Software agreement

 

This Depth Chart Database AGREEMENT (DCD) (the “Agreement”) shall set forth the terms and conditions pursuant to which Depth Chart Database, LLC shall make available to each Depth Chart Database customer (the “Customer”) the Depth Chart Database as more fully described on the Depth Chart Database online Subscription Form (the “Subscription Form”) to the entity that has completed the Depth Chart Database.

BY CLICKING ON THE “I ACCEPT” BUTTON ON THE SUBSCRIPTION FORM CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMERS SHOULD NOT USE THE DATABASE IF THEY DON’T AGREE WITH THIS AGREEMENT.

DEPTH CHART DATABASE MAY MODIFY THE TERMS OF THIS AGREEMENT AT ANY TIME. IN THE EVENT OF A MATERIAL CHANGE TO THIS AGREEMENT, WE SHALL PROVIDE YOU NOTICE BY OUR WEBSITE (WWW.DEPTHCHARTDATABASE.COM), BY EMAIL, OR WHEN YOU USE THE DATABASE. IN SUCH AN EVENT THE VERSION DATE ABOVE SHALL BE UPDATED. UNLESS SO MODIFIED BY DEPTH CHART DATABASE, THE CURRENT VERSION OF THESE TERMS SHALL APPLY TO ALL INVOICES SUBMITTED BY CUSTOMER TO DEPTH CHART DATABASE ON OR AFTER THE ABOVE VERSION DATE. TO THE EXTENT THE DATABASE LICENSE “TERM” DESCRIBED BELOW IN SECTION 2 IS EXTENDED BY THE CUSTOMER, THE CUSTOMER AGREES THAT THE TERMS OF THE THEN-CURRENT VERSION OF THIS AGREEMENT SHALL APPLY TO THE NEW DATABASE LICENSE TERM.

TO THE EXTENT THAT A CUSTOMER HAS LICENSED THE DEPTH CHART DATABASE SUBJECT TO DEPTH CHART DATABASE TERMS OTHER THAN THOSE SET FORTH IN THIS AGREEMENT, SUCH CUSTOMER AGREES THAT THE TERMS OF THIS AGREEMENT SHALL APPLY TO SUCH CUSTOMER’S USE OF THE DEPTH CHART DATABASE IN THE EVENT THAT SUCH CUSTOMER AGREES TO EXTEND THE THEN-CURRENT LICENSE TERM FOR SUCH DATABASE.

 

1. SOFTWARE

The particular software to be provided by Depth Chart Database to the Customer shall be described in the Invoice (the “Database”). The Invoice shall describe the Database to be licensed by the Customer, the term pursuant to which the Database shall be provided, the cost, charge, or fee for such Database, and all other relevant terms and conditions. To activate the use of the Database the Customer must complete and submit the Invoice and pay the fee associated with the Database.

 

While we use our best efforts to conduct a thorough search in creating the database, the Customer recognizes that it is not possible to assure the accuracy of the information we are provided or to assure that there is no material negative information on the candidates about which we may be unaware. We must rely on the information provided to us by the candidates, third parties, and public sources, which may or may not be accurate despite our best efforts. There also may be confidential or nonpublic proceedings concerning candidates which we cannot obtain. Accordingly, we are committed to carrying out the foregoing scope of work, but we make no warranties or representations, express or implied, including as to the accuracy or completeness of the information provided.

 

Furthermore, the Customer acknowledges that DCD does not provide legal advice of any sort, including but not limited to advice related to federal, state, or local employment laws and that DCD does not provide input or advice regarding how Customer uses the information contained in the database. The customer acknowledges that it has or will seek independent legal counsel as needed and that no information contained in the database or otherwise provided by DCD shall be construed to constitute legal advice.

 

2. TERM; TERMINATION; SURVIVAL OF PROVISIONS

The Software shall be provided by DCD to the Customer during the term set forth in the Invoice. The Software license term, including any renewal of the term, shall be referred to as the “Term”. After the initial Term set forth in the applicable Invoice, or any renewal thereof, the Agreement shall renew for successive one (1) year terms unless either party provides notice of termination to the other party at least ninety (90) days prior to the end of any initial or subsequent renewal Term. Any such notice of termination shall be sent pursuant to the notice requirements set forth below.

This Agreement may be terminated for cause by either party immediately and without further notice, if the other party defaults in the performance of any of its material obligations under this Agreement and does not cure the default within thirty (30) days after receipt of notice in writing from the non-defaulting party. Upon termination for cause by Customer, DCD shall promptly refund the pre-paid Software Fee (as defined below) to Customer on a pro-rata basis. The following sections of this Agreement shall continue in full force and effect upon termination of this Agreement or expiration of the Term.

3. LICENSES

Subject to the provisions of this Agreement, DCD grants to the Customer a non-exclusive, non-transferable, revocable, limited license for up to five (5) Customer employees to concurrently access and use the Software during the Term. Any such access or use of the Software shall be solely in a manner consistent with the terms of this Agreement. Except for the license granted in this Section 3, the Customer acknowledges that it acquires no other rights to the Software and that all right, title, and interest in and to the Software shall remain with DCD and its licensors. The Customer shall not decompile copy, disassemble, modify, decrypt, translate, extract or otherwise reverse engineer the Software.

Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software; (b) modify or make derivative works based upon the Software; (c) create Internet “links” to the Software or “frame” or “mirror” the Software on any other server or wireless or Internet-based device; (d) interfere with or disrupt the integrity or performance of the Software or the data contained therein; or (e) attempt to gain unauthorized access to the Software or its related systems or networks.

Except for those licenses granted in Sections 3 and above, Customer agrees it shall be a material breach of this Agreement if its users of the Software share or provide access to or use of the Software to anyone else. Notwithstanding the termination provisions of section 2 above, DCD may terminate this Agreement, without notice and without having to refund any portion of the Software Fee, if Customer’s users of the Software share or provide access to or use of the Software to anyone else.

4. USE OF SOFTWARE AND, SUPPORT

DCD shall provide the Customer with a User ID and password for each user identified in Section 3 that will permit the Customer to access and use the Software. The customer is solely responsible for the security and use of each user’s ID and password. Customer agrees that each user identified in Section 3 who obtains a User ID and password to use the Software pursuant to this Agreement shall: (a) choose a strong and secure password; (b) keep their password secure and confidential, and (c) not share or transfer User ID and password with any other person or entity. If the security of the user ID and/or password is compromised, the Customer shall promptly contact DCD at [email protected] or at (260) 206-4573.

DCD shall provide email-based support concerning the use of the Software Monday through Friday (excluding Federal holidays) from 9:00 AM to 5:00 PM (Eastern Standard Time). All inquiries concerning support and use of the Software shall be sent to [email protected] by one named representative selected by the Customer.

5. PAYMENT AND BILLING

The Software shall be provided at the fee set forth in the Invoice (the “Software Fee”). DCD shall invoice the Customer for the Software Fee on the date that Customer submits a completed Invoice to DCD. The Software Fee shall be paid by Customer to DCD by check, by use of Customer’s credit card, or through Customer authorized ACH. Customer hereby authorizes DCD to use Customer’s credit card information or Customer’s ACH authorization, as provided on the Invoice or otherwise, to accept payment for the Software Fees. The customer shall pay the Software Fee in accordance with the terms of the Invoice. DCD will not be responsible for any costs associated with the Customer paying DCD the Services Fee. In addition to any other rights granted to DCD herein, DCD reserves the right to suspend or terminate this Agreement and the Customer access to the Software if the Customer fails to pay any amount due on the payment due date or if DCD is unable to use Customer’s credit card information or ACH authorization to accept payment of the Software Fee. If collection efforts related to non-payment or late payment of DCD invoices prove necessary, the Customer agrees to pay all fees incurred by that process, including reasonable attorney fees and court costs.

In no event shall the annual Service Fee for the above Term be greater than that charged to any of DCD’s other customers who sign a contract of equal (or lesser) duration during the above Term. If DCD offers Service Fees to such customers during the above Term that are less than those annual fees set forth in this Amendment, then DCD shall amend the Service Fee in this Amendment to reflect the lower price for the remainder of the above Term.

If DCD offers a new database module during the above Term, then Customer may license such modules (“Additional Services”) from DCD under the terms of the Agreement, either at no charge, at DCD’s sole option; or, at DCD’s then-current list price, if DCD does not offer such modules at no charge. In cases where DCD does charge separately for such Additional Services, the Service Fee attributable to Additional Services obtained by Customer during the above Term shall not be greater than the Service Fee for Additional Services charged to any of DCD’s other customers who sign a contract of equal (or lesser) duration during the above Term. If DCD offers a Service Fee to any of such customers for Additional Services during the above Term that is less than the Service Fee attributable to Additional Services charged to Customer, then DCD shall amend the Agreement and offer the same pricing attributable to Additional Services to Customer for the remainder of the above Term.

6. LIMITATION OF LIABILITY.

EXCEPT FOR BREACH OF THOSE RESTRICTIONS SET FORTH IN SECTION 3 ABOVE (LICENSE), IN NO EVENT SHALL (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME, GOODWILL OR DATA, OR THE INABILITY TO UTILIZE THE SOFTWARE; AND (B) ONE PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY EXCEED THE SOFTWARE FEES ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

7. REPRESENTATIONS AND WARRANTIES

DCD represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which DCD is a party or is otherwise bound; (c) its performance under this Agreement shall comply with all applicable laws, rules and regulations; (d) it is the owner or authorized licensee of the Software; (e) has undertaken commercially reasonable efforts and steps to verify the accuracy of the data contained within the Software, including keeping such data current; and (f) regarding Customer’s access to the Software during the Term, DCD shall use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week except for: (i) planned downtime (of which DCD shall give notice to the Customer name representative), or (ii) any unavailability caused by circumstances beyond DCD’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, or unpredicted functionality glitches.

DCD warrants to the Customer that the Software shall be performed in substantial accordance with the functional descriptions of the Software set forth on the Invoice. If the Software fails to so conform to that description of the Software, then DCD shall, as the Customer’s sole remedy, make a commercially reasonable effort to correct the Software; provided however Customer shall be entitled to the refund set forth in Section 2 upon termination for Cause by Customer if DCD is unable to cure such failure. All warranty claims related to the Software must be made within the then-current Term for such Software.

The Customer represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which the Customer is a party or is otherwise bound; and (c) its performance under this Agreement, and its use of the Software, shall comply with all applicable laws, rules, regulations, and policies,

OTHER THAN AS SET FORTH IN THIS SECTION 7, DCD SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DCD DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL MEET ALL OF THE CUSTOMER’S REQUIREMENTS, OR (C) ALL ERRORS OR DEFECTS WILL BE CORRECTED.

8. OTHER PROVISIONS

In the event that DCD is unable to provide the Software because of any cause reasonably beyond its control, including, without limitation, acts of God (each a “Force Majeure Event”), DCD shall promptly give notice to the Customer and shall take all measures to resume performance. If the period of non-performance exceeds thirty (30) days from the receipt of the notice, the Customer may give written notice to DCD terminating this Agreement effective upon receipt.

Neither party may assign this Agreement to any person or entity without the prior written permission of the other party, which shall not be unreasonably withheld.

This Agreement, along with each completed and submitted Invoice, and the Software description found on the Invoice, all of which are hereby incorporated by reference, constitutes the entire understanding of the parties and supersedes all prior discussions and agreements with respect to its subject matter. This Agreement may not be amended by Customer without the prior written consent of DCD.

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of DCD to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by DCD in writing.

Either party may give notice by personal service, by nationally recognized overnight courier service (e.g. FedEx or DHL), or by written communication sent by certified mail, return receipt requested, to the address noted on the Invoice. Such notice shall be deemed to have been given upon delivery in the case of personal service or overnight courier and the expiration of forty-eight (48) hours after the above mailing or posting.