without prejudice to clause A3.4, where a Data Rights Controller appoints Stats Perform as an Official Provider in respect of an event, the Parties shall negotiate in good faith the fees payable for the provision of Data Content in relation to that event in addition to the Fees.

A3.6  Acknowledgement of value.  The Licensee acknowledges and agrees that Stats Perform (and/or its Affiliates, suppliers and licensors) has made a substantial investment in obtaining, verifying and/or presenting the contents of any Data Content included in the Service(s).

SECTION B: PLATFORM-ACCESSED SERVICES

The following provisions of this Section B apply only to the Platform-Accessed Services.

B1     Set up

B1.1  Licensee system. The Licensee shall ensure that the Licensee System shall comply with the technical requirements as detailed in the applicable Work Order as at the Effective Date and throughout the Term at its own cost and that its employees and contractors provide all information and assistance reasonably requested by Stats Perform’s staff from time to time to provide the Service(s) and access to the Platform including, but not limited to, all information and assistance required by Stats Perform to remedy any Defect.

B1.2  Licensee’s Intellectual Property. The Licensee hereby licenses Stats Perform to use the Licensee Intellectual Property in order to provide the Service(s) on: (a) the Platform during the Term; and (b) strictly for the purpose of indicating to third parties that the Licensee is a customer of Stats Perform.  Any Licensee Intellectual Property may not be displayed on any web page of the Platform which is accessible by any third party. All Intellectual Property Rights subsisting in the Licensee Intellectual Property under the terms of this Agreement shall remain vested in the Licensee.

B1.3  Licensee’s Security. Stats Perform shall use reasonable endeavours to exclude viruses from the Platform. However, it is not possible to provide absolute virus protection. Licensee is therefore recommended to take out and maintain appropriate insurance and anti-virus protection software to protect against this risk.

B2     Platform Access

B2.1  Authorisation Codes. Access to the Platform by the Licensee’s Users shall be restricted by the use of Authorisation Codes. Stats Perform shall give the Licensee an Authorisation Code which shall give a nominated representative of Licensee access to the Platform and the ability to grant read only or full access rights to other permitted Users within the Licensee’s organisation by issuing appropriate Authorisation Codes as per the Work Order. Alternatively, where the same is agreed in writing between the Parties (whether in the Work Order or otherwise), Stats Perform may administer such access to the Platform on the Licensee’s behalf.  For the avoidance of doubt, the Authorisation Codes (as well as the contents of the Platform and Service(s) and any development to the Platform and Service(s) by Stats Perform) constitute “Confidential Information” of Stats Perform for the purposes of this Agreement.

B2.2 Authorisation Code obligations. The Licensee shall: (a) notify Stats Perform as soon as it becomes aware of any known or suspected unauthorised disclosure or use of the Authorisation Codes; (b) notify Stats Perform as soon as any User leaves so that their Authorisation Code can be disabled; (c) be solely responsible for management of Users and Authorisation Codes (unless administered by Stats Perform and subject at all times in any event to the Licensee being responsible for informing Stats Perform when any User leaves); and (d) be solely responsible for the acts or omissions of Stats Perform where Stats Perform has acted in accordance with instructions which it reasonably believes were given by the Licensee using the Authorisation Codes.

B2.3 Time Locks. If applicable, the Licensee’s access to the Platform shall also be subject to Stats Perform’s use of time locks which shall prevent the Licensee’s access to the Platform and Service(s) after the end of the Term.  When it installs Updates, Stats Perform shall provide the Licensee with any Authorisation Codes necessary to enable the Licensee to use the Platform and Service(s) until the then current end date of the Term.

B3     Support Services

B3.1  SLA. Stats Perform shall use reasonable endeavours to ensure that: (a) the Platform and/or Service(s) is available to the Licensee’s Users during Normal Working Hours; (b) any Defects are remedied in accordance with this clause B3; and (c) the Licensee Data uploaded to the Platform is backed up on a regular basis.

B3.2  Remedying Defects. The Licensee may contact Stats Perform at any time during Normal Working Hours to report a Defect.  Stats Perform shall use reasonable endeavours to provide a fix or workaround of the relevant Defect promptly at no extra charge to the Licensee provided that Stats Perform shall be entitled to delay the same where the relevant Defect does not substantially affect the functionality of the Platform and/or Service(s) until the release and installation of the next Update. Without prejudice to any other rights and/or remedies it may have in respect of the same, Stats Perform shall be entitled to charge for any work undertaken to remedy a Defect which has arisen as result of: (a) the Licensee’s use of the Platform and/or Service(s) other than in accordance with the terms of this Agreement; (b) circumstances which gave rise to the Defect over which Stats Perform has no control; (c) a Defect which has arisen from any unauthorised modifications to the Platform and/or Service(s) by the Licensee and/or its Users; (d) a fault in the Licensee System; and/or (e) any accident, neglect, hazard or misuse; natural calamity; failure or fluctuation of electrical power or environmental conditions.

B3.3  Maintenance. The Licensee acknowledges that Stats Perform will need to perform routine maintenance work on the Platform and/or some or all of the Services from time to time.  Stats Perform shall not perform more than five (5) hours of such maintenance work during Normal Working Hours in any thirty (30) day period and shall, where possible, give the Licensee prior email notification of such maintenance work.

B3.4  Additional services. Additional services (i.e. services outside the scope of the Services provided pursuant to this Agreement) may be requested from (or, as applicable, offered by) Stats Perform at any time during the Term. The provision of any such additional services (including the additional cost and delivery of the same) shall be subject to further written agreement between the Parties. Unless otherwise agreed, where the Parties so agree the provision of any such additional services, references to ‘Services’ in this Agreement shall thereafter include such additional services (and, similarly, references to ‘Fees’ in this Agreement shall thereafter include the applicable additional fees payable for such additional services).

B4     General Obligations

B4.1  Licensee Compliance. The Licensee will comply with all reasonable directions, notices and instructions which may be given by Stats Perform to the Licensee or available on the Platform from time to time.

B4.2 Licensee Responsibilities. In the event delivery of the Service(s) require Licensee Data, Stats Perform’s delivery obligations of the Service(s) shall be conditioned upon Stats Perform’s receipt of the Licensee Data from Licensee. In the event that Licensee fails to provide Stats Perform with the Licensee Data, then Stats Perform will have no obligation to make the Service(s) available to Licensee.

B4.3  Restrictions. The Licensee shall not: (a) upload Licensee Data to the Platform which is Unacceptable Content; (b) attempt to circumvent any of the security features of the Platform and/or Service(s); (c) use the Platform and/or Service(s) for any unlawful purpose; (d) introduce any virus, trojan horse, trap door or other malicious code into the Platform and/or Service(s); (e) disclose to any third party any part of the data contained in the Platform or the Service(s) (other than Licensee Data) unless Stats Perform has given its prior written approval; (f) copy the Platform and/or Service(s) except to the extent permitted by law; and/or (g) use the Platform and/or Service(s) for any purpose other than as expressly permitted in this Agreement and shall procure that its employees, agents and sub-contractors only use the Platform and/or Service(s) for such purposes (and only access the same using the applicable Authorisation Codes provided to the Licensee hereunder).

B4.4  Permitted Usage only. Without prejudice to the provisions of the Work Order (Permitted Usage), the Licensee undertakes to Stats Perform, as a material term of this Agreement, that it shall not at any time during the Term or thereafter publish, distribute, supply or otherwise make available any of the Content on any external Licensee services or otherwise (or otherwise utilise the Services and/or the Content hereunder in any way or for any purpose other than the agreed Permitted Usage).

SECTION C: DELIVERED PRODUCTS

The following provisions of this Section C apply only to the Delivered Products.

C1 SportVU.

C1.1 SportVU System.  Licensee acknowledges Stats Perform’s ownership of the SportVU System and its design, including any and all Intellectual Property Rights residing therein. Nothing in the Agreement shall be interpreted to provide for the assignment by Stats Perform to Licensee of any of the Intellectual Property Rights in the SportVU System or any of Stats Perform’s Intellectual Property Rights.  Nothing in this Agreement shall limit or restrict Stats Perform’s rights to use, reproduce, enhance, modify, distribute and otherwise exploit Stats Perform’s Intellectual Property Rights.

C1.2 Optical Data. Licensee acknowledges Stats Perform’s ownership of the raw sports data or other information collected by Stats Perform using the SportVU System (“Optical Data”). Stats Perform hereby grants to Licensee a perpetual, royalty-free, license to use, throughout the universe in any media now known or hereafter devised, a copy of the Optical Data.

C2 Hardware

C2.1 Use Restrictions. Licensee shall utilize the Hardware solely for purposes of internal team operations (e.g. analysis, performance, and training).  Licensee shall have no other rights to the Hardware beyond the use contained herein and no additional rights or licenses shall be construed or implied thereby.

C2.2 Hardware Warranty.  The Hardware warranty will be provided by Stats Perform’s technical hardware vendor and such warranty shall extend for one year from the purchase date. The Hardware warranty covers only issues which occur in respect of the electronic components (e.g. battery, GPS chip, antenna, etc.), but does not cover problems that are based on improper usage/maintenance/storage or misuse of the Hardware (e.g. device in the washing machine etc.).

SECTION D: GENERAL PROVISIONS

The following provisions of this Section D apply to all of the Service(s) provided hereunder.

D1     Term; Fees and Payments

D1.1 Initial Term and Renewal Term.  The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the stated term in all Work Orders have expired or have otherwise been terminated.  If this Agreement is to auto-renew as specified in the Work Order, then at the conclusion of the Work Order “Initial Term” (as stated in each Work Order), the applicable Work Order shall automatically renew for additional one (1) year periods (each a “Renewal Term”) unless either Party provides the other Party with written notice of its intention not to renew (the “Notice of Non-Renewal”).  The Notice of Non-Renewal must be received by the other Party not less than ninety (90) days prior to the conclusion of the then-current Work Order Initial Term or Renewal Term, if applicable.  In the event either Party provides the other Party with the Notice of Non-Renewal, the applicable Work Order shall terminate at 11:59 pm prevailing local time on the last day of the then-current Initial Term or Renewal Term, if applicable.  The Work Order Initial Term and each Renewal Term, if applicable, shall collectively be deemed the “Term” for the applicable Work Order.  Under no circumstance shall Licensee’s failure to use the Licensed Materials affect the start or duration of the Term, or any of Licensee’s payment obligations set forth herein.

D1.2 Initial Term and Renewal Term Fees.  In consideration of the Licensed Materials to be licensed by Stats Perform to Licensee pursuant to this Agreement, during the Initial Term, the Licensee agrees to pay the Fees set forth in the applicable Work Order. Stats Perform may invoice for the Fees in one or more invoices.  In the event a Work Order renews for a Renewal Term, then in consideration of the Licensed Materials to be licensed by Stats Perform to Licensee pursuant to such Work Order, during each Renewal Term, Licensee shall pay to Stats Perform an annual Fee (each, a “Renewal Term License Fee”) in an amount increased by fifteen percent (15%) over the Fees during the twelve (12) month period immediately preceding the start of each Renewal Term.  The Renewal Term License Fee, if applicable, shall be due and payable to Stats Perform in accordance with the due dates and installments set forth in the applicable Work Order.

D1.3  Late Payments. Any late payments shall bear interest at the rate per annum equal to the lesser of (i) four percent (4%) per month or (ii) the highest rate permitted under applicable law.

D1.4 Licensee shall be responsible for any associated credit card service and/or convenience fees.

D1.5 The Fees are stated net of any applicable VAT sales tax, or any other taxes that are applicable to Licensee, including but not limited to any taxes imposed under applicable laws, which will be payable by the Licensee in addition at the applicable rate.  If any taxes or amounts must be deducted from any amount payable or paid by the Licensee under this Agreement, the Licensee will pay such additional amounts necessary to ensure that Stats Perform receives a net amount equal to the amount which it would have received had payment not been made subject to such tax or other deduction. The Licensee will promptly deliver to Stats Perform receipts, certificates or other proof evidencing the amounts (if any) paid or payable in respect of any such withholding or deduction.

D2     Warranties and Indemnities

D2.1  Stats Perform warranties. Stats Perform warrants and undertakes that: (a) it is authorised to enter into and give effect to this Agreement; and (b) the use by the Licensee of the Content (and, as applicable, the Platform) strictly in accordance with the terms of this Agreement will not infringe the rights (including Intellectual Property Rights) of any third party except (i) (in relation to Data Feeds) in relation to Data Content only, where the Licensee has not obtained a Data Use Licence; or (ii) for any infringement of any such right that arises or results from the Licensee’s use of the Third Party Service.

D2.2  Licensee warranties. The Licensee warrants and undertakes that: (a) it is authorised to enter into and give effect to this Agreement; (b) it will not at any time grant or purport to grant to any person any right, title or interest in any part of the Service(s) including the Content (or, where applicable, the Platform); (c) it will not use the Service(s) in such a way as to contravene any applicable laws or regulations; (d) it will not use any part of the Service(s) (including any Content and, where applicable, the Platform) other than strictly in accordance with this Agreement; (e) without prejudice to the generality of sub-clause (d), it will not copy, edit, modify, alter, amend, manipulate or interfere with any Content in the form delivered or, as applicable, made available to it; (f) it will not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of any software, algorithms and/or data Processing procedures provided by Stats Perform to the Licensee from time to time including, in the case of Platform-Accessed Services, the software used on the Platform to provide such Service(s); and (g) the use by Stats Perform of any and all Licensee Intellectual Property strictly in accordance with the terms of this Agreement will not infringe the rights (including Intellectual Property Rights) of any third party.

D2.3  No warranty as to quality. No conditions, warranties or other terms (express or implied, including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) apply to this Agreement or to any of the Service(s) except to the extent that they are expressly set out in this Agreement. The Licensee further agrees and acknowledges that any description of the Service(s) (or of the individual products comprised within such Service(s)) which is set out in, or otherwise referred to in, the Work Order may change from time to time on notice in writing from Stats Perform to the Licensee (provided that any such change shall not have a material adverse effect on the operation and/or functionality of the relevant Service (or individual Product)).

D2.4  No warranty as to error or interruption. Stats Perform shall provide the Service(s) in accordance with Good Industry Practice. However: (a) if Stats Perform fails to do so or is otherwise in default in respect of the supply of the Services, the sole remedy of the Licensee shall be to require Stats Perform to carry out as promptly as practicable such repeat, substitute or remedial services as shall be appropriate to ensure that the relevant Service(s) are carried out; and (b) in any event, Stats Perform does not warrant that any part of the Service(s) including the Content (and, where applicable, the Platform), will be free from error or uninterrupted and accepts no liability for any failure, delay, interruption or breakdown in network connections and/or point-to-point connectivity across the internet and other networks which may affect their provision and is outside the immediate control of Stats Perform. Further, where Section B (Platform-Accessed Services) applies, the Licensee acknowledges and accepts that any and all Information provided to the Licensee hereunder on the Platform or otherwise as part of such Service(s) is obtained and collated from third party sources over which Stats Perform has no control.  Therefore, Stats Perform does not warrant that the Information is accurate or complete.  The supply of the Information by Stats Perform shall not in any manner endorse any decision of the Licensee, including as to whether or not to acquire a football player.

D2.5  Stats Perform indemnity. Stats Perform will indemnify the Licensee in respect of any and all losses, liabilities and costs (including reasonable legal fees) suffered or incurred by the Licensee as a result of any claim by a third party arising from a breach by Stats Perform of the warranties in clause D2.1.

D2.6  Licensee indemnity. The Licensee will indemnify Stats Perform and its Affiliates in respect of any and all losses, liabilities and costs (including reasonable legal fees) suffered or incurred by Stats Perform and/or its Affiliates as a result of: (a) any breach by the Licensee of the warranties in clause D2.2; and (b) in the case of any and all Platform-Accessed Services hereunder, any breach of clause B4.

D2.7  Conduct of claims. Where either Party (the “Indemnifying Party”) is indemnifying the other Party (the “Indemnified Party”) hereunder in respect of a third party claim against the Indemnified Party, the Indemnified Party shall: (a) give prompt written notification of the third party claim to the Indemnifying Party; (b) give the Indemnifying Party sole conduct of legal proceedings and settlement negotiations in respect of such claim; and (c) give all information and assistance requested by the Indemnifying Party in respect of such claim (at the Indemnifying Party’s reasonable expense). In respect of any and all indemnities given by each Party to the other under this Agreement (whether in respect of a third-party claim or otherwise), the relevant indemnified Party shall take all such steps as may be reasonable in all the circumstances to mitigate its loss.

D2.8  In the event of a valid third party claim against the Licensee that the use by the Licensee of the Content (and/or, as applicable, the Platform) in accordance with the terms of this Agreement is infringing any rights (including Intellectual Property Rights) of such third party, Stats Perform shall be entitled at its sole discretion (and, notwithstanding the provisions of clause D2.5 above, as the Licensee’s sole remedy) to: (a) replace the infringing part of the Services (and/or, as applicable, Platform) with services (and/or, as applicable, a platform) of similar functionality (which are not so infringing); or (b) terminate this Agreement immediately and refund the Fees already paid by the Licensee in respect of the Licensee’s use of the Platform and Services during the year in which the notification of the claim was made to Stats Perform.

D3     Liability

D3.1  Exclusions from liability limitations. Notwithstanding anything else in this Agreement, neither Party limits its liability for death or personal injury caused by its negligence or that of its employees, agents or subcontractors (as applicable), or for fraud (including fraudulent misrepresentation) by it or its employees.

D3.2  Consequential losses. Excluding liability under clauses D2.5, D2.6 and D3.1: (a) neither Party will be liable for any indirect or consequential losses of any kind, or for any loss of profit, business opportunity, contract, data or goodwill, whether direct or indirect; and (b) without prejudice to the generality of the foregoing, Stats Perform will not be liable to the Licensee (or any third party) for: (i) loss of and/or loss of use of and/or corruption of data and/or recordings; (ii) loss of, damage to, and/or loss of use of, the Content and/or any of the Service(s) (and, where applicable, the Platform); (iii) losses resulting from use of third party software; or (iv) damage to and/or loss of equipment and/or property.

D3.3  Liability cap. Excluding: (i) liability under clauses D2.5, D2.6 and D3.1; and (ii) any Fees payable pursuant to this Agreement, the total aggregate liability of each Party to the other Party under or in connection with this Agreement is limited to the Fees paid during the twelve (12) month period immediately preceding the date of any claim by a Party against the other Party.

D3.4  Additional exclusions. Subject always to clause D3.1 above, Stats Perform shall have no liability to the Licensee or any third party for: (a) any instructions supplied by the Licensee which are incomplete, incorrect or inaccurate; (b) any fault, negligence, omission of or any breach of any provision of this Agreement by the Licensee; or (c) where Section B above applies, any decision of the Licensee (including as to whether or not to acquire a football player) based wholly or in part on the Information.

D3.5 Third Party Service. If the Licensee is receiving the Third Party Service as part of the Services, the Licensee’s use of the Third Party Service is subject to the terms and conditions of Tru Media, located at http://www.trumedianetworks.com/terms-of-use (“Tru Media Terms”). The Licensee acknowledges that the Tru Media Terms form separate contracts between the Licensee and Tru Media. Stats Perform shall have no liability whatsoever for such Third Party Service. The Licensee acknowledges that no representation has been made by Stats Perform as to the fitness of the Third Party Service for the Licensee’s intended purpose.

D4     Termination and Suspension

D4.1  Termination rights. Either Party may terminate this Agreement if the other Party: (a) is Insolvent; (b) commits a material breach of this Agreement (unless a breach which can be remedied has been remedied within thirty (30) days of notice of the breach); or (c) is prevented from performing any of its material obligations under this Agreement (other than payment of the Fees) due to an Event of Force Majeure for a period of ninety (90) days or more.

D4.2  Reversion of rights. At the end of the Term (or date of termination of this Agreement): (a) all rights granted to the Licensee pursuant to this Agreement will automatically cease and revert to Stats Perform; (b) Stats Perform will cease delivery of the Service(s) to the Licensee; and (c) where Section B is applicable: (i) Stats Perform shall, at the Licensee’s request, provide data migration services to the Licensee in respect of the Licensee Data stored on the Platform (provided that the Licensee shall pay Stats Perform’s reasonable costs for providing such services); and (ii) the licence from the Licensee to Stats Perform in accordance with clause B1.2 above shall immediately terminate.

D4.3  Survival. The terms of this Agreement which by their nature (or explicitly) are intended to survive the termination, cancellation, completion or expiration of this Agreement, (including but not limited to indemnities, limitations of liability and obligations of confidentiality) shall continue as valid obligations of the Parties following any termination, cancellation, completion or expiration.

D4.4  Suspension. Stats Perform may at any time suspend provision of the Service(s) (including, where applicable, access to the Platform) without liability if: (a) the Licensee fails to pay the Fees (in part or in whole) in accordance with this Agreement; (b) Stats Perform reasonably believes that the Licensee is using, distributing or making available any part of the Service(s) (including the Content) or otherwise, where applicable, is accessing the Platform other than in accordance with this Agreement; or (c) Stats Perform reasonably believes that provision of the Service(s) (or any part of thereof) or, where applicable, access to the Platform has become contrary to: (i) any applicable law and/or regulation; and/or (ii) any accreditation, permission or other right granted to or held by Stats Perform or any of its Affiliates, and in either case the Parties cannot, acting reasonably and in good faith, agree such changes to the Service(s) (or this Agreement) as may be necessary in order to achieve compliance. Stats Perform shall give the Licensee at least three (3) days’ notice of its intention to suspend the Service(s) in accordance with this clause D4.4, except where Stats Perform reasonably believes that it needs to suspend the Service(s) immediately to mitigate any potential losses, damages or claims.

D4.5  Continuance of suspension. A suspension may continue until such time as the relevant issue is remedied to the reasonable satisfaction of Stats Perform.

D5     Intellectual Property Rights

D5.1  Ownership of Intellectual Property Rights. Without affecting the express rights granted to the Licensee in this Agreement, as between Stats Perform and the Licensee, all Intellectual Property Rights in and to the Service(s) including: (a) the Content; and, where applicable (b) (other than any and all Licensee Intellectual Property uploaded thereto) the Platform (including, without limitation, any bespoke development work and/or further modules and all materials created by Stats Perform) are and will remain the property of Stats Perform.

D5.2  Vesting of Intellectual Property Rights. The Licensee hereby assigns to Stats Perform, free of charge (including where applicable by way of present assignment of future rights) all legal and beneficial rights, title, interest (including but not limited to copyright and all other Intellectual Property Rights) which it may from time to time acquire or hold throughout the world in and to the Service(s) and/or any Content and/or, where applicable, the Platform (including, save for the Licensee Intellectual Property, any rights in and to any and all materials included, produced and/or edited by the Licensee) free of any third party rights absolutely, with full title guarantee for the full duration of such rights (including any and all extensions, reversions and renewals thereof) and the Licensee shall, in any jurisdiction where such assignment does not take effect, hold such rights for the benefit of Stats Perform absolutely.

D6     Data Protection

D6.1  Where the Licensee is provided with the Platform-Accessed Services, the Parties agree that the data processing terms, accessible at https://www.statsperform.com/terms-conditions-pro-data-processing/ shall apply.

D6.2  In relation to the Data Feeds, each Party agrees that it shall comply with its respective obligations as a Data Controller under the Data Protection Legislation, and shall ensure that its employees, agents and contractors shall observe all applicable obligations under Data Protection Legislation. If and to the extent that either Party Processes any Personal Data provided by the other Party as part of the Data Feeds in the course of the performance of this Agreement, each Party shall act as an independent Data Controller in relation to such Personal Data and each Party shall comply with its respective obligations under Data Protection Legislation in relation thereto. The Parties shall not knowingly perform their obligations under this clause in such a way as to cause the other Party to breach any of its/their obligations under applicable Data Protection Legislation.

D7     Force Majeure

Neither of the Parties shall be in breach of this Agreement and no remedy shall be available, if and to the extent that performance of its respective obligations (other than payment of Fees) are delayed or prevented in whole or in part as a result of an Event of Force Majeure, provided that the relevant Party whose performance is so delayed or prevented by the Event of Force Majeure will use all reasonable endeavours to resume the performance of its obligations as soon as possible after the Event of Force Majeure has ended.

D8     Confidentiality

Each Party undertakes to the other that it will not at any time use, divulge or communicate to any person any Confidential Information, except: (a) (subject to equivalent obligations of confidentiality) to its Affiliates and the employees, officers and professional advisors of it and its Affiliates; or (b) as may be required by applicable laws, regulations or the rules of a relevant stock exchange; or (c) to the extent that a Data Rights Controller requires Stats Perform to disclose Confidential Information to it (subject to equivalent obligations of confidentiality); or (d) as required by an order of a court of competent jurisdiction. This clause D8 will survive termination of the Agreement.

D9     Notices

D9.1  All notices and other communications required hereunder shall be in writing and deemed to have been given: (a) when delivered by hand, (b) three days after being mailed by certified mail, return receipt requested, postage prepaid, (c) one day after being sent by nationally or internationally (as applicable) recognized overnight courier with guaranteed next day delivery or (d) twenty-four hours after sending by email, to the email addresses set out in the Work Order.  Notices will be addressed or delivered to the address and email contact information set forth on the applicable Work Order. Either Party may, from time to time, change its contact information by providing written notice to the other Party of any such changes.

D10   Miscellaneous

D10.1  Assignment. Neither Party shall assign, sublicense, subcontract or otherwise seek to dispose of or encumber any of its rights, duties or privileges contained herein, in whole or in part (such consent not to be unreasonably withheld or delayed), without the express written consent of the other, except that Stats Perform may assign this Agreement to (a) an Affiliate; (b) in connection with the sale of all or substantially all of its assets, provided that the assignee agrees to be bound by all of the terms and conditions of this Agreement; or (c) by way of security to any bank or other financial institution providing any credit or similar facility to Stats Perform (or any of its Affiliates), upon written notice to the Licensee (provided that such sub-license, novation or assignment does not have a material adverse effect on the provision of the Service(s)), and the Licensee shall execute any related documentation which is reasonably requested by Stats Perform.

D10.2  No partnership. Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the Parties, nor constitute a Party the agent of the other Party for any purpose. Without prejudice to Stats Perform’s right to sell the Third Party Service, it is not acting as agent for Tru Media and does not purport to enter into any agreement or arrangement with the Licensee on behalf of Tru Media.

D10.3  No waiver. No waiver by a Party of any breach of any of the provisions of this Agreement will be construed as a continuing waiver or a waiver of any preceding or subsequent breach of the same or any other provision.

D10.4  Entire agreement. This Agreement constitutes the entire agreement between the Parties. For the avoidance of doubt, this Agreement does not include any agreement between the Licensee and Tru Media, which form separate contracts to which Stats Perform is not a party.

D10.5  Non-exclusivity. The Licensee’s entitlement to receive the Service(s) and use the Content and, as applicable the Platform, will be non-exclusive in all respects.

D10.6  Other variations. No variation, modification or amendment of this Agreement will be effective unless made in writing and signed by each Party.

D10.7  Counterparts. This Agreement may be executed in any number of counterparts, each of which will be an original of this Agreement and all of such counterparts taken together will be deemed to constitute one and the same instrument.

D10.8  Costs. Except as otherwise stated in this Agreement, each Party will pay its own costs and expenses in relation to the negotiation, preparation, execution and carrying into effect of this Agreement and all documents ancillary to it.

D10.9  Third party rights. This Agreement is between Stats Perform and the Licensee. No other person shall have any rights to enforce any of their provisions, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

D10.10            Reserved Rights. All rights not specifically and expressly granted to the Licensee by this Agreement are reserved to Stats Perform.

D10.11            Void or unenforceable provisions. If any provision of this Agreement is held to be void or unenforceable in whole or in part, this Agreement shall continue in force in relation to the unaffected provisions and the remainder of the provision in question, and the Parties will renegotiate the provision in good faith to achieve the same objects.

D10.12            Regulatory Change. In the event of a regulatory change (whether imposed by a competent government authority or following a decision by a court of competent jurisdiction) which materially affects the terms of this Agreement, the Parties will discuss the impact of the regulatory change in good faith and agree upon appropriate restructuring to this Agreement in order to mitigate the effect of such change.

D11   Governing Law

D11.1 Governing Law, Venue. The governing law and venue of the Agreement shall be based on the Stats Perform contracting party used in the Work Order, as set forth below:

Each Party hereby consents and submits to the exclusive jurisdiction of any local, state or federal court located within the relevant venue stated above and waives any right such Party may have to transfer the venue of any such litigation. Each Party waives any right to trial by jury on any action or proceeding to enforce or defend any rights under this Agreement.  The prevailing Party or parties in any such litigation shall be entitled to recover from the other Party all costs and expenses, including without limitation reasonable attorneys’ and paralegals’ fees, incurred by such Party in connection with such litigation.