GameDay (“GameDay”) agrees to provide to you, our customer (“You”) the software, support, and services (“Platform”) on the following terms (this “Agreement”).
1. GameDay grants You a non-exclusive, non-assignable license to use the Platform on the terms of this Agreement. No rights in the Platform are sold or assigned under this Agreement.
2. GameDay agrees to provide the Platform (including its operation and maintenance) with due care and skill, together with such other services as GameDay and You may agree from time to time. GameDay may engage third party service providers to supply necessary infrastructure, connectivity, or other services in relation to the Platform.
3. You agree to provide all content, including logos, updates, and information for the Platform, on a timely basis and You grant GameDay a limited, non-exclusive, royalty free right to use that content solely for providing the Platform. You are responsible for managing and keeping up to date all data and content You provide
4. The Platform will be branded with the names and logos You provide, and You warrant that you have permission to use such names and logos. GameDay will not use the logos or other trademarks without prior consent (such consent not to be unreasonably withheld). “Powered by GameDay” or similar will appear on the Platform.
5. GameDay may on reasonable notice and agreement remove any content from the Platform where it has a concern that the content breaches any third party’s rights or any law.
Rights of the parties
16. The parties are independent. Nothing in this Agreement creates a joint venture, partnership, or agency relationship between us, and neither party will represent itself as the joint venture, partner or agent of the other.
17. You exclusively own and retain all right, title and interest in the data generated by users of the Platform, subject only to their rights and privacy.
18. GameDay exclusively owns and retains all right, title and interest in the Platform (including but not limited to copyright, trademark, patent, trade secret, or other proprietary right in all materials, including software object code and source code, aggregate data or information created by GameDay, and any know-how, methods, equipment, or processes used by GameDay.
19. You agree that for the duration of this Agreement You will not obtain services or license any platform similar to the Platform from any other party, without GameDay’s consent, which consent may be conditional on GameDay continuing to receive its Fee.
20. You may not assign, or sub-licence or otherwise deal with your rights to the Platform without GameDay’s consent.
21. GameDay may periodically update, modify, change, upgrade or transfer to different infrastructure or operating software, the Platform, in its sole discretion, subject to the reasonable protection and preservation of all of Your right, title and interest in the data generated by users of the Platform, and subject to their rights and privacy.
22. Each party warrants that it has the power to enter into this Agreement; and it has not entered into any other agreement, arrangement or understanding, legally enforceable or not, which prevents, restricts, or inhibits its ability to meet its obligations under this Agreement.
Protection and limitation of liability
6. You acknowledge that GameDay has no control over, and accepts no responsibility for, third-party content passing through the Platform or associated systems, network hubs or points of presence, or internet in connection with the Platform; the Platform is provided ‘as is’ and, except as contained here, GameDay does not make any representation or warranty of any kind, express or implied, with respect to the performance of the Platform or related services, including, but not limited to, any implied warranty of merchantability, fitness for purpose, or non-infringement, nor implied warranty arising by usage of trade, course of dealing or course of performance, nor of the Platform being uninterrupted, always accessible, free of harmful components, accurate or error-free.
7. Each party (“Indemnifying Party”) indemnifies and must keep indemnified the other party (“Indemnified Party”) against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Indemnified Party or which the Indemnified Party may pay, sustain or incur as a direct or indirect result of (i) any breach or non-performance of this Agreement by the Indemnifying Party; or (ii) any wrongful, wilful or negligent act or omission of the Indemnifying Party or any of its employees, agents or contractors.
8. Notwithstanding any other provision of this Agreement:
(a) neither party shall have any liability to the other in contract, tort (including negligence) or otherwise for loss of goodwill, business, revenue, profit or anticipated savings (whether foreseeable or not) nor for any indirect, incidental, special, exemplary or consequential loss or damages of the other party whatsoever arising out of the performance, non-performance, breach or otherwise of this Agreement (including but not limited to any loss of data); and
(b) the maximum liability of GameDay in contract, tort (including negligence) or otherwise in relation to the subject matter of this Agreement shall be limited to the total Fee paid to GameDay under this Agreement in the 12 months prior to the claim arising; and
(c) this limitation applies to all causes of action in the aggregate, including but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts, except that the provisions of this clause shall be read and construed and shall have effect subject to any limitation imposed by any applicable law, and will not serve to limit or exclude liability for death or personal injury resulting from negligence; or liability for fraud or any other liability which it is not lawfully permitted to exclude or limit.
9. This Agreement sets out the entire agreement between GameDay and You and shall not be varied except in writing signed by both parties. Any prior arrangements, agreements, representations, or undertakings are superseded.
10. A provision of or a right granted under this Agreement, may not be waived, except in writing signed by the party granting the waiver or varied, except in writing signed by the parties.
11. A notice, consent or other communication under this Agreement must be in writing and must be sent electronically to the lead contact (or if the other party notifies another contact, then to that contact)); and takes effect from the time it is received unless a later time is specified.
12. If any dispute arises in relation to this Agreement, the parties will endeavour to first settle the dispute by discussion between them, or respective nominees. If the dispute is not resolved within 14 days (or other period agreed in writing) after notice of the dispute is received, the parties must refer the dispute to mediation by and according to the rules of the appropriate, neutral, United Kingdom-based mediator, with the mediator’s costs shared equally by the parties. If the dispute is not resolved within 28 days (or other period agreed in writing) after appointment of the mediator, then, but not otherwise, either party may take whatever action it chooses to enforce its rights. This clause does not affect a party’s rights to seek interlocutory relief in a court of competent jurisdiction.
13. The failure by a party to enforce any of the terms of this Agreement is not a waiver of those terms or of the right subsequently to enforce all terms of this Agreement.
14. The information contained in this Agreement and its Schedules is confidential, must be held in confidence, and may not be disclosed by either party to any person (other than a related body corporate, or a party’s legal or financial advisers) without consent of the other party (unless required by law or in connection with legal proceedings related to this Agreement), unless such information becomes publicly available other than as a result of a breach of this clause.
15. This Agreement is subject to the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of those courts