VolleyMetrics has developed a series of proprietary computer software programs and services that facilitate and automate the process of recording, storing and exchanging video, and aggregating, analyzing, and reporting statistical and other data gathered from live sporting events (the "Services"). Subject to the terms and conditions of this Agreement, VolleyMetrics hereby grants Subscriber a limited, non-exclusive, non-transferable, revocable license for any affiliate (including conference members), employee, or agent that (i) agrees to be bound by the terms and conditions herein and (ii) is, in the case of an affiliate or agent, specified in the Agreement ("Authorized Users") to access the Services indicated in the Agreement during the term hereof. VolleyMetrics (i) will provide Subscriber commercially reasonable web-based and telephone technical support services to assist Subscriber in utilizing the Services, (ii) will make commercially reasonable, good faith efforts to respond to technical support requests and to correct any errors in the Software within a reasonable time, and (iii) represents and warrants that it has all rights necessary to deliver the Services.
The Services, all associated intellectual property rights, and any enhancements made thereto, even if made at the request of Subscriber, are the sole property of VolleyMetrics (or its licensors and suppliers, where applicable) and no property rights therein are granted to Subscriber or any Authorized User. Excepting any video footage or images provided to VolleyMetrics by Subscriber, VolleyMetrics owns all right, title, and interest in and to any video footage, images, data, statistics, reports, and/or other information input or generated by or on behalf of Subscriber or other VolleyMetrics Subscribers in connection with the Services (the "Data"). Subscriber agrees that all Data is confidential information of VolleyMetrics and Subscriber agrees not to disclose, sell, or exchange the Data with any third party or utilize Data in any manner inconsistent with the terms of this Agreement. Authorized Users that have downloaded or purchased Data Project-compatible files produced by VolleyMetrics agree (i) to maintain a current, valid license to Data Project software (Data Volley 4 or Data Volley 2007) during the Term and (ii) not to use such files in connection with or provide such files to any third party software provider, other than Data Project. Subscriber shall be solely responsible for the manner in which it uses or displays any Data and agrees not to use any Data in a manner that infringes or violates any right of any third party, or in a manner that is offensive, harmful, inaccurate or deceptive. Subscriber or its affiliates own all right, title, and interest in and to any video footage or images which Subscriber or its affiliates provide to VolleyMetrics in connection with the Services, and such video footage and images will not be utilized by VolleyMetrics for any purpose other than performing its obligations under this Agreement or as may otherwise be agreed to in writing by the parties; provided, however, that Subscriber hereby grants to VolleyMetrics a perpetual, non-exclusive license to: (i) access and use the video footage and images for general data gathering, recruiting and analytics purposes, (ii) utilize up to two (2) minutes of video footage and/or ten (10) other visual images captured through the Services per calendar week to create and release (and archive, re-use, and re-release) a "top ten plays" video highlight reel through its own website or other public channels, (iii) at the request of Subscriber, any Authorized User or their individual team members or affiliates, to create a video highlight reel for private use and distribution, and (iv) display the name and logo of Subscriber and its Authorized Users on VolleyMetrics' website and on other materials for general marketing purposes. VolleyMetrics shall comply with all NCAA rules and bylaws related to the use of such video footage, images, names, and logos, if applicable.
Subscriber hereby represents, warrants and covenants to VolleyMetrics that neither it nor any of its employees, affiliates, agents or Authorized Users will (i) disclose, share, or make commercial use of any of VolleyMetrics's confidential information, (ii) use the Services made available hereunder for any illegal, unauthorized, or unethical purpose, (iii) reverse engineer, decompile, disassemble, create a derivative work of, or access the computer code within any of the Services made available hereunder, (iv) permit any third party to use or access the Services unless such third party (or Subscriber) has paid for such person to access the Services, (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Software, Services, or related systems or networks.
During the Term, Subscriber will pay VolleyMetrics those certain fees and charges specified in the Agreement and any addendum agreed to by Subscriber. If Subscriber fails to make any payment within thirty (30) days after the due date of any invoice, VolleyMetrics reserves the right to suspend the Services to Subscriber and terminate the Agreement.
Each Party agrees to be responsible for its own taxes applicable under any law. Subscriber will pay any sales or services taxes due hereunder.
Except for the limited warranties set forth in this Agreement, THE SERVICES ARE PROVIDED 'AS IS' WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS OF DATA TRANSMISSION, COMPATIBILITY OR ACCURACY OF DATA. VOLLEYMETRICS DOES NOT WARRANT THAT THE SERVICES WILL BE FREE FROM BUGS, ERRORS, OR OMISSIONS. FOR THE PURPOSES OF ANY MATCHES, TOURNAMENTS OR CLUB EVENTS FILMED BY VOLLEYMETRICS, VOLLEYMETRICS CANNOT GUARANTY THAT ALL MATCHES WILL BE FILMED OR THAT ALL MATCH FOOTAGE WILL BE FREE FROM LAPSES OR TECHNICAL ISSUES. VOLLEYMETRICS DOES NOT OFFER REFUNDS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL VOLLEYMETRICS BE LIABLE TO SUBSCRIBER, ANY AUTHORIZED USER, OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, EVEN IF VOLLEYMETRICS HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SUBSCRIBER'S EXCLUSIVE REMEDY FOR BREACH BY VOLLEYMETRICS OF ITS LIMITED WARRANTY SHALL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, A PARTY'S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY SUBSCRIBER TO VOLLEYMETRICS IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE (EXCEPT WITH RESPECT TO SUBSCRIBER'S OBLIGATIONS UNDER SECTIONS 3, 4 AND 8, WHICH SHALL NOT BE LIMITED BY THIS SECTION).
Each party agrees to defend, indemnify and hold harmless the other party and its affiliates from all damages and liability including, without limitation, reasonable attorneys' fees, incurred as a result of such party's violation of its obligations under this Agreement, or the grossly negligent or willful acts of such party. Each party's obligation to indemnity under this provision shall survive termination of this Agreement.
Neither Party will be liable for any delays or failures of performance hereunder, excluding the payment of money, to the extent that performance of such Party's obligations or attempts to cure any breach under this Agreement are delayed or prevented as a result of any event or circumstance beyond the reasonable control of such Party, provided that the other Party may terminate this Agreement upon thirty (30) days written notice if the circumstances causing non-performance continue for more than thirty (30) days.
The Term of this Agreement will commence on the date written on the first page of the Agreement (the "Effective Date") and, unless a different term is specified on the first page the Agreement, will continue for an initial term of one (1) year from the Effective Date. At the end of the one-year term (or any other initial term specified on the first page of the Agreement) the Agreement will auto-renew for additional one-year terms unless either Party terminates the Agreement in writing no later than thirty (30) days prior to the expiration of the initial term or any successive renewal term. Either Party may terminate this Agreement for cause if the other Party: (i) commits a material breach of this Agreement which such Party fails to cure within thirty (30) days after receipt of written notice outlining such material breach from the other Party; or (ii) becomes insolvent, acknowledges insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or files a petition in bankruptcy. Sections 2-12 shall survive any termination of this Agreement. If Subscriber has received a discount on any cameras or related hardware indicated on the first page of this Agreement, and this Agreement is not in effect for any reason for a minimum period of two years, Subscriber agrees to pay VolleyMetrics an amount equal to any such discounts within 30 days of the termination of this Agreement.
This Agreement constitutes the entire agreement between VolleyMetrics and Subscriber with respect to the subject matter hereof. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties, unless such changes are made to the online terms and conditions by VolleyMetrics with reasonable notice to Subscriber.
This Agreement will be governed and construed under the laws of the State of Utah without regard to its conflict of laws provisions, the United Nations Convention on the International Sale of Goods, or Uniform Computer Information Transaction Act. Any action or proceeding arising from or related to this Agreement will be brought in the federal and state courts located in Utah, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs and other collection expenses, in addition to any other relief it may receive.
VolleyMetrics may delegate any portion of its duties or obligations under this Agreement to any third party that it deems, in its sole discretion, qualified to perform such duties and obligations.
This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument.
LAST UPDATED: MARCH 7, 2017