This Service Agreement (“Agreement”) has been entered into on the date services by and between you as an individual or the business entity or organization indicated in the Customer Order which you validly represent (“Customer”) and Assignr LLC, a Delaware Corporation (“Provider”).
This Agreement is effective immediately upon Customer’s completion of the Product Registration Form (“Effective Date”).
The following definitions will apply:
- “Customer Data” means data, information or material provided or submitted by Customer or any Authorized User to Provider in the course of utilizing the Service.
- “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
- “Customer Representative” means the Authorized Users designated by Customer as authorized to create Authorized User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement.
- “Documentation” means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer 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.
- “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.
- “Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer’s non-commercial use, including to track and monitor educational and training requirements of Customer’s Authorized Users.
- “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.
- “Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information or other content. “Processing” and “Processed” have correlative meanings.
- “Pricing Schedule” means the prices shown to the Customer 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 Customer’s access to or use of the Services, but do not include Customer 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.
2.1 Services. Provider will provide the online management services for sports officials described on the Provider’s website (the “Services”) for remote electronic access and use by the Customer 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 maintenance, upgrades, corrections and repairs; and
2.2.2 Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any person by or through the Customer Systems or any other means controlled by Customer or 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.
3.2 Number of Authorized Users. Customer is initially authorized to permit use by the number of Authorized Users listed in the Pricing Schedule. Customer, by its Customer Representative, may add to the number of Authorized Users by contacting Provider by email or phone or by utilizing applicable management features of the Service. Customer will be bound by the instructions and authorizations provided by its Customer Representative.
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. Customer may not alter, resell or sublicense the Service or provide it as a service bureau. Customer agrees not to reverse engineer the Service or its software or other technology. Customer 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. Customer 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.
4.1 Passwords and Access. Customer is responsible for all activities that occur under Customer’s Authorized User accounts. Customer is responsible for maintaining the security and confidentiality of all Authorized User usernames and passwords. Customer 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.
4.3 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Sensitive Personal Information of Authorized Users (for the purpose of clarity, user name and password are not considered Sensitive Personal Information and are expressly permitted); (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; © articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, or the Provider Systems. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
5.1 Fees Generally. Customer agrees to pay fees as set forth in the Pricing Schedule or as Provider and Customer otherwise expressly and unambiguously agree in writing.
5.2 User-Based Fees; Payment
5.2.1 Subject to the fee structure and calculations stated in the Pricing Schedule, license fees are due for the Service based on the number of billable Authorized Users on the Pricing Schedule. An Authorized User is considered billable if his or her account (with a username and password) is available for login and use at any time during the year. Customer agrees that charges will apply for all billable Authorized User accounts including those that have been inactive during the year. An Authorized User account may not be shared or used by more than one Authorized User. In the event that additional Authorized Users are added during the Term pursuant to Section 3.2, an additional per user charge for such Authorized Users will be incurred and Customer will pay the associated fees prior to adding the Authorized User. If at the time of addition of a new Authorized User, there has been a prior cancellation of an Authorized User for such Customer during the applicable Term, the additional new Authorized User may take the place of the cancelled Authorized User for no additional fee (but if a new Authorized User is added and a current Authorized User later is cancelled there is no credit or pro-ration for the cancelled Authorized User). The license fees are non-refundable.
5.2.2 Customer will pay annually for the Service in advance. All invoices for any charges under this Agreement are due and payable on the invoice date. Customer’s credit card shall be charged simultaneously with the creation of the customer’s invoice. Customer’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 Customer will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars. If Customer believes that any specific charge under this Agreement is incorrect, in order to obtain a credit, Customer 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 Customer’s access to the Service and/or terminate this Agreement, upon five business days’ email notice, if Customer’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. Customer will be charged all applicable fees, including fees for all Authorized Users then authorized, during any period of suspension.
6.2 Back-Up. On a daily basis during the Term, Provider will backup the then current Customer Data and Output at an off-site facility, and, upon written request of the Customer, will use commercially reasonable efforts to make one copy of the backup of the then current Customer Data and Output available to the Customer in Provider’s standard format. Notwithstanding the foregoing, these Services do not replace the need for customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA OR OUTPUT.
6.3 Security. Provider will use commercially reasonable measures to protect Customer Data and Output against unauthorized disclosure or use.
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. Customer 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 and Section 8.3. 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 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.4.
8.3 Output. Output is defined as resultant output that is derived from the Processing of Customer Data by or through the Services. Output may contain or be presented with Provider Materials. Upon full and final payment of all fees, Customer will own any Output; provided that to the extent that any Output contains Provider Materials, Provider retains all ownership interests in such Provider Materials and hereby grants Customer and each Authorized User a perpetual, non-exclusive, non-assignable, non-transferrable license to use the Provider Materials incorporated into the Output solely to the extent needed to use the Output for such Customer’s or Authorized User’s internal, non-commercial use.
8.4 Consent to Use Customer Data and Output. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data and Output: (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.
Provider warrants that the Service will perform in all material respects to the functionality as described on the Provider’s web site.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Customer’s billing information is correct.
Provider will defend, indemnify, and hold Customer (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 Customer Data). In case of such a claim, Provider may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, 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, Customer 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.
Customer will defend, indemnify, and hold Provider (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data or other data or information supplied by Customer or its Authorized Users infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) arising out of breach of Sections 3, 4 or 8.3 above.
Customer will defend, indemnify, and hold Provider (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Customer Data, Output and/or other Customer-related information or data, including, without limitation, prompt payment to Provider of all costs (including attorneys’ fees) incurred by Provider as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay Provider for its staff time in responding to such third party subpoena or compulsory legal order or process at Provider’s then applicable hourly rates.
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 be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
13.1 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 SECTIONS 9 AND 10 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.
13.2 Limitation of Liability. Except with regard to Customer’s payment obligations and with regard to either party’s indemnification obligations, in no event will either party’s aggregate liability exceed the license 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. Except in regard to Customer breach of Sections 3, 4, or 8.3 in no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
14.1.1 “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.
14.1.2 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.
14.2 Protection of Confidential Information. Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder. The confidentiality obligations set forth in this Section will survive for one (1) year after the termination or expiration of this Agreement.
14.3 Return/ Destruction of Confidential Information. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
14.4 Compelled Disclosure. In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
15.1 Term. The initial term of this Agreement (“Initial Term”) will begin on the Effective Date and will end one year from the Effective Date. This Agreement will automatically renew for successive one-year periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless Customer provides notice of termination before the end of the Initial Term or current Renewal Term, as applicable. The Initial Term and any Renewal Term will be collectively referred to as the “Term.” Applicable pricing, will continue unchanged from the previous term unless Provider notifies Customer of changes in pricing at least 30 days prior to the expiration of the Initial Term or current Renewal Term, as applicable.
15.2 Termination. Customer may terminate the Agreement for convenience at any time; provided, however, that Customer acknowledges and agrees that no refund will be due (except in the event of termination for “Cause” as defined below), and that any outstanding amounts due under the Agreement shall be accelerated in accordance with Section 15.3.2. Except as expressly stated herein, all fees are non-refundable. The Provider may terminate the Agreement for convenience by giving six months prior written notice. 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 5 days after the terminating party gives notice of the breach to the breaching party.
15.3 Effect of Termination
15.3.1 In the event that this Agreement is terminated (for any reason), Provider will, within 10 days of a Customer’s written request, make available one copy of the most recent backup of the Customer Data and Output in Provider’s standard format. Customer agrees and acknowledges that Provider has no obligation to retain and may delete Customer Data and Output that remains in Provider’s possession or control more than 30 days after termination.
15.3.2 Upon any termination by Customer prior to the end of the Term (other than for “Cause”), or in the event of termination by the Provider for “Cause”, any unpaid amounts due under this Agreement shall become immediately due and payable on the termination date. In the event of any termination by the Provider for convenience, Provider shall provide a pro-rated rebate of any prepaid amounts based on the number of days remaining in the Term.
15.3.3 The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, the license to Customer Data and Output to the extent reasonable for Provider’s discharge of its post-termination obligations, and the following Sections 8.3 (to the extent of any Output generated prior to the termination and retained by Customer or provided to Customer pursuant to Section 15.3.1), 12, 13, 14, 15.3, and 16.
16.1 Notice. Provider may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’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. Customer may give notice to Provider by email or written communication as directed on Provider’s website. A party may, by giving notice, change its applicable address, email, or other contact information.
16.2 Assignment; Subcontracting. This Agreement may not be assigned by Customer 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”).
16.3 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.
16.4 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.
16.5 No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Provider as a result of this Agreement or use of the Service.
16.6 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.
16.7 Force Majeure. Except for the payment by Customer, 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, 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.
Last modified: July 25, 2019