THIS MAIN SERVICE AGREEMENT (“MSA”) GOVERNS CUSTOMER’S USE OF THE SERVICES. CAPITALISED TERMS IN THIS MSA HAVE THE DEFINITIONS SET FORTH HEREIN. CUSTOMER ACCEPTS TO BE BOUND BY THE TERMS OF THIS MSA BY EXECUTING AN ORDER FORM THAT REFERENCES THIS MSA. THIS MSA IS EFFECTIVE BETWEEN CUSTOMER AND BUFF UP LTD AS OF THE DATE CUSTOMER ACCEPTS OR AGREES TO THIS MSA (THE “EFFECTIVE DATE).
1.1 This Agreement is made between Sport Buff and the Customer and is deemed to have taken effect from the Start Date or Sign By Date on the Order Form, whichever is the earlier.
1.2 This Agreement comprises these Terms & Conditions, Special Terms and any Schedules or Appendices agreed between the parties. The Special Terms shall prevail in the event of any conflict between them and any other part of the Agreement except where otherwise expressly agreed in writing.
1.3 In this Agreement: (a) Headings are inserted for convenience only and shall not affect the construction of this Agreement; (b) References to persons shall be deemed to include natural persons, companies and other bodies corporate, unincorporated associations, partnerships, firms and government bodies, governments, states and any other organisations (whether or not in each case having separate legal personality); (c) Any words preceded by “including”, “in particular”, “for example” or other similar phrases shall not be limited by such words or phrases and shall be deemed to be without limitation; (d) For the avoidance of doubt, references to Sport Buff making the Software available (or equivalent) means Sport Buff making the Software available for the Customer to utilise regardless of whether or not the the Software is actually utilised by the Customer; and (e) any words preceded by “including” or other similar phrases shall not be limited by such words or phrases and shall be deemed to be without limitation.
1.4 For the avoidance of doubt, references to Sport Buff making the Software available (or equivalent) means Sport Buff making the Software available for the Customer to utilise regardless of whether or not the Software is actually utilised by the Customer.
1.5 In this Agreement, capitalised terms have the meanings given to them in the Special Terms and, in addition:
“Additional Services” means the additional services specified in the Special Conditions.
“Affiliate” means in relation to a party, any person that is Controlled by or under the Control of that party, or with whom that party is under common Control.
“Agreed Media” means the media platforms specified in the Special Conditions.
“Charges” means all amounts payable by the Customer under this Agreement.
“Control” means the right of one person, or two or more persons acting in concert, (the “first person“) to procure that the affairs of another person are conducted in accordance with the wishes of the first person, whether by virtue of holding equities, a partnership interest, membership of an unincorporated association, under contract or otherwise.
“Controlled Events” has the meaning given to that term in clause 4.1.
“Software” means the Sport Buff software specified in the Special Terms.
“the Software Controller” has the meaning given to that term in paragraph (h) of the definition of “Force Majeure Event” below.
“Editorial” means editorial services provided by Sport Buff in accordance with the Additional Services schedule to this Agreement.
“Event” means any sport or sporting league, competition or event.
“Force Majeure Event” means, in relation to either party, any act, event, non-happening, omission or accident that is beyond its reasonable control and is not reasonably foreseeable by that party, and that causes or results in default or delay in the performance by that party of any of its obligations under this Agreement, including (a) acts of God, war, riot, civil unrest, terrorism, malicious damage or strike or other industrial action in any jurisdiction relevant for Sport Buff’s operations; (b) distributed denial of service attacks or other viruses (c) failure of or interruption to telecommunications services, power supply or other utility services, or the impossibility of the use of public or private telecommunications networks; (d) the inability to obtain supplies, accident, breakdown of machinery; and/or (e) lightning, earthquake, hurricane, storm, fire, flood, drought, accumulation of snow or ice and other extreme weather or environmental conditions; (f) the delay, non-completion, cancellation, postponement, abandonment or similar event or act in relation to any fixture or match; (g) government action or decree, any legal or regulatory change and any decision, order, act or omission of any governmental, regulatory, judicial or other body (whether or not having legal powers), and (h) any decision, order, act or omission of any sports body (including any league, association or authority acting in any capacity), any team, official or other participant in any match or event, or of any rights holder, agency or other person involved in the control, management or exploitation of any rights to or in respect of any match or event (each a “the Software Controller”).
“Good Industry Practice” means the degree of skill, competence, diligence, prudence and foresight which could reasonably and ordinarily be expected from a skilled and experienced person complying with the applicable legal requirements and practice, engaged in the same type of undertaking under the same or similar circumstances as the relevant party.
“Gross Revenues” means all sums actually received by Customer in respect of the use of the Sport Buff Services
“Intellectual Property Rights” means all copyright and other intellectual property rights howsoever arising and in any media, whether or not registered or capable of registration, including patents, trade marks, service marks, trade names, domain names, design rights, database rights and any applications for the protection or registration of these rights and all renewals, revivals and extensions of such rights throughout the world. “Match” means any individual sporting match or contest in relation to any Event.
“Net Revenues” means Gross Revenues less any applicable VAT or other sales tax.
“Official Provider” has the meaning given to that term in clause 4.2.
“Sport Buff Feed” means an xml feed containing the License which is supplied to the Customer pursuant to this Agreement.
“Sport Buff Group” means each of Sport Buff and any entity or person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, Sport Buff.
“Sport Buff Services” means the Software, Editorial, any Additional Services.
“Sport Buff Trade Mark” means the trade marks owned or licenced by Sport Buff and provided to the Customer.
Permitted Purpose” means the purpose for which the Software may be used as set out in the Special Terms.
“Restricted Use” means (a) distribution or supply of Sport Buff Services to any third party for any commercial purpose other than as permitted in writing by Sport Buff (b) publication of multiple categories of the Software or multiple seasons of the same category of the Software in tabular or list form other than as permitted in writing by Sport Buff.
“Software” means SDK, Extension, API and any other Software provided by Sport Buff to the Customer from time to time.
2.1 Sport Buff will provide the Sport Buff Software to the Customer during the Term. Unless otherwise specified in the Special Terms, the Customer’s right to receive the Sport Buff Service shall in all respects be non-exclusive.
2.2 Sport Buff may at its sole discretion alter the Delivery Method so as to provide more effective or more efficient provision of the Sport Buff Service provided that Sport Buff will inform the Customer in writing in advance with at least thirty (30) days’ notice of any alteration that will materially affect the Customer’s business.
3.1 Subject to clause 3.2 and the Customer’s compliance with the terms and conditions of this Agreement, Sport Buff will provide the Sport Buff Service to the Customer for the Term, solely for the Permitted Purpose.
3.2 The Customer warrants, represents and undertakes that: (a) it will not use the Software to create its own tables, databases or compilations of data (“Derivative Works”) other than solely to the extent necessary for and incidental to the Permitted Purpose; (b) it will not capture, edit, alter, amend or otherwise interfere with any Software in the form delivered by Sport Buff to the Customer; and (c) it will not use the Software for any purpose other than the Permitted Purpose.
3.3 The Customer will indemnify and keep indemnified Sport Buff and each of its Affiliates against all loss, damage and reasonable expenses (including any reasonable legal and other professional expenses) incurred or suffered by it directly or indirectly arising (in whole or in part) from: (a) any breach of clause 6.1 or 6.7; (b) any use, reproduction or distribution by the Customer (or any person authorised or permitted by the Customer) of any part of any Sport Buff Services (including any Derivative Works) in a manner not expressly authorised by this Agreement; (c) any templates and/or formatting requirements of the Customer (including any Derivative Works) infringing any third party rights. Nothing in this clause shall restrict or limit Sport Buff’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
3.5 The Customer shall be solely responsible for the Agreed Media (including any advertising, sponsorship, promotion or other endorsement activity or content that appears with, or in connection with, the Sport Buff Services including but not limited to that which is displayed within or around any Sport Buff Services) (“Commercialisation Activity”). The Customer hereby indemnifies Sport Buff and each of its Affiliates in respect of any and all losses, liabilities, and costs (including reasonable legal fees) suffered or incurred as a result of: (a) any claim against Sport Buff or any of its Affiliates by any third party in relation to any Commercialisation Activity; and (b) any termination, suspension or loss by Sport Buff or any of its Affiliates of any accreditation, permission or other right to the extent that such termination, suspension or loss of right results from any Commercialisation Activity.
3.6 The Customer further undertakes (a) not to copy the Software except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security; (b) not to rent, lease, sub-licence, loan, translate, merge, adapt, vary or modify the Software; (c) not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs; and (d) not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software.
3.7 For the avoidance of doubt, other than as specified, this Agreement does not grant any licence or other permission to the Customer for the use of any trade marks (including league or competition names, club or team names or logos) or any right to use individual competitor names in any manner.
4.1 The Customer agrees and acknowledges that the provision of Sport Buff Services is always subject to any arrangements restrictions or prohibitions imposed by any Software Controller who has rights (including rights of venue access) in relation to any Matches or Events (collectively “Controlled Events”), whether or not Sport Buff or any other person is or becomes an Official Provider in relation to those Controlled Events and whether or not such Software is supplied (or expected to be supplied) as at the date of signature of this Agreement or at any other time during the Term.
4.2 The Customer further agrees and acknowledges that at any time a Software Controller may enter into exclusive arrangements with one or more parties for the purpose of collecting and /or distributing data from Controlled Events (with each such party being an “Official Provider”).
4.3 Without prejudice to clause 4.1, the Customer’s use of any Software relating to Controlled Events where Sport Buff (or another member of the Sport Buff Group) is or becomes an Official Provider is subject to the Customer’s compliance with such terms, conditions and restrictions imposed by the relevant Software Controller (“Software Controller Terms”) which are notified in writing by Sport Buff to the Customer (including in the schedules to this Agreement), and Sport Buff may suspend or discontinue the provision of such Software (and any Editorial and/or Software) in the event of Customer’s non-compliance with those terms, conditions or restrictions.
4.4 Without prejudice to clause 4.3, where a Software Controller enters into any arrangement described in clause 4.2 in relation to Controlled Events and: (a) Sport Buff is appointed as an Official Provider, then the parties shall negotiate in good faith the fees payable for the provision of Software in relation to those Controlled Events in addition to the Charges. Sport Buff’s provision of the Software for Controlled Events will be subject to payment of such additional fees and/or the Customer’s compliance with any necessary additional restrictions imposed by the Software Controller on the use of such Software by Customer and for the avoidance of doubt, Sport Buff may suspend or discontinue the provision of such Software without compensation or liability to the Customer in the event of Customer’s non-compliance with any restrictions; or (b) Sport Buff is not appointed as an Official Provider, then notwithstanding any other provision of this Agreement, Sport Buff shall have the right, subject to clause 4.5 below, to suspend or discontinue the provision of the Software in relation to such Controlled Events without compensation or liability to the Customer.
4.5 The Customer acknowledges that it may need to obtain licences from Software Controllers in order to be able to use the Official Provider Software as supplied by Sport Buff pursuant to this Agreement. Where this is the case, the Customer shall be solely responsible at its own cost for obtaining all such Software Controller licences.
5.1 The Customer will pay the Charges in accordance with the Special Terms.
5.2 Sport Buff shall be entitled to invoice for the Charges in one or more invoices (it being acknowledged that each invoice from Sport Buff may cover more than one instalment of the Charges due). Without prejudice to the Customer’s obligation to pay the Charges in accordance with the Special Terms, Sport Buff shall be entitled to commence invoicing for the Charges on or at any time after the date of this Agreement.
5.3 All amounts set out in this Agreement are exclusive of any applicable value added tax or other sales taxes.
5.4 All amounts payable under this Agreement shall be paid in full without set-off, deduction or other withholding of any amount which may be due to the Customer. Should the Customer be required by any law or regulation to make any deduction or withholding on account of tax or otherwise on any sum payable under this Agreement, the sum payable shall be increased by the amount of such tax to ensure that the Sport Buff receives a sum equal to the amount to be paid under this Agreement.
5.5 For the avoidance of doubt, Prices quoted are net of any withholding taxes and any other fees and capital charges that must be levied on the payment. Any such withholding taxes and any other fees and capital charges must be advised in advance of invoicing so that these agreed charges are applied when invoiced. In the event that any such withholding taxes and any other fees and capital charges are not advised and represented on the invoice, then both parties agree that any such charges that are due are the sole responsibility of the client and will not be deducted from remittances in payment of the invoice.
5.6 Without prejudice to any other rights and remedies which Sport Buff may have and the Customer’s continuing obligation to pay the Charges, if payment of the Charges is not received by Sport Buff on the due date, Sport Buff may withhold its provision of the Software and/or the Sport Buff Service upon seven days’ advance written notice and Sport Buff may charge interest on any overdue Charges from the due date until payment is received at a rate to be determined by Sport Buff not exceeding 4% above UBS AG’s base rate for the time being, such interest to be calculated on a daily basis.
5.7 Where Charges are payable in accordance with a revenue share arrangement (as described in the Special Terms), within 14 working days of the end of each calendar month during the Term Customer will deliver to Sport Buff a statement setting out all information reasonably requested for the purposes of calculating Sport Buff’s share of such Revenues which is due as Charges payable in such month (the “Monthly Statement”). Upon receipt of each Monthly Statement Sport Buff will deliver to the Customer an invoice for the additional Charges due. Customer shall pay such additional charges in accordance with this clause 5 and where not otherwise specified within 30 days of the date of the invoice.
5.8 During the term of this Agreement, and for a period of two years thereafter, Customer will maintain records of all activities subject to payments pursuant to this Agreement. Where Charges are payable in accordance with a revenue share arrangement, Sport Buff shall have the right, upon at least ten (10) working days advance written notice to examine, audit, and take extracts from Customer’s books and records directly relating to this Agreement in order to verify amounts paid to Sport Buff by Customer. Such audits may not be required more often than once every year and shall be conducted at Customer’s premises (or where Customer’s premises are outside England, then at suitable premises in England). In the event that any audit shall reveal an underpayment to Sport Buff, Customer shall immediately pay to Sport Buff the amount of such underpayment. If the amount of any such underpayment is more than 5% of the amounts owed to Sport Buff, Customer will reimburse Sport Buff for the reasonable cost of such audit and pay the amount of the overpayment.
6.1 Each party hereby represents and warrants to the other that (a) it has all necessary power and authority, and has obtained and will throughout the Term maintain all licences, permissions and consents, required to enter and to perform its obligations under this Agreement (subject always to any licences, consents or permissions described in clause 4.1); (b) there are no actions, suits or proceedings pending or to the best of its knowledge threatened against it before any court tribunal or governmental body agency or authority which may adversely affect its ability to perform its obligations hereunder; and (c) it will not enter into any agreement inconsistent with the terms of this Agreement and will comply with all applicable laws and regulations with respect to the performance of its obligations under this Agreement.
6.2 Sport Buff warrants and undertakes that the use by the Customer of the Sport Buff Services strictly in accordance with the terms of this Agreement will not infringe any personal, proprietary or other right of any third party save: (a) where the Customer has not obtained a licence required by a third party in accordance with clause 4.5; or (b) for any infringements of any such rights in connection with any Commercialisation Activity.
6.3 Sport Buff hereby indemnifies the Customer in respect of any and all losses, liabilities, and costs (including reasonable legal fees) suffered or incurred as a result of any claim against the Customer by any third party that the use of the Sport Buff Services by the Customer in accordance with this Agreement infringes the rights, including the Intellectual Property Rights, of any third party save for any losses, liabilities, and costs suffered or incurred as a result of: (a) the Customer having not obtained a third party licence in accordance with clause 4.5; or (b) any Commercialisation Activity.
6.4 Sport Buff will provide the Sport Buff Service in accordance with Good Industry Practice. Furthermore, although Sport Buff will take all reasonable steps to ensure the accuracy and timely provision of the Sport Buff Services, neither Sport Buff nor any of its licensors warrants that any of the Sport Buff Services will be free from error or uninterrupted or (as provision of the Software and the Sport Buff Service are subject to the availability of the necessary information/material to Sport Buff) that specific items of information/material will be available.
6.5 Sport Buff does not accept any liability for any failure to perform, or delay in performance of, any of Sport Buff’s obligations under this Agreement that is caused by a Force Majeure Event.
6.6 The Customer acknowledges that (a) the Software has not been developed to meet the Customer’s individual requirements and that it is therefore the Customer’s responsibility to ensure that the facilities and functions of the Software meets the Customer’s needs; and (b) the Software may not be free of bugs or errors and the Customer agrees that the existence of such faults shall not constitute a breach of this Agreement.
6.7 The Customer warrants that: (a) it will conduct its business in accordance with all laws and regulations which are applicable to this Agreement (including all applicable laws in any territory in which it is providing its services or its users or customers are accessing such services); (b) the Agreed Media shall throughout the Term be owned and controlled by the Customer and designed and operated to a standard which is in accordance with Good Industry Practice; and (c) that the Agreed Media does not include any unlawful, defamatory, indecent or threatening material.
6.8 No conditions, warranties or other terms (express or implied, including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) apply to this Agreement or to any of the Sport Buff Services except to the extent that they are expressly set out in this Agreement.
6.9 Without prejudice to any other right that Sport Buff may have (under this Agreement or pursuant to any relevant law), Sport Buff may terminate this Agreement with immediate effect, by serving notice, if it has a reason to believe that the Customer is in breach of any of the warranties given in clauses 6.1 6.7.
6.10 Excluding any liability pursuant to the indemnity in clauses 3.3, 3.5 or 6.3 neither party shall be liable under this Agreement for any loss of profits, loss of revenue, loss of or damage to goodwill, loss of contracts, loss of customers (in each case whether direct or indirect) or any indirect, special or consequential loss (even if the party concerned has been advised of the possibility of loss).
6.11 Nothing in this Agreement shall limit either party’s liability (a) for fraud, (b) for death or personal injury caused by either party’s negligence or that of its servants or agents, or (c) in relation to any other liability which cannot be excluded or limited by law.
6.12 Subject to clauses 6.3 and 6.11, and Section 8, the total aggregate liability of Sport Buff in any period of 12 months during the Term to the Customer under or in connection with this Agreement shall be limited to the Sport Buff Service Fee paid or payable in respect of that period.
7.1 Without prejudice to the rights granted expressly by Sport Buff to the Customer pursuant to this Agreement, as between Sport Buff and the Customer, all Intellectual Property Rights in and to the Sport Buff Services are and shall remain the property of Sport Buff. Furthermore, the Customer acknowledges and agrees that Sport Buff have made a substantial investment in obtaining, verifying and/or presenting the contents of the Software included in the Sport Buff Services.
7.2 Should any right, title or interest in the Sport Buff Services become vested in the Customer or any of its Affiliates (by operation of the law or otherwise), the Customer or its Affiliate shall assign the same free of any third party rights and without payment, to Sport Buff for the full duration of such rights and all extensions, renewals and reversions thereof and the Customer hereby assigns to Sport Buff (by way of present assignment of future rights) absolutely, with full title guarantee, any and all Intellectual Property Rights throughout the world and for the full duration of such rights, including any rights in and to any and all materials included, produced and/or edited by the Customer.
8.1 Each party agrees and undertakes that, both during and after the term of this Agreement, it will keep confidential, will not use for its own purposes and will not without the prior written consent of the other party disclose to any third party (other than, in the case of Sport Buff, to any company in the Sport Buff Group) any information concerning the business and affairs of the other (including the terms (but not the fact) of this Agreement) which may become known to such party in connection with this Agreement unless such information is public knowledge other than as a result of a breach of this paragraph, has been independently acquired from a third party without restriction on disclosure, or is required by law or any regulatory body or for the purposes of litigation by or against either party to be disclosed.
8.2 Other than any communication required pursuant to any applicable laws, regulations or the rules of any relevant stock exchange, neither party shall make any press release, announcement or any other form of publicity in relation to this Agreement (and the obligations contained therein) without the written consent of the other party (which shall not be unreasonably withheld)
8.3 The Customer agrees and undertakes that in connection with this Agreement, it will comply with, and take any action required by Sport Buff to ensure Sport Buff’s compliance with, the provisions of any applicable data protection legislation including taking any technical and organisational procedures and measures necessary to ensure the security of any personal data.
9.1 The term of this MSA will commence on the Effective Date and continue until terminated as set forth in Section 9 (Termination) below (the “Term”). Subject to early termination in accordance with this Agreement, the initial subscription term of the applicable Order Form is as specified in such Order Form. The subscription term shall be automatically renewed for successive terms of twelve (12) months at the end of the initial subscription term and, as applicable, at the end of each successive renewal term (each, a “Renewal Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
9.2 This Agreement may be terminated immediately by either party giving notice to the other if: (a) the other commits a material breach of this Agreement and, if such breach is remediable, it is not remedied within 14 days of receipt of notice requiring remedy; (b) the other ceases or threatens to cease to carry on trading; or (c) the other becomes insolvent or bankrupt or suffers any insolvency or bankruptcy related event in any applicable jurisdiction. Termination of this Agreement will be without prejudice to any rights or liabilities of either party which have accrued prior to such termination.
9.3 In the event of termination the Customer shall immediately discontinue all future use of the Sport Buff Services 9.4 Without prejudice to the Customer’s rights under this Agreement, Sport Buff shall be entitled to suspend provision of the Sport Buff Services to the Customer without liability where Sport Buff reasonably believes that: (a) the Customer or its Affiliates use, distribute or make available the Sport Buff Services other than in accordance with this Agreement; (b) any Commercialisation Activity is infringing the rights of any third party; or (c) provision of the Sport Buff Services has become contrary to (i) any law and/or regulation applicable in the Territory and / or (ii) any accreditation, permission or other right granted to or held by Sport Buff or any of its Affiliates and (in the case of (i) and / or (ii)) the parties cannot, acting reasonably, agree on changes to the Sport Buff Service (or this Agreement) necessary to achieve compliance.
10.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. No party shall have any claim for innocent or negligent misrepresentation based upon any statement in this Agreement.
10.2 No amendments to this Agreement shall be effective unless in writing and signed by authorised signatory of each party.
10.3 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by FedEx or other similar international delivery service, or by fax (provided that a hard copy is delivered or sent as set out above within 24 hours). All notices shall be delivered/sent to the address of the relevant party set out in this Agreement or such other address as the relevant party has notified to the other party in writing from time to time for this purpose.
10.4 Sport Buff may assign, novate or otherwise transfer any of its rights and/or obligations under this Agreement (a) to any Sport Buff Group company; or (b) by way of security to any bank or other financial institution providing any credit or similar facility to Sport Buff (or any other member of the Sport Buff Group). Sport Buff may perform any or all of its obligations under this Agreement through agents or sub-contractors. The Customer may not assign or sub-licence this Agreement (including, specifically, the Sport Buff Service) without the prior written consent of Sport Buff (which shall not be unreasonably withheld or delayed).
10.5 The failure or delay by either party to enforce at any time any one or more of the terms or conditions of this Agreement shall not be a waiver of such rights or any other rights.
10.6 No term of this Agreement shall be enforceable by a third party.
10.7 The provisions of this Agreement which by their nature are intended to survive the termination, cancellation, completion or expiration of this Agreement, including but not limited to indemnities, limitations of liability and obligations of confidentiality, shall continue as valid obligations of the parties notwithstanding any termination, cancellation, completion or expiration.
10.8 If any provision of this Agreement is held to be void or unenforceable in whole or in part, this Agreement shall continue in force in relation to the unaffected provisions and the remainder of the provision in question, and the parties will renegotiate the provision in good faith to achieve the same objects.
10.9 All rights not specifically and expressly granted to the Customer by this Agreement are reserved to Sport Buff.
10.10 This Agreement, the transactions contemplated, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by the laws of England & Wales.