This Agreement sets forth the terms and conditions under which TruMedia agrees to provide Customer (each a “Party”, and collectively the “Parties”) with access and use of certain Software (as defined below) and Services (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows:
1 Definitions
1.1 Customer Data: Data, including Raw Game Footage, entered into the Software by or on behalf of the Customer for analysis.
1.2 Customer Computer: An Internet-connected device that allows the Customer to capture and transmit data to the Software on the Host Computer System.
1.3 Fees: The agreed-upon fees to be charged by TruMedia to Customer as set forth in an Order Form for the Tarantula System and/or performing the Services.
1.4 Host Computer System: Computer system containing and running the Software that is accessible via the internet, maintained by or on behalf of TruMedia.
1.5 Order Form: One or more order forms between TruMedia and Customer that describe a specific set of Services, Fees, and each Party's roles and responsibilities under such order form. In the event of a conflict between any specific term in an applicable order form and this Agreement, the terms of this Agreement shall prevail.
1.6 Raw Game Footage: The raw footage of games recorded during the Term using the Camera System.
1.7 Services: Data analytics generated by the Software based on Customer Data and/or Tarantula Data.
1.8 Software: One or more of TruMedia’s proprietary software applications/platform, Tarantula System, as identified in the applicable Order Form, but excluding Raw Game Footage.
1.9 Software Generated Content: The results of the Services generated by the Software, including recorded video, derivative data, screen displays, and reports.
1.10 Camera System: A remote-operated camera system capable of recording video from multiple cameras installed throughout the Customer’s stadium, supplied by a camera provider approved in writing by TruMedia in advance.
1.11 Tarantula Data: Any video and/or data analyzed, totally or partially, by the Tarantula System.
1.12 Tarantula System: proprietary technology services for recording and/or analyzing games; conducting player analytics; video exchange with a network of Tarantula customers; instant replay, including any and all functionalities; application programming interface and tools offered as part of the services; offered online and via a mobile application and including updates and upgrades.
1.13 Term: The term of this Agreement is set forth in Section 9 and the applicable Order Form.
1.14 Territory: The United States of America.
1.15 TruMedia Collegiate Network Access: A collegiate sharing network powered by Tarantula Data.
2 Grant of License
Subject to the terms and conditions of this Agreement and the Parties’ performance of its obligations under this Agreement:
2.1 TruMedia grants Customer a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to access and use the Software, Software Generated Content, Services, and TruMedia Collegiate Network Access in the Territory for the Term set forth in this Agreement and any applicable Order Forms.
2.2 TruMedia will provide all equipment, software, and services necessary to operate and maintain its Host Computer System. TruMedia reserves the right to change the configuration of its Host Computer System and/or other systems and change or delete equipment or software at any time.
2.3 To allow TruMedia to provide the Services and create the Software Generated Content and TruMedia Collegiate Network Access, during the Term, Customer grants TruMedia a non-exclusive, sub-licensable, nonrevocable license to use, access, integrate, display, exhibit, publish, adapt, modify, sell, and create derivative works from the Raw Game Footage. The license granted herein to TruMedia shall survive the Term solely with respect to any Raw Game Footage that is incorporated into TruMedia Services, TruMedia Collegiate Network Access, and/or related content during the Term.
2.4 Customer is solely responsible for maintaining the necessary licenses for the use of the Camera System and Customer Data.
3 TruMedia Services.
3.1 TruMedia will install, operate, and maintain the host portion of the Software, together with necessary operating systems and utilities on the Host Computer System, pursuant to the terms and conditions of this Agreement.
3.2 TruMedia will provide Customer with the Services based on such Software via internet facilities and operate and maintain the TruMedia Collegiate Network Access.
3.3 The Services will be performed only by TruMedia’s employees, approved agents and contractors, and the contractor's employees (collectively, TruMedia’s Representatives).
4 Customer’s Obligations.
4.1 Customer shall provide the Customer Computer, software and internet access necessary for accessing the Software on the Host Computer System.
4.2 Customer is responsible for ensuring that the Camera System used to capture Raw Game Footage has been pre-approved in writing by TruMedia, with email confirmation deemed sufficient. Any modifications to the Camera System require TruMedia’s prior written approval.
4.3 Customer is responsible for obtaining all Customer Data (except where any data incorporated into the Software is available in the public domain) and procuring the appropriate rights to use the Customer Data. Customer will ensure third-party data is provided in a structured format, and Customer will make reasonable efforts to coordinate with the third-party data providers to facilitate data integration.
4.4 The Services, Software, Software Generated Content, and TruMedia Collegiate Network Access may only be used by Customer (including its officers or employees) solely for Customer’s internal business use. Customer shall not allow any third parties, including contractors and subcontractors of Customer, to use, view, or otherwise access the Services, Software, Software Generated Content, or TruMedia Collegiate Network Access.
4.5 In connection with Customer’s use of the Software, Customer hereby acknowledges the terms of, and agrees to comply with all terms and conditions set forth in, the Agreement and in the platform terms of use (“TOU”) that are published in the Software portal, as such TOU may be updated from time to time by TruMedia.
4.6 In order to enable TruMedia to maintain the Tarantula System and TruMedia College Network Access, the Customer shall, at its own cost and throughout the Term of the Agreement, ensure that Customer records and maintains the operation of the Camera System during the entirety of the collegiate games played at the Customer’s stadium. For the sake of clarity, Customer is responsible for recording its home games using the Camera System and providing the Raw Game Footage to TruMedia as soon as practicable; failure to meet this obligation will be deemed a material breach of this Agreement.
4.7 Except as expressly permitted above, Customer shall not give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, transfer, or distribute any portion of the Services, Software, Software Generated Content, and/or TruMedia Collegiate Network Access to any third party, including, but not limited to Customer’s subsidiaries, affiliates, contractors, subcontractors, and end users.
4.8 Customer may not share any usernames or passwords with any persons not authorized to access or use the Software or TruMedia Collegiate Network Access. Customer is liable for any unauthorized access or use that results from Customer’s acts or omissions.
4.9 Customer may not reverse engineer, disassemble, decompile, modify, or alter the Software, or any copy thereof, in whole or in part.
4.10 Customer shall not publish the results of benchmark tests run on the Services, Software, Software Generated Content, or TruMedia Collegiate Network Access. Customer shall not copy, distribute, modify, translate, patch, alter or otherwise change the Software or any part thereof, or create any derivative works of the Software or Software Generated Content. Except for the limited purpose of using the Software for analyzing Customer Data, the Customer shall not use the Software as a service bureau.
4.11 Customer may record its practices, but Customer acknowledges and agrees that such recorded practices are not guaranteed to be included on TruMedia’s platform or made available to TruMedia Collegiate Network Access.
4.12 Customer is responsible for complying with all applicable terms and conditions and end user license agreements contained in this Agreement and applicable Order Forms. If Customer violates its obligations under this Agreement and/or the applicable Order Form, TruMedia is entitled to terminate Customer’s access to the Services, Software, Software Generated Content, and/or TruMedia Collegiate Network Access or otherwise prevent, stop, or limit the Customer’s use to prevent such violations.
4.13 Customer is responsible for all its users and must ensure that these users comply with the permitted uses and restrictions contained in this Agreement, the applicable Order Form, and any exhibits hereto.
5 Ownership of Software and Software Generated Content.
5.1 Customer acknowledges that TruMedia and/or its Representatives are the exclusive owners of all right, title and interest in and to the Services, Software, Software Generated Content, and/or TruMedia Collegiate Network Access, including all related intellectual property rights related thereto. For the sake of clarity, the Parties acknowledge and agree that the aforementioned does not include Raw Game Footage or Customer Data.
5.2 Customer hereby acknowledges and agrees that all ideas, concepts, know-how, techniques, inventions and other copyrightable works of authorship related to the Services, Software, Software Generated Content, and/or TruMedia Collegiate Network Access are proprietary to and the exclusive property of TruMedia. Except for the license rights expressly granted by TruMedia to Customer pursuant to this Agreement, Customer shall acquire no right, title or interest of any kind or nature whatsoever in or to the Services, Software, Software Generated Content, and/or TruMedia Collegiate Network Access, or any patent, copyright, trade secret or trademark of TruMedia, or any derivative work thereof.
5.3 Customer acknowledges that TruMedia will integrate Customer Data, which includes third-party data sources, into the TruMedia application. TruMedia will use Customer Data to power the user experience on TruMedia’s platform while continuing to improve its products, models, and analytical capabilities. Customer further acknowledges that TruMedia will not use Customer’s proprietary and/or internal data to improve its services; only shared third-party data sources will be used.
6 Confidentiality
6.1 “Confidential Information” means any information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) during the performance of this Agreement, or otherwise, that should reasonably have been understood by the Receiving Party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to the Disclosing Party or to a third party to whom the Disclosing Party owes a duty of confidentiality. Customer acknowledges that TruMedia’s pricing, strategies related to the Software, and the third party data providers used by TruMedia are TruMedia's Confidential Information.
6.2 During the term of this Agreement and thereafter, the Receiving Party shall keep secret and treat as confidential each item of the Disclosing Party’s Confidential Information (whether such Confidential Information was disclosed to the Receiving Party before, during, or after such affiliation). The Receiving Party shall not permit the disclosure of any of the Disclosing Party’s Confidential Information to any person or entity whatsoever for a period of three (3) years from the date this Agreement terminates. The Receiving Party shall not use, or permit the use of, any of the Disclosing Party’s Confidential Information for any purpose other than in connection with the proper performance of their obligations under this Agreement. The Receiving Party shall take all reasonable, necessary and appropriate efforts to safeguard the Disclosing Party’s Confidential Information from disclosure to any person other than as permitted by this Agreement. The Receiving Party shall not reverse engineer, decompile or disassemble any of the Disclosing Party’s Confidential Information. The originals and all copies of the Disclosing Party’s Confidential Information, regardless of the medium in which they are stored, shall be promptly returned to the Disclosing Party in good order, or the Receiving Party shall make reasonable efforts to destroy such data upon completion or termination of this Agreement or at any other time upon the request of the Disclosing Party. The obligations herein shall not apply to any information that: (a) is or becomes generally known by means other than disclosure by the Receiving Party; (b) was already in the possession of, or is independently developed by, the Receiving Party without reference or use of the Disclosing Party’s Confidential Information, as evidenced by the Receiving Party’s written records; (c) is disclosed to the Receiving Party by a third party not known to the Receiving Party to have a duty of confidentiality to the Disclosing Party; or (d) is required to be disclosed by the Receiving Party by applicable law or due legal process. Notwithstanding anything to the contrary set forth in this Agreement, with respect to third-party licensed materials supplied by Customer, Customer acknowledges and agrees that TruMedia may also have independent licensed rights for its use of similar or identical third-party licensed materials, which use shall not be considered a violation of this Agreement.
6.3 This Section 6 shall survive termination or expiration of this Agreement.
7 Changes to the Software
7.1 Customer may suggest that TruMedia make changes or add features to the Software or the Software’s functionality. TruMedia has the sole discretion to make any such changes or add features to the Software or the Software’s functionality. Customer acknowledges and agrees that TruMedia shall own all rights to any changes or additional features of the Software or the Software’s functionality that it makes at the suggestion or direction of Customer. This section shall apply with respect to any changes made to the Software or the Software’s functionality by TruMedia based on Customer usage data.
8 Fees.
8.1 Customer shall pay the Fees pursuant to the payment schedule as set forth in the applicable Order Form. Unless otherwise specifically agreed to in writing, TruMedia will submit invoices for Fees as set forth in the applicable Order Form and Customer shall make payment of each invoice within 30 days from receipt thereof.
8.2 TruMedia shall be entitled to immediately suspend all access to its Services and TruMedia Collegiate Network Access at any time after delivery of written notice to the Customer of the Customer’s failure to pay any amount due under this Agreement which has not been cured within 30 days of the Customer’s receipt of such notice. The suspension may continue as long as the payment (including any late fees) has not been paid in full.
8.3 Except for TruMedia’s income taxes, any transaction taxes (e.g. sales, use, excise, property, VAT, and similar taxes) arising out of this Agreement are Customer’s responsibility. If TruMedia is required to pay any transaction tax, or related penalty or interest, Customer will promptly reimburse TruMedia for such amounts. If Customer is a tax-exempt organization, Customer agrees to provide TruMedia with all necessary documentation required to support the exemption.
9 Term.
9.1 This Agreement shall remain in effect until terminated by either Party as provided herein.
9.2 Each applicable Order Form shall remain in effect until the end of the Term, as described within the Order Form or is earlier terminated as provided herein.
10 Termination.
10.1 Either Party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days’ written notice to the other party in the event that the other party breaches a material term and fails to cure the breach during the notice period; or (ii) immediately if the other party becomes insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy law (“Termination for Cause”). A Termination for Cause will not affect either Party’s right to recover any monetary amounts or require the performance of any obligations due at the time of termination.
10.2 Should any breach of a material term reasonably require more than thirty (30) days to cure, the non-breaching party shall not be permitted to elect a Termination for Cause so long as the breaching party has taken commercially reasonable efforts to commence the cure of the material breach within the thirty (30) days and provides the non-breaching party written notice of same. Notwithstanding the foregoing, if Customer fails to record and/or deliver the Raw Game footage as specified in Section 4.5, TruMedia has the right to terminate this Agreement without penalty or having to provide an additional cure period beyond the 30-day written notice.
10.3 Upon any Termination for Cause, Customer shall immediately cease use of the Software and return to TruMedia all passwords, hardware, Software and related materials and intellectual property (if applicable).
10.4 Upon Customer’s termination of this Agreement pursuant to a Termination for Cause, Customer’s obligation to pay any future Fees is terminated. Upon TruMedia’s termination of this Agreement pursuant to a Termination for Cause, Customer will not be entitled to a refund of any Fees already paid to TruMedia, and any Fees not yet paid or invoiced under the Order Form shall immediately become due and payable.
11 TruMedia Warranty Limitations.
11.1 THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. TRUMEDIA DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, PERFORMANCE, EFFORT, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. TRUMEDIA MAKES NO WARRANTY AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SOFTWARE OR SERVICES. TRUMEDIA DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND TRUMEDIA DOES NOT WARRANT AS TO ANY RESULTS THAT MAY BE OBTAINED BY CUSTOMER’S USE OF THE SOFTWARE OR SERVICES. TRUMEDIA DISCLAIMS, AND CUSTOMER WAIVES, THE BENEFIT OF ANY REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
11.2 Customer acknowledges and agrees that the proper functioning of the Software may rely on the availability of third-party computers, websites, or information. Customer acknowledges and agrees that TruMedia is not responsible in the event any such third-party computer, website, or information is unavailable for any reason whatsoever, and that such unavailability does not constitute a breach of this Agreement by TruMedia.
11.3 Customer acknowledges and agrees that TruMedia’s ability to provide Customer with the Services relies on Customer maintaining the necessary licenses to use the Camera System and Customer Data, as well as the video and data files from the Camera System being provided to TruMedia.
12 Customer Warranties and Indemnification
12.1 Customer represents and warrants that: (a) it owns the Customer Data or has the right to upload, copy, use and distribute the Customer Data in association with the Software and Services; (b) the use of the Customer Data does not and will not infringe the intellectual property rights of any third parties; and (c) it is solely responsible for the accuracy and integrity of its own instrumentation, data (including Customer Data), reports, documentation and security.
12.2 Customer shall indemnify, defend and hold harmless TruMedia, its affiliates, and each of their respective employees, owners, officers, directors, representatives, shareholders, agents, attorneys and insurers from and against any loss, expense or liability to TruMedia, or any other third party, that is caused by or in any manner arises out of or results from (i) Customer’s breach of the foregoing warranties, (ii) Customer’s breach of this Agreement, or (iii) Customer’s gross negligence or willful misconduct. This Section 12.2 shall survive termination or expiration of the Term.
12.3 This Section 12 shall survive termination or expiration of the Term.
13 Limitation of Liability.
13.1 UNDER NO CIRCUMSTANCES WILL TRUMEDIA HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, punitive OR SPECIAL DAMAGES OR COSTS (INCLUDING ATTORNEYS’ FEES) RESULTING FROM ANY CLAIM (whether in contract, tort, negligence, strict liability or products liability) regarding this agreement or resulting from the use or inability to use, or performance or nonperformance of, the software or any other goods or services provided by TRUMEDIA, OR ANY COMPONENT THEREOF, EVEN IF AT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 IN NO EVENT SHALL TRUMEDIA’S LIABILITY UNDER ANY CLAIM MADE BY CUSTOMER EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES THERETOFORE PAID BY CUSTOMER TO TRUMEDIA RELATING TO THE SOFTWARE OR SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
13.3 NOTHING IN THIS AGREEMENT OR ANY RELATED ATTACHMENTS AND/OR ADDENDUMS TO THIS AGREEMENT SHALL ASSIGN ANY LIABILITY TO TRUMEDIA FOR THE CAMERA SYSTEMS OWNED OR UTILIZED BY CUSTOMER.
13.4 SECTION 13 IN ITS ENTIRETY SHALL SURVIVE TERMINATION OR EXPIRATION OF THE TERM.
14 Miscellaneous.
14.1 Except with respect to payment obligations, neither party shall be responsible for failures or interruptions of communications facilities or equipment of third parties, electricity shortages, blackouts, or power failures, labor strikes or slowdowns, shortages of resources or materials, natural disasters, world events, war or war-like activities, hosting interruptions, delay or disruption of shipment or delivery, trespass or interference of third parties, or similar events or circumstances outside its reasonable control. If there is a performance delay due to any such cause, the date of delivery or time for completion shall be extended by a time period reasonably necessary to overcome the delay’s effect.
14.2 This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Massachusetts, without regard to its conflicts of law principles that may cause the application of law of another jurisdiction.
14.3 This Agreement constitutes the entire agreement between the parties and may not be amended except in writing and signed by both parties hereto. This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, permitted transferees, successors, and assigns as permitted by this Agreement. This Agreement shall not be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party.
14.4 If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. No delay or failure in exercising any right hereunder, and no partial or single exercise thereof, shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute consent to any prior or subsequent breach.
14.5 Each party acknowledges that it has read this Agreement understands it and agrees to be bound by it. Each party acknowledges that it has not been induced to enter into this Agreement by any representation or statements, oral or written, not expressly contained herein or expressly incorporated by reference.
14.6 The signatories below represent and warrant that they have read this Agreement and are fully authorized to sign the same on behalf of the party with respect to which they sign. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together shall constitute one single agreement. Delivery of an executed counterpart by electronic transmission shall have the same effect as delivery of an original ink counterpart.
14.7 All notices, consents, requests and other communications hereunder shall be in writing and shall be sent via FedEx courier delivery services to the addresses set forth below. Notices shall be deemed given one (1) business day after timely delivery to FedEx courier delivery services.
If to TruMedia: TruMedia Networks, Inc.
867 Boylston St.
Suite 500
Boston, MA 02116
Attn: Mr. Rafe Anderson
legal@trumedianetworks.com