MASTER LICENSE AGREEMENT
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:
1.1 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, the following terms shall have the following meanings:
(a) “Affiliate(s)” means an entity that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with a party.
(b) “Agreement” shall mean, collectively, this MLA and any one Work Order which has been executed by the Parties that reference this MLA.
(c)“Applicable Laws” means, collectively, all international, national, federal, state, provincial, regional, territorial, local, and other laws, rules and regulations, ordinances, interpretive letters and other official releases of or by any Governmental Authority, decrees, orders and codes (including any requirements for permits, certificates, licenses and approvals) as the same are promulgated, supplemented or amended from time to time, including laws that apply directly or indirectly to the delivery or receipt of the Licensed Materials under this MLA.
(d) “Betting Entity” shall mean a person or entity that is engaged in any Betting Activity(ies), including but not limited to betting operators, casinos, and sportsbooks.
(e) “Betting Activity” shall mean and include engaging in or providing a means or platform for the placing, taking, or settling of bets or wagers based upon the outcome of a certain event, including but not limited to sporting events or competitions. For the avoidance of any doubt, Fantasy Sports Activities, as authorized under this Agreement and any Work Order, shall not be considered a Betting Activity.
(f) “Commercialization Activity” means any advertising, sponsorship, promotion or other endorsement activity or content that appears with, around or otherwise in connection with any Licensed Material.
(g) “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.
(h) “Data” means any data relating to specific sporting events supplied within the Licensed Materials.
(i) “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.
(j) “Data Protection Legislation” shall mean the General Data Protection Regulation (EU) 2016/279 (“GDPR”), European Directive 2002/58/EC (as amended by Directive 2009/136/EC) and/or any other data protection legislation which is applicable to the Parties, together with any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them from time to time.
(k) “Direct Use License” means an additional license from a third party in order to use certain Licensed Materials.
(l) “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
(m) “Fantasy Sports Customer” means any Licensee taking Licensed Materials for the purposes of Fantasy Sports Activities, as defined herein.
(n) “Fantasy Sports Activity(ies)” means and includes any fantasy or simulated activity or contest with an entry fee in which a participant owns or manages an imaginary team and competes against other participants or a target score for a predetermined prize with the outcome reflecting the relative skill of the participants and determined by statistics generated based on performance by actual individuals participating in actual competitions or athletic events, provided that the outcome shall not be based solely on the performance of an individual athlete, or on the score, point spread, or any performance of any single real team or combination of real teams.
(o) “Fantasy Sports Approvals” means any and all required approvals, authorizations, licenses, permits, consents, findings of suitability, registrations, clearances, exemptions and waivers of or from any Fantasy Sports Authority, including those relating to the offering or conduct of Fantasy Sports Activities or the receipt of or participation in revenues directly or indirectly derived therefrom.
(p) “Fantasy Sports Authority” means and includes any international, national, federal, state, provincial, regional, territorial or local governmental, regulatory or administrative authorities, agencies, commissions, boards, or bodies existing and officials responsible for or involved in the regulation of Fantasy Sports Activities.
(q) “Fantasy Sports Laws” means and includes all federal, state, local and provincial laws, judgments, decrees, orders, rules, and regulations applicable to Licensee, whether Licensee is directly or indirectly engaged in Fantasy Sports Activities, including but not limited to those relating to the offering or conduct of Fantasy Sports Activities.
(r) “Fees” means all fees to be paid by Licensee under this Agreement, as set forth in each applicable Work Order.
(s) “Governmental Authority” means any international, national, federal, state, provincial, regional, territorial or local legislative, executive, judicial or other governmental board, department, agency, authority, commission, administration, court, taxing authority, or other body, or political subdivision thereof, or any official thereof, having jurisdiction in any way over or in respect of any aspect of the performance of this MLA.
(t) “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, trademarks, 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.
(u) “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
(v) “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 content from an event.
(w) “Processing” shall have the meaning given under Data Protection Legislation and the term Processes shall be construed accordingly.
(x) “Re-voicing” means any “re-voicing” (i.e., change the audio of), dubbing or adding of subtitles.
(y) “Term” shall have the meaning set forth in Paragraph 2
(z) “Third Party Developer,” if applicable, means an entity (or entities), other than Licensee, who have been retained by Licensee to perform development services on behalf of Licensee solely in connection with the rights granted to Licensee herein and solely for Licensee’s internal business purposes, and will, in the course of such development work, have access to any portion of the Licensed Materials, provided that such entity (or entities) have been approved by Stats Perform in advance in writing.
(aa) “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 Licensed Materials to be licensed by Stats Perform to Licensee.
2 Initial Term and Renewal.
(a) Initial 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.
(b) Renewal Term. 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.
3 Fees and Payments.
(a) Initial Term License Fee. 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 (the “Initial Term License Fee”). Stats Perform may invoice for the Fees in one or more invoices.
(b) Renewal Term Fees. 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.
(c) 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.
(d) API Incremental Fee. If the Licensed Materials will be delivered via API, the Fees set forth in the applicable Work Order shall cover up to and include five million (5,000,000) API calls from Licensee to Stats Perform per month during the Term (the “Base”). In the event that the number of API calls per month exceeds the Base, then Licensee shall pay to Stats Perform an additional fee (the “API Incremental Fee”) in the amount of Five Hundred U.S. Dollars ($500.00 USD) for each additional one million (1,000,000) API calls per month that exceed the Base. Stats Perform shall provide Licensee with a written invoice (which shall include the number of API calls per month that exceed the Base) for any API Incremental Fee owed. The API Incremental Fee, if applicable, shall be due to Stats Perform thirty (30) days following Licensee’s receipt of the written invoice from Stats Perform.
(e) Licensee shall be responsible for any associated credit card service and/or convenience fees.
(f) 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, including but not limited to Fantasy Sports 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.
4 License and Limitations.
(a) Stats Perform shall license to Licensee, on a non-exclusive basis, the Licensed Materials as described in each Work Order that has been executed by both Parties, and subject to the terms and conditions set forth therein and in this Agreement.
(b) Unauthorized Use.
(i) Any use of the Licensed Materials that is inconsistent with the terms of this Agreement (including the applicable Work Order) shall be considered an “Unauthorized Use.” Licensee shall not conduct any Unauthorized Use of the Licensed Materials, and if Stats Perform determines that Licensee activities constitute Unauthorized Use, then Licensee shall immediately cease such Unauthorized Use.
(ii) Licensee shall adopt commercially reasonable safeguards intended to prevent the Unauthorized Use of the Licensed Materials.
(iii) In the event that either Party to this Agreement becomes aware that any third party or Third Party Developer has improperly used, is improperly using, or is about to improperly use the Licensed Materials, such Party shall immediately notify the other Party of the facts of which it is aware in connection with such actual or potential Unauthorized Use and shall provide the other Party with any documents in its possession with respect to same. The Parties shall cooperate, at their own expense, to the fullest extent possible and agree to take all actions necessary to eliminate such third party Unauthorized Use as expeditiously as possible.
(c) Licensee shall have no right to sublicense, co-brand, co-market, white label, distribute, syndicate, or in any other manner make the Licensed Materials available, directly or indirectly, through any means other than as explicitly set forth in this Agreement without the express written permission of Stats Perform, which shall be granted or refused in Stats Perform’s sole discretion. Except as authorized in this Agreement, Licensee shall not translate, edit, modify, manipulate, prepare derivative works of, or otherwise alter the Licensed Materials, and shall not reproduce, use, distribute or display the Licensed Materials in any manner that authorizes for the Licensed Materials (or portions thereof) to be downloaded, copied or retransmitted. Licensee shall not bulk download or otherwise build archival files using the Licensed Materials, or any portion thereof. The Licensed Materials shall not be copied, reproduced, retransmitted, sold, licensed, distributed, decompiled, or reverse engineered in any manner. Nothing in this Agreement shall limit Stats Perform’s ability to license the Licensed Materials to other parties. The Licensed Materials shall not be combined or displayed in conjunction with any material or service (including in respect of the Permitted Services) which is obscene, pornographic, defamatory, infringes rights, including the Intellectual Property Rights, of any person or entity, or is otherwise illegal, or is disparaging of any sports league, and shall not be combined or displayed in conjunction with an advertisement for any product or service that is obscene, pornographic, defamatory, infringes the rights, including the Intellectual Property Rights, of any person or entity, or is otherwise illegal, or is disparaging of any sports league. Notwithstanding the foregoing, Licensee shall not be restricted with respect to editorial or opinion content relating to a sports league, club, or federation. Where modification or editing of Licensed Materials is expressly permitted by this Agreement, it will be undertaken by the Licensee: (i) at the Licensee’s own risk; and (ii) solely on the basis of its own judgment, skill and experience.
(d) Restricted Use. The Licensee shall not (a) distribute, supply or otherwise make available Data to any third party (other than as expressly permitted in accordance with the terms of this Agreement) for any purpose other than as permitted in writing by Stats Perform; (b) publish multiple categories of Data or multiple seasons (including cumulative totals) of the same category of Data other than Basic Data in tabular or list form (except where such tables or lists are used as an illustrative example in a piece of editorial) or as part of a searchable database or comparison tool other than as permitted in writing by Stats Perform; (c) publish Data in combination, alongside or mixed with other similar third party data or linked to Data definitions which differ from those employed by Stats Perform and provided to the Licensee on request. For purposes of this section 4(d) only, Basic Data means the following categories of data (as applicable), Appearances (game_started), Substitutions (total_sub_off; total_sub_on), Minutes Played (mins_played), Goals (goals; goals_conceded), Assists (goal_assist), Total Passes (total_pass), Successful Passes (accurate_pass), Shots (total_scoring_att), Fouls (fouls; was_fouled), Cards (yellow_card; total_yel_card; red_card; total_red_card), Free Kicks (fk_foul_lost; fk_foul_won), Throw in (total_throws), Offsides (total_offside), Clearances (total_clearance), Total Tackles.
(e) Data Rights Controller Terms. The following provisions apply with respect to any Data supplied by Stats Perform.
(i) Direct Use Licenses. The Licensee may need to obtain a Direct Use License. For example only, Football DataCo has required an additional license to be acquired in order to display certain data from UK football leagues. The Licensee will be solely responsible at its own cost for obtaining any Direct Use Licenses.
(ii) 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 Licensed Materials containing Data related to that event without compensation or liability to the Licensee. In the event that the Licensed Materials containing Data suspended by Stats Perform in accordance with this section 4(e)(ii) forms a substantial part of the Licensed Materials and/or Service, then the Parties shall negotiate in good faith a change to the level of the Fees to reflect such suspension.
(iii) Stats Perform appointed as an Official Provider. Without prejudice to clause (ii) of this section, 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 Licensed Materials in relation to that event in addition to the Fees.
(f) Stats Perform shall not be deemed in breach of this Agreement in the event that it is unable to provide any portion(s) of the Licensed Materials as a result of the cancellation or rescheduling of any sporting event(s) or sports league(s) for any reason. In the event of an outage which results from a failure of the content provided by a sports league or any other third party, the Parties will discuss in good faith whether substantially similar content can be provide.
(g) If the Licensed Materials contain any AP-attributed content, then the AP Terms and Conditions, located here, shall apply.
(h) If the Licensed Materials contain any Getty-attributed content, then the Getty Terms and Conditions, located here, shall apply.
(i) If the Licensed Materials contain any PGA Tour data, then the PGA Tour Terms and Conditions, located here, shall apply.
(j) If the Licensed Materials contain any Football DataCo attributed content, then the FDC Key Supply Terms, located here, shall apply.
(k) If the Licensed Materials contain any photos/headshots, Licensee shall not use such photos/headshots for any commercial purposes, including, but not limited to, any game-play elements of the Permitted Services or for any other purpose other than in connection with the other Licensed Materials. Such photos/headshots shall only be permitted to be displayed by the Licensee in conjunction with the specific Licensed Materials with which such photo/headshots are delivered, where this is expressly notified to the Licensee.
(l) If the Work Order authorizes Licensee to translate the Licensed Materials into any language other than the one in which it is provided (the “Translated Content”), Licensee shall comply with the following: (i) the Translated Content shall not change the underlying meaning of the Licensed Materials, and (ii) all translations shall be complete and accurate. Except as explicitly set forth in any Work Order, Licensee shall be solely responsible for the costs of providing translations for such Translated Content. In the event the Work Order expressly allows Translated Content, and notwithstanding any other provision hereunder, Stats Perform assumes no liability for Translated Content and Licensee shall indemnify Stats Perform in the event any cause or action arises out of Licensee’s Translated Content.
(m) Save for the Permitted Usage, the Licensee may not use the Licensed Materials in any other way without Stats Perform’s prior written approval, and any other use shall be deemed Unauthorized Use. For the avoidance of any doubt, the Licensee shall not itself, or authorize any third party to, or purport to, use the Licensed Materials for any Betting Activities or provide the Licensed Materials or any derivatives thereof such as odds, models, or probabilities either directly or indirectly to any third party including but not limited to Betting Entities (whether in the betting sector or otherwise). Licensee’s use of the Licensed Materials to provide services related to Fantasy Sports Activities in accordance with Applicable Laws, including but not limited to Fantasy Sports Laws and Fantasy Sports Approvals, as expressly authorized and provided in the applicable Work Order shall not be deemed Unauthorized Use.
(n) Any other applicable limitations shall be as set forth in the relevant Work Order or as otherwise may be notified by Stats Perform to Licensee in writing from time to time.
5 Transfer of the Licensed Materials.
(a) The Parties agree that they shall cooperate with each other to provide each other with technical assistance in connection with the transfer to Licensee of the Licensed Materials during the Term. Notwithstanding the foregoing, Licensee acknowledges Stats Perform’s ownership of the Licensed Materials and that the Licensed Materials shall at all times remain the sole and exclusive property of Stats Perform, unless expressly provided otherwise in the applicable Work Order. Licensee shall be solely responsible for its own internal costs in connection with its receipt of the Licensed Materials from Stats Perform.
(b) Licensee acknowledges that, in order to provide a more effective or efficient provision of the Licensed Materials, 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.
(c) A person will be deemed to have accessed Licensed Materials from a particular territory where they access the Licensed Materials via: (a) for Internet delivery of Licensed Materials: an IP address that is validly associated with that territory; (b) for Mobile delivery of Licensed Materials: a mobile phone number that is associated with that territory; or (c) for Television delivery of Licensed Materials: a television set that is physically located in that territory.
6 Trademarks, Copyrights and Related Matters.
(a) With respect to the statistical portions of the Licensed Materials, Licensee agrees to display Stats Perform’s logo (as provided by Stats Perform to Licensee and as may be updated from time to time by Stats Perform) (the “Logo”) and the following copyright notice in connection with all uses of these portions of the Licensed Materials: “Copyright xxxx [where xxxx denotes the current year] by Stats Perform. Any commercial use or distribution without the express written consent of Stats Perform is strictly prohibited.” This subsection (a) shall also apply to any Stats Perform-attributed editorial content.
(b) Licensee shall not remove or otherwise alter any copyright notice(s) and/or logo(s) which have been included by Stats Perform within the Licensed Materials provided to Licensee, and Licensee shall not use the Stats Perform name, the Logo, or Stats Perform’s trademarks (collectively, the “Stats Perform Marks”) with any other word, designation or material unless Stats Perform provides prior written consent. Licensee hereby acknowledges that (i) Stats Perform is the sole owner of all right, title and interest in and to the Stats Perform Marks; (ii) the Stats Perform Marks are valid and enforceable; (iii) Licensee’s right to use the Stats Perform Marks derive solely from this Agreement; and (iv) this Agreement does not confer any goodwill or other interests in the Stats Perform Marks upon Licensee (other than the rights to use the Stats Perform Marks as set forth herein). Licensee covenants that it will not, directly or indirectly, either alone or in conjunction with others, infringe, challenge or take any action to cause a challenge to Stats Perform’s ownership of, or the validity of, any of the Stats Perform Marks, or to obstruct the efforts of Stats Perform with respect to registration or maintenance of the Stats Perform Marks.
(c) Stats Perform hereby grants to Licensee a non-exclusive, worldwide license to use the Stats Perform Marks solely in connection with the reproduction, distribution and display of the Stats Perform-attributed portions of the Licensed Materials on the Permitted Service(s). Licensee shall cease all use of the Stats Perform Marks upon termination or expiration of this Agreement. Licensee acknowledges the validity of, and Stats Perform’s ownership of, the Stats Perform Marks and agrees that any use thereof shall inure to Stats Perform’s benefit, and that the use thereof shall conform to standards and specifications initially or presently approved by Stats Perform. Licensee shall cooperate with Stats Perform in facilitating Stats Perform’s quality control of Licensee’s materials depicting the Stats Perform Marks by supplying to Stats Perform as Stats Perform shall reasonably request from time to time, specimens of such usage. Stats Perform shall notify Licensee of any failure by Licensee to conform such usage to the standards set by Stats Perform and as set forth herein, and Licensee shall have thirty (30) days from receipt of such notice to cure such failure, to Stats Perform’s satisfaction, such approval not to be unreasonably withheld. If Stats Perform is not satisfied that such failure has been timely cured, Licensee shall cease all use of the Stats Perform Marks.
(d) Licensee hereby grants to Stats Perform a non-exclusive worldwide license to use Licensee’s name, logo, and trademarks (collectively, the “Licensee Marks”), in connection with Stats Perform’s ordinary course of promotional, marketing and press release activities and to otherwise market, advertise and publicize the relationship between Licensee and Stats Perform.
(e) 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 included in the Service.
(f) Press Release and Communication Initiative. Within ninety (90) days after the Effective Date of this Agreement, the Parties may separately or mutually issue a press release containing language agreed upon by the Parties announcing that the Parties have entered into a business relationship as contemplated herein. In addition, upon Stats Perform’s request, the Licensee agrees to participate in a mutually agreed upon communications initiative, which may be in the form of a video testimonial or case study (“Communication Initiative”). Licensee accordingly grants to Stats Perform an exclusive, perpetual, royalty-free, worldwide license to use the Communication Initiative for Stats Perform’s marketing/promotional purposes, as well as a non-exclusive, perpetual, royalty-free, worldwide license to use Licensee’s name, logo, and trademarks for marketing/promotional purposes in connection with the Communication Initiative. Stats Perform’s license to use all materials from the Communication Initiative shall survive termination or expiration of this Agreement.
(g) Reservation of Rights. All Intellectual Property Rights in and to the Licensed Materials remain the sole property of Stats Perform. Licensee hereby assigns to Stats Perform any suggestions, ideas, enhancement requests, or other feedback provided by Licensee to Stats Perform relating to the Licensed Materials and Services. Stats Perform will own all data, software, inventions, ideas, and other technology and intellectual property that it develops under or in connection with this Agreement or in connection with the Licensed Materials.
7 Representations and Warranties.
(a) By Both Parties. Each Party represents and warrants that:
(i) it has full power and authority to enter into this Agreement and to consummate the transactions contemplated herein, and that it shall act in accordance with all Applicable Laws in performing its obligations and exercising its rights under this Agreement; and
(ii) it has participated with, at its option, the advice and benefit of counsel, in the preparation of this Agreement.
(b) By Stats Perform. Stats Perform represents and warrants that it has all necessary right, title and/or license to the Licensed Materials.
(c) By Licensee. Licensee represents and warrants that:
(i) the Licensee shall be solely responsible for obtaining any third-party licenses or permissions as may be required in connection with the Licensee’s use of the Licensed Materials;
(ii) the Permitted Service and the Licensed Platform will throughout the Term be owned and controlled by the Licensee (or its Affiliate);
(iii) it is and will remain in compliance with all Applicable Laws, and it will not use the Licensed Materials in such a way as to contravene any Applicable Laws;
(iv) it will not use any part of the Licensed Materials other than strictly in accordance with this Agreement and will not edit or modify, or allow others to edit or modify, the Licensed Materials except as expressly permitted within a Work Order;
(v) 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 all Licensed Materials; and
(d) By Licensee, if applicable:
(i) Translated Content. Licensee represents and warrants that Licensee shall be solely responsible for ensuring that the Translated Content is complete and accurate and does not change the underlying meaning of the Licensed Materials.
(ii) Physical Data. Licensee represents and warrants that it shall be solely responsible for obtaining any prior written consents, licenses, or permissions that may be necessary (1) to collect the physical data related to player and player position for the covered matches (the “Physical Data”), and (2) for Stats Perform to use the Physical Data in order to fulfill its obligations under this Agreement.
(iii) Fantasy Sports Customer. If Licensee is considered a Fantasy Sports Customer:
(x) Fantasy Sports Customer represents and warrants that it has and will maintain all Fantasy Sports Approvals.
(y) Fantasy Sports Customer represents and warrants that it possesses the good character, honesty, integrity, and reputation applicable to those subject to Fantasy Sports Laws, and that there is nothing in the background, history, or reputation of Licensee that would be deemed unsuitable under any Applicable Laws, including but not limited to Fantasy Sports Laws and Fantasy Sports Approvals.
(z) Fantasy Sports Customer represents and warrants it shall not engage in unauthorized Fantasy Sports Activities.
8 Disclaimer of Warranties.
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, STATS PERFORM DOES NOT MAKE ANY, AND STATS PERFORM SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIALS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
(b) WITHOUT PREJUDICE TO AND WITHOUT DERAGATING FROM ANY OTHER RIGHT OR PROTECTION OF STATS PERFORM SET FORTH WITHIN THIS AGREEMENT, STATS PERFORM SHALL PROVIDE THE LICENSED MATERIALS AND SERVICES IN ACCORDANCE WITH GOOD INDUSTRY PRACTICE. HOWEVER, STATS PERFORM DOES NOT WARRANT THAT ANY PART OF THE LICENSED MATERIALS AND SERVICES 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.
9 Termination or Suspension of Agreement.
(a) Stats Perform has the right to:
(i) in the event of an Unauthorized Use of the Licensed Materials by Licensee or any Third Party Developer, immediately terminate the Agreement;
(ii) in the event Licensee fails to make any payment hereunder when due and such payment is not made within fourteen (14) days after such due date, (1) terminate the Agreement, or (2) suspend, upon notice (email sufficing) to Licensee, provision of the Licensed Materials to Licensee; and
(iii) terminate the Agreement upon written notice to Licensee in the event that the Permitted Service(s), or any activity or component thereof, violates Applicable Laws,
(iv) terminate the Agreement upon written notice to Fantasy Sports Customer in the event that the Permitted Service(s), or any activity or component thereof, violates any Fantasy Sports Laws and/or Fantasy Sports Approvals or violates any representation or warranty related to the Fantasy Sports Customers
(b) Subject to Stats Perform’s termination rights set forth above, either Party has the right to:
(i) terminate the Agreement thirty (30) days following written notice of a breach by the other Party of any provision of this Agreement (other than with respect to Unauthorized Use, payment obligations, and violation of applicable law, as set forth in Subparagraphs (a)(i), (a)(ii), and (a)(iii), above), if such breach is not cured within:
(x) said thirty (30)-day period, or alternatively,
(y) if such breach is not susceptible to cure within thirty (30) days, and if the breaching Party fails to make commercially reasonable efforts to commence the cure of such breach within said thirty (30)-day period and to diligently proceed to cure such breach within ninety (90) days after the written notice;
(ii) terminate the Agreement immediately following written notice that a receiver has been appointed for the other Party of its property (and the appointment of such receiver is not terminated), the other Party has become insolvent or unable to pay its debts as they mature, the other Party has made an assignment for benefit of creditors, or any proceedings have been commenced by or against the other Party under any bankruptcy, insolvency or other similar law (and such proceedings are not dismissed within sixty (60) days following commencement thereof); and
(iii) terminate the Agreement in accordance with any additional provision set forth in a Work Order.
(c) Suspension. Stats Perform has the right, at any time, to suspend provision of the Licensed Materials 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 Licensed Materials other than in accordance with this Agreement or is otherwise engaged in Unauthorized Use; (c) Stats Perform reasonably believes that any Commercialization Activity is likely to be infringing (or has infringed) the rights of any third party; or (d) Stats Perform reasonably believes that provision of the Licensed Materials (or any part of it) has become contrary to: (i) Applicable Laws, including but not limited to any Fantasy Sports Laws and/or Fantasy Sports Approvals 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 upon such changes to the Licensed Materials (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 Licensed Materials in accordance with this clause 9(c), except where Stats Perform reasonably believes that it needs to suspend the Licensed Materials immediately to mitigate any potential losses, damages or claims. A suspension may continue until such time as the relevant issue is remedied to the reasonable satisfaction of Stats Perform.
10 Obligations Upon Termination.
(a) Post-Termination Payments. The termination of this Agreement shall not relieve Licensee of its obligations to account for and pay to Stats Perform any sums due hereunder. In addition, if this Agreement is terminated as a result of a breach hereof by Licensee, or any Third Party Developer, any and all Fees and payments shall accelerate and become immediately due and payable in full to Stats Perform.
(b) Additional Post-Termination Obligations. Following the expiration of the Term of this Agreement or the earlier termination of the Agreement for any reason:
(i) all rights granted by Stats Perform to Licensee pursuant to this Agreement will automatically cease and revert to Stats Perform;
(ii) Stats Perform will cease delivery of the Licensed Materials and/or service; and
(iii) each Party shall securely return to the other or shall destroy all documents, material and information with respect to any Confidential Information (as defined in Section 11 below) of the other (in any format as such information may exist). Additionally, Licensee and any Third Party Developer, if applicable, shall return to Stats Perform or destroy the Licensed Materials, and shall ensure that its Third Party Developer has similarly returned or destroyed the Licensed Materials. At Stats Perform’s request, Licensee shall provide Stats Perform with an affidavit signed by an officer or legal representative of Licensee (as well as a certificate signed by an officer or legal representative of the Third Party Developer, if applicable) certifying its full compliance with this Section 10(b)(iii). Upon such expiration or termination, each Party shall cease any and all use, reproduction, marketing, and distribution of the trademarks, trade names, service marks, patents or other intellectual and personal property of the other. For clarity, this paragraph shall not override any other agreement or terms between Stats Perform and Licensee regarding the retention of any confidential or proprietary information.
11 Confidential Information. Each Party agrees that during and after the Term it shall not, except for purposes of this Agreement, use for its own benefit or for the benefit of any person, firm, corporation or other entity, any secret or confidential information, solicitation methods, confidential pricing information or any other data pertaining to the other Party, its respective businesses, respective financial affairs or any other information obtained hereunder regarding the other Party not generally known within its respective trades, or as a matter of public knowledge or patent, trademark, trade name, service mark, copyright or other Intellectual Property Rights of the other Party (collectively, the “Confidential Information”) except as authorized by this Agreement. Licensee acknowledges and agrees that all Licensed Materials are the Confidential Information of Stats Perform and not Licensee. Each Party agrees that it shall take all reasonable steps to ensure that its employees, agents, and any Third Party Developer, if applicable, do not communicate, grant, disburse or transmit in any way whatsoever to any third party or parties the Confidential Information without the prior written consent of the other Party, except as explicitly permitted pursuant to this Agreement (or any applicable Work Order). Confidential Information shall not include any information or data that: (a) is or becomes generally available to the public other than as a result of a disclosure by the receiving party; (b) becomes available to the receiving party on a non-confidential basis from a source which is not, to the receiving party’s knowledge, prohibited from disclosing such information by a legal, contractual, or fiduciary obligation to the disclosing party; or (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information.
12 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 such Party interfered with shall use commercially reasonable efforts to resume the performance of its obligations as soon as possible after the delay or prevention caused by Event of Force Majeure has ended.
13 Indemnification & Hold Harmless. Each Party hereby agrees to defend, indemnify, save and hold harmless the other Party, its shareholders, directors, officers, employees, agents, successors, assigns and other representatives from and against any and all claims, liability, loss, damage, cost and expense (including reasonable attorneys’ fees and litigation costs), arising out of or relating to (i) a Party’s gross negligence or willful misconduct, (ii) any breach or default by a Party of the warranties contained in clause 7 of this Agreement, (iii) a Party’s use of the other Party’s name, logos, trademarks, Confidential Information, Licensed Materials (in the case of Licensee), or any intellectual property other than as authorized under the Agreement, (iv) in the case of Licensee, any negligent or willful misconduct of Licensee’s Third Party Developer, or any other conduct of Licensee’s Third Party Developer which is in violation of any of the terms of this Agreement, (vi) in the case of the Licensee, any Commercialization Activity.
Each party further agrees to defend, indemnify, save and hold harmless the other Party, its shareholders, directors, officers, employees, agents, successors, assigns and other representatives from and against any and all claims, liability, loss, damage, cost and expense (including reasonable attorneys’ fees and litigation costs), arising out of or relating to claims or allegations of intellectual property infringement related to the Licensed Materials, if applicable, or any other information or content provided by Licensee.
14 Limitation of Liability.
(a) Excluding liability under Section 13, under no circumstances shall either Party be liable for any consequential, incidental, indirect, special, exemplary or punitive damages, losses, or expenses (including but not limited to business interruption, lost business, lost profits, or lost savings) even if it has been advised of their possible existence and notwithstanding the failure of essential purpose of any remedy.
(b) Excluding (i) liability under clause 13 ii) any Fees payable pursuant to this Agreement, and (iii) any litigation costs and expenses recoverable by a prevailing Party pursuant to clause 21(a), in no event shall the aggregate liability of either Party (whether in contract, tort, negligence, strict liability in tort or by statute or otherwise) exceed the amount paid (or payable) by Licensee to Stats Perform in connection with this Agreement during the twelve (12) month period immediately preceding the date of any claim by a party against the other party.
15 Equitable Remedies. In the event of any breach of the provisions of Section 11 hereof, the Parties hereto agree that remedies at law may not be adequate and each may be entitled, in addition to damages, to preliminary and permanent injunctive relief (without the necessity of posting of bond) to prevent a then-occurring or an about-to-occur breach, as well as an equitable accounting of all profits or benefits arising out of such breach, which rights and remedies shall be cumulative and in addition to any other rights or remedies to which the Parties may be entitled.
16 Notices. 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.
17 Relationship Created. The relationship of the Parties herein shall be as independent contractors only. Nothing in this Agreement or any Work Order shall be construed to create a partnership, joint venture or combined entity by or between Stats Perform and Licensee or to make either the agent or Affiliate of the other and neither shall have the authority to bind the other. Stats Perform and Licensee each agree not to hold itself out as a partner, joint venturer, combined entity, agent or Affiliate of the other. Each Party is, and is intended to be, engaged in its own and entirely separate business. Each Party shall be solely responsible for determining the applicability of, and compliance with, Applicable Laws including Data Protection Legislation, orders, codes, regulations, self-regulatory programs and ordinances, which may be applicable to each Party and their respective businesses and employees. For avoidance of doubt, Fantasy Sports Customers shall have sole responsibility for: 1) determining the applicability of Fantasy Sports Laws to the Fantasy Sports Customer and its activities, 2) obtaining any and all required Fantasy Sports Approvals, and 3) ensuring the Fantasy Sports Customer’s ongoing compliance with Fantasy Sports Laws and Fantasy Sports Approvals.
18 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 (i) an Affiliate; (ii) 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 (iii) 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 Licensed Materials), and the Licensee shall execute any related documentation which is reasonably requested by Stats Perform.
19 Data Protection. Each Party agrees that it shall comply with its respective obligations under the Data Protection Legislation. The Licensee shall ensure it has obtained all consents and approvals and provided all notices and policies, which are necessarily required under the Data Protection Legislation for purposes of this MLA. For purposes of the GDPR, to the extent that the Licensed Materials, or any portion thereof, are considered personal data (as defined under the GDPR) (“Personal Data”), the following provisions shall apply:
(a) Each Party shall act as an independent controller (as defined under Article 4(7) of the GDPR); and
(b) in the event that Stats Perform, or any of its Affiliates, from within the European Economic Area (which shall, for the avoidance of doubt, be deemed to include the UK) (“EEA”) transfers or makes available Personal Data to the Licensee for Processing in a jurisdiction outside the EEA, and that jurisdiction is not covered by an “adequacy” finding made by the EU Commission, then the Controller to Controller Data Protection Addendum located here shall apply.
20 Reporting Requirements. If the Work Order requires any reporting requirement from Licensee to Stats Perform, then the following reporting requirements shall apply:
(a) During the Term, and for sixty (60) days thereafter, Licensee shall forward to Stats Perform, within thirty (30) days after the end of each month, monthly statements accounting for all transactions that are subject to licensing fees or other payments to Stats Perform. Such statements shall reflect in detail the calculation of the fees or other incremental payments due Stats Perform hereunder.
(b) Books and Records. Licensee shall maintain separate accounts and records at its principal place of business for revenues generated pursuant to this Agreement as are necessary for the determination of all amounts due Stats Perform under this Agreement or shall maintain an accounting that is sufficient to facilitate the determination of the amounts due under this Agreement.
(a) 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:
|Stats Perform’s contracting party||Governing Law||Venue|
|STATS LLC||State of New York||Courts having situs within Cook County, Illinois, USA|
|Perform Content Limited||England and Wales||Courts having situs within London, England|
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.
(b) Non-Waiver. The waiver by a Party of a breach of any provision of this Agreement by the Party shall not operate or be construed as a waiver of any subsequent or additional breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.
(c) Entire Agreement; Construction. This Agreement supersedes any and all other agreements and understandings heretofore existing between the Parties with respect to the subject matter hereof. This Agreement contains the entire agreement of the Parties concerning the subject matter hereof and may be amended, modified, or changed only by an agreement in writing signed by each of the Parties. For the avoidance of doubt, any and all of Licensee’s policies, terms and conditions sent or made available to Stats Perform by or on behalf of Licensee shall be deemed null and void, irrespective of whether such policies, terms or conditions were sent or made available to Stats Perform before or after the execution of this Agreement. In addition, the Parties have jointly prepared and/or approved the language of the provisions of this Agreement. Should any dispute arise concerning the interpretation of any provision hereof, neither Party shall be deemed the drafter nor shall any such language be presumptively construed in favor of or against either Party. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement.
(d) Severability. The provisions of this Agreement shall be severable, and the invalidity of any provision shall not affect the validity of the other provisions.
(e) Survival. Paragraphs 4(b), 7, 8, 10, 11, 13, 14, 15, 16, 19, 20, and 21 of this Master License Agreement, certain specified provisions of any Work Order, and any other provision necessary for the interpretation thereof or which by its terms is to continue beyond the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.
(f) Non-exclusivity. The Licensee’s entitlement to receive the Licensed Materials and use the Licensed Materials will be non-exclusive in all respects.
(g) 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.
(h) 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 (including, but not limited to, any territorial restrictions), the Parties will discuss the impact of the regulatory change in good faith and agree upon appropriate restructuring to this Agreement (including with respect to Fees) in order to mitigate the effect of such change.
(i) Execution. This Agreement, any amendment hereto, and any notices, documents or information required or permitted to be provided hereunder “in writing” may be executed using electronic signatures and in multiple counterparts, including but not limited to counterparts that are executed on paper and counterparts that are electronic records executed using electronic signatures. Each executed counterpart shall be deemed an original, and all such counterparts shall constitute one and the same document. Each Party waives any legal requirement that this Agreement, any amendment hereto, and any notices, documents or information required or permitted to be provided hereunder “in writing” be embodied, stored or reproduced in tangible media, and agrees that an electronic reproduction will be given the same legal force and effect as a tangible paper writing signed with ink signatures.
(j) Third party rights. This Agreement is between Stats Perform and the Licensee. No other person shall have any rights to enforce any of its provisions, whether under the UK Contracts (Rights of Third Parties) Act 1999 or otherwise.