Service Terms and Conditions
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as SCHEDULE A.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in SCHEDULE A.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; 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, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and lawyers’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.
2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, 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 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. During the Term, Company will provide to you all patches and updates of the Local Software made generally available by Company to Subscribers of the Software at no additional cost. You acknowledge and agree that each patch and update will be automatically downloaded and installed by the Software at a time determined by Company, with or without notice from Company. You must always use the latest versions and updates of the Local Software as provided by Company.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, pricing and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Any intellectual property in any materials, data and insights created on or behalf of Company which are based on, or created or derived from the data vest in Company absolutely immediately on creation. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 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 Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company five (5) 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 Service.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term of 1 Year, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. If the Agreement is not renewed, the customer is responsible for returning all hardware outlined in the Services section above to the Company.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of non-payment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. 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.
5.3 In the case of monthly payment plans, the minimum subscription commitment is 12 months. If a customer wishes to cancel their subscription prior to having completed their first 12 payment instalments, they may do so but will be invoiced at point of cancellation for the outstanding payments from the initial 12 months term.
6. WARRANTY AND DISCLAIMER
6.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, company does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. Customer acknowledges system is for sports performance assessment and tracking and is not to be used for medical diagnosis, prevention, monitoring, treatment or alleviation of any disease/ailment. You are responsible for implementing and maintaining, and must implement and maintain, adequate back-up and recovery procedures to protect and preserve the Data.
7. REPAIR AND REPLACEMENT
7.1 Company will repair or replace Warranted Equipment during the Term. Warranted Equipment means: (i) Equipment that is defective or does not otherwise function due to any design or manufacturing faults; and (ii) in the case of Subscriptions only, Equipment that otherwise ceases to function in accordance with the Documentation as a result of fair wear and tear arising from normal use of the Equipment in accordance with this agreement and the Documentation.
7.2 If you believe any item of Equipment requires repair or replacement, you must deliver that Equipment to Company’s nominated services centre, at your risk and cost, for analysis by Company.
7.3 Company will examine the Equipment delivered to it and if Company determines (acting reasonably) that the Equipment is: (i) Warranted Equipment, then Company will repair or replace (at its option) such Warranted Equipment, and deliver the repaired or replacement Equipment to you at Company's cost and reimburse you for the costs of delivering the Equipment to the nominated services centre; or (ii) is not Warranted Equipment, then Company will notify you of that determination and will, at your cost, repair or replace (at Company's option) the Equipment and deliver repaired or replacement Equipment to you. The costs will be determined in accordance with Company’s then-current standard rates and will include Company’s then-current minimum inspection fee for Equipment returned to Company, plus parts, labour and return delivery costs. Company will invoice you for these costs at or around the time of sending the repaired or replacement Equipment to you.
8. FORCE MAJEURE
8.1 A party will be relieved of its obligations (other than an obligation to pay money) to the extent those obligations are prevented by an event outside the reasonable control of the party and that event: (i) was not caused or contributed to by that party; (ii) could not have been prevented by reasonable precautions or remedied by reasonable expenditure by the party which is seeking to rely on the event as the basis for relief, and such relief will continue for the duration of that event.
8.2 The party affected by the event must take all reasonable steps to resume the performance of its affected obligations as soon as reasonably possible.
9. LIMITATION OF LIABILITY
9.1 Notwithstanding anything to the contrary, company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not 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 or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (ii) for any indirect, exemplary, incidental, special or consequential damages; (iii) for any matter beyond company’s reasonable control; or (iv) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
10.1 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 Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. 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. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request and allow company to include their logos, photos and video content in company promotional material during and after the term. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company 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 lawyers’ 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 facsimile or e-mail; 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 Republic of Ireland without regard to its conflict of laws provisions.
SCHEDULE A: SERVICE LEVEL TERMS
1. COMPANY SUPPORT
(a) Company will use its reasonable endeavours to operate and maintain Support between the hours of 9.00 a.m. and 5.00 p.m. Monday to Friday, excluding public holidays, Irish time (Hours of Service).
(b) You may contact Company Support by email on firstname.lastname@example.org.
(c) Company will acknowledge receipt of each notification to the help desk as soon as practicable. If, for any reason, Company is unable to respond to a help desk notification during the Hours of Service, Company will use its reasonable endeavours to respond to such message following the recommencement of the Hours of Service.
(d) Company will use its reasonable endeavours to respond to messages received by Company Support outside of the Hours of Service following the recommencement of the Hours of Service.
2 SUPPORT REQUESTS
(a) You must first work through the applicable Support Troubleshooting Guides provided on Company’s portal prior to submitting any Support Request to Company.
(b) If you are unable to resolve any actual or suspected issue having worked through the Support Troubleshooting Guide, you must submit a reasonably detailed Support Request to Company Support via email to email@example.com.
2.2 Qualified Employees
You must provide on Company’s request suitably qualified and informed Personnel to provide assistance and information to Company, including with respect to knowledge or control of matters that may assist Company in performing its obligations under this agreement.
2.3 Company Response
Company will determine the nature, potential severity and impact of the issue giving rise to your Support Request and consistent with your product type, Company will during the Hours of Service investigate the problem and respond to you where reasonably practicable within one Business Day from the time of reporting and will, as and when necessary, provide you with the following information by email response: (a) an outline of the problem; (b) the proposed corrective action; and (c) to the extent possible, the proposed timeframe for performing such corrective action.
3 EXCLUDED SERVICES
The following matters are outside the scope of the Software Maintenance Services: (a) any maintenance services in respect of superseded versions of the Software; (b) correction of errors caused by operation of the Software in a manner other than that expressly authorised by this agreement or the documentation; (c) consulting and training services; (d) making changes to the Software designed to provide functionality not specified in the documentation or this agreement; (e) reviewing or advising in relation to the method of use of the Software or its integration with any of your systems or processes; (f) maintenance of any computers, hardware, software, networks and other equipment and services necessary to access and make use of the software.