MASTER SUBSCRIPTION AGREEMENT

1. BACKGROUND AND OBJECTIVES

WHEREAS, Supplier represents that it has experience and is engaged in the business of providing Application Programming Interface (API) and other related service (CompughterRatings.com sports API containing proprietary prediction data and other statistics); and

WHEREAS, Supplier desires to provide such service (CompughterRatings.com API) to customer in the manner specified in mutually agreed written statements of work, order forms, or software schedules executed by the Parties; and

WHEREAS, Customer desires to obtain such service from Supplier according to the terms and conditions hereinafter stated.

NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the adequacy and receipt of which the Parties hereby acknowledge, the Parties agree as follows:

2. DEFINITIONS

As used in the Agreement with initial capitalization:

2.1 “Activation Date” means the date set forth on the Order Form or Software Schedule as the “Activation Date.”

2.2 “Agreement” means collectively these Articles 1 through 14, any Software Schedules, Statements of Work, Exhibits and Purchase Orders, as any of the foregoing may be amended by the Parties from time to time in accordance with the section entitled 'Entire Agreement; Amendment.'

2.3 “Applicable Laws” means, with respect to any Party, any applicable laws (including common law and national, federal, state, provincial and local laws), codes, statutes, ordinances, rules, regulatory bulletins, and guidance (including those of any regulatory bodies or agencies), regulatory examinations or orders, and decrees and orders of any governmental entity; all as may be amended and in effect from time to time during the Term.

2.4 “Content” means any text, images or other content provided by Supplier through the Service other than Data.

2.5 “Commercially Reasonable Efforts” means taking such steps and performing in such a manner as a well-managed business would undertake where such business was acting in a determined, prudent and reasonable manner to achieve a particular desired result for its own benefit.

2.6 “Data” means statistical data and other data relating to sporting events provided by Supplier through the Service.

2.7 “Documentation” means all operator's and user's manuals, training materials, guides, commentary, technical design or functional specifications, requirements documents and other materials related to the Software/Services pursuant to this Agreement or any consulting or professional services agreement.

2.8 “Intellectual Property Rights” means, on a worldwide basis, any and all:

(A) rights associated with works of authorship including copyrights, moral rights of an author of a copyrightable work, and mask-work rights;

(B) trademarks, service marks, logos, trade dress, trade names, whether or not registered, and the goodwill associated therewith;

(C) rights relating to know-how or trade secrets, including ideas, concepts, methods, techniques, inventions (whether or not developed or reduced to practice);

(D) patents, designs, algorithms and other industrial property rights; and

(E) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise.

2.9 “Losses” means all losses, liabilities, damages and claims, and all related costs, fees and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties).

2.10 “Rate Limit” means the maximum number of API calls that may be made in a given thirty (30) day rolling period to a particular API, as specified in this Agreement or the Order Form.

2.11 “Services” is as described in Section 3 of the Agreement. 

2.12 “Software” means Supplier's software incorporated into Supplier’s service, including all Updates thereto, and any and all third party software or other materials or components incorporated therein.

2.13 “Software Schedule/Order Form” means each order pursuant to which Customer license to use the Service, substantially in the form attached hereto as Exhibit A.

2.14 “Throttle Limit” means the maximum number of API calls that may be made per second to a particular API, as specified in this Agreement or the Order Form.

3. SERVICES

3.1 Services

(A) Services - Subject to the terms and conditions of this Agreement, Customer may access and use the Service, solely through the APIs designated in the Order Form or Software Schedule during the applicable Subscription Periods and in accordance with all Documentation and applicable Rate Limits and Throttle Limits, for the sole purposes of: (i) Customer’s internal business use of Data and Content provided through each such API (which, for the avoidance of doubt, does not include any distribution or public display or performance of Data or Content or provision thereof to any third party unless expressly stated in the Order Form or Software Schedule); and (ii) displaying Data and Content provided through each such API on the Properties specified for such API on the Order Form. Supplier reserves the right to modify and update the features and functionality of the Service from time to time in its sole discretion. Customer agrees not to violate any applicable laws, rules, regulations or third party rights in connection with its use of the Service. Customer is responsible for all activities occurring under an API key issued to Customer.

(B) Supplier shall provide the Service as a white label agreement and without any markings or proprietary labeling visible to a consumer of Customer’s Services.

(C) Supplier shall provide or perform, for the benefit of Customer, the Software or Services set forth in a Software Schedule or written statements of work that the Parties may agree upon from time to time during the Term (each a "Statement of Work" or "SOW").

3.2 Delivery Date. On or before the relevant delivery date set forth in the applicable Order Form/Software Schedule (the "Delivery Date"), Supplier deliver the Software that meets the specifications and shall provide Customer with all necessary passwords, instructions or information that will allow Customer to successfully install, download and access the Service and Documentation specified in the applicable Order Form.

3.3 Use Restrictions

Customer Restrictions. Customer agrees not to, not to attempt to, nor allow any third party to: (i) copy, modify or make derivative works of the Supplier materials, or works or make the Service available to any third party or use the Service on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Service or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the Service; (iii) disseminate performance information relating to the Service; (iv) use the Service to develop a competitive product offering; (v) remove, obscure or modify any copyright notices, bylines or other notices or attributions within the Content; or (vi) reproduce, modify, display, perform, transmit, distribute or otherwise use or exploit in any manner the Data or Content other than display on the Properties authorized for the API through which the Data or Content was obtained. Customer agrees not to, nor allow any third party to display on its website, any data or data fields that Supplier does not display on Supplier’s website.

4. TERM

The term of the Agreement (excluding any Software Schedules or Statements of Work that, by their own provisions, have different stated terms) shall begin on the Effective Date and shall continue in effect until terminated in accordance with the Article entitled Termination (such period, the “Term”).

5. PROPRIETARY RIGHTS

Supplier retains all ownership right to any software, technology, materials and information acquired, created, authored, made, conceived or reduced to practice (collectively, Intellectual Property) in the Service. Customer is not required to provide any ideas, feedback or suggestions regarding any of Supplier’s products or services (“Feedback”) to Supplier. To the extent Customer does provide any Feedback to Supplier, Customer hereby grants to Supplier a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license (with the right to grant sublicenses) to use, make, sell and otherwise exploit in any manner such Feedback without payment of any compensation to Customer.

Customer is expressly prohibited from:

5.1 removing or modifying any program markings or any notice of Supplier's or its licensors' proprietary rights;

5.2 making the Software or materials resulting from the Service available in any manner to any third party for use in the third party's business operations or otherwise acting as a service bureau (unless such access is expressly permitted by a Software Schedule);

5.3 causing or permitting reverse engineering, disassembly or decompilation of the Software and Service;

5.4 disclosing results of any benchmark tests to any third party without Supplier's prior written consent;

5.5 disseminating performance information relating to the Service;

5.6 using the Service to develop a competitive product offering;

5.7 removing, obscuring or modifying any copyright notices, bylines or other notices or attributions within the Content; or

5.8 reproducing, modifying, displaying, performing, transmitting, distributing or otherwise using or exploiting in any manner the Data or Content other than display on the Properties authorized for the API through which the Data or Content was obtained.

6. AUDIT RIGHTS

During the term of this Agreement and for one (1) year thereafter, Customer shall (i) maintain records that verify Customer’s use of the Software, integration points with the Software and compliance with the requirements of the Agreement and the Order Form; and (ii) provide Supplier with such reports regarding Customer’s use of the Service, integration points with the Service and compliance with the use restrictions of this Agreement and the Order Form as Supplier shall reasonably request on an annual basis.

7. CHARGES; TAXES

7.1 General. The Subscription Fees and other fees set forth in a Software Schedule, Statement of Work or Purchase Order or Order Document shall be collectively referred to herein as the "Charges or fees".

(A) Customer shall pay Supplier the fees as set forth in each Order Form beginning on the Activation Date and continuing throughout the Term based on the payment schedule outlined in the Order Form. All recurring fees under an Order Form shall be due and payable in advance of the applicable period.

(B) Payment Terms. Supplier shall invoice Customer for fees on a calendar monthly basis consistent with the Order Form, with each invoice delivered on or about the 15th day of the month for the following month’s Service. Customer agrees to pay each invoice within thirty (30) days of the invoice date, and in no event later than the 1st day of the calendar month indicated on the Order Form. Supplier reserves the right to withhold API keys until the billing information form is completed and received by the Supplier.

(C) Use of Service. By agreeing to the Terms and Conditions, Customer is obligated to pay for the access and use of the Supplier materials regardless of whether the service is utilized, integrated or otherwise. 

7.2 Taxes

(A) Except as provided below, each Party shall be responsible for its own taxes, including income, franchise, privilege, gross receipts, sales and use, excise, property, payroll and any other taxes or assessments that may be levied by a taxing jurisdiction.

(B) The Parties shall cooperate with each other to enable each to more accurately determine its own tax liability, to minimize such liability to the maximum extent legally permissible, and to address questions or audits by taxing authorities.

8. CONFIDENTIALITY

Confidential Information. Supplier and Customer each acknowledge that they may be furnished with, receive or otherwise have access to information of or concerning the other Party that such Party considers to be confidential, a trade secret or otherwise restricted. "Confidential Information" means all information, in any form, furnished or made available directly or indirectly by one Party to the other that is marked confidential, restricted, or with a similar designation, or information which, under the circumstances of its disclosure, a reasonable party would deem to be confidential information.  Each Party shall maintain as confidential and shall use at least the same degree of care as it employs to avoid unauthorized disclosure of its own Confidential Information, but in any event no less than commercially reasonable efforts, to prevent disclosing to unauthorized parties the Confidential Information of the other Party.

9. COMPLIANCE WITH LAWS

Compliance Generally. Each Party shall perform its obligations in a manner that complies with all Applicable Laws (including identifying and procuring required permits, certificates, approvals and inspections) required of such Party or for which such Party is responsible hereunder or which otherwise relate to the provision or use of the Software or Services, as applicable.

10. ACCURACY AND AVAILABILITY

10.1 Supplier uses commercially reasonable efforts to ensure that Data is accurate and reasonably up-to-date in accordance with the update schedule specified in the Documentation. However, Customer acknowledges that Data collection is subject to human error and its availability may be delayed for a variety of technical and operational reasons, some of which are outside of the Supplier’s control, and that Supplier’s shall not be liable for any such errors or delays other than to correct within a reasonable time period any errors which are reported to Supplier’s by Customer in writing.

10.2 Subject to this Section 10.2, Supplier shall maintain availability of the APIs of at least 95%, calculated monthly on a per-minute basis. Customer acknowledges and agrees that the APIs or material functionality thereof may be unavailable from time to time due to (i) third party equipment, software or service malfunctions; (ii) maintenance and update procedures or repairs (which Supplier shall use reasonable efforts to schedule between the hours of 2am ET and 8am ET); (iii) acts or omissions of Customer or other third parties; or (iv) causes beyond the reasonable control of Supplier, including, without limitation, interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that unavailability caused by any such circumstances shall not be considered in determining Supplier’s compliance with the foregoing. In the event that the APIs are not available in a given month for at least 95% of the time for any reason(s) other than as set forth in the foregoing (i) through (iv), Supplier shall use commercially reasonable efforts to resolve the issue to restore the API availability. In the event that API availability of at least 95% (calculated in accordance with this Section 10.2) is not maintained over any three (3) months within a twelve (12) month consecutive period, Customer may, as its sole remedy and Supplier’s exclusive liability for unavailability of the APIs, terminate this Agreement upon written notice to Supplier. Such written notice must be provided to Supplier within 15 days following the month in which Supplier failed to meet such requirements as outlined in this Section. Termination of the Agreement under this section does not relieve the Customer of its payment obligations for Services provided by Supplier through the termination effective date.

11. INDEMNITIES

11.1 Indemnification

(A) Supplier Indemnification - Supplier shall indemnify, defend and hold harmless Customer and their respective officers, directors, employees, agents, successors and assigns from and against any and all Losses and threatened Losses arising from, in connection with, or based on allegations whenever made of any third-party claim of infringement or misappropriation of any Intellectual Property Rights, alleged to have occurred because of the Software or Documentation provided by Supplier to Customer. If Supplier, in its sole discretion, believes a claim or an adverse judgment in connection with a claim described in the foregoing is likely, then Supplier may, at its option, (a) obtain a license that allows Customer to continue to use the Service, (b) modify or replace the Service so as to be non-infringing, or (c) if neither (a) nor (b) is available to Supplier upon commercially reasonable terms, terminate this Agreement upon written notice to Customer and refund any pre-paid recurring fees on a pro-rated basis. Supplier shall have no obligation or liability with respect to any claim arising out of or relating to: (x) any unauthorized use of the Service by Customer; or (y) any combination or use of the Service by Customer with any non-Supplier software, technology or services. This Section sets forth the entire liability of Supplier and the sole and exclusive remedy of Customer in the event of any claim that Supplier’s materials infringe any third party rights.

(B) Customer Indemnification – Customer agrees to indemnify, defend and hold harmless Supplier and their respective officers, directors, employees, agents, successors and assigns from any and all Losses and threatened Losses arising from, in connection with, or based on allegations whenever made, of (i) any third party claim of infringement or misappropriation of any Intellectual Property Rights resulting from any works provided by Customer to Supplier and (ii) any third party claim arising out of, or in connection with, Supplier's breach of its obligations under Article 8 (“Confidentiality”).

(C) Each Party agrees to indemnify, defend and hold harmless the other, and its Affiliates, officers, directors, employees, agents, successors, and assigns, from any and all Losses and threatened Losses arising from, in connection with, or based on allegations whenever made of, any of the following:

(i) the death or bodily injury of any agent, employee, business invitee, or business visitor or other person caused by the tortious conduct of the indemnifying Party;

(ii) the damage, loss or destruction of any real or tangible personal property caused by the tortious conduct of the indemnifying Party;

(iii) any claim, demand, charge, action, cause of action, or other proceeding resulting from an act or omission of the indemnifying Party in its capacity as an employer of a person; and

(iv) any claim arising out of, or in connection with, a Party’s breach of its obligations under Article 9 (“Compliance with Laws”).

12. LIABILITY

Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND EXCEPT FOR:

(A) DAMAGES OCCASIONED BY THE WILLFUL MISCONDUCT, FRAUD OR GROSS NEGLIGENCE OF A PARTY;

(B) CLAIMS THAT ARE SUBJECT OF INDEMNIFICATION PURSUANT TO ARTICLE 11;

(C) DAMAGES OCCASIONED BY A PARTY'S BREACH OF ITS OBLIGATIONS WITH RESPECT TO "CONFIDENTIALITY" PURSUANT TO ARTICLE 8; AND

(D) DAMAGES OCCASIONED BY A PARTY'S BREACH OF ITS RESPECTIVE OBLIGATION UNDER THE CONTRACT TO COMPLY WITH APPLICABLE LAWS PURSUANT TO ARTICLE 9;

IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), OR OTHERWISE, SHALL A PARTY BE LIABLE TO THE OTHER PARTY (OR ANYONE CLAIMING UNDER OR THROUGH THE OTHER PARTY) FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THE CONTRACT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING THE PROVISIONS IN THIS SECTION, SUPPLIER’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED AMOUNTS PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.

13. TERMINATION

13.1 Termination for Cause

(A) Suspension/Termination -  Supplier may suspend or limit Customer’s access to or use of the Service at any time (with or without notice) without liability if Supplier determines in its sole determination that such action is: (i) necessary to prevent harm to any system or network or to limit Supplier’s liability or (ii) Customer does not timely pay all fees accrued in accordance with the Order Form. In the event Supplier suspends the Agreement as a result of the Customer’s failure to timely remit all fees when due, then immediately upon such suspension by Supplier, all unbilled fees shall be accelerated and shall become immediately due and payable.

(B) Supplier may terminate the Agreement immediately without liability upon written notice if Customer attempts to access or use the Service in a manner that breaches this Agreement. In the event Supplier terminates the Agreement as a result of Customer’s attempt to access and use the Service in a manner that breaches this Agreement, then immediately upon such termination notice from Supplier, all unbilled fees shall be accelerated and shall become immediately due and payable.

(C) Customer may terminate this Agreement upon providing 90 days’ written notice to Supplier. In such event Customer shall be liable to pay to Supplier only the charges for the terminated Services performed up to the date of termination.

14. GENERAL

14.1 Continued Performance. Except as otherwise directed by the other Party, each Party shall continue performing its obligations under the Agreement while a dispute is being resolved except to the extent the issue in dispute precludes performance (dispute over payment shall not be deemed to preclude performance), and without limiting either Party's right to terminate the Agreement as provided in the Article entitled Termination.

14.2 Governing Law/Jurisdiction. This Agreement and performance under it shall be governed by and construed in accordance with the law of the Commonwealth of Virginia without regard to any portion of its choice of law principles that might provide for application of a different jurisdiction's law.

14.3 Waiver of Jury Trial. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH, THE PERFORMANCE OR BREACH OF THIS AGREEMENT, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN AND AMONG THEM. The scope of this waiver is intended to be all encompassing of any and all disputes that may be filed in any court or other tribunal (including, without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, AND RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION.

14.4 Binding Nature and Assignment. This Agreement shall be binding on the Parties hereto and their respective successors and assigns. Except as otherwise set forth in the Agreement, neither Party shall have the right to assign its rights under the Agreement or delegate its obligations hereunder, without the prior consent of the other.

14.5 Counterparts. This Agreement may be executed in several counterparts, any of which manually signed signature pages may be delivered by facsimile or through the transmission of an electronically scanned version, each of which shall be considered an original and, taken together, shall constitute but one and the same agreement.

14.6 Severability. If any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid by a competent authority, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remainder of the Agreement shall remain in full force and effect.

14.7 Survival. Any provision of the Agreement that contemplates performance or observance subsequent to termination or expiration of the Agreement shall survive termination or expiration of the Agreement and continue in full force and effect.

14.8 Third Party Beneficiaries. Except as expressly provided in this Section 14.8, this Agreement is entered into solely between, and may be enforced only by, Customer and Supplier, and the Agreement shall not be deemed to create any rights in third parties, including suppliers and customers of a Party, or to create any obligations of a Party to any such third parties.

14.9 Entire Agreement; Amendment. This Agreement, including any Exhibits referenced herein and attached hereto, and any Software Schedules or Statements of Work executed hereunder, each of which is hereby incorporated into the Agreement for all purposes, constitutes the entire agreement between the Parties with respect to the subject matter contained in the Agreement and supersedes all prior correspondence, discussions, agreements, and understandings entered into between the Parties, whether written or oral, with respect to such subject matter. No change to the Agreement (including any Software Schedule, Statement of Work and provisions regarding payment for the Services) shall be valid unless in writing and signed and delivered by authorized representatives of both Parties. E_mails or similar electronic communications shall not be deemed writings signed by authorized representatives, as required above, and shall under no circumstances be deemed sufficient to modify, terminate or otherwise change the Agreement.

14.10 Order of Precedence. In the event of a conflict between these Articles and any Exhibits Statements of Work or Software Schedules signed by the Parties which reference the Agreement then the provisions of these Articles shall take precedence over the Exhibits, Statements of Work or Software Schedules unless the Statement of Work, Software Schedule or Exhibit specifically references the provision of the Agreement or Exhibit that it purports to modify. Anything contained in the Master Services Agreement and/or any Exhibit, Software Schedule or amendment thereto shall be deemed to apply to all Statements of Work under the Agreement, unless specifically stated otherwise in said Master Services Agreement, Exhibit, Software Schedule or amendment.



ORDER DOCUMENT

TO THE MASTER SUBSCRIPTION AGREEMENT


1. Description of Service. Service includes the usage of subscribed CompughterRatings.com APIs for integration with Customer’s website and/or mobile apps.

2. Delivery Date. Access to the service shall be provisioned within thirty (30) days of the Order Form Effective Date. 

3. Installation and Implementation Services. Supplier shall provide the necessary support to enable Customer install and implement the services and use according to the specifications and documentation for the service.

4. Training Services.

4.1. Scope. Supplier shall provide all necessary instruction, training materials and training needed to enable the Customer use the service.

4.2. Training Representations and Warranties. Supplier represents that the training program described in the training schedule is designed to enable Customer’s and each Affiliate's personnel, including but not limited to its employees, contractors, and strategic business partners, to fully and productively use, operate and maintain the Software.

4.3. Fees for Additional Training. Supplier agrees to provide additional training at Customer’s Affiliate's request at Supplier’s then existing professional services rates.

5. Service Fees. Supplier shall provide the services at the following rates to Customer:

Sport Type API

Monthly Subscription Rate

NFL Football API ***

$850

College Football API ***

$850

NBA Basketball API ***

$850

College Basketball API ***

$850

NHL Hockey API ***

$850

MLB Baseball API ***

$850

NASCAR Sprint Cup API ***

$850

***API Call Limits

The following limits shall apply to API calls made by Customer for Supplier’s Services at the rates stated in this Section 5 during the term of this Order Form. 

  • Trottle limits shall be 2 calls per second to a particular API.
  • Rate limits shall be 100,000 calls per 30 day rolling period to a particular API.
  • In the event where the number of calls made per a 30 day rolling period exceeds the 100,000 limit, the Parties shall revisit and review the call trends and mutually agree on a pricing structure at that time.

All prices subject to change.   See API Pricing for current price structure.