ACTIVE HY-TEK SERVICES TERMS AND CONDITIONS

Last Updated May 25, 2018

Client’s use of Active’s service(s) (the “Services”) is subject to the terms set forth below (this “Agreement”) and is between Client and Active. “Active” means Active Network, LLC with a principal place of business at 717 N. Harwood Street, Suite 2500, Dallas, TX 75201. “Client” means any party other than Active entering into this Agreement. Each of Client and Active shall hereinafter be a “Party” and collectively “Parties.” In order to use the Services, Client must first agree to this Agreement. Client represents and warrants that Client has the necessary and full right, power, authority, and capability to accept this Agreement, to bind Client’s organization, and to perform Client’s obligations hereunder. Client can accept this Agreement by: (a) clicking to accept or agree to this Agreement, where this option is made available to Client by Active in the user interface for any Service; (b) where a link to this Agreement appears in an order form or other document provided to Client by Active; (c) by signing this Agreement if there is a designated area to sign; or (d) by actually using the Services. In the case of (d), Client understands and agrees that Active will treat Client’s use of the Services as acceptance of this Agreement from that point onwards. Client may not use the Services and may not accept this Agreement if (i) Client is not of legal age to form a binding contract with Active, or (ii) Client is barred from receiving the Services under the laws of the United States or other countries including the country in which Client resides or from which Client uses the Services. Client may not use the Services if Client does not accept this Agreement. “Effective Date” means the date that Client accepts this Agreement. By accepting this Agreement, Client agrees as follows:

1.       Services.   Active will provide to Client access to the Services which Client may use to upload content to and deliver content and data to its participants and network. The features, services, options, and fees of the Services may be described more fully in an applicable schedule, online rate card, shopping cart and/or checkout page, pricing form, order form, or similar document or web page referencing the Services (each, a “Schedule”). Each Schedule will be governed by these Terms and incorporated herein by references. Subject to the terms and conditions set forth herein and in the applicable Schedule, Active grants to you a limited, non-exclusive, non-transferable license to use the Services solely in accordance with this Agreement, the Schedule, and the related written user documentation, if any. You hereby grant to Active a limited license to use information provided by you relating to your organization and events, which may include content regarding the events, your organization’s name, trademarks, service marks, and logo. Active retains all right, title and interest in and to the Services including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, improvements, enhancements, modifications and derivative works thereof. All rights not expressly granted to you herein are reserved by Active.

2.       Compensation.  If applicable, all fees associated with the purchase of the Services are due at the time of order placement. Client is responsible for all taxes, duties, and other charges in the nature of taxes and duties (excluding taxes on the net income of Active) exigible in relation to the Services.

3.       Active Obligations.   Except as otherwise set forth herein, Active agrees to make the Services available to Client for one year from the Effective Date. Active reserves the right to remove access to the Services at any time.

4.       Client Obligations.   By submitting, delivering and/or uploading content and data through the Services, you agree you have the right to edit, copy, publish, distribute and otherwise use the content and data made available by you or provided by you in the Services. You further agree that you will have dedicated resources and capability to use the Services for its intended purposes and that you will use commercially reasonable efforts to publish applicable content and data to end users as quickly as reasonably practicable. Content and data includes but is not limited to the following: Meet Structure, Psych Sheets, Heat and Lane Assignments, event and participant results and team scoring.

5.       Client’s Representations and Warranties.   Client represents and warrants that (a) the performance of its obligations hereunder does not and will not violate any applicable laws, rules, or regulations, including Data Protection Laws as defined below; (b) it has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (c) this Agreement constitutes the valid and binding obligation of Client, enforceable in accordance with its terms; (d) none of the information provided for use with the Services will infringe upon the intellectual property rights of any third party; (e) Client has the right to edit, copy, publish, distribute and otherwise use the content and data; (f) Client will ensure that data subjects are provided with a notice giving all required particulars of the processing contemplated by this Agreement; (g) establish a lawful basis for each processing activity contemplated by this Agreement, including, where necessary, obtaining any consents from data subjects in the manner prescribed by the Data Protection Laws; (h) Client will use any personal data in compliance with all applicable law; (i) all licenses, agreements, permits, waivers, releases, registrations, consents, approvals, and/or authorizations required in connection with its performance under this Agreement have been or shall be timely obtained and will be valid and sufficient for its performance; (j) Client will have all required security controls in place as is commercially reasonable to adequately safe guard the personal data it inputs into the Services, and (k) it will use no more information than is necessary than to provide the Services. "Data Protection Laws" means any applicable data protection laws relating to the protection of individuals with regards to the processing of personal data including (i) EU Data Protection Directive 95/46/EC as implemented by EU member states, (ii) the General Data Protection Regulation (EU) 2016/679 ("GDPR"), from 25 May 2018, (iii) laws implemented by EU member states or the UK (as may be applicable) which contain derogations from, or exemptions or authorisations for the purposes of, the GDPR, or which are otherwise intended to supplement the GDPR, (iv) Directive 2002/58/EC as implemented by EU member states or in the UK (as may be applicable), (v) any legislation that, replaces or converts into domestic law the GDPR and/or the ePrivacy Directive (as may be updated or replaced) or any other law relating to data protection, the processing of personal data and privacy as a consequence of the United Kingdom leaving the European Union; and/or (vi) any corresponding or equivalent national laws or regulations including any amendment, update, modification to or re-enactment of such laws, and the terms "controller", "processor", "personal data", "process", "data subject" and "personal data breach" shall have the meaning given to those terms in the Data Protection Laws.

6.       Indemnification.

  1. Each Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party and its directors, officers, employees, agents, subcontractors, representatives, affiliates, successors, and assigns (the “Indemnified Party”) from and against any and all third party claims, losses, liability, costs and expenses (including reasonable attorneys' fees) (each, a “Claim”) against the Indemnified Party to the extent based upon provision by the Indemnifying Party of materials, products, or services that infringe the intellectual property rights of any third party provided that such materials, products, or services are used in accordance with this Agreement.
  2. In addition, Client hereby agrees to indemnify and hold harmless Active and its directors, officers, employees, agents, subcontractors, representatives, affiliates, successors, and assigns from and against any and all Claims based upon (i) any actual, alleged or anticipated breach by Client of this Agreement, (ii) any actual, alleged or anticipated breach by Client of any applicable law; or (iii) injury or death to a person or damage to property resulting from the participation in an Event operated by Client in connection with the services.

7.       Indemnification Claims Procedure.   Each Party’s obligations under Section 6 are conditioned upon (a) prompt written notice of the existence of a Claim, provided that a failure of prompt notification shall not relieve the Indemnifying Party of liability hereunder except to the extent that defenses to such Claim are materially impaired by such failure of prompt notification; (b) sole control over the defense or settlement of such Claim by the Indemnifying Party , provided, however, that the Indemnifying Party shall not, in the defense of any such action, consent to the entry of any judgment or enter into any settlement where such entry of judgment or settlement does not include a provision releasing the Indemnified Party from all liability with respect to such Claim, except with the written consent of the Indemnified Party, (which consent shall not be unreasonably withheld, conditioned or delayed); and (c) the provision of assistance by the Indemnified Party at the Indemnifying Party’s request to the extent reasonably necessary for the defense of such Claim.

8.       Disclaimer of Warranties and Limitations of Liability.   TO THE EXTENT PERMITTED BY LAW, ACTIVE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS THAT ITS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. ACTIVE’S SERVICES ARE PROVIDED TO CLIENT ON AN “AS-IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ACTIVE SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA, OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. ACTIVE’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT IN ANY CASE WHATSOEVER SHALL NOT EXCEED AN AMOUNT GREATER THAN THE AMOUNT ACTUALLY RECEIVED BY ACTIVE FROM CLIENT AS CONSIDERATION FOR THE SERVICES GIVING RISE TO SUCH CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.

9.       Confidentiality.  The Parties recognize that confidentiality is of the essence of this Agreement. Except as otherwise expressly permitted in this Agreement, neither Party shall disclose to any person or entity (except such recipient Party’s own employees and agents with a need to know such information in order to permit execution and completion of this Agreement who are aware of and have agreed to maintain the confidentiality of the information, and such recipient Party’s legal counsel and/or accountants/auditors) any non-public information of the other Party obtained in connection herewith (the “Confidential Information”). The Confidential Information does not include information which:

  1. is at the time of disclosure or subsequently becomes generally available in the industry and/or to the public through no breach of this Agreement by the receiving Party,
  2. was rightfully in the receiving Party's possession prior to the date of the disclosure of such information to such Party,
  3. is supplied to the Party without restriction by a third party who was under no obligation to the disclosing Party or any other person or party to maintain such information in confidence,
  4. is independently developed by the receiving Party, or
  5. the receiving Party shall become required by law or court order to disclose; provided that immediately upon receiving any such request, and to the extent that it may legally do so, the receiving Party promptly notifies the disclosing Party in writing of such requirement to enable the disclosing Party to seek a protective order to protect the confidentiality of such information, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. To the extent that the receiving Party must disclose the Confidential Information pursuant to this Section, any such disclosure shall be limited to only that Confidential Information required to be disclosed to comply with the order of the relevant court or regulatory body.

Further, the Parties shall treat the terms (but not the existence) of this Agreement as Confidential information, provided that subsections b) and d) shall not apply to render such terms non-confidential.

10.       Term and Termination.   The term of this Agreement (the “Term”) shall commence upon the Effective Date and continue until terminated as follows:

  1. one year after the Effective Date;
  2. by either Party upon the bankruptcy, insolvency, or appointment of a receiver or receiver-manager in relation to the business and/or assets of, the other Party;
  3. by Client with five (5) days prior written notice; or
  4. by Active immediately at its discretion.

Except as otherwise expressly set forth herein, if this Agreement is terminated for any reason, Client shall be entitled to no refunds.

11.       Miscellaneous.

  1. Entire Agreement.   This Agreement, any exhibits attached hereto, and the order from set forth the entire understanding and agreement of the Parties as to the subject matter hereof, and supersede any and all prior and contemporaneous representations, warranties, negotiations, agreements, and arrangements, and may be changed only by a written agreement signed by both Parties. Headings are inserted for the convenience of the Parties only and shall not be interpreted to modify the contractual language within each section.
  2. Notice.   All notices or other written communication required under this Agreement shall be in writing sent to the addresses provided in this provision (as changed from time to time upon noticed as provided in this provision) and shall be deemed properly given by sender and received by the addressee if on (i) the date of personal service or courier delivery, or (ii) the fifth (5th) business day following first class, registered or certified, postage prepaid mailing.

    3. If to Active: Active Network, LLC
    717 N. Harwood Street, Suite 2500
    Dallas, TX 75201
    Attn: Chief Legal Officer

    If to Client, to the address provided by Client at the time of order placement.

  3. No Joint Venture.   Nothing contained in this Agreement or performed pursuant to this Agreement shall be construed as creating a partnership, agency or joint venture between Client and Active. The employees of one Party hereto shall not be deemed to be employees or agents of the other Party for any purpose whatsoever. Accordingly, each Party is responsible for payment of all employment taxes, benefits, insurance and the like for all work performed by its employees in connection with the performance of this Agreement.
  4. Damages.   In addition to any other damages that either Party may be entitled to at law or in equity, should either Party breach this Agreement, the non-breaching Party shall be entitled to recover reasonable attorney's fees, costs, and expenses incurred in successfully enforcing the terms of this Agreement.
  5. Governing Law; Submission to Jurisdiction.   This Agreement and any disputes arising under or related thereto (whether for breach of contract, tortious conduct or otherwise) shall be governed by the laws of the State of Texas and the federal laws applicable therein, without reference to principles of conflicts of law.
  6. No Assignment.  This Agreement is non-assignable without the written consent of the other Party, except that Active may assign without consent: (i) its rights to receive payments; or (ii) this Agreement to an affiliate or in connection with any sale of or any other transaction involving the transfer of more than fifty percent of its voting securities or assets. Any assignment in violation of this Agreement will be void.
  7. Further Assurances.  Each of the Parties agrees to take such further action to execute and deliver such additional documents as may be reasonably required to them to effectuate the purpose and intent of this Agreement.
  8. Survival.   Sections 3, 5, 7 through 13 of this Agreement (expressly excluding any license granted by Client in), and any provision which by its nature survives, shall survive the expiration or termination of this Agreement for any reason.
  9. Counterparts; Delivery.  This Agreement shall be executed in separate counterparts which may be delivered by such electronic means as are available to the Parties, and such counterparts taken together, shall constitute one and the same original document.
  10. Severability.   If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction for any reason whatsoever, (i) the validity, legality, and enforceability of the remaining provisions of this Agreement (including without limitation, all portions of any provisions containing any such unenforceable provision that are not themselves unenforceable) shall not in any way be affected or impaired thereby, and (ii) to the fullest extent possible, the unenforceable provision shall be deemed modified and replaced by a provision that approximates the intent and economic effect of the unenforceable provision and this Agreement shall be deemed amended accordingly.
  11. Reservation of Rights.   All rights not expressly granted in this Agreement are reserved by Active. Client acknowledges that: (a) all Services are licensed and not sold; (b) Client acquires only the right to use the Services in accordance with this Agreement, and Active will retain sole and exclusive ownership of and all rights, title, and interests in the Services, including the following: (i) all Intellectual Property embodied or associated with the Services, (ii) all deliverables and work product associated with the Services, and (iii) all copies and derivative works thereof; and (c) the Services, including the source and object codes, logic, and structure, contain and constitute valuable trade secrets of Active and its licensors.