Definitions. For the purposes of this Agreement shall have the meaning as set forth herein or as stated in each applicable Subscription
(a) "Client Onboarding Form" means the new client onboarding document where Client enters its valuation property details for GumGum Sports to derive and deliver its analysis.
(b) "Confidential Information" has the meaning set forth in Section 6, below.
(c) "Deliverables" means the Services as set forth in each applicable Subscription Order Form.
(d) "Fee" has the meaning as set forth in each applicable Subscription Order Form.
(e) "GumGum Sports Materials" shall mean the proprietary works of GumGum Sports, including the Platform, Dashboard, template report materials, and all Intellectual Property rights in the foregoing and its licensors, protected by copyright and other intellectual property laws.
(f) "Intellectual Property Rights" means current and future copyrights, patent rights, trademark rights, industrial design rights (whether registered or unregistered, including any applications with respect thereto), proprietary information rights, and utility modules (including all such rights in computer software and databases) and all other similar proprietary rights now known or hereafter recognized in any medium anywhere in the world.
(g) "Marks” means the trademarks, trade names, service marks, or logos of a Party hereunder.
(h) "Media Channel" means the media channels listed in each applicable Subscription Order Form.
(i) "Media Value" means the value of a measured exposure based on detected criteria including: clarity; prominence (i.e., background vs foreground exposure); visibility (i.e., percentage of exposure in view); size (i.e., in relation to the entire frame of the content); placement (i.e., position of the Brand Asset within the content); and share of voice (i.e., how many other Brands are present).
(j) "Post" means a message uploaded to a Media Channel that includes one or more of the following types of content: graphics, images, photographs, and videos.
(k) "Services" has the meaning set forth in each applicable Subscription Order Form.
(l) "Term" this Agreement shall commence as the Effective Date as set forth in Client’s initial Subscription Order Form and shall continue for 1 year; provided, however, if this Agreement expires, but the term of a Statement of Work(s) is still active, then the term of this Agreement shall continue to apply to such Statement of Work(s) until the term of the Statement of Work(s) has ended. This Agreement may be extended by mutual written agreement of the parties (a) either Party provides written notice to the other Party no less than thirty (30) days prior to the expiration of the then current Term end date; or (b) either Party terminates the Agreement in accordance with Section 4.
Representations and Warranties.
Each Party hereby represents and warrants that (a) it has the authority to enter into this Agreement and to fully perform its obligations hereunder, and (b) this Agreement does not and will not conflict with either Party’s other obligations to any third parties.
Unless otherwise stated in the Subscription Order Form, all Fees are due and payable in U.S. dollars, and Client shall pay the Fees to GumGum Sports within thirty (30) days after the date of the applicable invoice. If payment is not received within such thirty (30) day period and Client does not have a commercially reasonable basis for disputing any portion of an invoice within this same period, late payment interest shall accrue at the rate of one and a half percent (1.5%) per month (or, if less, the maximum amount permitted by law) on the overdue amounts until paid. GumGum Sports’ fees do not include, and Client is liable for, all governmental taxes, assessments, fees or duties (collectively, the “Taxes”) that may be applicable in connection with Client’s use of the Services or any other products or services provided to Client by or on behalf of GumGum Sports. Client will be responsible for paying all applicable Taxes, except for Taxes based on GumGum Sports’ net income or on its acquisition of products or services that GumGum Sports uses to provide the Services.
The Agreement shall continue for the Term, unless otherwise terminated as set forth herein.
(a) In the event of a material breach by either Party, the non-breaching Party shall have the right to terminate the Agreement if such breach has not been cured within thirty (30) days of written notice from the non-breaching Party specifying the breach in detail. Any amounts payable to GumGum Sports, but which have not been paid as of the date of termination, shall be promptly due as of such date. In the event of termination of this Agreement by Client under this Section 4(a) for material breach, GumGum Sports will refund Client a prorated portion of the Fee covering the remainder of the Term after the effective date of such Termination.
(b) GumGum Sports shall have the right to terminate this Agreement with respect to a particular Media Channel if such Media Channel modifies its terms of access in a manner that interferes with the Platform performance, and Client shall receive a pro-rata refund to the effective date of termination based upon such Media Channels’ then current share of voice.
(c) Upon termination of the Agreement: (i) all rights granted to Client under the Agreement shall immediately terminate and one hundred twenty (120) days from the date of termination, GumGum Sports will invalidate Client’s Accounts, including Client’s access to the Dashboard and/or all other Client user identification(s) and its users and otherwise deny further access to the Services; and (ii) Client will promptly return to GumGum Sports or destroy all GumGum Sports Materials that are in Client’s possession or control, if any.
Permissible Uses of the Deliverables; Ownership & Other Use Rights.
Client understands this is a Software as a Service Agreement and not a work made for hire. As such, Client is agreeing to License GumGum Sports “syndicated” services. GumGum Sports will retain all right, title, and interest to any copyrightable analytics created by GumGum Sports for syndication to its clients, including the Platform, Dashboard, methodology, technology, software, websites, databases, publications, template report materials, business processes or other GumGum Sports Materials constitute the proprietary works of GumGum Sports and its licensors, protected by copyright and other intellectual property laws. The terms “purchase” and “sale” in reference to Services and other GumGum Sports Materials notwithstanding, it is expressly agreed by the parties that title to the Services and other GumGum Sports Materials does not pass to Client and Client’s rights with respect to the same will only be that of a licensee. Notwithstanding anything to the contrary herein, GumGum Sports does not obtain any rights in, or license to use, Client’s Intellectual Property Rights except as expressly granted herein.
The Dashboard may require username(s) and associated password(s) (“Accounts”) to enable Client’s personnel to access and use the Services. If so, GumGum Sports will provide to Client (or allow Client to create) such Accounts. Client will promptly notify GumGum Sports if any user ceases to be employed by Client or if any Account must be terminated for any other reason. Client will notify GumGum Sports promptly if Client suspects that any of its Accounts has been compromised. Client is solely responsible for all actions with respect to the Services that occur under its Account(s).
Except as expressly permitted in these Agreement Terms, Client shall not directly or indirectly (or allow third parties to) do any of the following: (i) sell, distribute, sublicense, rent, lease, publicly display, use as a service bureau or otherwise commercially exploit GumGum Sports Materials or any rights provided to Client hereunder (including for time sharing, hosting, service provider or similar purposes); (ii) reverse engineer, decompile, disassemble or attempt to derive source code from any portion of the Services or any GumGum Sports Materials; (iii) take any action that could have the effect of damaging the Services or its security, or interfering with other GumGum Sports customers’ use of GumGum Sports services; (iv) cause or allow any computerized or mechanical process to access or to collect content from or in connection with the Services; (v) remove any copyright notices or other proprietary notices or restrictions from any portion of the Services or GumGum Sports Materials; benchmark or provide other performance tests to any third party without GumGum Sports’ prior written consent and with such consent, any disclosed materials must be clearly labelled “Data provided by GumGum Sports”; or (vii) use the Services or other GumGum Sports Materials in any other manner not contemplated by these Agreement Terms and the Documentation. As applicable, Client shall access and use the Services only through interfaces provided by GumGum Sports.
Confidential and Proprietary Information.
In connection with the Agreement, each Party (a “Disclosing Party”) may disclose its confidential information to the other Party (a “Receiving Party”). Subject to the remainder of this Section 6, a Disclosing Party’s “Confidential Information” shall be defined as information disclosed or otherwise made available by the Disclosing Party to the Receiving Party under the Agreement that is either: (i) clearly marked or otherwise clearly designated or identified as confidential, commercially sensitive or proprietary; or (ii) should reasonably be understood by the Receiving Party to be confidential to the Disclosing Party.
Notwithstanding anything to the contrary, information of the Disclosing Party shall not be considered to be “Confidential Information” if it: (i) is publicly available information or is or becomes a part of the public domain, through no wrongful act of the Receiving Party; (ii) was in the Receiving Party’s possession free of any obligation of confidentiality at the time of the Disclosing Party’s communication thereof to the Receiving Party; (iii) is developed by the Receiving Party completely independent from the Confidential Information of the disclosing Party; or (iv) is required by law or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure after providing the Disclosing Party with advance written notice, if reasonably possible, such that the Disclosing Party is afforded an opportunity to contest the disclosure or seek an appropriate protective order.
A Receiving Party shall not use a Disclosing Party’s Confidential Information except for the purposes of, or as otherwise explicitly permitted by, the Agreement. A Receiving Party shall use commercially reasonable measures to protect and keep secure the Confidential Information of the Disclosing Party. Further, a Receiving Party shall not disclose to a third party the Confidential Information of a Disclosing Party, except where such disclosure is made in connection with the Agreement; and such third party is subject to confidentiality obligations similar to those set forth herein. The obligations described in this paragraph shall survive until three (3) years after the termination of the Agreement, except with respect to trade secrets, which obligations shall continue in perpetuity.
Notwithstanding anything else to the contrary, GumGum Sports may, during the Term of the Agreement and thereafter, retain and use the results of any measured exposure for any and all purposes of maintaining, analysing, providing or improving the Services or GumGum Sports’ other services and offerings, so long as GumGum Sports does not violate its non-disclosure obligations above as part of such process.
No Rights of Association.
GumGum Sports shall not avail itself of any official status, identification or designation in relation to Client or otherwise imply that any product, service or entity of GumGum Sports is endorsed by or associated with Client.
To the extent applicable, each Party shall comply with all data protection laws and regulations, including California Consumer Privacy Act of 2018 (CCPA), including Canadian Anti-Spam Legislation (CASL), and Regulations (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 (“GDPR”), which requires a freely given, specific, informed, and unambiguous indication of the data subject’s wishes. Each Party is responsible for ensuring that it has obtained all necessary end user consents from all consumers as required under applicable data protection laws.
This Agreement is between the covered business and the service provider and includes certain representations which state that the service provider will not retain, use, or disclose the personal information for any purpose other than for the specific purpose of performing the services set forth in the contract. We each agree to limit the collection, sale, or use of the personal information disclosed except as necessary to perform the “business purpose” for which the service provider was retained. In addition, each party must represent that they have read and understand the CCPA’s requirements.
THE EXPRESS WARRANTIES SET FORTH ABOVE ARE THE SOLE WARRANTIES PROVIDED BY EITHER PARTY HEREUNDER. EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, THE DATA GENERATED THROUGH THE SERVICES, OR ANY OTHER ITEMS COVERED BY OR FURNISHED UNDER THE AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. GUMGUM SPORTS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR FREE OF ERRORS, DEFECTS OR VIRUSES (except for those arising solely out of GUMGUM SPORTS MATERIALS), OR THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS. CLIENT UNDERSTANDS THAT THE ACCURACY OF THE SERVICES RELY UPON THIRD PARTY DISPLAYS WHICH ARE NOT WITHIN THE CONTROL OF GUMGUM SPORTS, AND GUMGUM SPORTS IS NOT RESPONSIBLE FOR, AND MAKES NO COMMITMENTS WITH RESPECT TO, THE OPERATIONS OR PERFORMANCE, OR ACCURACY OF MEDIA CHANNELS OR RESULTS OBTAINED THEREFROM.
Limitation of Liability.
EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT, FOR WHATEVER CAUSE, WHETHER IN AN ACTION IN CONTRACT OR IN TORT OR OTHERWISE (INCLUDING FOR BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), WILL BE LIMITED TO DIRECT DAMAGES AND SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE GREATER OF $25,000 OR THE AGGREGATE FEES, IF ANY, ACTUALLY PAID OR OWING UNDER THE AGREEMENT BY CLIENT TO GUMGUM SPORTS FOR THE SERVICES GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTH PERIOD PRECEDING THE TIME THAT THE CLAIM FIRST AROSE. THE FOREGOING LIMITATIONS IN THIS SECTION 10(A) SHALL NOT APPLY WITH RESPECT TO EACH PARTY’S OBLIGATIONS UNDER SECTION 11, THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, AND ANY FEES PAYABLE BY CLIENT TO GUMGUM SPORTS.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR LOST DATA, THE COST OF SUBSTITUTE SERVICE(S), OR LOST PROFITS, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING TORT), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS IN THIS SECTION 10(B) SHALL NOT APPLY WITH RESPSECT TO EACH PARTY’S OBLIGATIONS UNDER SECTION 11, SECTION 6, AND THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY.
Each Party (the “Indemnifying Party”) agrees to indemnify and hold harmless the other Party, its corporate affiliates, and their respective officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all claims, demands, obligations, causes of action and lawsuits and all damages, liabilities, fines, judgments, costs (including settlement costs) and expenses associated therewith (including the payment of reasonable legal fees and disbursements) (collectively, “Losses”), arising out of or in consequence of (i) the material failure of an Indemnifying Party or its employees or agents to comply with the terms and conditions of this Agreement, (ii) Indemnifying Party’s gross negligence or willful misconduct, and (iii) the services performed or actions taken by Indemnifying Party or its employees or agents in connection with this Agreement, including the operation and management of any event or activity incidental thereto.
GumGum Sports agrees to indemnify and hold harmless Client, its corporate affiliates, and their respective officers, directors, agents, and employees (each a “Client Party”) from an against any and all claims, demands, obligations, causes of action and lawsuits and all related losses alleging the Services performed by GumGum Sports or its employees or agents in connection with this Agreement infringe the Intellectual Property Rights of any third Party. For the purposes of clarity, this indemnification and harmless provision does not include any Client provided data or content or any publicly accessible data or content. In addition to the foregoing obligations of this Section 11(b), if the Services (or any portion thereof) becomes the subject of an intellectual property infringement or misappropriation claim, GumGum Sports will (a) replace or modify the infringing portion to avoid the infringement claim, while providing substantially equivalent functionality; (b) secure Client’s right to continue use of the Services; or (c) remove the infringing portion. If such removal has a material adverse impact on the use of the Services, then either GumGum Sports or Client may terminate the Agreement upon written notice without liability of any kind to either Party, except that as applicable, Client shall be entitled to a pro-rata refund of any paid Fees covering the remainder of the Term after the effective date of Termination. THIS SECTION 11(b) STATES THE EXCLUSIVE REMEDIES AND GUMGUM SPORTS’ SOLE AND EXCLUSIVE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
Relationship of Parties. GumGum Sports and Client are independent contractors, and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between GumGum Sports and Client.
Notices. All notices of a legal nature by either Party hereunder shall be given by (a) personal delivery (including reputable courier service), fees prepaid, (b) sending such notice by registered or certified mail return receipt requested, postage prepaid, or (c) sending such notice by electronic mail followed by a reasonable indication of receipt by the recipient and in each case addressed to the other Party’s address as set forth below. Such notices shall be deemed to have been given and delivered upon receipt or attempted delivery (if receipt is refused), as the case may be, and the date of receipt identified by the applicable postal service on any return receipt card shall be conclusive evidence of receipt. Either Party, by written notice to the other as above described, may alter the address for receipt by it of legal notices hereunder:
If to GumGum Sports:
1314 7th Street, 4th Floor
Santa Monica, California 90401
Attn: Legal Department
w/ cc to Email: firstname.lastname@example.org
If to Client:
To the contact listed on Page 1 of the Agreement.
Publicity & Marketing.
GumGum Sports may publicly name Client as a GumGum Sports Client (including in written documentation) and may use Client’s Marks in connection therewith. However, any press releases regarding this Agreement may only be made with the other Party’s prior written consent. Client agrees to participate in panels, case study development, and other activities from time to time as agreed to between the Parties.
The Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party, which permission shall not be unreasonably withheld. Any attempted assignment without such consent will be void. Notwithstanding the foregoing, either Party may assign its rights and obligations under the Agreement, without the other Party’s permission, in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or equity, or any other similar transaction. The Agreement is binding on the Parties and their respective successors and permitted assigns.
Waiver and Severability.
Failure to enforce any term or condition of the Agreement shall not be deemed a waiver of the right to later enforce such term or condition or any other term or condition of the Agreement. If any provision of the Agreement is found to be void or unenforceable, that provision will be enforced to the maximum extent possible, and the remaining provisions of the Agreement will remain in full force and effect.
Neither Party will be responsible for any delay, interruption or other failure to perform due to acts, events and causes beyond the control of such Party, including, but not limited to, natural disasters, failures of third Parties, governmental acts, strikes, terrorist activities or war.
Entire Agreement; Modifications.
The Agreement contains the entire agreement and understanding between GumGum Sports and Client with respect to its subject matter and supersedes all prior agreements, negotiations, representations, warranties and proposals, written and oral, relating to such subject matter, and may not be modified except by written agreement of the Parties. Client will not rely on any other statements made or documents provided by GumGum Sports outside of this Agreement. The Agreement will not be construed in favour of or against any Party by reason of the extent to which any Party participated in its preparation. A printed version of the Agreement and of any correspondence given in electronic form shall be admissible in judicial proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Any provision of the Agreement that contemplates or governs performance or observance subsequent to its termination, including Section 1, 3, 4(c), and 5-12 of these Terms and Conditions will survive perpetually.
No Third-Party Beneficiaries.
The Agreement is entered into solely between the Parties and, except for each Party’s indemnification obligations under Section 11 of these Agreement Terms, will not be deemed to create any rights in any third Parties or to create any obligations of either Party to any third parties.
Governing Law and Venue.
The Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its choice of law provisions. The Parties consent to the exclusive jurisdiction of the federal and local courts in Los Angeles, California, for all disputes and controversies that may relate to or arise from the Agreement.