JumpForward Product Attachment
Last updated April 28, 2017
This document is a “Product Attachment” as defined in the General Terms entered into by Client and Active and is subject to and incorporates by reference the provisions of the General Terms. This Product Attachment is effective as of the date it is “accepted” (in accordance with the Preamble to the General Terms). Any capitalized terms not defined herein have the meaning ascribed to them in the General Terms.
1. SERVICES. Active will provide Services and access to its SaaS, a sports relationship management service which allows Client to manage contacts, track telephone, text, social media, and email communications, and generate branded communications and customized reports. SaaS provided hereunder are deemed delivered when access is made available to Client. While certain aspects or features of the SaaS and Services are intended to aid or assist Client in complying with the rules and bylaws of the National Collegiate Athletic Association (“NCAA”) and other applicable athletic governing bodies, Client expressly acknowledges and agrees that it is solely and exclusively responsible for such compliance and that Active shall have no responsibility or liability with respect to such compliance. Client further acknowledges and agrees that Active is only providing a means and medium by which Client may manage its network of contacts and prospective recruits and that Active shall not be liable or responsible in any way for the accuracy, timeliness, completeness, or reliability of any data provided or stored by Client in the Services or any actions, inactions, or decisions made by Client through use of the Services.
2. LICENSE TO INTELLECTUAL PROPERTY/PROMOTION.
2.1. Active hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license during the term of this Product Attachment (a) to use the SaaS solely in accordance with the Agreement and the Schedule, and (b) to display, reproduce, distribute, and transmit in digital form Active’s name and logo solely for the purposes set forth in this Section 2. Client shall, in a timely manner, provide Active with copies, in industry-standard electronic form, of any of Client’s marks, logos, and related materials (“Marks”) that Active is to use in connection with the SaaS and Services provided to Client hereunder. Client hereby grants to Active a limited, non-exclusive, non-transferable, non-sublicensable license during the term of this Product Attachment to use and display the Marks solely as necessary and appropriate for Active to provide the SaaS and Services in accordance with this Agreement.
2.2. During the term of this Product Attachment, Active will be the sole and exclusive provider of software and other services similar to the Software and Services provided to Client hereunder. Client expressly understands and agrees that the exclusivity set forth in this Section 2.2 is consideration in exchange for the pricing and other benefits being provided to Client hereunder.
2.3. Client will: (a) not use the SaaS to transmit, publish, or distribute any material or information: (i) for which Client does not have all necessary rights and licenses, including any material or information that infringes, violates, or misappropriates the intellectual property rights of any third party; (ii) that contains a computer virus or other code, files, or programs designed to disrupt or interfere with the functioning of the SaaS; (iii) that is inaccurate or misleading; (iv) that is or that may reasonably be perceived as being harmful, threatening, offensive, obscene, or otherwise objectionable; (v) that contains a virus or malicious code; or (vi) that includes the private information of another without express permission, including but not limited to contact information, social security numbers, credit card numbers or other information which a reasonable person would consider private in nature; (b) not attempt to gain access to any systems or networks that connect to the Services and SaaS except for the express purpose of using the SaaS for their intended use; (c) not engage in any activity that interferes with or disrupts the SaaS; (d) not use the SaaS in violation of the CAN-SPAM Act, Canadian Anti-Spam Legislation, the Telephone Consumer Protection Act, or any other applicable laws pertaining to unsolicited email, SMS, text messaging or other electronic communications; (e) comply with all applicable laws and regulations, and all applicable rules and bylaws of the NCAA and any other applicable athletic governing bodies, and shall not use or permit the use of the SaaS, or of any data or information obtained through the use of the SaaS, for any unlawful or unauthorized purpose; and (f) have obtained all consents, authorizations, and approvals of third parties (including, but not limited to, those of any of Client’s students, athletes, or prospective recruits) necessary or appropriate for Active to provide the SaaS and Services in accordance herewith.
3. INFORMATION COLLECTION.
3.2. Client is exclusively responsible for: (a) creating and defining under Client’s account in the SaaS any logons or IDs for Client’s designated users of the Services; and (b) defining and maintaining at all times with respect to each such logon or ID the appropriate scope of the applicable user’s authority and permission with respect to the use of the SaaS and the security controls, restrictions, and limitations that apply with respect to each such user and his or her use of the SaaS. Client is solely and exclusively responsible for all access and use of the SaaS and Services (and for any resulting activity or communications) by Client or its users or that occurs through the use of any logon or ID established by or with respect to Client or any of its users. Active shall not be liable or responsible for any activity, loss, or damage arising from any unauthorized access to or use of any such logons or IDs or resulting from any failure by Client or its system administrator to establish or assign an appropriate scope of authority or permission, or appropriate security controls, restrictions, or limitations, with respect to any given user, logon, or ID. Client shall immediately notify Active of any known or suspected unauthorized access to or use of Client’s account, or of any logons or IDs established or assigned with respect to Client or its users, of which Client becomes aware.
3.3. Client agrees not to use the Software or Services to collect or elicit (a) any special categories of data (as defined in the European Union Data Protection Directive, as may be amended from time to time), including, but not limited to, data revealing racial or ethnic origin, political opinions, religious or other beliefs, trade-union membership, as well as personal data concerning health or sexual life or criminal convictions other than as expressly directed by Active, and in such event, only in pre-defined fields within the Software that are intended for that purpose; or (b) credit card information other than in pre-defined fields within the Software that are intended for that purpose.
3.4. In the performance of or otherwise in connection with this Agreement, one party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain Confidential Information of the Disclosing Party. “Confidential Information” means any information of either party, which is not generally known to the public, whether of a technical, business or other nature (including, but not necessarily limited to: trade secrets, know how, computer program source codes, and information relating to the clients, business plans, promotional and marketing activities, finances and other business affairs of such party); provided that the same is conspicuously marked or otherwise identified as confidential or proprietary information prior to, upon or promptly after receipt by the other party; and provided further that the any software or software application server source code provided by Active or its licensors shall be deemed to constitute Confidential Information without further designation by Active. The Receiving Party will treat such Confidential Information as confidential and proprietary of the Disclosing Party and will use such Confidential Information solely for the purposes for which it is provided by the Disclosing Party and will not disclose such Confidential Information to any third party (other than a third party under contract whereby that third party has agreed in writing to keep the Confidential Information confidential). The obligations under this paragraph will not apply to any: (a) use or disclosure of any information pursuant to the exercise of the Receiving Party’s rights under this Agreement; (b) information that is now or later becomes publicly available through no fault of the Receiving Party; (c) information that is obtained by the Receiving Party from a third party authorized to make such disclosure (other than in connection with this Agreement) without any obligation of secrecy or confidentiality; (d) information that is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party; (e) any disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Receiving Party will use reasonable efforts to give advance notice to and cooperate with the Disclosing Party in connection with any such disclosure; and (f) any disclosure with the consent of the Disclosing Party.
4.1. Client shall pay Active any fees associated with Client’s use of the SaaS and Services, as such fees are determined in accordance with this Agreement and the applicable Schedule, and any other fees payable hereunder. Fees for annual subscriptions to the SaaS and Services are payable in advance, prior to the start of each applicable annual anniversary of the Effective Date. Fixed fees for additional services are payable monthly in advance, and any variable fees for the Services or SaaS are payable monthly in arrears, as incurred, all at Active’s then-current rates.
4.2. Active may suspend its performance hereunder, or terminate the Agreement or this Product Attachment in the event it reasonably believes that Client’s use of the Services or SaaS is not in compliance with applicable law or the Agreement, is fraudulent, or is otherwise suspect, or if there is a dispute as to the legal authority of a Client-associated party to perform hereunder.
5. INDEMNIFICATION. Client will defend, indemnify, and hold Active harmless from and against any third party claim, demand, cause of action or proceedings (whether threatened, asserted, or filed) (“Claims”) against Active to the extent that such Claim is based upon (a) injury or death to a person or damage to property arising in connection with the Services and/or SaaS; (b) Client’s provision to Active of materials, products, or services as part of Client’s obligations hereunder that infringe the intellectual property rights of any third party provided that such materials, products, or services are used by Active in accordance with the Agreement; (c) use or unauthorized disclosure of Participant Information by Client or other third parties to whom access is given to Participant Information as provided hereunder; or (d) Client’s use of the Services and/or SaaS in violation of Section 2.3 of this Product Attachment.
6. TERM AND TERMINATION. Unless otherwise set forth in the applicable Schedule, the initial term of this Product Attachment will be for 3 years from the Effective Date with automatic renewals for 3 year terms thereafter (each, a “Renewal Term”), unless either party gives written notice to the other party to terminate this Product Attachment no less than 12 months prior to the expiration of the then-current term. Unless otherwise set forth in the applicable Schedule, to the extent that Client enters into a Schedule for additional Services and/or SaaS that are related to or interoperable with Services or SaaS set forth in a previously entered into Schedule, the term of such subsequent Schedule will be concurrent and coterminous with the term of the previously entered into Schedule.
7. ASSIGNMENT. Client may not resell, assign, or transfer any of its rights or obligations hereunder without Active’s prior written consent.
8. MISCELLANEOUS. Section 5 of this Product Attachment and any fees owed by Client will survive any termination or expiration of the Agreement.