Payment Processing Agreement

NOTICE: PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS INCLUDING WAIVER OF YOUR RIGHT TO A JURY TRIAL. THIS IS A PAYMENT PROCESSING SERVICE AGREEMENT (“AGREEMENT”) BETWEEN YOU AS THE SUB-MERCHANT AND INDIVIDUAL END USERS AND SPORTSENGINE UK LMITED (“TEAMUNIFY”, “WE”, “US”, “OUR”) WHICH OPERATES THE INTEGRATED MERCHANT GATEWAY (THE “SOFTWARE”) AS THE LICENSOR TO PROVIDE YOU WITH PAYMENT PROCESSING SERVICES (THE “SERVICES”). THE SOFTWARE PROVIDED BY US UNDER THIS AGREEMENT IS USED TO INTEGRATE WITH SPORTSENGINE, INC.’S SEPARATE SOFTWARE OFFERING. THE SOFTWARE AND SERVICES OFFERED UNDER THIS AGREEMENT ARE OPTIONAL TO AND SEPARATE FROM THE SOFTWARE SERVICE PROVIDED BY SPORTSENGINE, INC. THE SERVICES PROVIDED HEREUNDER ARE FULFILLED BY OUR THIRD PARTY PARTNERS, CURRENTLY ADYEN. THE SOFTWARE IS LICENSED FOR USE ONLY PURSUANT TO THE TERMS SET FORTH HEREIN. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT ACCEPT THIS AGREEMENT AND DO NOT USE THE SOFTWARE OR ANY OTHER SERVICE PROVIDED BY TEAMUNIFY.

TeamUnify, in its sole discretion, may modify this Agreement from time to time. We will endeavor to notify you, either through the Software user interface, in an email notification or other commercially reasonably means. Your continued use of the Software/Services after the date any such changes become effective constitutes your acceptance of the new Agreement.

Software and Ownership

TeamUnify hereby grants to You a non-exclusive, non-transferable, non-sublicenseable, revocable right to access and use the Software and to receive certain Services associated with the Software under the terms of this Agreement. You agree that You shall not, directly or indirectly, in whole or in part: (i) make copies of the Software; (ii) cause or permit any reverse engineering, de-compilation, modification, translation or disassembly of the Software or Services; (iii) allow any third-party to use the Software or access the Services, or sell, rent, sublicense, distribute, disclose, publish, assign, commercially share (including time share), or otherwise transfer any rights in the software, without TeamUnify’s prior written consent; (iv) permit any third party application to access the collection of data indexed by the Software, or use the Software to create or populate any other collection (except with TeamUnify’s prior written consent); (vi) do, or permit to be done, anything which shall adversely affect TeamUnify’s right, title or interest in or to the Software; (vii) use the Software or Services in a manner that is contrary to applicable law or in violation of any third party rights of privacy; (viii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Software; and (ix) create Internet “links” to the Software or “frame” or “mirror” any content contained in, or accessible from, the Services on any other server, wireless or Internet-based device.

As between You and TeamUnify, TeamUnify retains all right, title and interest in the Software and any and all intellectual property rights therein and thereto. You acknowledge and agree that the license granted hereunder do not constitute a sale of the Software, and that no rights are granted to You other than those set forth in this Agreement.

TeamUnify reserves the right to perform emergency maintenance services on the Software at any time and without prior notice to You. All or a portion of the Software may be unavailable during any period of such emergency maintenance. TeamUnify may upgrade the Software accessed and used by You to new versions of such Software, or install patches, service packs or the like at any time without notice to You. Certain upgrades may introduce new functionality modules which will be made available to You on an optional basis for an additional fee.

Third Party Service Providers

Certain aspects of our Software and Services may also require You to register with, and agree to the terms of, third-party service providers in order to utilize such Services.  As an example, We currently utilize Adyen as one of our payment processing partners. A copy of Adyen’s terms of service can be found here – https://docs.adyen.com/legal/terms-conditions.  When You use Adyen’s services, Your right to use such services is strictly confidential for the purpose You provide in the details of Your registration. You may not resell, hire, or on any other basis, allow third parties to use the payment services to enable such third parties to be paid for their services. You may not use the payment services for any different purpose than as registered with our application. If We or Adyen at any time discovers that the information You provided about You is incorrect or changed without informing us or if You violate any of these conditions, the Services may be suspended and/or terminated with immediate effect and fines may be applied by the credit card schemes and/or the authorities for unregistered use of payment services which will in such case be payable by You. We will assist and support You in Your use of the payment processing services to be provided by Adyen (i.e., the processor) and We will provide you with first-line assistance with and enable you to connect to the systems of Adyen to be able to use Adyen’s services. For this purpose, you understand that you are instructing Adyen to provide Us with access to your data and settings in Adyen’s systems, which are used by Adyen to provide the payment processing services and authorize Us to manage these on your behalf. While We may help facilitate such registration in some cases in connection with payment processors with which We have partnered, We are parties to any such relationships and disclaim any responsibility or liability for the performance by such third parties. Our processors may, in their sole discretion, require underwriting on any account, and You agree to cooperate with all underwriting requests. We may exchange information with such third-party services in order to facilitate the provision of Services (and related third party services). Where such information consists of personal data, it will only be shared in accordance with Our then current privacy policy.

Fees and Payment

All fees under this Agreement are VAT exclusive. You will be invoiced/charged for all fees due under this Agreement through a separate communication method from us.

If any amount owing by You under this Agreement or any other agreement for Our Services is 30 or more days past due (or 10 or more days past due in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Your access to the Software and Our provision Services to You until such amounts are paid in full.

Confidentiality

Definition of Confidential Information

As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. As used herein, “Your Data” means all electronic data or information submitted by You to the Software. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services and the Software; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

Protection of Confidential Information

Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

Protection of Your Data

Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section, Compelled Disclosure, or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.

Compelled Disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

Warranties and Disclaimers

Mutual Warranties

Each party represents and warrants that it has the legal power to enter into this Agreement.

Disclaimer

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Mutual Indemnification

Indemnification by Us

We shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought against You by a third party alleging that the use of the Software and/or Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.

Indemnification by You

You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Software and/or Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.

Exclusive Remedy

This Section, Mutual Indemnification, states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

LIMITATION OF LIABILITY

Limitation of Liability

IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 USD OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS IN THE ABOVE FEES AND PAYMENT SECTION.

Exclusion of Consequential and Related Damages

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Termination

This Agreement shall commence on the start date when You click the “I Acccept” button.

Termination for Cause

A party may terminate this Agreement for cause: (i) upon 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.

Surviving Provisions

Sections Software and Ownership, Fees and Payment, Confidentiality, Disclaimer, Mutual Indemnification, Limitation of Liability, Notices, Governing Law and Jurisdiction and General Provisions shall survive any termination or expiration of this Agreement.

Notices, Governing Law and Jurisdiction

Manner of Giving Notice

We may give notice by means of a general notice on Our sites, electronic mail to Your e-mail address on record in Our account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Our account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Us (such notice shall be deemed given when received by Us) at any time by any of the following: letter sent by confirmed facsimile to Us at the following fax number: (740) 931-0160 (for U.S. Customers) or; letter delivered by nationally recognized overnight delivery or first class postage prepaid mail to Us at the following address: SportsEngine UK Limited., Ground Floor, City Quays 1, 7 Clarendon Road, Belfast, Northern Ireland, BT1 3BG Attention: Legal Department

Agreement to Governing Law and Jurisdiction

This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed and construed in accordance with the laws of England and Wales (excluding the conflict of laws principles thereof). You agree that You shall act in good faith and use commercially reasonable efforts to promptly resolve any claim, dispute, controversy or disagreement related to this Agreement. You agree that any dispute arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the English courts, to which You irrevocably submit.

Waiver of Jury Trial

Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

General Provisions

Export Compliance

Each party shall comply with the export laws and regulations of the United States, the United Kingdom and other applicable jurisdictions in providing and using the Software and/or Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. or U.K. government lists of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use the Software and/or Services in violation of any U.S. or U.K. export embargo, prohibition or restriction.

Relationship of the Parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

No Third-Party Beneficiaries

There are no third-party beneficiaries to this Agreement.

Waiver and Cumulative Remedies

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

Assignment

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Entire Agreement

This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.