This Service Agreement (“Agreement”) has been entered into by and between you as an individual or the business entity or organization listed on the Application (“Account Owner”) and Assignr LLC, a Delaware limited liability company (“Provider”). This Agreement is effective immediately upon acceptance by the Account Owner (the “Effective Date”)
The following definitions will apply:
“Administrator” means the person designated by the Account Owner, or if the Account Owner is an entity, such Account Owner’s controlling person, as authorized to create Authorized User accounts, designate Administrative Payers, administer Account Owner’s use of the Service and otherwise represent Account Owner for the purpose of this Agreement.
“Administrative Payer” means any school or school district that pays End-Users associated with Account Owner’s account that is authorized by Administrator to perform such payment services, if Account Owner has elected to use the Payment Services.
“Application” means the Service application form on the Website.
“Account Owner Data” means data, information or material provided or submitted by any Authorized User to Provider in the course of utilizing the Services, and if Payment Services are subscribed for, the 1099-MISC data generated for Account User pursuant to the Payment Services, including any modifications to any payment data provided by Account Owner or any Authorized User for the Payment Services.
“Documentation” means any manuals, instructions or other documents or materials that the Provider provides or makes available to Authorized Users in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“End-User” means an official, referee or umpire receiving an assignment from Account Owner, Administrator, or another Authorized User through the Services.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Payment Services Addendum” means any addendum to this Agreement governing the terms and conditions of the Payment Services.
“Payment Services” means the payment processing services and reporting services described on the Website and in the Payment Services Addendum.
“Permitted Use” means any use of the Services by an Authorized User for the scheduling, paying or receiving payment of, tracking and support of officiants of sporting events.
“Personal Information” means any information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located. Personal Information includes, without limitation, all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, and all rules and regulations issued under any of the foregoing.
“Pricing Schedule” means the prices shown to the Account Owner on the Billing page when logged into the Service.
“Provider Materials” means the Service Software, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, templates or arrangements, that are provided or used by Provider in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include data or other content derived from Provider’s monitoring of Account Owner’s access to or use of the Services, but do not include Account Owner Data.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
“Sensitive Personal Information” means (i) an individual’s government-issued identification number, including a social security number, driver’s license number, or state-issued identification number; (ii) a financial account number, credit card number, or debit card number with any required security code, access code, personal identification number, or password, that would permit access to an individual’s financial account; (iii) biometric, medical, health, or health insurance information; (iv) religious or philosophical beliefs or political opinions; (v) trade union membership; (v) sexual orientation; (vi) criminal records, and (vii) other Personal Information that is subject to heightened protection under applicable law.
“Service Software” means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.
“Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.
“Website” means www.assignr.com.
2.1 Services. Provider will provide the online management services for sports officials described on the Website, and, if the Account Owner has elected to use it and has entered into the Payment Services Addendum with Provider, the Provider’s online payment and reporting service (the “Payment Services”) provided on the Website (collectively, the “Services”) for remote electronic access and use by the Account Owner and its Authorized Users under and subject to the terms and conditions of this Agreement during the Term. Provider will host the Services.
2.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
2.2.1 Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Service Software maintenance, upgrades, corrections and repairs; and
2.2.2 Account Owner has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Account Owner Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.
2.3 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Services, (ii) the competitive strength of or market for the Services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.
3. Authorization and Account Owner Restrictions.
3.2 Number of Authorized Users. Account Owner, by its Administrator, may add an unlimited number of Authorized Users by contacting Provider by email or phone or by utilizing applicable management features of the Service. Account Owner will be bound by the instructions and authorizations provided by its Administrator.
3.3 Reservation of Rights. Except as expressly set forth herein, nothing in this Agreement grants any right, title or interest in or to any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.
3.4 Authorization Limitations and Restrictions. Account Owner may not alter, resell or sublicense the Service or provide it as a service bureau. Account Owner agrees not to reverse engineer the Service or its software or other technology. Account Owner will not use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Service, (iii) make derivative works based upon the Service or the Provider Materials or (iv) copy any features, functions or graphics of the Service or the Provider Materials. Account Owner will not “frame” or “mirror” the Service. Use, resale, sublicense, or exploitation of the Service and/or the Provider Materials except as expressly permitted in this Agreement is prohibited. Account Owner will be responsible to ensure that its Authorized Users understand and agree to the terms of this paragraph 3.4. Account Owner shall remain liable for the actions of its Authorized Users.
4. Account Owner Obligations and Requirements
4.1 Passwords and Access. Account Owner is responsible for all activities that occur under Account Owner’s Authorized User accounts. Account Owner is responsible for maintaining the security and confidentiality of all Authorized User usernames and passwords. Account Owner agrees to notify Provider immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.
5.1 Fees Generally. Account Owner agrees to pay fees as set forth in the Pricing Schedule for the Services it has subscribed to or as Provider and Account Owner otherwise expressly and unambiguously agree in writing.
5.2 User-Based Fees; Payment
5.2.1 Account Owner will pay annually for the Service in advance. All invoices for any charges under this Agreement are due and payable on the invoice date. Account Owner’s credit card shall be charged simultaneously with the creation of the customer’s invoice. Account Owner’s account will be considered delinquent (in arrears) if payment in full is not received by the due date specified on the invoice. Amounts due are exclusive of all applicable taxes, levies, or duties, and Account Owner will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars. If Account Owner believes that any specific charge under this Agreement is incorrect, in order to obtain a credit, Account Owner must contact Provider in writing within 30 days of invoice date setting forth the nature and amount of the requested correction; otherwise invoices are final.
5.4.1 In addition to other applicable remedies, Provider reserves the right to suspend and/or terminate Account Owner’s access to the Service and/or terminate this Agreement, upon five business days’ email notice, if Account Owner’s account becomes delinquent (falls into arrears).
5.4.2 Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys’ fees and court costs. Account Owner will be charged all applicable fees, including fees for all Authorized Users then authorized, during any period of suspension.
6. Account Owner Data
6.2 Security. Provider will use commercially reasonable measures to protect Account Owner Data against unauthorized disclosure or use.
8. Intellectual Property Rights.
8.1 Services and Provider Materials. All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Account Owner has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3. All other rights in and to the Services and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third-party licensors.
8.2 Account Owner Data. As between Account Owner and Provider, Account Owner is and will remain the sole and exclusive owner of all right, title and interest in and to all Account Owner Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3.
8.3 Consent to Use Account Owner Data. Account Owner hereby irrevocably grants all such rights and permissions in or relating to Account Owner Data: (a) to Provider, its Subcontractors and the Provider personnel as are necessary or useful in connection with the Services; and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.
9. Warranty Regarding the Service.
Provider warrants that the Service will perform in all material respects to the functionality as described on the Website.
9.1 Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Account Owner represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Account Owner’s billing information is correct.
Provider will defend, indemnify, and hold Account Owner (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the Service or Provider Content (other than that due to Account Owner Data). In case of such a claim, Provider may, in its discretion, procure a license that will protect Account Owner against such claim without cost to Account Owner, replace the Service with a non-infringing Service, or if it deems such remedies not practicable, Provider may terminate the Service and this Agreement without fault, provided that in case of such a termination, Account Owner will receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may not be settled without the consent of the Indemnitee, which consent shall not be unreasonably withheld.
11. Disclaimers and Limitations.
11.1 DISCLAIMER. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY PROVIDER. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 9 ABOVE, THE SERVICE AND PROVIDER CONTENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. PROVIDER DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. PROVIDER IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER OR AUTHORIZED USERS, FOR ANY UNAUTHORIZED MODIFICATION TO THE SERVICES, OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.
11.2 Limitation of Liability. In no event will Provider’s aggregate liability exceed the fees due for the 12 month period immediately prior to the circumstance giving rise to the claim measured by the annual payment obligation at the time of the event or circumstance giving rise to such claim. In no event will Provider be liable to Account Owner or any third party for any indirect, special, incidental, or consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
12.1.1 “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
12.1.2 Exclusions. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
12.2 Protection of Confidential Information. Provider will use the Account Owner’s party’s Confidential Information only as reasonably required for the performance of this Agreement.
13. Term and Termination.
13.1 Term. The initial term of this Agreement (“Term”) will begin on the Effective Date and will end one year from the Effective Date.
13.2 Termination. Account Owner may terminate the Agreement for convenience at any time; provided, however, that Account Owner acknowledges and agrees that no refund will be due (except in the event of termination for “Cause” as defined below). Except as expressly stated herein, all fees are non-refundable. Either party may terminate this Agreement for “Cause” if the other party materially breaches this Agreement and such breach, if curable, is not cured within 10 days after the terminating party gives notice of the breach to the breaching party.
13.3 Effect of Termination
13.3.1 Upon any termination by Account Owner prior to the end of the Term (other than for “Cause”), or in the event of termination by the Provider for “Cause” or at the end of a Term upon notice as set for the above, any unpaid amounts due under this Agreement shall become immediately due and payable on the termination date. Provider shall provide one electronic copy of such information in portable format to the Account Owner within 21 days after receipt of a written request; provided that such request is made within six months after the expiration of the Term. Account Owner Data (other than 1099-MISC reporting under the Payment Service) will be held for six months after the end of the Term and then will be deleted. Provider will delete all Account Owner Data for any expired or terminated account at the end of the calendar year after the last services have been provided, including any reporting data generated pursuant to the Payment Services.
13.3.2 The following provisions will survive termination: all definitions, Account Owner’s accrued financial obligations, and the following Sections 3.3, 3.4, 8, 10 11, 12, 13.3 and 14.
14.1 Notice. Provider may give notice by means of electronic mail to Account Owner’s email address on record in Account Owner’s account or by written communication sent by first class mail or by courier service to Account Owner’s address on record in Account Owner’s account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. Account Owner may give notice to Provider by email or written communication as directed on the Website. A party may, by giving notice, change its applicable address, email, or other contact information.
14.2 Assignment; Subcontracting. This Agreement may not be assigned by Account Owner without the prior written approval of Provider but may be assigned by Provider to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Provider’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”); provided that such Subcontractor has agreed to confidentiality provisions no less stringent than those provided by Provider herein.
14.3 Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of New York and applicable US federal law. The state and federal courts located in the city of Rochester, New York will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.
14.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
14.5 No Agency. No joint venture, partnership, employment, or agency relationship exists between Account Owner and Provider as a result of this Agreement or use of the Service.
14.6 No Waiver. The failure of Provider to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Provider in writing.
14.7 Force Majeure. Except for the payment by Account Owner, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, pandemic, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
14.9 Electronic Signature. Each party agrees that the electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or email electronic signatures or through DocuSign.
Last modified: June 17, 2020