Modified August 1, 2023
1.1 “Account” means the arrangement by which an Account Owner is given personalized access to the Platform and Services via a moderator dashboard on the Platform that enables Account Owner to manage permissions for Rosters and Seats and provides Account Owner access to End Users on the Platform.
1.2 “Account Identity” means the branded identity of an Account on the Platform.
1.3 “Account Owner” means the authorized representative of the Customer, who shall have administrative authority over the Account and who shall act as the primary point of contact with Opendorse.
1.4 “Affiliate” means an entity directly or indirectly controlling, controlled by or under common control with a Party to this Agreement, provided that such entity shall be considered an Affiliate only for the time during which such control exists.
1.5 “Branded Marketplace” means a white label marketplace utilizing logos, trademarks, and other intellectual property of a premium customer to create a specific, curated marketplace for that customer and the customer’s affiliated End Users, typically current or former student or professional athletes, to promote their End User Accounts on the standard Opendorse Marketplace.
1.6 “Confidential Information” means all non-public information disclosed hereunder, whether written, oral or recorded in or on any media, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information shall include, but not be limited to research and development activities, technology, and information relating to computer hardware and software, products, services, drawings, plans, schematics, technical and non-technical ideas, design and other work product which is deemed confidential by its owner, proprietary information, trade secrets and information regarding operating procedures, pricing methods, financial information and materials, marketing strategies, future plans and other information deemed proprietary or confidential by the Disclosing Party, the terms and conditions of this Agreement and all Customer Data other than Content Suggestions and/or is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information against unrestricted disclosure. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
1.7 “Content Suggestion” means content provided by an Account Owner to an End User for such End User to consider sharing per request by Customer and/or pursuant to the requested and accepted Activity.
1.8 “Curated Profile” Curated Profile means an End User’s profile that has been updated by Opendorse; such updates may include, but are not limited to adding a: Profile Avatar, Account Identifier, Featured Photos, or items with the End User’s Athletic profile
1.10 “Deliverables” means all documents, reports, analyses, work product and other tangible materials that are created specifically for and delivered to Customer in connection with the performance of the Services, including any items identified as such in writing by the parties.
1.11 “Disclosing Party” means a party that discloses Confidential Information under this Agreement.
1.12 “End User” means an individual who has created an Account with Opendorse, typically a current or former student or professional athlete, but who shall be regarded as a person with the ability to influence potential buyers of a product or service by promoting or recommending the items on social media.
1.13 “Governing Bodies” shall mean a sports oversight organization other than oversight organizations over international nation-based competition such as the Olympics, that has a regulatory or sanctioning function such as, by way of example only and not intended to be an exhaustive list, the NCAA, the NFLPA, or the NFL.
1.14 “Institution” means the university for which End User is a student-athlete, and to whom End User must report all NIL activities.
1.15 “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
1.16 “Network” shall mean the sum collection of individual End Users that are made available for Content Suggestions by the Platform.
1.17 “Opendorse Compliance™” – The NIL compliance solution for athletes and their supporters, this product allows Customer to see the details of relevant name, image and likeness disclosures of athletes and other stakeholders (“Compliance”).
1.18 “Opendorse Content™” The NIL marketing solution for athletes and their supporters, this product allows Customer to license media (photos, videos, GIFs) to athletes and other stakeholders for editorial use (“Content”).
1.19 “Opendorse Education™” The NIL education solution for athletes and their supporters, this product allows Opendorse partners to provide athletes and other stakeholders data-driven insights, industry best practices and athlete marketing resources (“Ready”).
1.20 “Opendorse Marketplace™” The NIL marketplace solution for athletes and their supporters, this product allows companies and individuals to browse, build and book name, image and likeness Activities (services, licensing, endorsements, products) at scale (“Marketplace”).
1.21 “Plan” means that set of Platform features selected by Customer as offered by Opendorse.
1.22 “Platform” means specifically, the Opendorse platform at Opendorse.com and app.opendorse.com on which Customer may connect with End Users to engage the same in Activities, make payments for such, and/or share Content Suggestions.
1.23 “Post” means a Content Suggestion publicly shared by an End User on a Social Channel.
1.24 “Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
1.25 “Roster” means those End Users who have accepted an invitation from an Account Owner to receive content suggestions from such Account Owner.
1.26 “Rules” shall mean known regulations and requirements of the selected Governing Body that govern endorsement or other commercial behavior of Customer and/or End Users over whom the Governing Body has jurisdiction or oversight.
1.27 “Seat Holder” shall mean the individual(s) who shall be authorized by the Account Owner to access the Account. For purposes of this Agreement, where the term Account Owner is used, it shall be deemed to mean the Account Owner individually and any Seat Holders it has authorized.
1.28 “Services” means all services provided by Opendorse herein including managed marketing services, creating agreements, securing signatures, executing contracts, coordinating payment, collecting relevant tax information, assisting with activity fulfillment and the services therein that facilitate the partnership between the Parties.
1.29 “Social Channel” means a social account supported by the Platform now or in the future, including, but not limited to, Instagram, Facebook, and Twitter.
1.30 “Sponsored Post” means a Post that contains disclosure to comply with FTC Rules as defined below.
1.31 “Student-Athlete” shall, for the purposes herein, refer to those members of Customer’s intercollegiate athletics teams as identified by Customer from time to time.
2. PLATFORM AND SUPPORT
2.2 Account Owners shall be able to invite potential users to the Platform by providing the potential End User’s personal Data. Opendorse shall use such Data to communicate a Network invite to the potential End User. Upon the acceptance of the invite by the End User, they shall be admitted to the Network, and shall become available for Content Suggestions from Account Owners. By providing the Data to Opendorse for the End User, the Account Owner represents that they have the authority to share such End User Data with Opendorse and indemnifies Opendorse against any claims by an End User for unauthorized use of their Data.
2.3 During the Term, the Account Owner is authorized to grant access to the Platform to Seat holders, subject to any limitations specified in the Order Form (“Order Form”). Customer shall be required to pay additional fees for use in excess of the Plan limits at the rates designated on the Order Form or as otherwise required by Opendorse, if not specified.
2.4 At the sole discretion of Opendorse, the Platform may be modified from time to time. Such updates will not trigger any changes to the fee structure unless otherwise agreed to by the parties hereto.
3. IDENTITIES; PERMISSIONS
3.1 Account identities as created by Account Owner are fixed and may not be changed without the written consent of Opendorse, which consent may be granted or withheld in Opendorse’s sole discretion.
3.2 Customer acknowledges and agrees that Account Owners shall have permissions to invite End Users to a Roster, assign End Users to a Roster, send Content Suggestions to End Users, view Content Suggestions sent by Account Owners, and view Posts through their Account. Such permissions shall be as further described and enabled on Account Owner’s administrative dashboard on the Platform.
4.1 Opendorse shall provide to Customer the Services specified in the Order Form
4.2 In order to receive the Services, Customer shall:
(a) cooperate with Opendorse in all matters relating to the Services and appoint an Account Owner to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Customer with respect to matters pertaining to this Agreement;
(b) respond promptly to any Opendorse request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Opendorse to perform Services in accordance with the requirements of this Agreement;
(c) provide such materials as Opendorse may request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects; and
(d) obtain and maintain all necessary licenses and consents and comply with all applicable law in relation to the Services, in all cases before the date on which the Services are to start.
4.3 Curated Profiles will only be available for End Users who have created an Account with Opendorse. Opendorse may require content tagged with the End User’s name in order to create a Curated Profile. Failure of Customer to provide any of the above shall relieve Opendorse of any obligation until such criterion are met. Curated Profiles will be done on a priority basis and are not guaranteed to be completed within any timeframe.
4.4 If Opendorse’s performance of the Services under this Agreement is prevented or delayed by any act or omission of Customer, or their agents, subcontractors, consultants or employees, Opendorse shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. RESTRICTIONS AND RESPONSIBILITIES
5.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure or algorithms of the Platform or the underlying software (“Software”); modify, translate, or create derivative works based on the Platform or Software (except to the extent expressly permitted by Opendorse or authorized within the Platform); use the Platform or Software for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Opendorse hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Platform.
5.2 Customer may not remove or export from the United States or allow the export or re-export of the Platform or Software, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
5.3 Further, Customer understands and agrees that End User access to the Opendorse Platform is free and Customer shall not therefore charge a fee to any End User to receive access to the Services Customer purchases pursuant to this Agreement. Any attempt to charge an End User for access to the Platform, or the Services provided to Customer hereunder shall be a violation of these terms and may result in termination of this Agreement with no refund to Customer of any payments made.
5.4 Each party represents, covenants, and warrants that its performance under this Agreement, including but not limited to any use of the Platform, will be in compliance with all applicable laws and regulations. Although Opendorse has no obligation to monitor Customer’s use of the Platform, Opendorse may do so (subject to the provisions of Section 7) and may prohibit any use of the Platform it believes may be (or alleged to be) in violation of the foregoing.
5.5 Customer represents, warrants and covenants that it and its authorized users have and will have the legal right to possess, store and transmit all Customer Data (as defined below) stored on and transmitted through the Platform.
5.6 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent (except those uses by Opendorse).
6. INTELLECTUAL PROPERTY AND RELATED RIGHTS
6.1 Except as otherwise set forth herein, Opendorse and its subcontractors and licensors are the sole and exclusive owners of all rights and interests in all (a) patents, patent applications; (b) registered and unregistered trademarks, service marks, trade names, domain names, and all of the associated goodwill; (c) registered and unregistered copyrights and all other literary and author’s rights or moral rights; (d) trade secrets, know-how, show-how, concepts, ideas, methods, processes, designs, discoveries, improvements, and inventions, whether patentable or unpatentable; (e) all other intellectual, industrial, and proprietary rights now or hereafter coming into existence throughout the world; (f) applications for and registrations, renewals, and extensions of any of the foregoing; and (g) exclusive and non-exclusive license rights to any of the foregoing (collectively “Opendorse Intellectual Property”) and other proprietary rights and interests in and to the Platform and Software and any documentation or data related thereto. Opendorse shall own and retain all right, title and interest in and to (1) all improvements, enhancements or modifications to the Platform or Software, (2) any software, applications, inventions or other technology developed by Opendorse in connection with the Services or support, (3) the Deliverables, and (4) all Intellectual Property rights related to any of the foregoing. Customer acknowledges and agrees that Customer does not have, or acquire pursuant to or as a result of this Agreement, any ownership interest, license, lease or other right or interest in or with respect to the Platform or any Intellectual Property in or to the Platform or Software other than as expressly provided herein. Opendorse hereby grants to Customer an irrevocable, royalty-free, worldwide, sublicensable, and exclusive license to use the Deliverables for its own internal business purposes.
6.3 Notwithstanding anything to the contrary herein, all media included in a Content Suggestion (photo, video, audio, or any other media in any form) is subject to this Agreement (“Content Media”). Content Media that is uploaded to the Platform and stored in a media folder (“System Folder”) shall remain the property of the Customer. Customer hereby grants to End Users a nonexclusive, irrevocable, royalty-free, sub-licensable, worldwide license to use any and all Content Media, so long as it remains in the System Folder, even following termination of this Agreement. The Account Owner shall have the authority and ability to remove all Content Media from a System Folder at any time.
6.4 Notwithstanding anything in Section 6.1, Customer and its subcontractors and licensors shall own all right, title and interest in and to (a) any Intellectual Property existing prior to the effective date of this Agreement that was owned or developed by Customer or its licensees or subcontractors, (b) anything developed by Customer independent of its relationship with Opendorse, (c) Content Suggestions or other data uploaded through the Platform by Customer or otherwise provided to Opendorse in the course of using the Platform, including all Intellectual Property rights therein, provided to Opendorse as part of the Platform or through use of the Software, or (d) any other data or documents uploaded to the Platform by Customer, or one of Customer’s authorized users to the extent such data belonged to the Customer at the time of upload, (collectively, the “Customer Data”). The parties acknowledge and agree that, at all times, Opendorse is not and shall not be, the rightful owner of Customer Data, and shall not use Customer Data, except as expressly permitted by this Agreement, required by law, required to provide the services offered on the Platform to Customer or as otherwise authorized by Customer in writing.
6.5 Opendorse’s Right to use Customer Marks. This Section 6.5 shall apply only to those Customers who have paid for a Branded Marketplace. During the Term, Customer hereby grants Opendorse the Customer License to use the Customer’s Marks as mutually agreed upon in writing in connection with the Branded Marketplace and other mutually agreed upon uses. Customer retains ownership of the Customer’s Marks. In addition to specific uses as agreed upon by the parties, Customer authorizes Opendorse to include the name and logo of Customer as a representative customer of Opendorse, including display of the Customer’s name and logo on Opendorse’s website and in Opendorse marketing materials, provided that Customer may withdraw this authorization at any time in general or in any particular instance. Customer authorizes Opendorse to include representative works of Customer’s activity in marketing materials and case studies. Notwithstanding anything to the contrary in this Section 6.5., all rights granted will automatically terminate upon termination or cancellation of Customer’s Account, excepting that Opendorse is entitled to use any case studies or marketing materials developed pertaining to Customer’s Account prior to such termination or cancellation.
6.6 Customer’s Right to use Opendorse Marks. During the Term, Opendorse hereby grants Customer the right to use the Opendorse Marks as mutually agreed upon (“Opendorse License”). Opendorse retains ownership of the Opendorse Marks.
a. Customer shall submit any proposed usage of the Opendorse Marks to Opendorse for its prior written approval. Should Opendorse fail to respond to such submission within 15 business days of receipt thereof, such submissions shall be deemed approved. Notwithstanding the above, Customer shall submit to Opendorse a separate request for approval for each proposed use of the Opendorse Marks in association with another mark.
b. Opendorse shall submit any proposed usage of the Customer Marks to Customer for its prior written approval. Should Customer fail to respond to such submission within 15 business days of receipt thereof, such submissions shall be deemed approved. Opendorse shall submit to Customer a separate request for each proposed use of the Customer Marks in association with another mark.
6.8 Specifically subject to the provisions herein, Opendorse shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform, Software, and related systems and technologies (including, without limitation, anonymous and aggregated information concerning use of Customer Data in the Platform), and Opendorse will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other Opendorse offerings, (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, and (iii) share such data with certain permitted parties. No rights or licenses are granted in the Customer Data except as expressly set forth herein.
- In addition to other rights granted herein, Customer authorizes Opendorse to include the name and logo of Customer as a representative customer of the Platform, including display of the Customer’s name and logo on Opendorse’s website and in its marketing materials, provided that Customer may withdraw this authorization at any time in general or in any particular instance. Customer authorizes Opendorse to include representative works of Customer’s activity on the Platform in marketing materials and case studies. Notwithstanding anything to the contrary in this Section 6, all rights granted will automatically terminate upon termination or cancellation of Customer’s Account, excepting that Opendorse is entitled to use any case studies or marketing materials developed pertaining to Customer’s Account prior to such termination or cancellation.
- Nothing contained herein shall be interpreted as a representation by either Party that it has already registered or that it has an obligation to register any of the Opendorse Marks or Customer Marks respectively (together referred to as “Marks”), or other symbols or indicia as a trademark, service mark or otherwise in any jurisdiction. Each party shall take such action as it deems necessary in its sole discretion to protect their own Marks, as well as such action it deems necessary to protect the other parties’ Marks and to take appropriate action to prevent any entity’s unauthorized use of that parties’ Marks where it is commercially reasonable to do so or where such use is in violation of the other parties’ rights hereunder.
6.9 Upon reasonable request, each Party hereto shall include the appropriate trademark legend or copyright notice, as instructed by the other party, at least once on all materials utilizing the Marks, as applicable. Other than as set forth herein, neither party shall obtain any interest or other license in the intellectual property of the other party through operation of this Agreement. During the Term of this Agreement and thereafter, Customer shall not directly or indirectly challenge the validity or enforceability of the Opendorse Marks or of Opendorse’s title thereto. Conversely, Opendorse shall not directly or indirectly challenge the validity or enforceability of the Customer’s Marks or of Customer’s title thereto.
- Except as otherwise authorized herein, Customer and/or its Affiliates shall not use the Opendorse Marks or any other word or mark which are confusingly or deceptively similar to the Opendorse Marks. Except as otherwise authorized herein, Opendorse shall not use the Customer’s Marks or any other word or mark which are confusingly or deceptively similar to the Customer Marks.
- Upon the termination of this Agreement, Customer shall cease and desist all use of the Opendorse Marks in any manner and will not adopt any word or mark which is confusingly or deceptively similar to the Opendorse Marks. Upon the termination of this Agreement, Opendorse shall cease and desist all use of the Customer’s Marks in any manner and will not adopt any word or mark which is confusingly or deceptively similar to the Customer’s Marks.
- Customer shall have no right to sell, assign or in any way dispose of or encumber the Opendorse License, or the Opendorse Marks, or to grant any sublicenses with respect to the Opendorse License or Opendorse Marks. Any attempt to transfer such rights shall be deemed null and void and shall constitute a default of this Agreement entitling Opendorse, at its sole discretion, to terminate the Agreement and to seek any and all legal or equitable remedies available to Opendorse.
- Opendorse shall have no right to sell, assign or in any way dispose of or encumber the Customer License, or Customer Marks, or to grant any sublicenses with respect to the Customer License or Customer Marks. Any attempt to transfer such rights shall constate a default of this Agreement entitling Customer, at its sole discretion, terminate the Agreement and to seek any and all legal and equitable remedies available to Customer.
- All media included in a Content Suggestion (photo, video, audio, or any other media in any form) is subject to this Agreement (“Content Media”). Content Media that is uploaded to the Platform and stored in a media folder (“System Folder”) shall remain the property of the Customer. Customer grants to End Users a nonexclusive, irrevocable, royalty-free, sub-licensable, worldwide license to use any and all Content Media, so long as it remains in the System Folder, even following termination of this Agreement. The Account Owner shall have the authority and ability to remove all Content Media from a System Folder at any time.
7.1 Pursuant to this Agreement, the Receiving Party may, from time to time, learn, receive, hold, or have access to (in written, oral or electronic form) Confidential Information from the Disclosing Party. Confidential Information shall not include any information which: (i) is already known by means not subject to a confidentiality obligation of the Receiving Party at the time disclosed by the Disclosing Party; (ii) is or becomes available through public sources apart from any unauthorized disclosure by the Receiving Party; (iii) is obtained by the Receiving Party from a third party who has the right to disclose the same, or (iv) is independently derived by Receiving Party without recourse to any of the Confidential Information.
7.2 During the Term and at all times thereafter, the Receiving Party shall protect any Confidential Information received from the Disclosing Party: (i) by limiting use and disclosure of the same to its employees, and/or authorized agents or independent contractors to the extent necessary for them to perform the Receiving Party’s obligations in this Agreement; and (ii) by exercising reasonable care to prevent unauthorized use or disclosure, which shall in no event be less than the same degree of care it uses to protect its own information of like importance from unauthorized use or disclosure
7.3 Notwithstanding the foregoing, either party may disclose Confidential Information received hereunder: (i) pursuant to a mandatory discovery request, disclosure requirement, subpoena, court order or other order of a court, tribunal or government agency received by a party, or as required by law, including but not limited to, public records law in the locality of either Opendorse or Customer, in each case, only after the party receiving same has given prompt written notice thereof to the Disclosing Party; or (ii) to the Receiving Party’s own legal counsel or independent accountant who have a need to know such Confidential Information. In each of (i) and (ii) of this paragraph, the Receiving Party shall (a) consult with the Disclosing Party prior to the disclosure of any Confidential Information, and (b) cooperate in good faith with the Disclosing Party, at the Disclosing Party’s expense, with any reasonable effort to resist the production of Confidential Information, including obtaining a protective order or defending a motion to compel the production of Confidential Information. This Section 7 shall survive termination of this Agreement and shall remain in full force and effect for 3 years beyond such termination.
8. PAYMENT OF FEES
8.1 Customer will pay Opendorse the applicable fees described in the Order Form (the “Fees”). If Customer’s use of the Platform exceeds any limits set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. At the end of the Initial Term Length and following each renewal term thereafter, Fees shall automatically increase at a rate not to exceed 5%, unless Opendorse notifies Customer to the contrary. Opendorse reserves the right to make any other changes to the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term Length or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Opendorse has billed Customer incorrectly, Customer must contact Opendorse no later than forty-five (45) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Opendorse’s customer support department. Fees are not subject to any right of offset or other withholding of funds from Customer, and all Fees not currently the subject of a dispute are due and payable in the ordinary course.
8.2 Opendorse may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Opendorse thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Customer’s access to the Platform. Customer shall be responsible for all taxes associated with the Platform and Services other than U.S. taxes based on Opendorse’s net income.
8.3 Opendorse may choose to require Customer to maintain a valid and active payment method on file with Opendorse. If Customer links a payment method to Customer’s account, Customer authorizes Opendorse to collect fees due hereunder from the linked payment method in accordance with the terms hereof.
9. TERM AND TERMINATION
9.1 Subject to earlier termination as provided below, this Agreement is for the Initial Term Length specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Term Length (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
9.2 Customer will pay in full for access to the Platform provided in compliance with this Agreement up to and including the last day on which access to the Platform is provided. Customer Data is preserved for the lifetime of Customer’s account unless intentional action is taken by an authorized user to delete information from the system. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
10. WARRANTY & DISCLAIMER
10.1 By Customer
- When an Account Owner uploads a Content Suggestion to the Platform, Owner represents and warrants that (1) such Owner or Customer owns or has rights to use the Content Suggestion,(2) the posting of the Content Suggestion by an End User as a Post does not and will not violate any rights of any person or entity, and (3) the Content Suggestion, when posted by an End User, complies with all applicable laws and regulations, including but not limited to, Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines (the “FTC Rules”).
- When an Account Owner provides a list of End Users for sign up to the Platform, the Account Owner represents and warrants that such Account Owner has the right to provide the End Users’ private information.
- Anything to the contrary herein, Customer represents and warrants that all Content Media uploaded to the Platform and stored in a media folder (“System Folder”) is property of the Customer.
10.2 By Opendorse
- Opendorse shall use reasonable efforts consistent with prevailing industry standards to maintain the Platform in a manner which minimizes errors and interruptions in the access to and operation of the Platform. Opendorse further represents and warrants that the Platform and Software, including Customer’s use thereof, do not and will not infringe any United States patent, copyright, trademark, service mark or other Intellectual Property right of any third party. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Opendorse or by third-party providers, or because of other causes beyond Opendorse’s reasonable. HOWEVER, EXCEPT AS OTHERWISE SET FORTH HEREIN, OPENDORSE DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR FREE OR THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM AND ADDITIONAL SERVICES ARE PROVIDED “AS IS” AND OPENDORSE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Opendorse represents and warrants to the Customer that all Services provided by Opendorse pursuant to this Agreement shall be performed (i) in a professional and workmanlike manner and with the same level of service and degree of care, skill, prudence, quality, and efficiency as provided in connection with its own projects, and (ii) in material compliance with all known applicable Rules (including but not limited to, data privacy rules) and regulations both by Governing Bodies and legislatively. Opendorse further represents and warrants that any materials provided by Opendorse in respect of the Services (in the form delivered to the End User or Customer) developed or provided pursuant to this Agreement will not knowingly misappropriate any trade secret of any third party.
- Information provided by Opendorse in furtherance of the Services outlined herein are an evaluation only and are not guaranteed 100% accurate but are the best information available to Opendorse. The information may be a product of information gathered from a variety of third-party sources, and as Opendorse cannot confirm that the information received from those third-party sources and subsequently contained and analyzed is accurate or complete, Opendorse warrants only that it is providing the information as a tool for Customer with the best information provided Opendorse and cannot guarantee the success of a product put forward on the basis of that information.
- Opendorse is not an attorney or legal representative and while information useful to Customer to follow Rules may be provided by Opendorse, it shall not constitute legal advice, nor shall it solely be relied upon to assure adherence by Customer to Rules of any Governing Body to which it may be subject.
11. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR (A) BODILY INJURY OF A PERSON, (B) LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (C) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, NEITHER OPENDORSE, NOR ANY OF ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE, (ii) FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (iii) FOR ANY INDIRECT OR NON-OBJECTIVELY MEASURABLE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. EXCEPT FOR (i) BODILY INJURY OF A PERSON, (ii) LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (iii) LIABILITY ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL OPENDORSE’S TOTAL LIABILITY TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID TO OPENDORSE BY CUSTOMER UNDER THIS AGREEMENT FOR THE 12 MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.1 Subject to the limitations set forth below, Opendorse shall indemnify, defend and hold Customer harmless from and against any and all claims of liability, loss, damage, expenses, court costs and attorneys’ fees in connection with, arising out of or directly or indirectly: (i) out of or related to a claim brought or sanction sought arising from allegations by third parties alleging that the Platform, Software or other Services provided by Opendorse hereunder in accordance with this Agreement infringe any Intellectual Property right of any third party; ) (ii) the acts, omissions or violation of any Law, code, ordinance or otherwise (including but not limited to the Americans with Disabilities Act and analogous state or local Laws relating to nondiscrimination and/or physical and/or technological accessibility for guests with disabilities) and any violation of the FTC Rules by Opendorse or its Affiliates, representatives, agents, volunteers, employees, contractors or subcontractors; (iii) Opendorse’s breach of this Agreement Each party hereby agrees to indemnify and hold harmless the other party against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing by the indemnifying party.
12.2 To the extent permitted by law, Customer shall indemnify and hold Opendorse and its employees, agents, representatives, officers, directors, and Affiliates harmless from and against any and all claims of liability, loss, damage, expenses, court costs and attorneys’ fees in connection with, arising out of or directly or indirectly, related to: (i) any and all Claims which arise out of or relate to a claim brought or sanction sought arising from allegations by third parties alleging that a Content Suggestion violates any rights of any third party; (ii) any claims by an End User for unauthorized use of their Data; (iii) the use by Customer of any Intellectual Property granted hereunder by Opendorse; (iv) Opendorse’s use of Intellectual Property or Customer Materials, or Customer content as authorized in this Agreement which violates the intellectual property rights of a third party; (v) the acts, omissions or violation of any Law, code, ordinance or otherwise (including but not limited to the Americans with Disabilities Act and analogous state or local Laws relating to nondiscrimination and/or physical and/or technological accessibility for guests with disabilities) and any violation of the FTC Rules by Customer or its Affiliates, representatives, agents, volunteers, employees, contractors or subcontractors; (v) Customer’s breach of this Agreement.
12.3 Promptly upon receipt by a person or entity entitled to indemnification under Sections 12.1 or 12.2 (for purposes of this Section 12.3, an “Indemnitee”) of notice of a third-party claim, the Indemnitee shall give written notice to the party from whom indemnification is sought pursuant hereto (for purposes of this Section 12.3, the “Indemnitor”). The Indemnitor will be required to defend such claim, and the Indemnitee will have the right to approve the counsel selected by Indemnitor to defend such claim. Furthermore, to assume the defense of such claim, the Indemnitor shall first have acknowledged in writing to the Indemnitee the Indemnitor’s obligation to indemnify the Indemnitee for the matter in accordance with this Agreement in accordance with Section 12.1 or 12.2 and provided reasonable proof of the Indemnitor’s ability to defend and pay the defense costs and claim amount. In the absence of such assurance in writing, the Indemnitee shall retain the right, but not the duty, to control the defense of such claim, without prejudicing in any way its right to recover damages in accordance with this Agreement. As soon as reasonably practicable, the Indemnitee will provide the Indemnitor with reasonable assistance and information required for the defense and/or settlement of the claim. If the Indemnitor fails to assume the defense of any third-party claim within the reasonable period of time, then the Indemnitee may assume the defense of any such third-party claim at the cost and expense of Indemnitor, subject to any limitations set forth in this Agreement. In any event, the Indemnitee shall have the right to participate in the defense of any claim for which it is requesting indemnification hereunder with its own counsel and at its own cost. Neither party shall settle a claim that imposes obligations on, or restricts the operations of, the other party without the written consent of such other party, which consent shall not be unreasonably withheld or delayed.
12.4 If the Platform or Software is, or in Opendorse’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property right, or if Customer’s use of the Software or Platform is enjoined or threatened to be enjoined, Opendorse may, at its option and sole cost and expense, (a) obtain the right for Customer to continue to use the Software and Platform materially as contemplated by this Agreement; (b) modify or replace the Software or Platform, in whole or in part, to make the Software or Platform non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software or platform will constitute Software or the Platform hereunder; or (c) terminate this Agreement, in in its entirety or with respect to the affected part or feature of the Platform, effective immediately on written notice to Customer, in which event: Opendorse shall promptly refund to Customer, on a pro rata basis, the share of any subscription fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.
12.5 This Section 12 sets forth Customer’s sole remedies and Opendorse’s sole liability and obligation for any actual, threatened or alleged claims that this Agreement or any subject matter hereof (including the Platform and Software) infringes, misappropriates or otherwise violates any Intellectual Property rights of any third party.
13.1 In addition to any other remedies it may have, either party may also terminate this Agreement upon ten (10) days’ notice (or without notice in the case of nonpayment), (a) if the other party materially breaches any of the terms or conditions of this Agreement (and, to the extent curable, fails to cure such breach within 30 days of the non-breaching party providing notice to the breaching party of such breach), (b) if the other party files a voluntary petition in bankruptcy or has an involuntary petition in bankruptcy filed against it, (c) if the other party is declared insolvent, makes an assignment for the benefit of creditors, appoints a receiver, conservator, or trustee to operate its business, or liquidates all or substantially all of its business assets, or the equivalent of any of the foregoing, or (d) in its performance hereunder, the other party recklessly or willfully violates applicable law.
14. DISPUTE RESOLUTION
14.1 All questions in dispute under this Agreement shall be submitted to mediation. On the written notice of either party to the other of the election to submit any dispute under this Agreement to mediation, each party shall designate their representatives and shall meet within ten (10) days after the service of the notice. The parties themselves shall then attempt to resolve the dispute within ten (10) days of meeting. Should the parties themselves be unable to agree on a resolution of the dispute, then the parties shall appoint a third party who shall be a competent and impartial party and who shall be acceptable to each party, to mediate the dispute. Any third-party mediator shall be qualified to evaluate the performance of both of the parties, and shall be familiar with Opendorse’s business. The third party shall meet to hear the dispute within ten (10) days of their selection and shall attempt to resolve the dispute within fifteen (15) days of first meeting. Each party shall pay the fees and expenses of the third-party mediator and such costs shall be borne equally by both parties.
14.2 Opendorse and Customer acknowledge that from time to time, there may be conflicts, disputes and/or disagreements between them, arising out of or relating to the Platform, or this Agreement (hereinafter collectively referred to as “Disputes”) which may not be resolved through mediation. Therefore, Opendorse and Customer agree that all Disputes shall be resolved by binding arbitration or litigation at the sole discretion and choice of Opendorse. If Opendorse chooses arbitration, the arbitration proceeding shall proceed in accordance with the Commercial Arbitration Rules of the AAA.
If Opendorse chooses arbitration or litigation, either may be commenced at any time prior to or after Customer’s access to the Platform has been terminated hereunder, provided that if arbitration or litigation is commenced prior to the expiration or earlier termination of this Agreement, the obligations of the parties under the terms of this Agreement shall not be altered by reason of the arbitration or litigation being conducted. Any arbitration hearings or litigation shall take place in Lincoln, Nebraska, the location of Opendorse’s home office.
The prevailing party in any arbitration or litigation relating to any Dispute shall be entitled to recover from the other party those reasonable attorney fees, costs and expenses incurred by the prevailing party in connection with the Dispute.
15.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Opendorse’s prior written consent. Nothing herein shall prevent Opendorse from employing such subconsultants and other subcontractors as Opendorse may deem appropriate to assist in the performance of services under this Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail (with confirmation of transmission); the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Nebraska without regard to its conflict of laws provisions. The terms that expressly survive termination of this Agreement or that, by their nature, will not be fully performed during the Term, including but not limited to Sections 6, 7, 11, 12, 13, 14 and this Section 15, shall survive the termination or expiration of this Agreement.