iSportz Service Agreement
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION AND CLASS ACTION/JURY TRIAL WAIVER THAT REQUIRES THE SOLE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
These Terms of Service (these “Terms” or this “Agreement”) govern the access and use of the website https://staging.isportz.co/ (the “Website”), and the mobile applications, software and services hosted by, or accessible from the Website (the foregoing, collectively the “Platform”) made available by iSportz Inc, a Delaware corporation (or the reseller, affiliate or agent of iSportz Inc. listed in the Pricing Agreement (defined below)) (“iSportz”) to the individual, business, or other organization subscribing to the Platform as set forth in a Pricing Agreement (defined below) (the “Customer”).
2. Access and Use.
2.2 Use Restrictions. Customer agrees to use the Platform solely to access and use the Platform and to provide access to its Authorized Users. Customer shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. Customer will not modify, copy, publish, retransmit, participate in the transfer or sale of, create derivative works of, distribute, sublicense, make available, perform or display the Platform or any intellectual property or other material owned, licensed or developed by iSportz, including but not limited to any software, source code, object code, databases, information, communications, graphics or sounds. Customer shall not and shall not allow others under any circumstances to: copy the Platform; sublicense, distribute, modify, adapt, translate, reverse engineer, decompile, disassemble, or prepare derivative works based on the Platform; bypass or breach any security device or protection used by the Platform; input, upload, transmit, or otherwise provide to or through the Platform, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; remove, delete, alter, or obscure any trademarks, terms, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform; use or allow use of the Platform after the termination or expiration of this Agreement, except pursuant to a separate valid license; allow others to use, copy, or access the Platform in connection with a service bureau, application service provider, public computer bulletin board, shareware or timeshare process, or any similar business or service; access, use, or disclose the Platform source code; remove, obscure or alter any copyright or other proprietary rights notices included in or affixed to the Platform; sell, license, disclose, or distribute the Platform, any Service, or any product designed or intended for use with or in competition with the Platform; publish or disclose the results of any benchmark tests relating to the Platform; use the Platform in applications or systems when failure of the Platform to perform could reasonably be expected to result in serious physical injury, loss of life, or material damage to property; or use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity, or in any manner that violates any applicable law.
2.3 Pricing Agreement. iSportz and Customer will delineate the services to be provided to the Customer and its Authorized Users (the “Services”) in one or more separate pricing agreements, statements of work, or service orders (each a “Pricing Agreement”) which, among other things, shall provide that Customer will pay the fees and other charges described in such Pricing Agreement in exchange for the Services to be provide on the Platform as stated therein. Each Pricing Agreement shall be incorporated herein by reference..
2.4 Ownership and Intellectual Property. iSportz reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants to Customer or any third party, by implication, waiver, estoppel, or otherwise, any intellectual property rights or other right, title, or interest in or to the Platform or the Services, or any content accessible therefrom. All right, title and interest in and to the Platform and the Services 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, that are provided or used by iSportz or its agents in connection with the Platform or otherwise comprise or relate to the Services or the Platform are the sole property of iSportz and its successors and assigns, including any modifications thereto. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to iSportz an assignment of all right, title, and interest in and to any and all data and information related to Customer’s use of the Platform that is used by iSportz in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Platform, and including all intellectual property rights relating thereto.
2.5 Suspension. iSportz reserves the right, without notice, (i) to revoke Customer’s or any of its Authorized Users’ User Identity; (ii) to require Customer or any of its Authorized Users to change its User Identity; or (iii) to deny, limit, suspend, or terminate access to the Platform or any portion thereof, for security purposes, for violation of this Agreement, including the iSportz’ Policies, for compliance with or enforcement of any applicable law or any order or proceeding of a governmental authority, at the time of expiration or termination of this Agreement, if iSportz believes Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities, or if Customer ceases business, has made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
2.6 Organizational Decisions. If Customer is an Organization or is using the Services on behalf of an Organization, “Customer” as used herein, shall mean the Organization. As used herein “Organization” means a national, state or local sports governing body, league, club, team, company university, school, conference or other institution, organization or entity including but not limited to those who host and/or conduct tournaments or other events. iSportz is not responsible for an Organization’s administration (e.g., coaching decisions, team selections, Organization refund policies, Organization terms, etc.). An Organization’s use of the Platform does not imply iSportz’ approval or endorsement of such Organization, its rules, policies, or its actions on the Platform. All questions and disputes with Organization administration and policies should be directed to the Organization, and each Organization shall defend and hold iSportz harmless with respect to all disputes arising from or relating to the Organization’s administration.
2.7 Communications Costs of Customer. Customer is solely responsible for all of Customer’s internet, communication, device and other equipment, and any other costs associated with Customer’s use of the Platform. Use of the Platform may impact Customer’s cellular data usage or other data plan.
2.8 Third-Party Products. iSportz may from time to time make third-party products incorporated into or accessible from the Platform (“Third-Party Products”) including, without limitation, the Processing Services (defined below). For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions, and Customer agrees to abide by such terms and conditions or, if Customer does not agree to abide by the applicable terms and conditions for any such Third-Party Products, then Customer should not install or use such Third-Party Products. All right, title and interest in and to the Third-Party Products are the sole property of the applicable third-parties. All Third-Party Products are provided “as is” and iSportz makes no representation or warrant as to such Third-Party Products.
2.9 Modifications. iSportz retains the right, in its sole discretion, to update, enhance, modify amend, or supplement the Services or the Platform at any time (“iSportz’ Modifications”). It shall be in ISportz’ sole discretion to determine which iSportz’ Modifications Customer receives. If Customer wants to add additional features beyond the features included in the Platform or have iSportz provide specific design, development or implementation services, Customer agrees to pay costs and fees for such features and services when charged by iSportz. iSportz will present Customer a separate statement of work confirming the details of the work, the estimated timeline to implement and the cost associated with the project (“SOW”). iSportz will proceed once both ISportz and Customer agree to and execute the SOW. Once the SOW is acknowledged, it will be deemed to be an amendment to this Agreement.
2.10 Service Levels and Support. Subject to the terms and conditions of this Agreement, iSportz will use commercially reasonable efforts to provide the service levels and the support services set forth in the User Support Policies.
3.1 Payment Processing and Other Fees
a. In consideration for the rights granted to Customer under this Agreement, Customer agrees to pay certain fees related to Customer’s use of or access to the Platform and all applicable Services, including but not limited to registration processing fees, charge amounts, annual fees, one-time fixed fees, ongoing and credit card processing fees, and/or other applicable fees at the rates in effect when such fees are incurred (collectively, “Fees”). The rates for these Fees are outlined in the Pricing Agreement. Any Fees charged by iSportz for the Platform or any Services are non-refundable. Customer is responsible for paying all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on iSportz’ income.
b. If iSportz presents Customer an invoice for Fees incurred for use of the Platform or for any Service rendered by iSportz, such invoices shall be immediately due and payable upon receipt. On the date that is 30 days following the invoice date, such Fees shall be subject to late fees and interest at a monthly rate of one percent (1%) or such lower amount as may be required by applicable law.
c. From time to time, iSportz may offer the opportunity to access subscription-based Services. For such subscription-based services, you shall elect to pay recurring subscription Fees by means of automatic ACH deductions from your account on file or by means of recurring credit card transactions or such other means as iSportz may offer at inception of the subscription-based Services. In addition, Fees may also be charged through third party payment systems, app-stores utilized by iSportz, or otherwise through the Platform. All Fees paid for the Services are non-refundable, regardless of whether Customer actually uses the Services. If Customer registers for a recurring subscription, Customer will continue to be charged for the Services until Customer cancels the Services. Customer may cancel a recurring subscription at any time by emailing support@iSportz.co and including the name and email address associated with Customer’s account. Some cancellations may require Customer to contact the third-party app-store where Customer registered for the recurring subscription. Cancellation of Customer’s subscription will not release Customer from Customer’s responsibility to pay all Fees and other charges incurred prior to cancellation. ISportz reserves the right to issue refunds or credits in its sole discretion. If ISportz issues a refund or credit, it is under no obligation to issue the same or similar refund in the future. All questions and requests related to the Services shall be submitted to info@iSportz.co.
3.2 Payment Processing.
a. Transactions conducted through the Platform, including transactions between iSportz and the Customer, or transactions between or among Customer and Organizations, Authorized Users, or other third parties, may involve the use of credit & debit card processing services (“Processing Services”). iSportz and Customer agree that all transactions associated with Customer that are conducted on the Platform or related to the Services and other uses of the Platform, including but not limited to, all related processing from enterprise platform, membership management, events registration, learning management, websites, mobile applications, sports management related club, team, league, fans & members (even if white labelled sites or apps through the Customer) and any P2P payments, will be processed through the Platform. iSportz is not a merchant bank or payment processor, but may engage third parties to provide or facilitate the Processing Services. Transactions may incur or be subject to additional charges for use of the Processing Services for which Customer will be responsible. Such transactions may also be subject to additional terms and conditions from the third-party service providers and Customer agrees to provide all necessary account information and to and comply with such third-party terms and conditions in order to receive the relevant Processing Services facilitating such transactions.
b. All payments for transactions conducted on the Platform will be processed via the Platform and will be received and held by iSportz (unless Customer has set up Customer’s own third-party merchant). iSportz will transfer all applicable third-party fees and charges of the Organization or other intended recipient to such designated recipient’s account through Automated Clearing House (“ACH”) transfer. iSportz will automatically debit against the designated recipient’s account all applicable Fees, taxes, or other governmental charges, and/or any applicable return or chargeback fees incurred by iSportz arising from the processing and/or resolution of any return or chargeback claim relating to the transaction. All Fees debited by iSportz are non-refundable. Remittances in accordance with the foregoing process shall be made not less frequently than weekly. Customer is responsible for presenting or re-presenting to the card issuer any challenge Customer may wish to bring to any return or chargeback claim. Customer agrees at Customer’s own expense to assist iSportz when iSportz is requested to investigate any transactions processed through the Platform that are the subject of a return or chargeback claim; however, iSportz shall have no obligation to conduct any such investigation. In the event of a return or chargeback claim, Customer is responsible for collecting any unpaid fees or charges directly from the party initiating the chargeback. iSportz may charge an administrative fee with regard to any chargeback claim, regardless of the resolution outcome.
c. If Customer makes a payment to an Organization or other Customer or Authorized User via the Platform, Customer agrees that such transaction is between Customer and that Organization, Customer, or Authorized User, notwithstanding iSportz rights to impose and debit Fees on such transactions; therefore, any refund requests or other disputes arising from or related to such transactions, including without limitation unauthorized or incorrect charges, must be made directly to such Organization, Customer, or Authorized User and Customer agrees to hold iSportz harmless from such dispute. Customer agrees to contact iSportz in the event of a dispute before initiating a chargeback or return with Customer’s bank. In the event Customer makes any chargeback claim, iSportz may contact Customer and the other party with regard to the claim.
4.1 Ownership of Data. As between the parties, Customer shall own all pre-existing data, intellectual property, and other content that is contributed by Customer and Customer’s Authorized Users to the Platform (including any participant and registration information, membership information, statistics, credit card information and other commerce-related information, brands, logos, names, biographical information, names, and likenesses, and other content provided by Customer or its Authorized Users (“Customer Data”)). Customer Data collected in the Platform shall be subject to the iSportz’ Policies. Customer agrees that iSportz may, in its sole discretion, require any users of the Platform, including Customer’s Authorized Users, to expressly agree to the ISportz Policies during the member/user signup process or any time thereafter as a condition of accessing the Platform and receiving the Services. Customer hereby grants iSportz a non-exclusive, fully paid, royalty-free, perpetual, worldwide, irrevocable right and license to use, display, reproduce, modify, adapt, enhance, improve, create derivative works of, edit, translate, and distribute the Customer Data, in any manner permitted in the iSportz Policies, and otherwise as necessary to perform the obligations of this Agreement, perform the Services, operate the Platform, and to comply with applicable law.
Customer represents and warrants that all Customer Data that is provided by Customer or on Customer’s behalf, or by its Authorized Users, or uploaded, stored, processed, contained included and/or integrated into the Platform by Customer or on Customer’s behalf, or by its Authorized Users has been collected in accordance with applicable laws and with Customer’s and all required third parties’ full consent, and does not violate the intellectual property, publicity, or privacy rights of any third party. iSportz may, contact or communicate with Customer’s Authorized Users regarding their individual user accounts, their login credentials, updates to the iSportz Policies or their access to and use of the Services or other features, services and products relevant to their use of the Platform.
4.2 Use of Data in Connection with Services. iSportz may use any Customer Data, and any other data and information collected or managed by iSportz through the Platform (e.g., player registration and e-commerce data) (collectively, the “User Data”), to notify Customers and other users of information relevant to the products and services of iSportz and its vendors and business partners, for other advertising and marketing purposes and for such other purposes as may be permitted by law and the iSportz Policies. iSportz disclaims all warranties as to the availability of the Customer Data and other User Data. iSportz shall have no liability or responsibility in the event that such User Data is deleted or removed from the Platform.
4.3 Child User Data. No Customer or Authorized User may upload, store, process, or otherwise transmit or share on the Platform any data or information that relates to children under the age of 13 (“Child Users”), unless such Customer or Authorized User is the parent or legal guardian of such Child User and such Customer or Authorized User expressly consents to: (i) the publication and display of such Child User’s information on the Platform, and (ii) iSportz’ use of the Child User’s information as otherwise permitted of all Customer Data hereunder. The transmission and use of all
5. Term, Termination and Transition.
5.1 Term. The term of this Agreement commences upon your first accessing the Platform, and unless terminated earlier as set forth in Section 5.2, shall continue for so long as you are subscribed to receiving any Services as set forth in a Pricing Agreement, or for so long as you otherwise continue to access the Platform (the “Term”). Specific Services may be cancelled as set forth in the Pricing Agreement. Cancellation of Services or termination of a Pricing Agreement does not terminate any other Pricing Agreement or the Term of this Agreement.
5.2 Termination. This Agreement may be terminated as follows:
a. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach;
b. iSportz may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after iSportz’ delivery of written notice thereof; or (ii) breaches any of its obligations under Sections 2.2, 2.4, 2.6, 4, 6, or 7; or
c. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
5.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason, (a) Customer agrees to pay all Fees and other charges due and owing under this Agreement, and (b) Customer’s rights to the Platform and all Services shall terminate and Customer shall make no further use of the Platform whatsoever. Any expiration or termination of this Agreement shall not release Customer from its duty to pay any amount which may be then or with the passage of time will become owing to iSportz and immediately upon the expiration or termination of this Agreement, all such amounts will accelerate and become due and Customer shall pay to iSportz any and all amounts that are or with the passage of time will become due and payable. Customer acknowledges that upon disconnection from the Platform, Customer shall no longer be able to use the features of the Platform including Customer’s widgets, provided however that Customer Data may be accessible by Customer notwithstanding termination of this Agreement for a period of thirty (30) days following termination of this Agreement for archiving by Customer or conversion to another system by Customer.
6. Confidential Information.
Each of iSportz and Customer acknowledge that either party may disclose or make available to the other party information about its business affairs, products, l intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “Confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The receiving party shall take reasonable steps to safeguard the disclosing party’s Confidential Information, and shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Not withstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure shall first have given written notice to the other party and made a reasonable effort to obtain a protective order, to the extent permitted by applicable law; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective during the Term and will expire five years from the date this Agreement expires or is terminated; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Representations and Warranties
7.1 By Customer. Customer represents and warrants the following:
a. All Customer Data and other information or content provided by Customer or its Authorized Users to ISportz and/or displayed on the Platform (i) is true and accurate in all material respects and does not infringe upon the intellectual property, privacy, publicity, and/or proprietary rights of any third parties, (ii) is not offensive or obscene or in violation of any law, rule, statute, ordinance, or regulation, (iii) does not contain unlawful, discriminatory, libellous, harmful, obscene or otherwise objectionable material of any kind, (iv) does not encourage conduct that could constitute a criminal offense or give rise to civil liability, and (v) does not transmit or upload to the Platform any virus, worm, defect, trojan horse, software bomb or other harmful or malicious code or feature that does or could interfere with, damage or degrade in any manner the performance or security of the Platform or adversely affect another user of the Platform;
b. Customer has received all necessary consent and authority from third parties to post all Customer Data and other content provided by Customer or its Authorized Users on the Platform;
c. Customer is and shall remain in compliance in all respects with all applicable laws and regulations;
d. Customer has the authority enter into this Agreement, to grant the rights granted herein, and to perform fully all of its obligations herein; and
e. Customer is not located in a country that is subject to a U.S. Government embargo or that has been otherwise barred by the U.S. Government from conducting business with the U.S. and its citizens, nor are Customer listed on any U.S. Government list of prohibited or restricted parties.
8. Warranty Disclaimer.
The Platform is controlled and operated from facilities in the United States. iSportz makes no representations that the Platform is appropriate or available for use in other locations. Those who access or use the Platform from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. Customer may not use the Platform if Customer is a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Platform are solely directed to individuals, companies, or other entities located in the United States.
THE PLATFORM, THE SERVICES, AND ALL CONTENT MADE AVAILABLE THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND CUSTOMER USES THE PLATFORM AT ITS OWN RISK. FURTHERMORE, SHOULD THE CUSTOMER REQUEST THAT ISPORTZ IMPORT CUSTOMER DATA INTO THE PLATFORM, CUSTOMER ASSUMES ALL RESPONSIBILITY FOR PROVIDING THE DATA IN A FORMAT THAT MEETS THE IMPORT REQUIREMENTS OF THE PLATFORM AND PROVIDES THE FORMAT ACCORDING TO THE CUSTOMER NEEDS. ISPORTZ SHALL NOT BE RESPONSIBLE FOR ANY ERRORS IN DATA, THE QUALITY OF THE DATA, OR CORRECTIONS TO IMPORTED DATA IN THE SYSTEM. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE PLATFORM MAY NOT PERFORM OR MEET THE CUSTOMER’S OR AUTHORIZED USER’S REQUIREMENTS OR EXPECTATIONS. ISPORTZ DOES NOT WARRANT THAT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. ISPORTZ EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Customer agrees to indemnify and hold harmless iSportz, its affiliates, and its and their employees, officers, directors, members, managers, and agents from any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) resulting from any claim, suit, action, or proceeding arising from or relating to (a) any claim that the Customer Data, or any use of any content or information provided by Customer or its Authorized Users infringes or misappropriates any third party’s intellectual property rights, publicity rights, privacy rights, or other proprietary rights (b) negligence or willful misconduct by Customer or its Authorized Users; (c) use of the Platform or any Services by the Customer or its Authorized Users in a manner not authorized by this Agreement, (d) use of the Platform or any Services by Customer or its Authorized Users in combination with data, software, hardware, equipment, or technology not provided by iSportz or authorized by iSportz in writing; or (e) modifications to the Platform or any Services by Customer or its Authorized Users, provided that Customer may not settle any claim unless iSportz consents to such settlement, and further provided that iSportz will have the right, at its option, to defend itself against any such claims or to participate in the defence thereof by counsel of its own choice.
10. Limitation of Liability.
IN NO EVENT SHALL ISPORTZ, ITS AFFILIATES, OR ITS OR THEIR EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, OR AGENTS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM OR THE SERVICES, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCREASED COSTS, DIMUNITION OF VALUE, LOST PROFITS AND/OR LOSS OF BUSINESS, USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ISPORTZ KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ISPORTZ, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT DIRECTLY PAID BY CUSTOMER TO ISPORTZ HEREUNDER WITHIN THE PREVIOUS SIX MONTHS. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CERTAIN INDIVIDUALS. THIS AGREEMENT GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The following provisions shall survive termination of this Agreement for any reason: Section 2.2 (“Use Restrictions”); Section 2.4 (“Ownership of System and Intellectual Property”); Section 2.6 (“Organizational Decisions”); Section 4.1 (“Ownership of Data”); 4.2 (“Use of Data in Connection with Services”), Section 5.3 (“Effect of Termination”); Section 6(“Confidentiality”); Section 7 (“Representations and Warranties”); Section 8 (“Warranty Disclaimer”); Section 9 (“Indemnification”); Section 10 (“Limitation of Liability”) Section 11 (“Survival”); and Section 12 (“General”).
12.1 Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
12.2 Severability. In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.
12.3 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
12.4 Assignment. This Agreement and any rights and responsibilities hereunder may not be assigned or delegated by Customer, including in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the express written consent of iSportz. This Agreement may be assigned by iSportz without restriction. Any assignment or delegation in violation of this Section will be void and of no effect.
12.5 Injunctive and Other Equitable Relief. The Customer agrees that the remedy at law for any breach or threatened breach of Sections 2.2, 2.4, 4, or 6 of this Agreement by the Customer would cause iSportz irreparable harm for which monetary damages would not be an adequate remedy and that in that event iSportz shall be entitled, in addition to monetary damages, to a restraining order, temporary or permanent injunctive relief, specific performance, and other appropriate equitable relief from any court of competent jurisdiction, without showing or providing that any monetary damage has been sustained, and without the requirement of posting any bond or other security.
12.6 Notification Procedures and Changes to the Agreement. iSportz may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to Customer via email notice, written or hard copy notice, or through posting of such notice on the Website, as determined by iSportz in its sole discretion. iSportz reserves the right to determine the form and means of providing notifications to Customers and other users, provided that Customer may opt out of certain means of notification as described in the iSportz Policies. iSportz is not responsible for any automatic filtering Customer or Customer’s network provider may apply to email notifications ISportz sends to the email address Customer provides to iSportz. iSportz may, in its sole discretion, modify or update this Agreement from time to time, and so Customer should review this page periodically. When iSportz changes the Agreement in a material manner, iSportz will update the ‘last modified’ date at the bottom of this page. Customer’s continued use of the Platform after any such change constitutes Customer’s acceptance of the new terms. If Customer does not agree to any of these Terms or any future modifications thereto, do not use or access (or continue to access) the Platform.
12.7 Disputes. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
a. iSportz and Customer agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
b. In the event of a dispute, claim, or controversy arising out of or in connection with these Terms or otherwise with respect to Customer’s access to, and/or use of the Platform, and/or the provision of content, services, and/or technology on or through the Platform, iSportz or Customer must give the other notice of the dispute, claim, or controversy which notice will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy, and the relief requested. Customer must send any such notice to us by email to disputes@iSportz.co AND by U.S. Mail to, iSportz Inc, 956, International Parkway, Ste. 1590, Lake Mary, FL 32746 Attn: Legal Department. To the extent that iSportz has Customer’s contact information, iSportz will send any such notice to Customer by U.S. Mail or to Customer’s email address. Customer and iSportz will attempt to resolve any dispute, claim, or controversy through informal negotiation within sixty (60) days from the date that any notice of dispute, claim, or controversy is sent. Customer and ISportz shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After thirty (30) days, Customer or ISportz may resort to the other alternatives
described in this Section 12.7. Notwithstanding the foregoing, nothing in this Section 12.7 shall be deemed as preventing iSportz from seeking injunctive or other equitable relief as permitted by Section 12.5 in any court of competent jurisdiction without prior notice or negotiation.
c. Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between iSportz and Customer arising under these Terms or in connection with Customer’s access to, and/or use of the Platform, and/or the provision of content, services, and/or technology on or through the Platform, if unresolved through informal discussions within sixty (60) days of receipt of notice, shall be resolved by binding arbitration to be held in Lake Mary, Florida by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein.
d. The decision of the arbitrator will be in writing and binding and conclusive on iSportz and Customer, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Customer and iSportz agree that dispositive motions, including without limitation, motions to dismiss and motions for summary judgment will be allowed in the arbitration. The arbitrator must follow the terms of this Agreement and can award the same damages and relief as a court, including injunctive or other equitable relief and attorneys’ fees to the prevailing party. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses for the prevailing party. Customer and iSportz understand that, absent this mandatory arbitration provision, Customer and iSportz would have the right to file an action in court. Customer and ISportz further
understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
e. If Customer’s claim is solely for monetary relief of Ten Thousand Dollars ($10,000) or less and does not include a request for any type of equitable remedy, Customer may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the JAMS Rules.
f. Customer has the right to opt-out and not be bound by these arbitration provisions by sending written notice of Customer’s decision to opt-out to the following address: iSportz, Inc., 956, International Parkway, Ste. 1590, Lake Mary, FL 32746 Attn: Legal Department, AND the following Email address: email@example.com. The notice must be sent within the later of thirty (30) days of Customer’s first use of the Platform or within thirty (30) days of changes to this Section being announced on the Platform, otherwise Customer shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of this Section. If Customer opts-out of these arbitration provisions, ISportz also will not be bound by them. If Customer does not affirmatively elect to opt out as described above, Customer’s use of the Platform will be deemed to be Customer’s irrevocable acceptance of these Terms and any changes/updates to this Section or otherwise.
g. If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect.
h. The terms of these arbitration provisions will apply to any claims asserted by Customer or third parties against iSportz and its affiliates to the extent that any such claims arise out of Customer’s or such third party’s access to, and/or use of the Platform, and/or the provision of content, services, and/or technology on or through the Platform.
i. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.8 Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
a. Customer and iSportz agree that Customer and iSportz will resolve any disputes, claims, or controversies on an individual basis, and that any claims brought under this Agreement or otherwise in connection with the Platform will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Customer and iSportz further agree that Customer and iSportz shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising under this Agreement or otherwise in connection with the Platform.
b. If any court or arbitrator determines that the class action waiver set forth in this Section is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in Orange County, Florida.
c. The terms of this Section will apply to any claims asserted by Customer against iSportz to the extent that any such claims arise out of Customer’s or its Authorized Users’ access to and/or use of the Platform, and/or the provision of content, services, and/or technology on or through the Platform.
12.9 Entire Agreement. This Agreement, together with the iSportz Policies, the Pricing Agreements, and any amendments to the foregoing is the entire agreement between the parties which supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. This Agreement may only be modified by mutual agreement of the parties in writing.
12.10 Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Platform or any Services or any Customer Data or User Data outside the US.
12.11 US Government Rights. Each of the Platform and the software components that
constitute the Services is a “Commercial Product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Platform and the Services as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
12.12 Force Majeure. In no event shall iSportz be liable to Customer or any Authorized User, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond iSportz’ reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
This Agreement was last modified on December 7, 2022