THIS MASTER LICENSE AGREEMENT (the “MLA”) is made and entered into by and between STATS (as identified on any Work Order executed by the parties) and the Licensee (as identified on any Work Order executed by the parties). This MLA is made effective as of the date that the initial Work Order executed by STATS and Licensee takes effect (the “Effective Date”). In the event of any conflict between this MLA and any Work Order, the Work Order shall prevail. Licensee and STATS hereby agree to the foregoing and as follows:
1. Definitions
. As used herein, the following terms shall have the following meanings:
(a) “Agreement” shall mean, collectively, this MLA and all Work Orders which have been executed by the Parties.
(b) “Licensed Materials” shall mean, collectively, the proprietary data, information and/or services described on any Work Order which has been executed by the parties during the Term, unless otherwise stated in a Work Order.
(c) “Term” shall have the meaning set forth in Paragraph 2 hereof.
(d) “Third Party Developer,” if applicable, shall mean an entity (or entities), other than Licensee, who have been retained by Licensee to perform development services on behalf of Licensee in connection with the rights granted to Licensee herein, and will, in the course of such development work, have access to any portion of the Licensed Materials.
(e) “Work Order” shall mean any ordering document (which may be titled as a “Work Order” or “Order Form”) executed by both parties, subject to the terms of this Agreement, setting forth the content, products and/or services to be licensed by STATS to Licensee.
2. Term
. The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect for the longer of: (i) two (2) years from the Effective Date; or (ii) expiration of all fully-executed Work Orders (the “Term”), unless sooner terminated as provided in this Agreement. Under no circumstance shall Licensee’s failure to use the Licensed Materials affect the start or duration of the Term, or any of Licensee’s payment obligations set forth herein.
3. Fees and Payments.
(a) In consideration of the Licensed Materials to be licensed by STATS to Licensee pursuant to this Agreement, the Licensee agrees to pay the fees set forth in the applicable Work Order.
(b) Any late payments shall bear interest at the rate per annum equal to the lesser of (i) one and one-half percent (1 ½%) per month or (ii) the highest rate permitted under applicable law.
(c) All fees set forth in any Work Order are stated net of any applicable taxes. Licensee shall be solely responsible for payment of any applicable taxes, as well as any fees assessed by Licensee’s bank.
4. License and Limitations
.(a) STATS shall license to Licensee, on a non-exclusive basis, the Licensed Materials as described in any Work Order(s) which has been executed by both parties, and subject to the terms and conditions set forth therein.
(b) Any use of the Licensed Materials that is inconsistent with this Agreement shall be considered an “Unauthorized Use.” Licensee shall adopt commercially reasonable safeguards intended to prevent the Unauthorized Use of the Licensed Materials. In the event that either party to this Agreement becomes aware that any third party or Third Party Developer is improperly using the Licensed Materials or is about to improperly use the Licensed Materials, such party shall immediately notify the other party of the facts of which it is aware in connection with such actual or potential Unauthorized Use and shall provide the other party with any documents in its possession with respect to same. The parties shall cooperate, at their own expense, to the fullest extent possible and agree to take all actions necessary to eliminate such Unauthorized Use as expeditiously as possible. Licensee shall indemnify and hold STATS harmless from and against any and all costs and expenses, including, without limitation, attorneys’ fees and costs, in connection with the actual or potential Unauthorized Use of the Licensed Materials as the result of Licensee or any Third Party Developer’s negligence, gross negligence or willful misconduct.
(c) Licensee shall have no right to sublicense, co-brand, co-market, white label, distribute, syndicate, or in any other manner, make the Licensed Materials available, directly or indirectly, through any means other than as explicitly set forth in this Agreement without the express written permission of STATS. Except as authorized in this Agreement, Licensee shall not translate, edit, modify, prepare derivative works of, or otherwise alter the Licensed Materials, and shall not reproduce, use, distribute or display the Licensed Materials in any manner that authorizes for the Licensed Materials (or portions thereof) to be downloaded, copied or retransmitted. Licensee shall not build archival files using the Licensed Materials, or any portion thereof. Nothing in this Agreement shall limit STATS’ ability to license the Licensed Materials to other parties. The Licensed Materials shall not be combined or displayed in conjunction with any material or service which is obscene, pornographic, defamatory, or otherwise illegal, or in conjunction with an advertisement for any product or service that is obscene, pornographic, defamatory or otherwise illegal, or is disparaging of any sports league. Notwithstanding the foregoing, Licensee shall not be restricted with respect to editorial or opinion content relating to a sports league, club, or federation.
(d) STATS maintains back-up systems designed to make commercially reasonable efforts to ensure that the Licensed Materials are complete and accurate at the time provided to Licensee. STATS shall not be deemed in breach of this Agreement in the event that it is unable to provide any portion(s) of the Licensed Materials as the direct result of the cancellation of any sporting event(s) or sports league(s). In the event of an outage which results from a failure of the content provided by a sports league or any other third party, STATS shall use its best efforts to provide substantially similar content within a commercially reasonable time frame.
(e) If the Licensed Materials contain any AP-attributed content, then the AP Terms and Conditions, attached hereto in Exhibit 1, shall apply.
(f) If the Licensed Materials contain any Getty-attributed content, then the Getty Terms and Conditions, attached hereto in Exhibit 1, shall apply.
(g) If the Licensed Materials contain any PGA Tour data, then the PGA Tour Terms and Conditions, attached hereto in Exhibit 1, shall apply.
(h) Any other applicable limitations shall be as set forth in the relevant Work Order.
5. Transfer of the Licensed Materials.
The parties agree that they shall use their best efforts to cooperate with each other and provide each other with technical assistance in connection with the transfer to Licensee of the Licensed Materials during the Term. Notwithstanding the foregoing, Licensee acknowledges STATS’ ownership of the Licensed Materials and that the Licensed Materials shall at all times remain the property of STATS, unless expressly provided otherwise in the applicable Work Order. Licensee shall be solely responsible for its own internal costs in connection with its receipt of the Licensed Materials from STATS.
6. Trademarks, Copyrights and Related Matters.
(a) With respect to the statistical portions of the Licensed Materials, Licensee agrees to display STATS’ logo (as provided by STATS to Licensee) and the following copyright notice in connection with all uses of these portions of the Licensed Materials: “Copyright xxxx [where xxxx denotes the current year] by STATS. Any commercial use or distribution without the express written consent of STATS is strictly prohibited.” This subsection (a) shall also apply to any STATS-attributed editorial content.
(b) If the Licensed Materials contain any AP-attributed content, then the copyright requirements set forth in the AP Terms and Conditions, attached hereto in Exhibit 1, shall apply.
(c) If the Licensed Materials contain any Getty-attributed photographs, then the copyright requirements set forth in the Getty Terms and Conditions, attached hereto in Exhibit 1, shall apply.
(d) Licensee shall not remove or otherwise alter any copyright notice(s) and/or logo(s) which have been included by STATS within the Licensed Materials provided to Licensee.
(e) STATS hereby grants to Licensee a non-exclusive, worldwide license to use STATS’ name and logo in connection with the reproduction, distribution and display of the STATS-attributed portions of the Licensed Materials on the Licensed Platform(s). Licensee acknowledges STATS’ ownership of STATS’ name and logo and agrees that any use thereof shall inure to STATS’ benefit; that the use thereof shall conform to standards and specifications initially or presently approved by STATS; and to cooperate with STATS in facilitating STATS’ control of such usage by supplying to STATS as STATS shall reasonably request, no less than quarterly, specimens of such usage. STATS shall notify Licensee of any failure by Licensee to conform such usage to the standards set forth herein, and Licensee shall have thirty (30) days from receipt of such notice to cure such failure to STATS’ approval, such approval not to be unreasonably withheld. If STATS is not satisfied that such failure has been timely cured, and/or upon termination or expiration of this Work Order Licensee shall cease all use of STATS’ name, logo and trademarks.
(f) Licensee hereby grants to STATS a non-exclusive worldwide license to use Licensee’s name, logo, and trademarks in connection with STATS’ ordinary course of promotional, marketing and press release activities.
7. Representations and Warranties.
(a) By STATS.
(i) STATS represents and warrants that it has full power and authority to enter into this Agreement and to consummate the transactions contemplated herein, and that it shall act in accordance with all applicable laws in performing its obligations and exercising its rights under this Agreement;
(ii) STATS represents and warrants that it has all necessary right, title and/or license to the Licensed Materials, and that the Licensed Materials shall not infringe upon the intellectual property rights or any other proprietary rights of any third party; and
(iii) STATS represents and warrants that it has participated with, at its option, the advice and benefit of counsel, in the preparation of this Agreement.
(b) By Licensee.
(i) Licensee represents and warrants that it has full power and authority to enter into this Agreement and to consummate the transactions contemplated herein, and that it shall act in accordance with all applicable laws in performing its obligations and exercising its rights under this Agreement;
(ii) Licensee represents and warrants that the Licensee shall be solely responsible for obtaining any third-party licenses or permissions as may be required in connection with the Licensee’s use of the Licensed Materials; and
(iii) Licensee represents and warrants that it has participated with, at its option, the advice and benefit of counsel, in the preparation of this Agreement.
8. Disclaimer of Implied Warranties.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, STATS DOES NOT MAKE ANY, AND STATS SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIALS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
9. Termination or Suspension of Agreement.
(a) STATS may:
(i) in the event of an Unauthorized Use of the Licensed Materials by Licensee or any Third Party Developer (aa) immediately terminate the Agreement, or (bb) suspend its provision of the Licensed Materials to Licensee;
(ii) terminate the Agreement fourteen (14) days following the failure of Licensee to make any payment hereunder when due and such payment is not made during said fourteen (14)-day period; and
(iii) terminate the Agreement upon written notice to Licensee in the event that STATS receives any notice, or is advised by its counsel acting with reasonable judgment, that the Licensed Platform(s), or any activity or component thereof, violates applicable law.
(b) Either party may:
(i) terminate the Agreement thirty (30) days following written notice of a breach by the other party of any provision of this Agreement (other than with respect to Unauthorized Use, payment obligations, and violation of applicable law, as set forth in Subparagraphs (a)(i), (a)(ii), and (a)(iii), above) if such breach is not cured within said thirty (30)-day period, or if such breach is not susceptible to cure within thirty (30) days, the breaching party fails to make commercially reasonable efforts to commence the cure of such breach within said thirty (30)-day period and to diligently proceed to cure such breach within ninety (90) days after the written notice;
(ii) terminate the Agreement immediately following written notice that a receiver has been appointed for the other party of its property (and the appointment of such receiver is not terminated), the other party has become insolvent or unable to pay its debts as they mature, the other party has made an assignment for benefit of creditors or any proceedings have been commenced by or against the other party under any bankruptcy, insolvency or other similar law (and such proceedings are not dismissed within sixty (60) days following commencement thereof); and
(iii) terminate the Agreement in accordance with any additional provision set forth in a Work Order.
10. Obligations Upon Termination.
(a) Post-Termination Payments. The termination of this Agreement shall not relieve Licensee of its obligations to account for and pay to STATS any sums due hereunder. In addition, if this Agreement is terminated as a result of a breach hereof by Licensee, or any Third Party Developer, any and all fees and payments shall accelerate and become immediately due and payable in full to STATS.
(b) Additional Post-Termination Obligations. Following the expiration of the Term of this Agreement or the earlier termination of the Agreement for any reason, each party shall return to the other or shall destroy all documents, material and information with respect to any confidential or proprietary information of the other (in any format as such information may exist). Additionally, Licensee and any Third Party Developer, if applicable, shall return to STATS or destroy the Licensed Materials, and shall ensure that its Third Party Developer has similarly returned or destroyed the Licensed Materials. Immediately upon return or destruction of any confidential or proprietary information, Licensee shall provide STATS with an affidavit signed by an officer or legal representative of Licensee (as well as a certificate signed by an officer or legal representative of the Third Party Developer, if applicable) certifying its full compliance with this Section 10(b). Upon such expiration or termination, each party shall cease any and all use, reproduction, marketing, and distribution of the trademarks, trade names, service marks, patents or other intellectual and personal property of the other.
11. Confidential Information.
Each party agrees that during and after the Term it shall not, except for purposes of this Agreement, use for its own benefit or for the benefit of any person, firm, corporation or other entity, any secret or confidential information, solicitation methods, confidential pricing information or any other data pertaining to the other party, its respective businesses, respective financial affairs or any other information obtained hereunder regarding the other party not generally known within its respective trades, or as a matter of public knowledge or patent, trademark, trade name, service mark, copyright or other intellectual property of the other party (collectively, the “Confidential Information”) except as authorized by this Agreement. Licensee agrees that it shall take reasonable steps to ensure that its employees, agents, and any Third Party Developer, if applicable, do not communicate, grant, disburse or transmit in any way whatsoever to any third party or parties the Licensed Materials without the prior written consent of STATS, except as explicitly permitted pursuant to this Agreement (or any applicable Work Order).
12. Force Majeure
Neither of the parties shall be deemed in default of this Agreement to the extent that performance of its respective obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies, act of terror, act of third parties, or any other cause beyond the reasonable control of such party, provided that the party interfered with gives the other party written notice thereof within five (5) business days of any such event or occurrence.
13. Hold Harmless.
(a) By STATS. STATS hereby agrees to defend, indemnify, save and hold harmless Licensee, its shareholders, directors, officers, employees, agents, successors, assigns and other representatives from and against any and all claims, liability, loss, damage, cost and expense (including reasonable attorneys’ fees and litigation costs), arising out of or relating to (i) STATS’ negligent or willful misconduct, or (ii) any breach or default by STATS of any representation, warranty, duty or obligation contained in this Agreement.
(b) By Licensee. Licensee hereby agrees to defend, indemnify, save and hold harmless STATS, its shareholders, directors, officers, employees, agents, successors, assigns and other representatives from and against any and all claims, liability, loss, damage, cost and expense (including reasonable attorneys’ fees and litigation costs), arising out of or relating to (i) Licensee’s negligent or willful misconduct, or (ii) any breach or default by Licensee of any representation, warranty, duty or obligation contained in this Agreement, or (iii) any negligent or willful misconduct of Licensee’s Third Party Developer, or any other conduct of Licensee’s Third Party Developer which is in violation of any of the terms of this Agreement.
14. Limitation of Liability.
Notwithstanding anything herein to the contrary, under no circumstances shall STATS be liable for any special, consequential or incidental damages in connection with its obligations under this Agreement, and in any event, the liability of STATS for any act of negligence or breach of this Agreement shall not exceed the amount paid by Licensee to STATS in connection with this Agreement during the twelve (12) month period immediately preceding the date of any claim by Licensee against STATS.
15. Equitable Remedies.
In the event of any breach of the provisions of Section 11 hereof, the parties hereto agree that remedies at law will not be adequate and each may be entitled, in addition to damages, to preliminary and permanent injunctive relief (without the necessity of posting of bond) to prevent a then occurring or an about to occur breach, as well as an equitable accounting of all profits or benefits arising out of such breach, which rights and remedies shall be cumulative and in addition to any other rights or remedies to which the parties may be entitled.
16. Notices.
All notices and other communications required hereunder shall be in writing and deemed to have been given: (i) when personally delivered, (ii) three days after being mailed by certified mail, return receipt requested, postage prepaid, (iii) one day after being sent by nationally or internationally (as applicable) recognized overnight courier with guaranteed next day delivery, or (iv) upon delivery by facsimile, with copy via certified mail, return receipt requested, postage prepaid. Notices will be addressed or delivered to Licensee’s address and email contact information set forth on the applicable Work Order and to STATS’ email and contact information set forth on the applicable Work Order, with a copy addressed to: STATS LLC, 203 N. LaSalle Street, Suite 2200, Chicago, IL 60601, USA, attn.: Legal Department or via email: legaldepartment@stats.com. Either party may, from time to time, change its contract information by providing written notice to the other party of any such changes.
17. Relationship Created.
The relationship of the parties herein shall be as independent contractors. Nothing in this Agreement or any Work Order shall be construed to create a partnership, joint venture or combined entity by or between STATS and Licensee or to make either the agent of the other and neither shall have the authority to bind the other. STATS and Licensee each agree not to hold itself out as a partner, joint venturer, combined entity or agent of the other. Each party is, and is intended to be, engaged in its own and entirely separate business. Each party shall be solely responsible for determining the applicability of, and compliance with, any and all present and future federal, state and local laws, orders, codes, regulations, and ordinances which may be applicable to each party and their respective businesses and employees.
18. Assignment.
Neither party shall assign this Agreement or any of the rights, duties or privileges contained herein, in whole or in part, without the express written consent of the other, except that a party may assign this Agreement in connection with the sale of all or substantially all of its assets, provided that the assignee agrees to be bound by all of the terms and conditions of this Agreement.
19. Press Release.
Within thirty (30) days after the Effective Date of this Agreement, the parties may separately or mutually issue a press release containing language agreed upon by the parties announcing that the parties have entered into a business relationship as contemplated herein. In addition, upon STATS’ request, the Licensee agrees to participate in a mutually agreed upon communications initiative, which may be in the form of a written testimonial, case study, or such other mutually agreed upon format.
20. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction set forth in the Work Order, without regard to its conflict of laws principles. The parties hereto irrevocably agree that all disputes arising out of or from or related to this Agreement shall be resolved in accordance with the Work Order. Each party waives any right to trial by jury on any action or proceeding to enforce or defend any rights under this Agreement. The prevailing party or parties in any such dispute resolution process shall be entitled to recover from the other party all costs and expenses, including without limitation reasonable attorneys’ and paralegals’ fees and litigation/arbitration costs incurred by such party in connection with such process.
(b) Non-Waiver. The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent or additional breach.
(c) Entire Agreement; Construction. This Agreement supersedes any and all other agreements and understandings heretofore existing between the parties with respect to the subject matter hereof. This Agreement contains the entire agreement of the parties concerning the subject matter hereof and may be amended, modified, or changed only by an agreement in writing signed by each of the parties. For the avoidance of doubt, any and all of Licensee’s policies, terms and conditions sent or made available to STATS by or on behalf of Licensee shall be deemed null and void, irrespective of whether such policies, terms or conditions were sent or made available to STATS before or after the execution of this Agreement. In addition, this Agreement has been drafted in the English language, and the parties have jointly prepared and/or approved the language of the provisions of this Agreement. Should any dispute arise concerning the interpretation of any provision hereof, neither party shall be deemed the drafter nor shall any such language be presumptively construed in favor of or against either party. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement.
(d) Severability. The provisions of this Agreement shall be severable, and the invalidity of any provision shall not affect the validity of the other provisions.
(e) Survival. Paragraphs 4(b), 7, 8, 10, 11, 13, 14, 15, 16, 20 of this Master License Agreement, certain specified provisions of any Work Order, and any other provision necessary for the interpretation thereof or which by its terms is to continue beyond the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.
(f) Execution. This Agreement may be executed in multiple counterparts, including, but not limited to execution by facsimile or electronic copy (e.g. .pdf, .tif), each of which shall be deemed an original, but all of which shall constitute the same document. Each party waives any legal requirement that this Agreement be embodied, stored or reproduced in tangible media, and agrees that an electronic reproduction will be given the same legal force and effect as a signed writing.
EXHIBIT 1
A) PGA Tour Terms and Conditions
B) AP Terms and Conditions
C) Getty Terms and Conditions
