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 the Products, including 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. Products provided hereunder are deemed delivered when access is made available to Client. While certain aspects or features of the Products 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 Products or any actions, inactions, or decisions made by Client through use of the Products.
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 Products solely in accordance with the Agreement and the Schedule, which for purposes hereof will include the support and maintenance handbook applicable to the Products (available for review in the Client portal), as may be updated from time to time, 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 (collectively, the “Marks”) that Active is to use in connection with the Products 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 Products 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 Products 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. Without limiting the foregoing, Client will not enter into any agreement, arrangement, or relationship with any other party that offers online registration or transaction processing services similar to the Products provided to Client hereunder
2.3. Client will: (a) 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 Products, or of any data or information obtained through the use of the Products, for any unlawful or unauthorized purpose; and (b) 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 Products in accordance herewith.
3. INFORMATION COLLECTION.
3.2 Client is exclusively responsible for: (a) creating and defining under Client’s account in the Products any logons or IDs for Client’s designated users of the Products; 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 Products and the security controls, restrictions, and limitations that apply with respect to each such user and his or her use of the Products. Client is solely and exclusively responsible for all access and use of the Products (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 Products to collect or elicit (a) any special categories of data (as defined in the General Data Protection Regulation, 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 Products that are intended for that purpose; or (b) credit card information other than in pre-defined fields within the Products 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 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 Products, 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 Products are payable in advance, prior to the start of each applicable annual anniversary of the Effective Date.
5. TERM AND TERMINATION. Unless otherwise set forth in the applicable Schedule, this Product Attachment will commence on the Effective Date and will continue in effect until the earlier to occur of (i) its termination in accordance with the terms and conditions below and (ii) the third anniversary of the Effective Date (the “Initial Term”). This Product Attachment shall renew automatically following the Initial Term for subsequent renewal terms thereafter of three (3) years (the “Renewal Term(s)”, and, together with the Initial Term, the “Term”) unless either Party delivers written notice to the other Party at least 12 months prior to the expiration of the then-current Term of its intent to terminate this Product Attachment upon the completion of the Initial Term or any Renewal Term. Unless otherwise set forth in the applicable Schedule, to the extent that Client enters into a Schedule for additional Products that are related to or interoperable with the Products 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.
Client’s obligations and all amounts payable hereunder are contingent upon sufficient appropriations therefore by Client’s Governing Body. If sufficient appropriations are not made, Client will notify Active of the same, and this Agreement will terminate forthwith. Client represents that it intends to fulfill its obligations under this Agreement and reasonably believes that funds in amounts sufficient to fulfill these obligations lawfully can and will be appropriated and made available for this purpose. In the event funds are not appropriated in amounts sufficient to fulfill these obligations, Client shall use its best efforts to satisfy any requirement for payment from any other source of funds legally available for this purpose. Notwithstanding the foregoing, Client shall notify Active within ten (10) days of any action by Client's governing body not to appropriate funds for payment of Client's obligations hereunder, and will provide with such notice a copy of the resolution, minutes or recording of such action.
MISCELLANEOUS. Section 5 of this Product Attachment and any fees owed by Client will survive any termination or expiration of the Agreement.