1. Access, Limitations, and Use Levels.
   
   
2. Right to Use Services.  Subject to Customer’s compliance with all terms and conditions of this Agreement (including the prompt payment by Customer of all fees and charges) and any additional terms set forth in the Order Form, PlayMetrics hereby grants to Customer, for the Term (as defined below), a limited, personal, non-exclusive, nontransferable license to access and use the Services, as permitted by the features of the Services and in accordance with applicable law. We reserve all rights not expressly granted herein in the Site and Services.  Customer agrees to use the Services in accordance with the use levels and/or cap limits by which we measure, price, and offer our Services as posted on our websites, or the Service Descriptions, and/or as set forth in the Agreement (“Use Levels”). Customer acknowledges that this license is a limited nonexclusive license and PlayMetrics is and remains the owner of all title, rights (including Intellectual Property Rights), and interests in the Site and Services.  If Customer’s affiliates use our Services, Customer warrants that it has the authority to bind those affiliates and it will be liable if Customer’s affiliates do not comply with the Agreement. For the purposes of this MSA, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade name, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
   
   
3. Customer shall designate via the Site each authorized account administrator, director, coach, personnel, or other role authorized by Customer to receive a Site log-in credential (each such user an “Authorized User”) to be associated with Customer’s account.  The Services shall be accessible to each Authorized User via a unique Site log-in credential, and each Authorized User’s utilization of the Services is subject at all times to compliance with the Agreement.
   
   
4. Limitations on Use.  Customer agrees to use the Services solely to receive the Services of PlayMetrics and to provide access to Customer’s Authorized Users and members or users of such Services as authorized by PlayMetrics and subject to the Terms of Use displayed on the company websites of PlayMetrics, which Terms of Use are hereby incorporated by reference.  Except as required to use the Services in an authorized manner, Customer warrants that it will not modify, publish, retransmit, participate in the transfer or sale of, create derivative works of, distribute, sublicense, perform or display the Services or any intellectual property or other material owned, licensed or developed by PlayMetrics, including but not limited to any software, source code, object code, databases, information, communications, graphics or sounds. Customer shall not under any circumstances: copy the Services; sublicense, distribute, modify, adapt, translate, reverse engineer, decompile, disassemble, or prepare derivative works based on the Services; use or allow use of the Services after the termination or expiration of the Agreement; allow others to use, copy, or access the Services in connection with a service bureau, application service provider, public computer bulletin board, shareware process, or any similar business or service; access, use, or disclose the Services source code; remove, obscure or alter any copyright or other proprietary rights notices included in or affixed to the Services; sell, license, disclose, or distribute any product designed or intended for use with the Services; publish or disclose the results of any benchmark tests relating to the Services; or use the Services in applications or systems when failure of the Services to perform could reasonably be expected to result in serious physical injury, loss of life, or material damage to property. Customer expressly agrees on behalf of itself, and its Authorized Users, to the Terms of Use, including, but not limited to, the Services Rules.
   
   
5. Changes to Services. PlayMetrics retains the right, in its sole discretion, to enhance, modify or alter the Services at any time (“PlayMetrics’ Modifications”). It shall be in PlayMetrics’ sole discretion to determine which PlayMetrics’ Modifications Customer receives.  We will not materially reduce the core functionality (as set forth in the Service Descriptions) or discontinue any Services unless we provide Customer with prior written notice. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
   
   
6. Ownership of Services and Intellectual Property.  Customer acknowledges and agrees that no title to the Intellectual Property Rights in the Services, including any and all proprietary trade secret information and information about business processes, is transferred to Customer under the terms of the Agreement. All right, title and interest in and to the Services is the sole property of PlayMetrics, including any modifications thereto. Other than the limited license explicitly set forth in the Agreement, no interest in or rights or licenses to the Services or Site are granted to the Customer, and no interest in or rights or licenses to the Services shall inure in or accrue to the Customer, whether by implication, estoppel, or otherwise. All rights of any kind in the Services that are not expressly granted in the Agreement are entirely and exclusively reserved to and by PlayMetrics, and its successors and assigns. PlayMetrics reserves the right, without notice, (i) to revoke Customer’s or any of its Authorized Users user identity (“User Identity”) (user name together with a password); (ii) to require Customer or any of its Authorized Users to change its User Identity; or (iii) to deny, limit or terminate access to the Services or any portion thereof, whether for security purposes, for violation of the Agreement, including the Terms of Use, or for any other reason.  Customer acknowledges that we or our licensors retain all proprietary right, title and interest in our name, logo or other marks (together, the “PlayMetrics Marks”), and any related Intellectual Property Rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Customer agrees that it will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part the PlayMetrics Marks or is similar to any of these. Customer agrees to comply with our Branding Guidelines, as may be provided. Any rights not expressly granted in the Agreement are reserved by PlayMetrics.
   
   
7. Use Levels:
   
   
8. Player Cap.  The Club Operating System Services license grant is subject to the Player Cap (including the number of Recreational versus Competitive player licenses) set forth in the applicable Order Form, and the Services Fee is dependent upon the established Player Cap (including the the number of Recreational versus Competitive player licenses).  An “Active Player” shall be defined as a player registered to a Customer’s Site account as a “player profile”, and provided such “player profile” has been “rostered” to a Customer “team profile” which is active in the Club Operating System. For clarity, any Active Player “rostered” to a Customer “team profile” which is solely associated with a short-term tryout, coaching or referee course, clinic, seminar, camp, Customer event, or similar limited term event with a duration of less than ten (10) calendar days shall not be counted toward the Player Cap.  At all times it shall remain the sole obligation of the Customer to ensure its account does not exceed the Player Cap.  Without limitation to any other recourse available to PlayMetrics related to overages set forth herein, if customer exceeds the Player Cap during the term, including the number of Recreational or Competitive licenses permitted, then Customer agrees that it will incur additional charges per additional Player, at the then-current list price for Competitive and/or Recreational Players as applicable, and such additional licenses may be billed by PlayMetrics in arrears on a quarterly basis, and/or adjusted at time of expiration of the initial term, or any renewal term as set forth in section 4. C. below. As a courtesy, PlayMetrics offers Customers a limited Player Cap allowance to avoid disruptions to Customer’s operations, whereby during the Term, the number of Active Players may exceed the above-mentioned Player Cap by no more than ten percent (10%) of the Player Cap, for a period not to exceed sixty (60) calendar days (the “Player Cap Buffer”).  Should Customer’s account exceed the Player Cap Buffer, then Customer will be subject to the additional overage charges described above. Without limitation, and notwithstanding anything to the contrary herein, PlayMetrics reserves the right at all times during the Term to limit the number of Active Players to the established Player Cap.
   
   
9. Member Cap. Specifically applicable to the membership association features of the Governing OS Services, if ordered by Customer, the Governing OS Services license grant is subject to the Member Cap (including the number of Recreational versus Competitive members) set forth in the applicable Governing OS Order Form, and the Governing OS Services Fee is dependent upon the established Member Cap.  A “Current Member” shall be defined as any individual player who is a currently registered member, in good standing, of a Customer athletic membership association, where such individual player is also designated as a “member” of Customer’s Site account. At all times it shall remain the sole obligation of the Customer to ensure it does not exceed the Member Cap. Without limitation to any other resource available to PlayMetrics related to overages set forth herin, if Customer exceeds the Member Cap (including the number of Recreational or Competitive Members permitted), then Customer agrees that it will incur additional charges per additional Member, at the then-current list price for Competitive and/or Recreational Members as applicable, and such additional licenses may be billed by PlayMetrics in arrears on a quarterly basis, and/or adjusted at time of expiration of the initial term , or any renewal term as set forth in section 4. D. below. Without limitation, and notwithstanding anything to the contrary herein, PlayMetrics reserves the right at all times during the Term to limit the number of Current Members to the established Member Cap.
   
   
10. Governing OS Services – Leagues & Tournaments – Team Cap. Specifically applicable to the Leagues or Tournament feature of the Governing OS Services, if ordered by Customer, the Governing OS Services license grant is subject to the annual Team Cap set forth in their applicable Governing OS Order Form, and the applicable  Governing OS Services – League Fee or Governing OS Services – Tournament Fee is dependent upon the established Team Cap. A "Team" shall be defined as any Team which is registered by Customer via Customer's Site account to a Customer league or Customer tournament during the applicable annual period of the Term. At all times it shall remain the sole obligation of the Customer to ensure it does not exceed the applicable Team Cap. WITHOUT LIMITATION TO ANY OTHER RECOURSE AVAILABLE TO PLAYMETRICS RELATED TO OVERAGES SET FORTH HEREIN, IF CUSTOMER EXCEEDS THE TEAM CAP, THEN CUSTOMER AGREES THAT IT WILL INCUR ADDITIONAL CHARGES PER ADDITIONAL TEAM, AT THE THEN-CURRENT LIST PRICE FOR TEAMS AS APPLICABLE AND SUCH ADDITIONAL LICENSES MAY BE BILLED BY PLAYMETRICS IN ARREARS ON A QUARTERLY BASIS, AND/OR ADJUSTED AT TIME OF EXPIRATION OF THE INITIAL TERM, OR ANY RENEWAL; TERM AS SET FORTH IN SECTION 4. D. BELOW. Without limitation, and notwithstanding anything to the contrary herein, PlayMetrics reserves the right at all times during the Term to limit the number of Teams to the established Team Cap.
    
    
11. eSignature Allowance.  In the event Customer orders the eSignature Platform services via an executed Order Form or addenda, such eSignature services shall be subject to the eSignature Allowance set forth in the applicable Order Form or Addenda. “eSignature Allowance" means the cumulative number of eSignature envelopes which may be sent by authorized users registered in Customer’s account during the corresponding period of time (typically an annual basis) as set forth in the Order Form. An eSignature envelope is consumed when sent by an authorized user, regardless of whether the eSignature envelope has been received by any recipients or whether any recipients have performed any actions upon any eDocument in the eSignature envelope. Customer hereby agrees that all eSignature envelopes sent in excess of the eSignature Allowance during the applicable annual period will incur a per-eSignature envelope overage charge at amount specified on the then-current Order Form. PlayMetrics shall bill Customer in arrears at the eSignature Overage Rate set forth in the applicable Order Form or addenda for any excess eSignature envelopes.  For clarity, the eSignature Allowance is allotted for use during the allotted period of the Term as set forth in the applicable Order Form, and if such eSignature Allowance is not fully utilized by Customer during the allotted period, then the unused eSignature envelopes shall expire and may not be carried forward for use in a subsequent period.
    
    
12. Website Builder Professional Services.  In the event Customer orders Website Builder Services in any Order Form or addenda executed by the parties and requests accompanying professional services to assist Customer with development of websites in the Website Builder service, such professional services shall be provided to Customer by PlayMetrics, and shall be billed at the Website Builder Professional Services Fee as may be established in the Order Form or addenda.  Any such Website Builder Professional Services Fees shall be invoiced upon delivery of such services, and shall be paid as set forth below.
    
    
13. Physical Card Cap.  In the event Customer orders the Team Accounts services via an executed Order Form or addenda, such Team Accounts services shall be subject to the limitations set forth in the applicable Order Form, including, but not limited to, the Physical Card Cap, as calculated on an annual basis during the Term (as designated in the applicable Order Form).  In the event Customer orders additional plastic magnetic stripe cards in excess of the Physical Card Cap, PlayMetrics shall bill Customer at the per card rate as set forth in the applicable Order Form or addenda.
    
    
14. Professional Services and Onboarding Services. The Professional Services as may be described in any Order Form or addenda executed by the parties shall be provided to Customer by PlayMetrics via PlayMetrics’ designated web conferencing systems, and supplemented by email communication as necessary. The scope and schedule of the agreed upon Professional Services, as well as the applicable Onboarding Period, shall be set forth in the applicable Order Form or addenda, and shall be subject to the Professional Services Cap as may be set forth in the Order Form or addenda.  The specific dates of web conferences or other virtual meetings shall be mutually agreed upon by the parties, provided such virtual meetings occur solely during the designated Onboarding Period and without unreasonable delay.  All Professional Services ordered via any Order Form must be utilized by the Customer during the designated Onboarding Period as set forth in the applicable Order Form. Any Professional Services, which are not utilized by Customer during the applicable Onboarding Period shall expire at the expiration of the Onboarding Period.  Any additional Professional Services in excess of the Professional Services Cap shall be requested by Customer in writing and approved by Customer in advance, and shall be billed to Customer at the hourly Professional Services Overage Rate set forth in the applicable Order Form or addenda.  Any such Professional Services Overage fees shall be invoiced upon delivery of such services, and shall be paid as set forth below.

2. Customer Content and Accounts:

1. Ownership of Customer Content.  As between the parties, Customer shall own all data and content that is submitted online by Customer and Customer’s Authorized Users, members, and/or users through the Services. This information (to the extent stored in the Services by Customer) shall include participant and registration information, membership information, and other commerce-related information provided by Customer, its members and users (“Customer Content”). Customer Content collected in the Services shall be subject to the Terms of Use and this Agreement. In addition to any terms or policies that the Customer may have, Customer agrees that PlayMetrics may, in its sole discretion, require any users of the Services, including Customer’s Authorized Users, members and/or users, to expressly agree to the Terms of Use during the member/user signup process or any time thereafter as a condition of accessing the Services and receiving the Services. Customer hereby authorizes PlayMetrics to use the Customer Content in any manner permitted in the Agreement (including, but not limited to, the Terms of Use and the DPA), subject to applicable law, and may contact or communicate with Customer’s Authorized Users, members and users, including without limitation, regarding their individual user accounts, their login credentials, updates to the Terms of Use or their access to and use of the Services or other features, services and products relevant to their use of the Services.
   
   
2. Use of User Data in Connection with Services. PlayMetrics may use data collected or managed by PlayMetrics through the Services (e.g., player registration, membership registration, league or tournament registration, and e-commerce data) (collectively, the “User Data”), to notify Customer of information relevant to the products and services of PlayMetrics and its trusted partners, and for such other purposes as may be permitted by law and the PlayMetrics policies including the Terms of Use and the DPA (collectively, the “Data Usage Rights”). If User Data collected or managed through the Services is provided on behalf of a third party, Customer represents, warrants and covenants that Customer has notified such third parties of this Agreement and obtained all required consents. In addition, Customer grants PlayMetrics a limited, fully-paid, royalty free, worldwide, non-exclusive, irrevocable, right and license to use, reproduce, modify, adapt, enhance, improve, create derivative works of, edit, translate, distribute, and otherwise display the User Data: (i) for Customer’s benefit; (ii) for the purpose of performing the Services; and (iii) as permitted hereunder and under the DPA. PlayMetrics disclaims all warranties as to the availability of the User Data. PlayMetrics shall have no liability or responsibility in the event that the User Data is deleted or removed from the Services. Customer represents and warrants that all User Data that is provided by Customer or on Customer’s behalf, or uploaded, stored, processed, contained included and/or integrated into the Services by Customer or on Customer’s behalf has been collected in accordance with applicable laws and with full consent. Customer hereby consents to PlayMetrics’ use of the User Data as provided herein. If any of the User Data uploaded, stored, processed, contained included and/or integrated in the Services relates to children under the age of 13 (“Child Subject”), Customer represents and warrants that prior to Customer providing such User Data to PlayMetrics, Customer, as the parent or guardian of such Child Subject, consents to: (i) send or store such Child Subject’s User Data in the Services, and (ii) permit PlayMetrics to exercise its rights hereunder and under the Agreements with respect to such Child Subject. If Customer is not the parent or guardian of such Child Subject, Customer represents and warrants that Customer has obtained verifiable consent of the parent or guardian of such Child Subject to use the Child Subject’s User Data as provided herein. Customer shall provide copies of such consents to PlayMetrics upon request. In the event any such Child Subject (or the parent or guardian thereof) elects to withdraw such consent, Customer shall promptly notify PlayMetrics and PlayMetrics shall remove the Child Subject’s User Data from the Services. If such express consent is not provided Customer shall not send or store such Child Subject’ User Data in the Services; and if Customer previously sent or stored Child Subject’s User Data without such express consent, Customer shall immediately notify PlayMetrics and immediately remove any applicable User Data from the Services until Customer obtains such required express consent. If any of the User Data processed by PlayMetrics contains Personal Information (as defined in the DPA), such data shall be processed in accordance with the DPA attached hereto as Exhibit A.
   
   
3. Customer’s Accounts.  Customer is solely responsible for (i) all use of the Services by Customer and its Authorized Users, (ii) maintaining lawful basis for the collection, use, processing and transfer of Customer Content, and (iii) providing notices or obtaining consent as legally required in connection with the Services. We are not liable for any loss that Customer may incur if a third party uses Customer’s password or account. Customer is responsible for maintaining the security of its Services log-in credentials and for all uses of the Site and Services in the name of its account, and will keep log-in credentials confidential, and will not share log-in credentials or give others access to shared log-in credentials.  We may suspend the Services or terminate the Agreement if Customer, or Customer’s Authorized Users are using the Services in a manner that is likely to cause harm to us or if we have reasonable grounds for suspecting any illegal, fraudulent, or abusive activity on Customer’s part. Customer agrees to notify us immediately and terminate any unauthorized access to the Services or other security breach.
   
   
4. Trademark License and Copyrights.  Customer hereby grants to PlayMetrics a non-exclusive, and sublicensable license to use the trademarks and logos of Customer identified by Customer (each a “Customer Mark” and collectively the “Customer Marks”) in connection with delivery of the Services, the marketing of PlayMetrics and the Services, the Site, and on a publicly available client exemplar list.  Customer expressly reserves all trademark rights not expressly granted to PlayMetrics under this Agreement.  PlayMetrics acknowledges that Customer is the owner of the Customer Marks. Any goodwill derived from the use by PlayMetrics of the Customer Marks shall inure to the benefit of Customer. If PlayMetrics acquires any rights in the Customer Marks, by operation of law, or otherwise, such rights shall be deemed and are hereby irrevocably assigned to Customer without further action by any of the parties. PlayMetrics agrees not to dispute or challenge, or assist any person or entity in disputing or challenging, Customer’s rights in and to the Customer Marks or the validity of the Customer Marks.
   
   PlayMetrics acknowledges and is familiar with the high standards, quality, style and image of Customer, and PlayMetrics agrees that it will, at all times, conduct its business and use Customer’s trademarks and logos in a manner consistent with these standards, quality, style and image.  Additionally, PlayMetrics agrees that (i) it will not, directly or indirectly (A) do, omit to do, or permit to be done, any act which will or may dilute Customer’s trademarks and logos or tarnish or bring into disrepute the reputation of or goodwill associated with the such trademarks and logos or Customer, or (B) apply for, or obtain, or assist any person or entity in applying for or obtaining any registration of Customer’s trademarks and logos, or any trademark, service mark, trade name or other indicia confusingly similar to the such trademarks and logos; (ii) it will ensure that Customer’s trademarks and logos are marked with the appropriate trademark notices as provide by Customer; and (iii) in exercising its rights under this Agreement, it will comply with, and shall ensure that its use of Customer’s trademarks and logos complies with any usage guidelines that may be provided by Customer.
   

3. Orders, Fees, and Payment.

1. Orders.  Customer may order Services using our then-current ordering processes (each an “Order”). All Orders are effective on the Effective Date as set forth in the applicable Order Form (“Effective Date”). Acceptance of Customer’s Order may be subject to our verification and credit approval process. Each Order shall be treated as a separate and independent Order.
   
   
2. Fees and Payment.  Customer agrees to pay all applicable, undisputed fees for the Services, including but not limited to Services Fees, Add-On Service Fees, Professional Services Fees, Governing OS Services Fees, overage fees, Merchant Payment Platform Fees, payment processing fee, ACH return fees, research fees, chargeback fees, exceptions processing fees, or other fees incurred by Customer. on the terms set forth in the Agreement or Customer’s invoice.  Except as may be set forth in the Service Descriptions, any and all payments Customer makes to us for access to the Services are final and non-refundable, and are based on services purchased and not services actually used. Customer is responsible for all fees and charges it incurs to Customer’s other service providers (e.g., Customer’s broadband and internet provider) in connection with Customer’s use of the Services. Customer is responsible for providing accurate and current billing, contact and payment information to us. Customer agrees that we may charge Customer’s payment card or bill it for all amounts due for Customer’s use of the Services, and we may take steps to update Customer’s payment card information (where permitted) to ensure that payment can be processed. Customer agrees that Customer’s credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may, where permitted by applicable law, suspend or terminate the Services if at any time we determine that Customer’s payment information is inaccurate or not current, and Customer is responsible for fees and overdraft charges that we may incur when we charge Customer’s card for payment. We reserve the right to update the price for Services at any time after the Initial Term, and price changes will be effective as of the next billing cycle following the expiration of the Initial Term. In accordance with applicable law, we will notify Customer in a timely manner of any price changes by publishing on our website, emailing, quoting, or invoicing Customer.  Any expiration or termination of this Agreement shall not release Customer from its duty to pay any amount which may be then or with the passage of time will become owing to PlayMetrics. Furthermore, immediately upon any termination of this Agreement, Customer shall pay to PlayMetrics any and all amounts that are or with the passage of time will become due and payable.
   
   
3. Billing Frequency.  Services Fees, and/or fees associated with Add-On Services, Professional Services, Governing OS Services Fees, or overage fees as may be set forth in applicable Order Form, or addenda, shall be due and payable according to the billing frequency as set forth in the applicable Order Form, and/or addenda, or as may otherwise be communicated to Customer.  Generally, fee obligations are annual or multi-year subscription commitments and are due in advance each annual period of the applicable Term.  As may be set forth in an Order Form, payment commitments may be payable as quarterly payments.  During each annual period following the initial annual period of the applicable Term, the billing frequency shall repeat on the anniversary of the billing dates as originally set forth in the applicable Order Form or Addenda, unless otherwise noted. Any overage fees incurred by Customer shall be billed in arrears on a monthly or quarterly basis, as described herein, or the applicable Order Form. Only with regard to Governing OS – Leagues and Tournaments where the applicable Order Form calls for payment in arrears, incurred fees will be billed at the per Governing OS (League) or Governing OS (Tournament) team rate, as applicable, as set forth in the applicable Order Form, in arrears following the initial publication of each schedule of games for each applicable league or tournament event via the Governing OS – Leagues & Tournaments Platform during the Term.
   
   
4. Services Fee Escalation.  At the commencement of each Renewal Term, the then-current Services Fee as set forth in the applicable Order Form shall be automatically increased by the percentage set forth in the Order Form as the Services Fee Escalation, if any.  Such Services Fee increase shall be effective as to the then-current Services Fee as of the commencement of the applicable Renewal Term, for the duration of such Renewal Term, and until the commencement of any subsequent Renewal Term (at which time the Services Fee Escalation shall be applied again).
   
   
5. Merchant Payment Platform Fees and Team Account Fees.  In the event Customer orders Merchant Payment Platform or Team Account Services, all processing fees and applicable payment processing terms for payment processing transactions via the Merchant Payment Platform or Team Accounts shall be governed by the applicable Order Form executed by the parties.
   
   
6. Right of Set-Off. Customer hereby grants to PlayMetrics, a lien, security interest and right of set off as security for all amounts payable by Customer to PlayMetrics hereunder against any amounts contained in Customer’s Merchant Payment Platform Account(s), whether now existing or hereafter arising and against all deposits to Customer’s Merchant Payment Platform Account(s), now or hereafter in the possession, custody, safekeeping or control of PlayMetrics or in transit to PlayMetrics. At any time after the occurrence and during the continuance of default in payment due to PlayMetrics, without demand, PlayMetrics may set off the same or any part thereof and apply the same to any liability or obligation of Customer to PlayMetrics. PlayMetrics agrees to report any amounts set off against amounts owed to PlayMetrics in a written report furnished to Customer within fifteen (15) business days after the end of the month in which any set-off is taken.
7. Sales, or Promotional Offers, and Pricing. Sales, promotions and other special discounted pricing offers are temporary and, upon the renewal of a subscription, any such discounted pricing offers may expire. We reserve the right to discontinue or modify any credits, sales, and special promotional offers in our sole discretion.
   
   
8. Invoices.  Invoiced fees are due on the applicable date set forth in the Order Form, or as may be applicable, the invoice.  PlayMetrics may suspend Customer’s account and access to the Services in the event any invoiced fees not received by PlayMetrics when due.  Any invoiced fees not received by PlayMetrics within thirty (30) days from the applicable due date will accrue penalty interest as described below.
   
   
9. Disputes; Delinquent Accounts, Overdue Fees.  Customer must notify us of any fee dispute within fifteen (15) calendar days of the invoice date, and once resolved, Customer agrees to pay those fees within fifteen (15) calendar days. We may, without notice, immediately suspend or terminate the Services if Customer does not pay undisputed fees, and Customer agrees to reimburse us for all reasonable costs and expenses incurred in collecting undisputed delinquent amounts.  Unpaid Fees that are not subject to a good faith dispute may accrue penalty interest at the rate of 1.5% per month on the amount past due, or the maximum amount permitted by law, whichever is higher, plus all reasonable costs of collection.
   
   
10. Suspension of Services.  If any undisputed fees owed by Customer under this or any other agreement with PlayMetrics are overdue, PlayMetrics may, without limiting its other rights and remedies, immediately suspend Customer’s and Customer's Authorized Users, members, and/or users accounts and/or access to the Services until such amounts are paid in full.
    
    
11. Chargebacks.  Customer agrees not to cause its credit or debit card company to reverse or “chargeback” any fees charged in accordance with the Agreement; and in the event Customer does so, PlayMetrics may terminate Customer’s use of the Services effective immediately, and Customer agrees to reimburse PlayMetrics for any costs incurred in responding to such chargeback, including, without limitation, PlayMetrics’ actual costs paid to the credit or debit card company, including chargeback fees, and the value of the time PlayMetrics’ employees spend on the matter as determined in its discretion in good faith. 
    
    
12. Taxes and Withholding. Customer is responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar fees as may be applicable in the location in which the Services are being provided and similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those Taxes and Fees based on our net income, or Taxes and Fees for which Customer has provided an exemption certificate. In all cases, Customer will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.  If PlayMetrics has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, PlayMetrics will invoice Customer and Customer will pay that amount unless Customer provides PlayMetrics with a valid tax exemption certificate authorized by the appropriate taxing authority.
    
    
13. Transactions Initiated by Individuals. If a member of or user within Customer’s Organization makes a registration or other payment to the Organization via the Services, Customer agrees that such transaction is solely between the Customer’s member/user and that Organization, notwithstanding PlayMetrics rights to impose Fees on such transactions; therefore, any refund requests, including without limitation unauthorized or incorrect charges, must be made directly to the Organization. Any Fees charged by PlayMetrics for the Services are non-refundable. Customer agrees to contact PlayMetrics in the event of a dispute before initiating a chargeback or return with Customer’s bank or credit card issuer. In the event a member or user of Customer’s organization makes any chargeback claim, PlayMetrics may contact the member/user and Customer and its Organization with regard to the claim.
    
    
14. Custom Development.  If Customer wants to add additional features beyond the features included in the Services or have PlayMetrics provide specific design, development or implementation services, Customer agrees to pay costs and fees for such features and services when charged by PlayMetrics. PlayMetrics will present Customer a separate statement of work confirming the details of the work, the estimated timeline to implement and the cost associated with the project (“SOW”). PlayMetrics will proceed once both PlayMetrics and Customer agree to and execute the SOW. Once the SOW is acknowledged, it will be deemed to be an amendment to this Agreement.
    

4. Term and Termination.

1. The initial term of the Agreement will commence on the Effective Date as set forth in the applicable Order Form, and shall continue uninterrupted for the period of time set forth in the Order Form as the initial term (the “Initial Term”).
   
   
2. Automatic Renewal. Upon the expiration of the Initial Term, the Agreement shall automatically renew for successive renewal term periods as set forth in the applicable Order Form as the Renewal Term (each a “Renewal Term”) unless either party provides written notice of nonrenewal (email sufficing) at least thirty (30) calendar days prior to the expiration of the Initial Term, or any subsequent Renewal Term, such notice of termination shall be effective as of the final calendar day of the applicable period.  The Initial Term and any Renewal Term shall be referred to as the “Term.”  All written notices sent to PlayMetrics pursuant to this section must be sent via the method as described in the Notice section below.
   
   
3. Automatic Renewal, and Services Fee Adjustment Due to Play Cap Overage. WITHOUT LIMITATION to any other recourse available to PlayMetrics related to overages set forth herein, PlayMetrics reserves the right to increase the service fee for any renewal term to adjust for any overage of active cap at the expiration of the initial term, or any renewal term (as applicable). The services fee shall be increased, at the then-current list price for competitive and/or recreational players as applicable, to reflect additional charges on a per active player basis in excess of the then-applicable player cap. Any such required adjustment shall cause the applicable player cap (including recreational and competitive player numbers) to be fixed at the adjusted cap for the duration of the applicable remaining term unless or until otherwise amended.
   
   
4. Automatic Renewal, and Governing OS Services Fee Adjustment Due to Governing OS Member Cap Overage. Without limitation to any other recourse available to PlayMetrics related to overages set forth herein, PlayMetrics reserves the right to increase the governing OS service fee for any renewal term to adjust for any overage of current members registered in customer's account in excess of the applicable player cap at the expiration of the initial term, or any renewal term (as applicable). The governing OS services fee shall be increased, at the then-current list price for competitive and/or recreational players as applicable, to reflect additional charges on a per active player basis in excess of the then-applicable governing OS member cap. Any such required adjustment shall cause the applicable governing OS member cap (including recreational and competitive player numbers) to be fixed at the adjusted cap for the duration of the applicable remaining term unless or until otherwise amended.
   
   
5. Termination for Material Breach.  Either party may terminate this Agreement for any material breach by the other of the terms of this Agreement, if such breach is not remedied by the breaching party within a reasonable cure period, not to exceed thirty (30) business days after provision of written notice detailing the terms of the material breach. 
   
   
6. Termination for Non-Payment.  PlayMetrics will have the option, but not the obligation, to terminate an Order Form, and/or related addenda, and/or suspend performance of the Services if Customer fails to pay when due undisputed amounts to be owing to PlayMetrics under such Order Form or addenda.
   
   
7. Termination for Insolvency. Either party may, at its option and without notice, terminate this Agreement effective immediately, should the other party: (1) admit in writing its inability to pay its debts generally as they become due; (2) make a general assignment for the benefit of its creditors; (3) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy or insolvent; (4) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (5) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.
   
   
8. Effect of Termination. Termination of this Agreement for any reason (except the sole material breach by PlayMetrics) shall not allow Customer a refund of Fees and Customer agrees to pay all Fees due and owing to PlayMetrics up to and until the date Customer ceases all use of the Services. Upon termination of this Agreement for any reason, Customer shall make no further use of the Services whatsoever. Customer acknowledges that upon disconnection from the Services, Customer shall no longer be able to use the features of the Services including Customer’s Website Builder site. All Customer Content shall be accessible by Customer notwithstanding termination of this Agreement for a period of fifteen (15) calendar days following termination of this Agreement for archiving by Customer. Thereafter, PlayMetrics will destroy and permanently erase from all devices and systems any Customer Content, User Data, and Customer Confidential Information, provided that PlayMetrics shall be permitted to hold any Customer Data or Confidential Information to the extent allowed by applicable law.
   

5. Organizational Decisions.

1. PlayMetrics is not responsible for an Organization’s administration (e.g., coaching decisions, team selections, registration fees or pricing, payment processing fee elections, Organization refund policies, Organization privacy notices, Organization terms, etc.). An Organization’s use of the Services does not imply PlayMetrics’ approval or endorsement of such Organization. All questions and issues with Organization administration and policies will be directed to the Organization. Customer is solely responsible for ensuring that Customer and its Authorized Users, members, and users secure their User Identity and do not share their User Identity with others. PlayMetrics will assume that any person using the Services under a given User Identity is the individual associated with such User Identity in PlayMetrics’ records and will grant access to data, records and other information and capabilities accordingly. Using, or permitting the use of, the Services under a User Identity not actually assigned to a particular individual is prohibited. Customer agrees that the Services will be used solely for the purposes and functions contemplated in the Agreement and the Terms of Use. Customer represents, warrants and covenants to PlayMetrics that (i) if Customer is using the Services on behalf of an Organization that Customer is an authorized representative of such Organization, and (ii) all materials provided by Customer to PlayMetrics or uploaded, stored, processed, contained included and/or integrated in the Services, including without limitation data and/or information forms, Customer Content and User Data, and other data input by or on behalf of Customer to the Services: (a) is accurate; (b) has been obtained with all required consent; (c) does not infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy and Customer owns or has the rights necessary for the use, processing, modification by PlayMetrics as contemplated herein; (d) is not offensive or obscene or in violation of any law, rule, statute, ordinance, or regulation; (e) does not violate any right of privacy or publicity; (f) does not contain unlawful, discriminatory, libelous, harmful, obscene or otherwise objectionable material of any kind; (g) does not encourage conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation; and (h) does not transmit or upload to the Services any virus, worm, defect, trojan horse, software bomb or other harmful or malicious code or feature that does or could interfere with, damage or degrade in any manner the performance or security of a Service or adversely affect another user of the Service. Customer’s use of the Services shall be subject to the “Services Rules” found in the Terms of Use.
   

6. Product Specific Terms.

1. Website Builder.  In the event Customer orders PlayMetrics' Website Builder Service, the terms of this Agreement, the Terms of Use, and the following terms shall apply to the Customer’s use of the PlayMetrics' Website Builder service (“Website Builder”).
   
   
2. Design and Hosting. In exchange for payment of the Website Builder Fee as set forth in the applicable Order Form, PlayMetrics grants the Customer a limited, revocable, non-transferable and non-exclusive license to utilize Website Builder to host the Customer's website, including tools to design, create, update, and maintain a personalized web site.
   
   
3. Website Builder Site Content.  Customer is solely responsible for all Customer Content it submits to, and utilizes in conjunction with Website Builder, and for any and all information or data it may collect via its Website Builder site (including via any cookies or pixels it may elect to utilize). Without limitation, the Customer's submission of any and all content and our use of submitted content in connection with its Website Builder site is subject to the Agreement, including the Terms of Use, and such submissions shall be deemed Customer Content and subject to all applicable representation, warranties, and agreements hereunder. The Customer shall create and display a privacy notice on its Website Builder site as necessary to comply with applicable law.  Additionally, Customer shall display a Cookie Banner as may be required by applicable law in order to adequately disclose the Customer’s use of cookies, pixels, or other tracking technology. The Customer's selected domain url, and all content displayed on the Customer’s Website Builder site shall not include or incorporate the intellectual property, and shall not infringe the Intellectual Property Rights of any third party. All content displayed via Website Builder shall solely be youth sport related and may not contain any content which we deem to be harmful, threatening, abusive, harassing, vulgar, obscene, hateful, or racially, ethnically, or otherwise objectionable. Any example or template widgets, content, branding, linked social media accounts, or promotional messages initially displayed in the template of the Customer's Website Builder website shall be replaced by the Customer during its design process and prior to public availability of Customer’s site. The Customer will retain all rights in and to the Customer Content provided by it in connection with Website Builder, but otherwise, all right, title, and interest in and to the Website Builder website, website design and build tools, templates and other related Website Builder materials are owned by PlayMetrics. We are not responsible for the accuracy, usefulness, safety or Intellectual Property Rights of or relating to any content, other than content provided by us. PLAYMETRICS SHALL HAVE THE RIGHT TO DISABLE ACCESS TO ANY CONTENT AND/OR DELETE IT, AND/OR DISABLE CUSTOMER’S SITE AT ITS SOLE AND EXCLUSIVE DISCRETION, WITH NO LIABILITY TO, AND CUSTOMER SHALL NOT BE ENTITLED TO ANY REIMBURSEMENT OF ANY AMOUNT PAID BY CUSTOMER. 
   
   
4. Website Builder Customer Conduct.  Customer may access and use Website Builder only for purposes as intended by the normal functionality of Website Builder, and so long as it is in compliance with all provisions of this Agreement, including the Terms of Use. In connection with the Customer's use of Website Builder, the Customer agrees to abide by all applicable local, state, national and international laws and regulation, including applicable data privacy laws, and not, nor allow or facilitate a third party to, violate or infringe any rights (including without limitation Intellectual Property Rights, rights of publicity, or privacy) of others, our policies or the operational or security mechanisms of Website Builder, and without limiting the foregoing, a Customer may not:  use Website Builder, or any content, services, features, data, information, text, images, photographs, graphics, scripts, sounds, video, music, sound recordings, programming, logos, trademarks, services marks, HTML code, compilation of content, format, design, user interface and software made available through or which appears on Website Builder: (a) to promote, conduct, or contribute to fraudulent, obscene, pornographic, inappropriate or illegal activities as determined by us at our sole discretion, including without limitation deceptive impersonation, in connection with contests, pyramid schemes, surveys, chain letters, junk e-mail, spamming, phishing or any duplicative or unsolicited messages (commercial or otherwise); (b) interfere with the access, use or enjoyment of Website Builder by others (including without limitation causing greater demand on Website Builder than is deemed by us reasonable, attacks such as "flaming" other participants in a manner that might incite or perpetuate a conflict or argument, and creating usernames to attack other participants' identities); harass or defame others; or promote hatred towards any group of people; (c) harvest or otherwise collect non-public information about site users obtained through Website Builder (including without limitation email addresses, telephone numbers), without the prior written consent of the holder of the appropriate rights to such information; (d) add an email address to the Customer's email or physical mailing list without a site user's consent after adequate disclosure, or use their email address or contact details for antisocial, disruptive, or destructive purposes, including "flaming," "phishing," "spamming," "flooding," "trolling," and "griefing" as those terms are commonly understood and used on the internet; (e) use any Website Builder user content except for the intended purposes, subject always to the Terms of Use and this Agreement; (f) alter, modify, delete, forge, frame, hyper-link, create derivative works or otherwise interfere with or in any manner disrupt, circumvent, or compromise any part of Website Builder, or its features; (g) access or attempt to access any of our systems, programs or data that are not made available for public use, or attempt to bypass any registration processes on Website Builder; (h) decompile, disassemble, reverse engineer or otherwise attempt to discover any source code or underlying ideas or algorithms of the Website Builder except if and to the extent permitted by applicable law; (i) copy, distribute, transmit, broadcast, publicly display, publicly perform, rent or sell any portion of Website Builder; (j) use any robot, spider, other automated device or any tool-bar, web-bar, other web-client, device, software, routine or manual process, to monitor or scrape information from Website Builder, or bypass any robot exclusion request (either on headers or anywhere else on Website Builder); (k) fail to deliver timely payment for Customer’s purchases; (l) use any meta tags or any other "hidden text" utilizing any trademarks or intellectual property owned or licensed by us; (m) create or provide any other means through which Website Builder may be accessed, for example, through server emulators, whether for profit or not; (n) 'deep-link', redistribute or facilitate the redistribution of Website Builder content; (o) abuse or use any other means to affect or manipulate Website Builder; (p) Engage in activity or use language that is threatening, abusive, harassing, defamatory, libelous, offensive, profane against any of our customers, users, employees, representatives, or any third party as determined by us in our sole discretion. 
   
   
5. Electronic Signature Platform. In the event Customer orders PlayMetrics' Electronic Signature Platform (“eSignature Platform”), the terms of this Agreement, the Terms of Use, and the following terms shall apply to the Customer’s use of the eSignature Platform service.
   
   
6. PlayMetrics' eSignature Platform facilitates the execution of eDocuments between the parties to those eDocuments. Nothing in this Agreement may be construed to make PlayMetrics a party to any eDocument processed through the eSignature Platform, and PlayMetrics makes no representation or warranty regarding the transactions sought to be effected by any eDocument.
   
   
7. Between PlayMetrics and Customer, Customer has exclusive control over and responsibility for the content, quality, and format of any eDocument.
   
   
8. Certain types of agreements and documents may be excepted from electronic signature laws (e.g. wills and agreements pertaining to family law), or may be subject to specific regulations promulgated by various government agencies regarding electronic signatures and electronic records. PlayMetrics is not responsible or liable to determine whether any particular eDocument is (a) subject to an exception to applicable electronic signature laws; (b) subject to any particular agency promulgations; or (c) can be legally formed by electronic signatures.
   
   
9. PlayMetrics is not responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws, regulations, or legal or administrative agency processes. Further, PlayMetrics is not responsible for or liable to produce any of Customer's eDocuments or other documents to any third parties.
   
   
10. Certain consumer protection or similar laws or regulations may impose special requirements with respect to electronic transactions involving one or more "consumers," such as (among others) requirements that the consumer consent to the method of contracting and/or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction. PlayMetrics does not and is not responsible to: (a) determine whether any particular transaction involves a "consumer;" (b) furnish or obtain any such consents or determine if any such consents have been withdrawn; (c) provide any information or disclosures in connection with any attempt to obtain any such consents; (d) provide legal review of, or update or correct any information or disclosures currently or previously given; (e) provide any such copies or access, except as expressly provided in the documentation for all transactions, consumer or otherwise; or (f) comply with any such special requirements.
    
    
11. Customer undertakes to determine whether any "consumer" is involved in any eDocument presented by its Authorized Users for processing, and, if so, to comply with all requirements imposed by law on such eDocuments or their formation.
    
    
12. Customer agrees that its assigned Authorized Users have authority to provide PlayMetrics with and accept from PlayMetrics any required authorizations, requests, or consents on behalf of Customer with respect to Customer's Account.
    
    
13. Customer agrees it is solely responsible for the accuracy and appropriateness of instructions given by it and its personnel to PlayMetrics in relation to the eSignature Platform, including without limitation instructions through its account as made by the assigned account administrator.
    
    
14. Customer shall not use the eSignature Platform, or allow access to it, in a manner that circumvents contractual usage restrictions or that exceeds Customer's authorized use level or usage metrics set forth in the Agreement, and including the applicable Order Form; license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the eSignature Platform available for access by third parties except as otherwise expressly provided in the Agreement.
    
    
15. No Legal Advice. The eSignature Platform does not provide legal advice and PlayMetrics is not a law firm. Part of the eSignature Platform may involve the making of contracts, and/or other legal relations and although we attempt to make sure our information is accurate and useful, we recommend Customer consult with a lawyer if it wants legal advice. PlayMetrics does not offer any legal advice, legal opinions, recommendations, referrals, and/or counseling. PlayMetrics is not involved in agreements between Customer and other users.
    
    
16. PlayMetrics is under no obligation to become involved in any dispute that Customer has with other users and/or in any incident that Customer is party to with other users, or that are affected by and/or otherwise related to the eSignature Platform. 
    
    
17. Local Laws. The use of the Electronic Signature Platform Services may be governed by the laws of different states, countries or regions, and Customer agrees to abide by such local laws. Customer agrees that its use of any electronic signatures will be as valid as any manual signatures, if authorized by local law, and Customer will ensure that Customer’s use of the eSignature Platform is in conformance with local laws and regulations. 
    
    
18. No liability for Lost Data. Where PlayMetrics provides hosting of eDocuments in the eSignature Platform involving the provision of computer storage space, PlayMetrics reserves the right to impose and vary limits and/or restrictions (temporary or otherwise) on the use of the eSignature Platform, including, without limitation, limits on the storage provided by reference to storage space, time/age of files, number and/or size of files, amount of data down and/or uploaded and/or any other criteria PlayMetrics may specify. Any content and/or materials which exceeds any such limit, may be deleted and/or not accepted for such storage, without liability to PlayMetrics. 
    
    
19. Suspension of Access. PlayMetrics may suspend any use of the eSignature Platform, or remove or disable any account or content that PlayMetrics reasonably and in good faith believes violates this Agreement. 
    
    
20. Sending, Storage. During the term of Customer’s subscription PlayMetrics will send and store eDocuments per the terms of the Order Form. However, PlayMetrics may set and enforce limits for reasonable use in order to prevent abusive or unduly burdensome use of the eSignature Platform. Customer, through its account administrator(s), may retrieve and store copies of eDocuments for storage outside of the eSignature Platform at any time during the applicable term when Customer is in good financial standing under the applicable Order Form, and may delete or purge eDocuments from the eSignature Platform at its own discretion. 
    
    
21. Uncompleted eDocuments. PlayMetrics may, at its sole discretion, delete uncompleted eDocuments from the eSignature Platform immediately and without notice upon the earlier of: (a) expiration of the term of the applicable subscription pursuant to the Order Form. PlayMetrics assumes no liability or responsibility for a party's failure or inability to electronically sign any eDocuments within such a period of time. 
    
    
22. Deletion. PlayMetrics may delete an account and Customer Content, including without limitation eDocuments (whether complete or not), upon the expiration of the subscription term or termination as described as described in the Agreement. 
    
    
23. Customer Responsibilities. The eSignature Platform provides Customer with certain features and functionalities that Customer may elect to use, including the ability to retrieve and delete eDocuments in the eSignature Platform. Customer is responsible for properly: (a) configuring eSignature Platform; (b) using and enforcing controls available in connection with eSignature Platform (including any security controls); and (c) taking such steps, in accordance with the functionality of eSignature Platform, that Customer deems adequate to maintain appropriate security, protection, deletion, and backup of Customer's data, which include controlling the management of Authorized Users' access and credentials to the eSignature Platform, controlling Customer data that is processed by eSignature Platform at the instruction of Customer, and controlling the archiving or deletion of eDocuments in the eSignature Platform. Except as expressly required herein or by applicable law, Customer acknowledges that PlayMetrics has no obligation to protect Customer data that Customer elects to store or transfer outside of the eSignature Platform (e.g., offline or on-premise storage).
    
    
24. Club Resources Storage.  In the event Customer utilizes the Club Resources Storage services the following terms shall apply.  The Services includes a cloud-based storage and file sharing module which shall be available to Customer for storage of Customer Content.  Such storage shall be subject to a maximum storage capacity limit of five (5) terabytes.  Customer will not circumvent or exceed the storage space limits designated in the Order Form as the Club Resources Storage Capacity Limit.  When Customer utilizes the Club Resources Storage module, Customer may provide PlayMetrics with items such as files, content, messages, videos, pictures, sample forms, etc. which Customer may share with its members.  This content shall be considered Customer Content, and Customer hereby grants PlayMetrics and PlayMetrics' affiliated entities and trusted third party vendors which PlayMetrics engages, a non-exclusive, irrevocable, fully paid-up, royalty free, sub-licensable, worldwide right and license to host, reproduce, distribute, use, and display such content to the extent necessary to (I) provide Services to Customer and (ii) to create and use the Interaction Data and Feedback; and (iii) for any other activities agreed to by Customer.   Customer’s use of the Club Resources Storage must comply with the Terms of Use and this Agreement at all times.  Customer may use the Club Resources Storage only as permitted by applicable law and will not upload, store, publish or share content that contains Personal Information, health or medical information, financial or other sensitive information, confidential or proprietary information, pornographic or indecent material, or that contains extreme acts of violence, and will not store, publish or share content that is fraudulent, defamatory, or misleading, or violates the privacy or infringes the rights of others (including Intellectual Property Rights).  PlayMetrics may review Customer’s conduct and content for compliance with the Terms of Use and this Agreement.  PlayMetrics is not responsible for Customer Content which Customer uploads or shares via the Services.
    
    
25. Customer Notifications Sent via SMS.  PlayMetrics may provide functionality to permit Customer and its Authorized Representatives to communicate with Customer members or users by text message notification. Only Authorized Representatives may send text message notifications to users of the Services within their own Organization. Authorized Users are not permitted to send text messages to any user with whom they do not have an Organizational relationship and from whom they have not received explicit consent to send such messages. All messages must be related to sports and the applicable Organization, and may not consist of marketing messages. Customer acknowledges and agrees that Customer, not PlayMetrics, is responsible for compliance with all applicable laws, including but not limited to Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission. PlayMetrics does not represent or warrant that it will monitor any use of text message notifications. Customer shall indemnify, defend, and hold PlayMetrics harmless for any violations of this section or applicable marketing laws.
    

7. Additional Terms.

1. Free Services and Trials. Customer’s right to access and use any free Services is not guaranteed for any period of time and we reserve the right, in our sole discretion, to limit or terminate Customer’s use of any free versions of any Services by any individual or entity. If Customer is using the Services on a trial or promotional basis (“Trial Period”), Customer’s Trial Period and access to the Services will terminate (i) at the end of the Trial Period stated in Customer’s Order, or (ii) if no date is specified, thirty (30) calendar days after Customer’s initial access to the Services, (iii) or upon the conversion to a paid subscription. During the Trial Period, to the extent permitted by law, we provide the Services “AS IS” and without warranty or indemnity, and all other terms otherwise apply. We may modify or discontinue any trials or promotions at any time without notice.
   
   
2. Third Party Services.  The Services may contain links to third-party materials that are not owned or controlled by PlayMetrics. PlayMetrics does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If Customer accesses a third-party website or service from the Services or share Customer Content on or through any third-party website or service, Customer does so at its own risk and Customer’s use is governed solely by the terms for those services. Customer expressly relieves us from any and all liability arising from Customer’s use of any third-party website, service, or content, including without limitation Customer Content. 
   
   
3. Beta Services.  We may offer Customer’s access to beta services that are being provided prior to general release, but we do not make any guarantees that these services will be made generally available, such services designated as (“Beta Services”). Customer understands and agrees that the Beta Services may contain bugs, errors, and other defects, and use of the Beta Services is at Customer’s sole risk. Customer acknowledges that, unless Customer has executed an Order Form for certain Beta Services, Customer’s use of Beta Services is on a voluntary and optional basis.  We have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to Customer.  To the extent Customer executes an Order Form for certain Beta Services, Customer’s use of such Beta Services shall be governed by the applicable Order Form, and this Agreement, which shall also set forth Customer’s associated payment obligations for fees as set forth in the applicable Order Form.  Further, to the extent Customer executes an Order Form for certain Beta Services, we will provide written notice to Customer in the event we discontinue those Beta Services, and/or at the time we designated such Beta Services as “General Release” – which may be as set forth in the applicable executed Order Form.  Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory, or otherwise. If Customer is using Beta Services, Customer agrees to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of Customer’s access to the Beta Services. If Customer provides feedback (“Feedback”) about the Beta Service, Customer agrees that we own any Feedback that it shares with us. For the Beta Services where Customer has not executed an applicable Order Form only, this section supersedes any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
   
   
4. Commercial Transaction. If this Agreement is between PlayMetrics and an Organization, Organization hereby certifies that this Agreement is a commercial transaction between two corporations or business entities and Organization’s use of the Services is for commercial purposes.
   
   
5. Copyright. If Customer believes that our Services have been used in a way that constitutes copyright infringement, Customer should follow the process outlined in our Copyright Policy. 
   
   
6. Security Emergencies. If we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities, we may temporarily suspend the Services and we will take action to promptly resolve any security issues. We will use commercially reasonable efforts to notify Customer of any suspension or other action taken for security reasons.
   
   
7. Interaction Data. Customer acknowledges and agrees that, subject to applicable laws, we may collect, analyze and use user interaction data, including data that has been anonymized, aggregated or derived from user data or tagged with a hashed or masked identifier, pertaining to Customer’s access and use of our Services, for the purpose of providing, operating, analyzing, and improving our Services or offering or enabling other services (the “Interaction Data”). Except as otherwise expressly set forth herein, PlayMetrics shall own any Interaction Data; and may aggregate and use Interaction Data as necessary, including in the performance of its obligations and to improve the Site and Services. For clarity, Customer Content shall not be considered Interaction Data.
   
   
8. Confidentiality.  PlayMetrics and Customer agree not to use the Confidential Information disclosed to it by the other party for its own use or for any purpose except to carry out the business relationship between the two, including the provision of the Services.  Neither will disclose the Confidential Information of the other to third parties or to the receiving party's employees or agents except those employees or agents who are required to have the information to perform the obligations which is the subject of this Agreement.  For purposes of this Agreement, “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to Customer Data, pricing, incentives, research, data, algorithms, formulae, product plans, products, services, customer lists, player lists, markets, software, developments, inventions, processes, designs, drawings, policies, marketing, or finances.  Confidential Information does not include information, technical data or know-how that:  (i) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure and the receiving party establishes that the information communicated was received by such party in good faith from a third party lawfully in possession thereof and under no obligation to keep such information confidential; or; (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party; or (iii) is approved by the disclosing party, in writing, for release; or (iv) the receiving party is required to disclose pursuant to a valid order of a court or other governmental body; provided, however, that the receiving party shall first have given notice to the disclosing party and shall give the disclosing party a reasonable opportunity to interpose an objection or obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued. Without limiting the generality of the foregoing, Confidential Information includes any reports or documents created by the receiving party that include, summarize or refer to the disclosing party’s Confidential Information disclosed hereunder. For clarity, Confidential Information shall not include any anonymized Interaction Data.
   
   
9. Data Security.  Customer hereby acknowledges and agrees that PlayMetrics or any of its affiliates, or trusted vendors may process its data, including Personal Information, which is provided to PlayMetrics by the Customer or any of Customer's Authorized Users, members and users, in accordance with the DPA. We maintain a privacy and security program designed to protect Customer Content and any associated Personal Information we may collect and/or process on Customer’s behalf.  Such technical and organizational security measures are more fully described in the DPA. When providing our Services, we act as a data processor, service provider, or the equivalent construct, as those terms are commonly used in applicable data privacy laws, and Customer acts as the controller, or the equivalent construct. Each party shall comply with its obligations under applicable data protection laws and the DPA in respect of its obligations under this Agreement.  Each party agrees with respect to any such Personal Information supplied to it by the other party that it shall:  (a) ensure that appropriate technical and organizational measures shall be taken against unauthorized or unlawful processing of the Personal Information and against accidental loss or destruction of, or damage to, the Personal Information; and (b) comply with any reasonable request made by the other party to ensure compliance with the measures contained in this Section and the DPA.
   
   
10. Standard of Performance, Service Level.  PlayMetrics shall provide the Services in a professional and workmanlike manner.  PlayMetrics shall use commercially reasonable efforts to ensure that the core components of the Services shall have an uptime availability of at least 99.5% per month, excluding unavailability due to: (i) Customer’s equipment, facility, issues caused by Customer, or operator error; (ii) an interruption in Customer’s connection to the internet; (iii) scheduled downtime and/or emergency downtime; or (iv) a Force Majeure Event (as defined below). 
    
    
11. Customer Support.  PlayMetrics will provide standard customer support for the Services during PlayMetrics’ standard business hours, Monday through Friday 9:00 AM – 5:00 PM ET, excluding company recognized Holidays (New Year’s Day, Martin Luther King Jr. Day, Presidents Day, Easter Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day), which are collectively subject to change with prior notice to Customer.
    
    
12. Injunctive and Other Equitable Relief. Customer agrees that the remedy at law for any breach or threatened breach of this Agreement by the Customer would, by its nature, be inadequate, and that in that event PlayMetrics shall be entitled, in addition to damages, to a restraining order, temporary or permanent injunctive relief, specific performance, and other appropriate equitable relief, without showing or providing that any monetary damage has been sustained.
    
    
13. Survival.  Any sections of this Agreement which, by their nature, should survive the termination of this Agreement will survive termination of the Agreement, including Sections 1.C. Limitations on Use, 1.E. Ownership of Services and Intellectual Property, 2.A. Ownership of Customer Content, 4.E. Effect of Termination, 7.H Confidentiality, 8. Representations, 9. Indemnification, 10. No Warranty, 11. Limitation of Liability, 7.M. Survival, and 12. General.
    

8. Representations. Each party represents and warrants that it has the full power and authority to enter into and perform this Agreement; that the execution, delivery and performance of this Agreement has been duly authorized and constitutes a valid and binding agreement of the party; and that the execution, delivery and performance of this Agreement will not result in the breach of, or constitute a default under, or violate any provision of, any agreement or other instrument to which a party is a party.  Customer represents and warrants the following: (i) all information or content provided by Customer or its Authorized Users, members/users to PlayMetrics is true and accurate in all material respects and does not infringe upon the Intellectual Property Rights and/or proprietary rights of any third parties; (ii) Customer has received all necessary permission from third parties to post all Customer Content; (iii) Customer is in compliance in all respects with all applicable laws and regulations; (iv) Customer shall comply with all terms and conditions of the Agreement; (v) Customer shall at all times comply with all applicable laws and regulations related to the collection, use and storage of Personal Information, and (vi) Customer has the authority to represent and enter into this agreement on behalf of its members/users and access their User Data without restriction.

9. Indemnification.

1. By Customer. Customer agrees to fully indemnify and hold harmless PlayMetrics, its parent company, subsidiaries, affiliates, officers, employees, directors, agents, licensors, and other partners (collectively, the “PlayMetrics Related Parties”), from and against any and all claims, actions, suits, demands, losses, liabilities, damages, settlements, judgments, costs or expenses (including without limitation reasonable attorneys’ fees and costs) whether or not involving a third party claim, which arise out of, relate to or result from (a) Customer’s  Authorized Users, members, and other users' use of and access to the Services, including any data or content transmitted or received by the Services; (b) Customer’s violation of the Agreement including without limitation Customer’s breach of any of the representations and warranties above, or the Terms of Use; (c) Customer’s violation of any rights of any third party, including without limitation any right of privacy or Intellectual Property Rights; (d) Customer’s violation of any applicable law, rule or regulation; (e) Customer’s willful misconduct or gross negligence; (f) any dispute between Customer and its members, users, or Authorized Users; and (g) any other party’s access and use of the Services with Customer’s or Authorized Users unique username, password or other appropriate security code. PlayMetrics may assume, at its sole option, control of the defense, appeal, or settlement of any third-party claim that is reasonable likely to give rise to an indemnification claim under this Section.
   
   
2. By PlayMetrics.  PlayMetrics agrees to fully indemnify and hold Customer and its subsidiaries, affiliates, officers, employees, directors, agents, and other partners (collectively, the “Customer Related Parties”) harmless, and upon Customer’s request, defend the Customer Related Parties from and against any and all third-party claims, actions, suits, demands, losses, liabilities, damages, settlements, judgments, costs or expenses (including without limitation reasonable attorneys’ fees and costs) which arise out of, relate to or result from the Services’ violation of any Intellectual Property Rights of any third party. PlayMetrics may assume, at its sole option, control of the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under this Section.
   

10. No Warranty. Each party represents and warrants that it has the full power and authority to enter into and perform this Agreement; that the execution, delivery and performance of this Agreement has been duly authorized and constitutes a valid and binding agreement of the party; and that the execution, delivery and performance of this Agreement will not result in the breach of, or constitute a default under, or violate any provision of, any agreement or other instrument to which a party is a party.  Customer represents and warrants the following: (i) all information or content provided by Customer or its Authorized Users, members/users to PlayMetrics is true and accurate in all material respects and does not infringe upon the Intellectual Property Rights and/or proprietary rights of any third parties; (ii) Customer has received all necessary permission from third parties to post all Customer Content; (iii) Customer is in compliance in all respects with all applicable laws and regulations; (iv) Customer shall comply with all terms and conditions of the Agreement; (v) Customer shall at all times comply with all applicable laws and regulations related to the collection, use and storage of Personal Information, and (vi) Customer has the authority to represent and enter into this agreement on behalf of its members/users and access their User Data without restriction.

11. LIMITATION OF LIABILITY. IN NO EVENT SHALL PLAYMETRICS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS AND/OR LOSS OF BUSINESS, ARISING OUT OF OR IN ANY WAY RELATED TO (I) THE AGREEMENT; (II) THE PERFORMANCE OF THIS AGREEMENT; (III) THE USE OF ANY PRODUCT, SERVICE OR PLAYMETRICS SYSTEM PROVIDED UNDER THIS AGREEMENT; AND/OR (IV) AN ALLEGED BREACH OF THE AGREEMENT, WHETHER OR NOT PLAYMETRICS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PLAYMETRICS, ITS PARENT COMPANY, AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT DIRECTLY PAID BY CUSTOMER TO PLAYMETRICS HEREUNDER WITHIN THE PREVIOUS SIX MONTHS OR $100.00, WHICHEVER IS GREATER. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF PLAYMETRICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CERTAIN INDIVIDUALS. THIS AGREEMENT GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

If you are a California resident, you represent that you are familiar with Section 1542 of the California Civil Code and you hereby waive and relinquish any right and benefit to which you may have under Section 1542 to the full extent that you may lawfully do so in connection with the subject matter hereof. Section 1542 states:

GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

  12. General. 

1. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, U.S.A., without reference to conflicts of laws provisions and, as to matters affecting copyrights, trademarks and patents, by U.S. federal law.  Any dispute with respect to this Agreement shall be brought and heard either in the North Carolina state courts located in Wake County, North Carolina, or the federal district court for the Eastern District of North Carolina located in Raleigh, North Carolina. In such event, both parties consent to the in personam jurisdiction and venue of such courts.
   
   
2. No Class Actions. Customer may only resolve disputes with us on an individual basis and Customer agrees not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
   
   
3. Waiver of Jury Trial. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
   
   
4. Attorney’s Fees.  If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
   
   
5. Force Majeure.  If any party is prevented from performing any of its duties and obligations hereunder (except for Customer's payment obligations) in a timely manner by reason of any act of God, acts of government, civil unrest, acts of terror, strike, labor dispute, flood, weather event, public disaster, pandemic, equipment or technical malfunction or failure, Internet or telecommunication outage, denial of service attacks, power failure, or interruption or any other reason beyond its reasonable control, such condition shall be deemed to be a valid excuse for delay of performance or for nonperformance of any such duty or obligation for the period during which such conditions exists.
   
   
6. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of Customer and PlayMetrics, and no other parties are intended to be direct or incidental beneficiaries of this Agreement, and no third party shall have any right in, under, or to this Agreement.
   
   
7. Entire Agreement; Severability; No Waiver; Third Parties.  The Agreement, including any applicable addenda, Exhibits, and documents referenced herein, sets forth the entire agreement between Customer and PlayMetrics relating to the Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by authorized representatives of each of the parties. If any provision of this Agreement is held invalid or unenforceable, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and the remainder of this Agreement shall continue in full force and effect.  Either party’s failure to exercise any right or provision of this Agreement shall not constitute a waiver of such right or provision.  Nothing in this Agreement shall be deemed to confer any third-party rights, benefits or obligations, except those rights, benefits and obligations as specifically set forth herein. Unless otherwise specified, remedies are cumulative.
   
   
8. Order of Precedence. If there is a conflict between an executed Order Form, the MSA, the Terms of Use, and the Service Descriptions, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order Form. Nothing contained in any document submitted by Customer will add to or otherwise modify the Agreement.
   
   
9. Changes to the Agreement.  PlayMetrics may, in its sole discretion, update or modify the MSA, Terms of Use, DPA, or Service Descriptions from time to time, so Customer should review the MSA, Terms of Use, DPA, or Service Descriptions periodically.  If PlayMetrics changes the MSA, Terms of Use, DPA, or Service Descriptions in a material manner PlayMetrics will update the “Revised as of” date at the top of this page.  Customer’s continued access to and use of the Services after any such change constitutes Customer’s acceptance of the new terms of the MSA, Terms of Use, DPA, or Service Descriptions.  If Customer does not agree to any of these terms, do not use or access (or continue to access) the Services.
   
   
10. Assignment.  This Agreement may not be assigned or transferred by either party, in whole or in part, without the prior written consent of the other party; provided, however, that PlayMetrics may assign this Agreement to its affiliates or in connection with a merger, acquisition, transfer, or sale of all or substantially all the business, operations and assets of PlayMetrics or a change of control of PlayMetrics, without notice and without the necessity of obtaining Customer’s prior written consent.
    
    
11. No Partnership.  This Agreement does not, and shall not be deemed to, constitute a partnership or joint venture between Customer and PlayMetrics.  Neither Customer nor PlayMetrics, nor Customer’s or PlayMetrics’ respective directors, officers, employees, or agents shall, by virtue of the performance of the obligations under this Agreement, be deemed to be an agent or employee of the other, and neither Customer nor PlayMetrics has the authority to bind the other under any contract, agreement, or otherwise, or has the right to direct or supervise the daily affairs of the other.  Customer and PlayMetrics expressly acknowledge that the relationship intended by them is a business relationship based entirely on and circumscribed by the express provisions of this Agreement and that no partnership, joint venture, fiduciary or employment relationship is intended or created by reason of this Agreement.
    
    
12. Notices.  PlayMetrics may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to Customer via email notice, written or hard copy notice, or through posting of such notice on our website or Services, as determined by PlayMetrics in its sole discretion.  PlayMetrics reserves the right to determine the form and means of providing notifications to Customers and users.  PlayMetrics is not responsible for any automatic filtering Customer or Customer’s network provider may apply to email notifications PlayMetrics sends to the email address Customer provides to PlayMetrics.  We will send notices to the address or email address last designated on Customer’s account or Order Form. Customer notices must be sent by personal delivery, overnight courier or registered or certified mail to the address for PlayMetrics as set forth on Customer’s Order Form, attention: Legal Department (with a copy to legal@playmetrics.com), or electronically via email to legal@playmetrics.com with proof of transmittal. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent (with proof of transmittal), or (e) if posted electronically, upon posting.