Sportlogiq Inc. (“Sportlogiq”) collects, packages and distributes data and advanced analytics related to hockey games (the “Data”, as defined below).

Sportlogiq is the owner of proprietary software that it makes commercially available to customers for use under license as a hosted software as a service offering to access the Data (the “Software”, as defined below).

The following terms of service and conditions (collectively, these “Terms of Service”) provide the basis upon which you and/or your organization or corporation (the “Customer”) is licensed to use the Data and Software.

BY ACCEPTING THESE TERMS OF SERVICE, EITHER BY: A) ACCEPTING THESE TERMS OF SERVICE ONLINE, B) SIGNING AN ORDER FORM OR PURCHASE AGREEMENT WHICH REFERENCES THESE TERMS OF SERVICE, OR C) USING, OR ACCESSING THE DATA OR SOFTWARE AFTER BEING MADE AWARE OF THESE TERMS OF SERVICE, CUSTOMER ACKNOWLEDGES THAT IT HAS UNDERSTOOD ALL OF THE PROVISIONS CONTAINED HEREIN, THAT IT AGREES TO COMPLY WITH AND BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY ADDITIONAL TERMS CONTAINED IN ANY PURCHASE AGREEMENT OR ORDER FORM WHICH IS INCORPORATED BY REFERENCE, AND WHICH WHEN COMBINED WITH THESE TERMS OF SERVICE ARE DEEMED TO COMPRISE THE ENTIRE AGREEMENT ENTERED INTO BETWEEN SPORTLOGIQ AND CUSTOMER. IF CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, CUSTOMER SHALL NOT USE, OR ACCESS THE SERVICE

1. Definitions

1.1 In these Terms of Service:

“Agreement” means these Terms of Service and all Purchase Agreements duly executed by the Parties.

“Confidential Information” has the meaning given thereto in Section 8.1 of these Terms of Service.

“Custom Enhancement” means a new feature added or modification made to the Software or a custom report created in accordance with a request made by Customer.

“Customer” means Customer named in the applicable Purchase Agreement.

“Data” means the analytics data derived from acts or actions by players or teams executed in Games, tracked by Sportlogiq, and included as part of the Service for the applicable Scope specified in a Purchase Agreement.

“Documentation” means the written and/or electronic documentation, including among other things user and installation manuals, reference materials, and/or release notes, if any, that Sportlogiq generally makes available to its customers.

“Due Date” means thirty (30) days following the issue date of any invoice for Fees.

“Fees” means fees charged by Sportlogiq for the Service, including the Data, Software, Maintenance and Support, Professional Services or Custom Enhancements, as mutually agreed upon by the Parties in the applicable Purchase Agreement.

“Force Majeure Event” means, in relation to either Party, any act, event, non-happening, omission or accident that is beyond its reasonable control and is not reasonably foreseeable by that Party, and that causes or results in default or delay in the performance by that Party of any of its obligations under this Agreement, including (a) acts of God, war, riot, civil unrest, terrorism, malicious damage or strike or other industrial action or labor problem in any jurisdiction relevant for Sportlogiq’s operations; (b) distributed denial of service attacks; (c) failure of or interruption to telecommunications services, power supply or other utility services, delays involving hardware or software not within Sportlogiq’s control, network intrusions, or the impossibility of the use of public or private telecommunications networks; (d) lightning, earthquake, hurricane, storm, fire, flood, drought, accumulation of snow or ice and other extreme weather or environmental conditions; (e) the delay, non-completion, cancellation, postponement, abandonment or similar event or act in relation to any fixture or Game; (f) government action or decree, any legal or regulatory change and any decision, order, act or omission of any governmental, regulatory, judicial or other body (whether or not having legal powers), and (g) any decision, order, act or omission of any Rights Holder.

“Game” means any individual sporting game or contest. 

“Indemnifying Party” has the meaning given thereto in Section 10.1 of these Terms of Service. 

“Intellectual Property Right” means any right or protection existing from time to time in a specific jurisdiction, whether registered or not, under any patent law or other invention or discovery law, copyright law, publicity, performance or moral rights law, trade-secret law, confidential information law, integrated circuit topography law, semi-conductor chip protection law, industrial design law, trademark law, unfair competition or trade practices law, or other similar laws, and includes legislation by competent governmental authorities and judicial decisions under civil law, common law or equity.

“Maintenance and Support” means the service described in Section 4.1 of these Terms of Service.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs or Trojan horses.

“Marks” means any and all Sportlogiq trademarks which may be provided by Sportlogiq to Customer from time to time.

“Order Form” means a written document executed by the Parties, which may be titled “Order Form”, “Purchase Agreement” or “Evaluation Form”, that defines the Scope of the Service to be provided by Sportlogiq, the Term, the number of Users authorized to access the Service, the Fees that Customer will pay for the Service and the terms of payment for the Fees.                                                                                                                            

“Parties” means collectively Sportlogiq and Customer, and “Party” means either one of them individually

“Permitted Purpose” means the restriction on the use of the Service, which is limited to usual internal business, administrative, coaching, and management purposes, including but not limited to player and team analysis.

“Professional Services” means consulting, training, support outside of standard support hours, and other professional services that may be provided by Sportlogiq to Customer in association with the Service. 

“Rights Holder” means any third party that owns or controls the rights, including Intellectual Property Rights, broadcast or other rights relating to any Game, including the rights to use the Video Content of the Game and the personal data of the participants in the Game.

“Rights Holder Conditions” means any terms, conditions, restrictions or prohibitions imposed by any Rights Holder having rights (including broadcasting rights or venue access rights) in relation to any Games, Video Content or other input necessary to perform the Service.

“Scope” means the specific professional sports leagues and Games to be included in the Service and nature, extent and deliverables of any specific Professional Services or Custom Enhancements to be provided by Sportlogiq to Customer, all as specified in an Order Form. Where a Season is referenced to define Scope on an Order Form, it means all regular season and playoff Games, but excluding exhibition and pre-season games, that are played during the season for that sport. 

“Service” means the cloud-based hosted version of the Software for which Customer and its Users are granted rights of access and use in accordance with this Agreement, remotely over the Internet, as well as the Data, Maintenance and Support, Professional Services and Custom Enhancements, if any, as provided in this Agreement. 

“Software” means the Sportlogiq’s proprietary software program(s) used to provide Users with access to the Data and Video Content, and the Documentation for such program(s).

“Taxes” means any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever, in relation to the Service, but exclusive of corporate income tax and property tax.

“Term” means the period of time during which Customer is authorized by Sportlogiq to access and use the Service (including the Documentation) as specified in the Order Form.

“User” means the employees or contractors of Customer to whom Customer (or Sportlogiq at Customer’s request) has supplied a user ID and password that allows such individual to access the Service.

“Video Content” means text, images, video, audio and other data relating to or incorporated into the video footage of a Game made available to Customer through the Service

2. Grant of License

2.1 License Grant. Subject to the terms and conditions of this Agreement and payment of the applicable Fees, Sportlogiq hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, internal right, during the Term: (a) to access and use (and to permit Users to access and use) the Service solely for the Permitted Purpose; and (b) to access and use (and to permit Users to access and use) the Documentation as reasonably necessary to support Customer’s permitted use of the Service. 

2.2 Restrictions. Customer agrees that the Service, including the Software and Documentation, contain trade secrets and other valuable proprietary information owned by Sportlogiq. Customer shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Software, the Documentation, the Service or any part thereof; (b) knowingly interfere with service to any of Sportlogiq’s users, host or network, including by means of intentionally submitting any Malicious Code, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on any part of the Service and/or Documentation; (d) circumvent any timing restrictions that are built into the Service; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in any part of the Service or Documentation in any form to any person without the written consent of Sportlogiq; (f) remove any proprietary notices, labels, or marks from any part of the Service or Documentation; (g) create any “links” to, or “frame” or “mirror” of the Service or any part thereof; or (h) use the Service or any part thereof in violation of the Permitted Purpose or applicable laws. 

2.3 Video Content License. Customer hereby grants to Sportlogiq any and all rights to the Video Content that it possesses, for the sole purpose of allowing Sportlogiq to create the Data and deliver the Service, to the fullest extent of Customer’s legal right to do so.

2.4 Trademarks. Customer is hereby granted a revocable, non-transferable and non-exclusive license to use the Marks solely for the purpose of prominently displaying the Marks in a position proximate to any use of the Data (and subject to any restrictions on the use of the Marks which may be provided to Customer in writing by Sportlogiq from time to time). Customer is required to display the Marks in association with the Data each time that Customer provides the Data to any User or to any other person. Other than as specified herein, this Agreement does not grant any license or other permission for either Party to use any of the trademarks of the other Party, in any manner

3. Rights Holder

3.1 Rights Holder Conditions. Customer agrees and acknowledges that the provision of the Service is subject to Rights Holder Conditions, and that Rights Holders may impose new Rights Holder Conditions during the Term 

3.2 Customer Compliance. Customer’s use of the Service or any part thereof is subject to Customer’s compliance with such Rights Holder Conditions, and Sportlogiq’s obligation to provide the Service to Customer is conditional on Customer agreeing to comply with all Rights Holder Conditions. If Customer does not agree to any Rights Holder Conditions, Customer may terminate this Agreement upon 30 days written notice to Sportlogiq. In such event, Customer shall be required to pay any and all Fees related to the Service, including any Professional Services or Custom Enhancements provided up to the date of termination, and Sportlogiq shall refund to Customer any pre-paid Fees covering the period following the date of termination of this Agreement pursuant to this section.
 
4. Additional Services

4.1 Maintenance and Support. Sportlogiq shall provide the following Maintenance and Support services in connection with the Service

 
(a) maintenance of the Software, including correction of identified programming errors and resolution of performance issues;
 
(b) telephone and email support, during Sportlogiq’s standard support hours, to Users, in order to assist Customer in its use of the Service;
 
(c) any updates and standard enhancements to the Software that it provides to other equivalent licensees of the Service.
 
 4.2 Custom Enhancements. In the event that Customer, from time to time, requests in writing that Sportlogiq develop one or more Custom Enhancements, and Sportlogiq wishes to perform such Custom Enhancements, Sportlogiq shall provide Customer with a written quotation for the design, development and deployment of such Custom Enhancements, on either a fixed cost or per diem basis, with any applicable incremental Fees. If Customer agrees to the quotation, then the Parties shall execute an Order Form which shall set forth the applicable Scope and Fees for such Custom Enhancements, following which Sportlogiq will perform and deliver such Custom Enhancements.

4.3 Professional Services. In the event that Customer, from time to time, requests Professional Services, and Sportlogiq wishes to perform such Professional Services, the Parties shall execute an Order Form which shall set forth the applicable Scope and Fees for such Professional Services, following which Sportlogiq will perform such Professional Services.
 
4.4 Subcontractors. Sportlogiq, at its sole discretion, may designate other individuals or companies to provide any or all of the Service under this Agreement, provided that Sportlogiq shall continue to maintain overall responsibility for the provision of the Service.
 
5. Customer Responsibilities
 
5.1 Service Usage Obligations. Customer shall: (a) comply with Sportlogiq’s applicable policies (including those relating to IT security and usage) related to the Service which Sportlogiq shall provide, in writing, from time to time; (b) take all necessary steps to prevent any Malicious Code being introduced into any part of the Service; (c) use reasonable endeavors to ensure that the Service or any part thereof is not used, reproduced and/or used for any commercial purpose by any third parties; (d) notify Sportlogiq as soon as it becomes aware of any unauthorized use of any part of the Service by any person; and (e) not use or permit the use of any part of the Service in connection with or as part of any betting service, facility, functionality or arrangement with or for any other provider, operator or aggregator of betting services anywhere in the world under any circumstance.
 
5.2 Users. Customer is responsible for all activities of its Users, for its and its Users’ compliance with this Agreement and which occur through the use of its Users’ accounts and credentials. Customer shall: (a) use commercially reasonable efforts to prevent unauthorized access to, or use of any part of the Service, and notify Sportlogiq promptly of any such unauthorized access or use; and (b) use the Service only in accordance with this Agreement, any and all operating instructions or procedures, including the Documentation, that may be issued by Sportlogiq from time to time, and any and all applicable laws and government regulations.
 
5.3 Equipment. Customer is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Customer to access and use the Service and for all expenses relating thereto.
 
6. Fees and Payment
 
6.1 Fees. Customer shall pay Fees as specified in the applicable Order Form. Customer shall reimburse Sportlogiq for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by Sportlogiq in connection with the performance of the Service, provided that such expenses are approved in advance in writing by Customer. Except as otherwise specified herein or in an Order Form, payment obligations are non-cancellable, and Fees paid are non-refundable.
 

6.2 Overdue Charges. All payments are due by the Due Date unless otherwise specified in any Order Form. Any payment not received from Customer by the Due Date will accrue late charges at the rate of 1.5% per month of the outstanding balance from the Due Date for such payment until the date paid.
 

6.3 Cancellation for Non-Payment. Sportlogiq may immediately cancel Customer’s access to the Service if Customer fails to make any payment on or prior to the Due Date and does not cure such non-payment within ten (10) business days after the date of written notice from Sportlogiq. Any such cancellation shall not excuse Customer from its obligation to make all payment(s) due under this Agreement.
 

6.4 Taxes. Fees do not include Taxes. Customer is responsible for paying all Taxes associated with the Service provided and Fees charged hereunder.
 
 7. Intellectual Property Rights

 
7.1 Intellectual Property Rights. As between the Parties, Sportlogiq owns and shall retain all right, title, and interest in and to the Service, including the Software, Maintenance and Support, Data, Documentation, Professional Services and any Custom Enhancements, and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement and Customer will not take any action or permit any action to be taken inconsistent with the foregoing. Customer shall keep the Data, Software, Documentation and Custom Enhancements free and clear of all liens, encumbrances and/or security interests.
 
7.2 Derivative Works. Sportlogiq shall own all right, title and interest and all Intellectual Property Rights in and to any inventions (whether patentable or not), discoveries, concepts, know-how, technology, templates and modifications to the Software, which have been created or developed by Sportlogiq or on behalf of Sportlogiq, during the provision of the Service, including of the Data, Professional Services and Custom Enhancements under this Agreement. In addition, Customer hereby grants Sportlogiq a royalty-free, unlimited, irrevocable and perpetual right to any feedback it or its Users provide, including, but not limited to, problem reports, suggestions, suitability and other information with respect to the Service, to use or incorporate into any part of the Service, the Documentation or for any other purpose.
 
7.3 Data. As between the Parties, Sportlogiq exclusively owns all rights, title and interest in and to the Data. Except for the license granted by Sportlogiq to Customer in Section 2.1 in these Terms of Service, Customer does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in or to any of the Data.
 
7.4 Diagnostic Data. The Service may send information and data to Sportlogiq to provide aggregated usage and diagnostic statistics of Customers’ use of the Service. Customer hereby grants to Sportlogiq a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to collect, process and aggregate such information and data and to create aggregated data records and use such aggregated data, and all modifications thereto and derivatives thereof for the purpose of improving the Service, developing new products and services, analyzing usage and for all other reasonable purposes as determined by Sportlogiq.

8. Confidentiality
 

8.1 General. Customer acknowledges that in the course of being provided with the Service, Customer may be supplied with, come into possession of, or have access to, the confidential or proprietary information of Sportlogiq and/or its clients, including but not restricted to, the current and planned enhancements to the design, structure, logic, user interface, algorithms, features, programming techniques, performance and benchmarking statistics, and processes associated with the Service (including the Software, Data, Maintenance and Support, Professional Services, Custom Enhancements and Documentation) (the “Confidential Information”).
 
8.2 Disclosure to Representatives. Customer agrees to disclose the Confidential Information only to those of its representatives who have a need to know the information for any purpose described in this Agreement, and who are under a written obligation to keep confidential the information received from the disclosing party. Customer shall, prior to disclosing the information to such representatives, advise them of the obligations under this section.
 
8.3 Prevention of Disclosure or Use. Customer agrees to make reasonable efforts to ensure that the Confidential Information is not directly or indirectly disclosed to or used by any person except as provided in this Agreement or as is expressly authorized in writing by Sportlogiq. Customer’s efforts will not be less than those which Customer takes or would reasonably be expected to take to prevent disclosure of its own proprietary or confidential information.
 
8.4 Injunctive Relief. Customer acknowledges that a breach of the provisions of this Article 8 would cause irreparable harm to Sportlogiq that could not be compensated by monetary damages. Accordingly, Customer agrees that Sportlogiq shall be entitled to specific performance, injunctive or other equitable relief in addition to, or instead of, monetary damages, without the necessity of establishing that monetary damages would be inadequate to fully compensate Sportlogiq for the harm it has suffered.
 
8.5 Permitted Disclosure. Notwithstanding the foregoing, Customer shall not be obligated to comply with the above-mentioned non-disclosure obligations in this Article 8 relating to Confidential Information if such information (i) was known by Customer prior to disclosure, as evidenced by its business records; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of the confidentiality provisions contained herein; (iii) was disclosed to Customer by a third party, provided such third party or any other party from whom such third party receives such information is not in breach of any confidentiality obligation in respect of such information; or (iv) is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, provided that Customer shall give all reasonable prior notice to Sportlogiq to allow it to seek protective or other court orders.
 
8.6 Continued Application. The obligations set out in this Article 8 shall continue to apply to the Confidential Information following the termination of this Agreement
 
8.7 Non-Solicitation. Customer agrees that, during the Term and for a period of two (2) years thereafter, is will not directly or indirectly employ or retain, or make any solicitation or approach with a view to offering employment or other incentives to, any employee of Sportlogiq or any person that was employed by Sportlogiq within the twelve (12) month period prior to the date of employment or retention by Customer.
 
9. Warranties and Disclaimers
 
9.1 Mutual Warranties. Each Party hereby represents and warrants to the other that: (a) it has all necessary power and authority, and has obtained and will throughout the Term, maintain all licenses, permissions and consents, required to enter into and to perform its obligations under this Agreement; (b) there are no actions, suits or proceedings pending or, to the best of its knowledge, threatened against it before any court, tribunal or governmental body, agency or authority which may adversely affect its ability to perform its obligations hereunder; and (c) it will comply with all applicable laws and regulations with respect to the performance of its obligations under this Agreement.
 
9.2 Service Warranties. Sportlogiq hereby warrants to Customer that:
 
(a) it will use commercially reasonable efforts to ensure that the Service is provided in a timely, reputable and competent manner in accordance with professional standards;
 
(b) the Software will perform substantially in accordance with the Documentation; and
 
(c) the use by Customer of the Service strictly in accordance with the terms of this Agreement will not infringe any Intellectual Property Right of any third party.
 
9.3 General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, AND SPORTLOGIQ MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE SERVICE; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR DATA TRANSMITTED TO OR FROM SPORTLOGIQ VIA THE SERVICE OR THE DELIVERY METHOD. SPORTLOGIQ DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS OR THAT THE SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED. Sportlogiq DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO OTHER REPRESENTATIONS OR WARRANTIES AND THAT NO OTHER REPRESENTATIONS OR WARRANTIES HAVE FORMED THE BASIS OF ITS BARGAIN HEREUNDER.
 
9.4 Internet Connectivity Disclaimer. Sportlogiq makes the Service available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Service over the Internet. Customer shall ensure that its computer equipment and Internet connection meet the minimum specifications published by Sportlogiq in the Documentation and as updated from time to time on the Sportlogiq’s website, and Customer shall periodically update its computer equipment and/or Internet connection to meet such minimum specifications. Customer hereby acknowledges that the Service may be interrupted due to: (a) website downtime for scheduled maintenance at Sportlogiq’s sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond Sportlogiq’s control, including, without limitation a Force Majeure Event. Customer hereby acknowledges and agrees that Sportlogiq shall not, in any way, be liable for, or have responsibility with respect to, any such interruptions in the Service and hereby releases Sportlogiq from any claims relating thereto.
 
10. Indemnities

10.1 Mutual Indemnity. Subject to the provisions and limitations set forth herein, each Party (the “Indemnifying Party”) shall indemnify and hold the other Party harmless from and against all loss or damage of any kind and nature suffered by the other Party (including reasonable attorney fees) as a result of any material breach of the Indemnifying Party’s obligations as set out in this Agreement, or as a result of a material breach of any representation or warranty of the Indemnifying Party contained in this Agreement, or resulting from a the Indemnifying Party’s gross negligence or willful misconduct.
 
10.2 Customer Indemnity. Customer shall defend Sportlogiq against any claim, demand, suit or proceeding made or brought against Sportlogiq by a third party that is caused by or results from the actions of any User who has been provided access to the Service by Customer or has been permitted to use the Service or any part thereof on behalf of Customer, and Customer will indemnify and hold Sportlogiq harmless from any damages, legal fees and costs finally awarded against Sportlogiq as a result of, or for any amounts paid by Sportlogiq under a court-approved settlement of, such a claim, provided that Sportlogiq: (a) promptly gives Customer written notice of the claim, (b) gives Customer sole control of the defense and settlement of the claim (except that Customer may not settle any claim unless it unconditionally releases Sportlogiq of all liability), and (c) gives Customer all reasonable assistance as may be required in connection with the defence of the claim, at Customer’s expense.
 

10.3 Sportlogiq Indemnity. Sportlogiq shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Service as permitted pursuant to this Agreement infringes or misappropriates the Intellectual Property Rights of a third party, and shall indemnify and hold Customer harmless for any damages, legal fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, such a claim, provided that Customer: (a) promptly gives Sportlogiq written notice of such claim, (b) gives Sportlogiq sole control of the defense and settlement of the claim, and (c) provides Sportlogiq with all reasonable assistance as may be required in connection with defense of the claim, at Sportlogiq’s expense. In the event of a claim, or if Sportlogiq reasonably believes the Service may infringe or misappropriate the Intellectual Property Rights of a third party, Sportlogiq may in its discretion and at no cost to Customer: (i) upon reasonable notice to Customer, modify the Service so that they no longer infringe or misappropriate the Intellectual Property Rights of the third party, without breaching Sportlogiq’s warranties hereunder, (ii) obtain a license for Customer’s continued use of the Service in accordance with this Agreement, or (iii) terminate the provision of all or part of the Service upon 30 days’ written notice to Customer and refund to Customer any prepaid Fees for the remainder of the Term. Notwithstanding any of the preceding, Sportlogiq shall not have any obligation to indemnify Customer pursuant to this Section to the extent that the claim in question is caused by: (x) Customer not having obtained a third party license, right or consent Customer as required in connection with the rights granted by Customer under Section 2.3 of these Terms of Service; (y) use by Customer of third party products or services in conjunction with the Service; or (z) Customer’s negligence, willful act, or omission. This Section sets out Customer’s sole and exclusive remedy, and Sportlogiq’s exclusive obligations and liabilities, relating to a claim alleging that the use of the Service or any part thereof as permitted pursuant to this Agreement infringes or misappropriates the Intellectual Property Rights of a third party.
 
10.4 IF AN INJUNCTION OR ORDER RESTRICTS THE USE OR DISTRIBUTION OF ANY OF THE VIDEO CONTENT, SOFTWARE, DATA OR DOCUMENTATION, OR IF SPORTLOGIQ DETERMINES THAT ANY OF THE VIDEO CONTENT, SOFTWARE, DATA OR DOCUMENTATION IS LIKELY TO BECOME THE SUBJECT OF A CLAIM OF INFRINGEMENT OR VIOLATION OF ANY PROPRIETARY RIGHT OF ANY THIRD PARTY, SPORTLOGIQ SHALL, IN ITS SOLE DISCRETION, AND AT ITS OPTION AND AT NO ADDITIONAL CHARGE TO CUSTOMER, (i) PROCURE THE RIGHT TO CONTINUE USING, REPRODUCING, AND DISTRIBUTING THE VIDEO CONTENT, SOFTWARE, DATA OR DOCUMENTATION; (ii) REPLACE OR MODIFY THE VIDEO CONTENT, SOFTWARE, DATA OR DOCUMENTATION SO THAT THEY BECOME NON-INFRINGING, PROVIDED SUCH MODIFICATION OR REPLACEMENT DOES NOT MATERIALLY ALTER OR AFFECT THE SPECIFICATIONS FOR OR THE USE OR OPERATION OF THE SOFTWARE, DATA OR DOCUMENTATION; OR (iii) TERMINATE THIS AGREEMENT AND REFUND ANY FEES RELATING TO THE FUTURE USE OF THE SERVICE. THE FOREGOING REMEDIES CONSTITUTE CUSTOMER’S’S SOLE AND EXCLUSIVE REMEDIES AND SUPPLIER’S ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT CLAIMS OR ACTIONS
 
11. Limitation of Liability
 
11.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 11.3 OF THESE TERMS OF SERVICE, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
 
11.2 Limitation of Liability. SUBJECT TO SECTION 11.3 OF THESE TERMS OF SERVICE, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
 

11.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO: (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS PURSUANT TO THIS AGREEMENT, (II) INDEMNIFICATION CLAIMS, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.
 
11.4 Application of Exclusions and Limitations. The foregoing limitations and exclusions of liability shall apply even if a Party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply regardless of whether the action arose in contract, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or in tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of the Parties shall also apply to their respective officers, directors, employees, and agents as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries.
 
12. Term and Termination
 
12.1 Term. The Term for the use of the Service shall commence and end as specified in the relevant Order Form unless terminated earlier, as provided for in this Agreement.

12.2 Termination. A Party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination of this Agreement will be without prejudice to any rights or liabilities of either Party which have accrued prior to such termination. The Parties agree that this Agreement cannot be terminated by Customer other than pursuant to this Section or Section 3.2 of these Terms of Service, and Customer hereby waives any other termination rights it may have by law or otherwise, including pursuant to article 2125 of the Civil Code of Quebec.
 
12.3 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 12.2 of these Terms of Service, Sportlogiq will refund Customer any prepaid Fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by Sportlogiq in accordance with Section 12.2 of these Terms of Service, Customer will pay to Sportlogiq any unpaid Fees covering the remainder of the Term. In no event will termination for any reason by Customer relieve Customer of its obligation to pay any Fees payable to Sportlogiq (including all other costs for which Sportlogiq has the right to reimbursement) for the period prior to the effective date of termination.
 

12.4 Suspension of Access to Service. In addition to any termination rights of Sportlogiq pursuant to this Agreement, extraordinary circumstances may require Sportlogiq to suspend or terminate, as determined in Sportlogiq’s sole discretion, Customer’s access to and/or use of, or otherwise modify, all or part of the Service in order to: (a) prevent material damages to, or material degradation of the integrity of, Sportlogiq’s or its Internet provider’s Internet network; or (b) comply with any law, regulation, court order, or other governmental order; or (c) comply with any Rights Holder Conditions that restrict Sportlogiq’s ability to provide the Service on a basis that is commercially acceptable to Sportlogiq. In such an event, Sportlogiq will notify Customer of such suspension or termination as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination has been initiated. In the event of a suspension, Sportlogiq will limit such suspension to that which is minimally required and will promptly restore Customer’s access to the Service as soon as the event giving rise to the suspension has been addressed (including by Customer agreeing to accept the risks associated with such suspension) or resolved. Unless caused by a breach of this Agreement by Customer: (i) all Fees related to the suspended Service shall be waived for the duration of the suspension, and any such waived Fees which have been pre-paid shall be refunded to Customer; and (ii) in the event of a termination in connection with this Section , Customer shall receive a refund of any and all prepaid Fees applicable to the remainder of the then-current Term.
 
12.5 In the event of termination, Customer shall immediately discontinue all use of the Services.
 

13. Assignment

Either Party may, upon written notice to the other Party, assign this Agreement (including all applicable Order Forms) or any rights, benefits, warranties or obligations granted hereunder to any successor to its business, provided however, that this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
 

14. General
 
14.1 Waiver. The failure of a Party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such Party to enforce any subsequent breach of such term. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.
 
14.2 Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.
 
14.3 Governing Law. This Agreement shall be governed by the laws of the Province of Quebec, without regard to its conflict of law principles. The courts located the City of Montreal in the Province of Quebec shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each Party hereby consents to the exclusive jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
 
14.4 Entire Agreement, Conflict of Terms. This Agreement is the entire agreement between the Parties in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, in respect to the subject matter hereof, and may not be modified or altered except by a written agreement between the Parties. In the event that there is any conflict or inconsistency between the terms and conditions of an Order Form and those of these Terms of Service, the terms and conditions of these Terms of Service shall control and govern the rights and obligations of the Parties.
 
14.5 Remedies. Other than as expressly stated in this Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
 
14.6 Language. The Parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the Parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.
 
14.7 Signature, Counterparts and Delivery. Each Order Form may be signed electronically, including through DocuSign and similar applications. Each Order Form may be signed in any number of counterparts (including counterparts by scanned or electronic signature) and each counterpart will be deemed an original; taken together, and all counterparts will be deemed to constitute one and the same instrument. Delivery of a printed counterpart (whether or not the counterpart was signed electronically) or electronic delivery (including by email transmission or transmission over an electronic signature platform) of an executed counterpart of this Agreement are each as valid, enforceable and binding as if the signatures were upon the same instrument and delivered in person.

End of Terms of Service