Application License and ALS Services Agreement
This Application License and ALS Service (“ALS”) agreement (the “ALS Agreement”) is between MaxOne LLC, a Michigan Limited Liability Company, having offices at 40 Pearl Street NW, Suite 200, Grand Rapids, MI 40503 (“MaxOne”), and the Licensee who will utilize the MaxOne ALS (“Licensee”). Each of MaxOne and Licensee are a “Party” and collectively the “Parties”.
Whereas, Licensee was provide detail of product, fees and term on a quote document (the “Quote”) that was mutually agreed upon by Licensee in writing. This ALS Agreement is effective as of the date of signature on the Quote (the “Effective Date”).
Whereas, MaxOne owns certain mobile and desktop application software (the “Software”);
Whereas, Licensee desires to obtain from MaxOne, and MaxOne desires to grant to Licensee, a nonexclusive license to use the Software and use the services provided by MaxOne to stay connected with athletes (“End Users”) and provide them learning tools that will be accessed and performed remotely at the End Users discretion (such use hereinafter the “ALS Service”); and
Now therefore, in consideration of mutual covenants, conditions, and terms set forth herein, and for other good and valuable consideration, the parties agree as follows:
- MaxOne Obligations:
- MaxOne will (a) make the ALS Services available pursuant to this ALS Agreement, (b) use commercially reasonable efforts to make the ALS Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond MaxOne’s reasonable control; each subject to Licensee’s use of the ALS Services in accordance with this ALS Agreement.
- Protection of Licensee Data. MaxOne will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee data. Those safeguards will include, but will not be limited to, measures for preventing unauthorized access, use, modification or disclosure of data except to provide the ALS Services and address service issues, or as required by law.
- MaxOne Personnel. MaxOne will be responsible for the performance of its personnel and their compliance with MaxOne’s obligations under this ALS Agreement.
- Implementation ALS Services. From time to time, the Parties may agree on implementation and customizations services, which shall be set forth in writing, as may be amended upon the mutual agreement of the Parties.
- Beta ALS Services. MaxOne may make pre-production services (“Beta ALS Services”) available to Licensee at no charge. Licensee may choose to try such Beta ALS Services, or not, in its sole discretion. Beta ALS Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. The Beta ALS Services are not considered “ALS Services” under this ALS Agreement. MaxOne may discontinue The Beta ALS Services at any time in its sole discretion and has no obligation to make them generally available. MaxOne will have no liability for any harm or damage arising out of or in connection with any Beta ALS Services.
- USE OF ALS SERVICE
- Licensee Responsibilities. Licensee’s use of the ALS Services shall be subject to the usage limitations and pricing provided on the Quote and Licensee will be responsible for compliance with this ALS Agreement and all applicable laws, rules and regulations, including those related to data provided by Licensee, and using commercially reasonable efforts to prevent unauthorized access to or use of ALS Services, and notify MaxOne promptly of any such unauthorized access or use.
- Intellectual Property Rights.
- MaxOne Intellectual Property. MaxOne alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Software (including any and all improvements, modifications or derivatives thereof or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Licensee or any third party relating to the Software, including any end products resulting from Licensee’s submission of such data, which are hereby assigned to MaxOne). For clarity, the foregoing also includes any and all system performance data and machine learning, and the results and output of such machine learning. No jointly owned intellectual property is created under or in connection with this Agreement. Licensee will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
- Licensee Intellectual Property. Licensee is the exclusive owner of its name, logo(s), trademarks, URLs, and other intellectual property and all of the Licensee content displayed on the Applications. Licensee owns all of the content and programming that Licensee uploaded to the Applications.
- Licensee/MaxOne Users and Data. Licensee and MaxOne co-own all of the Licensee/MaxOne users information in the Applications. More specifically, MaxOne may collect, use, store, and license data and metadata collected by the software and has the right to use this data for business development purposes; provided that the source of the data is not identifiable by third parties.
- Use of Names & Branding. MaxOne and Licensee agree to cooperate in the use of each Party’s name and logo subject to Trademark and branding guidelines for marketing campaigns.
- License Restrictions. Licensee will not (a) make the ALS Services available to, anyone other than Licensee and End Users, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the ALS Services, (c) use the ALS to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the ALS Services or third-party data contained therein, (e) attempt to gain unauthorized access to the ALS Services (g) copy the ALS Services or any part, feature, function or user interface thereof, or (i) reverse engineer the ALS Services. Licensee’s violation of the foregoing, or any use of the ALS Services in breach of this ALS Agreement or Service Order(s), by Licensee that in MaxOne’s reasonable judgment compromises the security, integrity or availability of MaxOne’s services, may result in MaxOne’s immediate suspension of the ALS Services. Subject to the rights expressly granted hereunder, MaxOne reserves all right, title and interest in and to the ALS Services, including all intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.
- Removal of Content. If MaxOne is required by any third party rights holder to remove any Licensee content, or receives information that such content may violate applicable law or third-party rights, MaxOne may discontinue Licensee’s use of the ALS Services.
- FEES & REVENUE SHARING
- Fees. Licensee will pay all fees specified in Quote, as may be amended from time to time upon the mutual agreement of the Parties as executed in writing. Fees will be invoiced in advance and due net fifteen (15) days from the invoice date. Any fees not received by MaxOne by the due date may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
- Per User Fees. If per user fees are specified in Quote they will be determined on a quarterly basis and invoiced with the month following the end of quarter. User fees are paid per each End User and do not include coaches or parents.
- MaxPAY. MaxOne’s MaxPAY service enables a Licensee to charge a subscription fee to end users for access to their content via the MaxOne Platform. Licensee is solely responsible for establishing pricing, content delivery, marketing and all other details of this service offering.
- Credit Card and Processing Fees. If utilizing MaxPAY, Licensee will pay credit card and processing fees as defined in the Quote.
- MarketPlace Revenue Sharing.Marketplace content produced by Licensee and sold in the MaxOne Marketplace shall be split between M1 and Licensee. MaxOne shall collect payment for all Completed MarketPlace Sales. MaxOne shall remit to Licensee a total of 50% of all Fees collected from Completed MarketPlace Sales.
- Suspension of Service. If any charge owing by Licensee is thirty (30) days or more overdue, MaxOne may, without limiting its other rights and remedies, suspend access to the ALS Services until such amounts are paid in full.
- Taxes. MaxOne’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added tax (“VAT”), sales, use or withholding taxes, assessable by any jurisdiction whatsoever. Furthermore, MaxOne is not responsible for any taxes that are due based on fees you charge your users to access your content on the MaxOne platform.
- FINANCIAL REPORTING AND PAYMENTS
- Monthly Reporting and Quarterly Payment. Within 15 days of the end of the month, MaxOne will provide to Licensee a report that outlines the revenue earned for each MaxPAY Subscription, Platform Sale and Marketplace Content Sale for the preceding month. Unless otherwise defined in the Quote, MaxOne will remit all payments required by this Agreement to Licensee quarterly, within 30 days of the end of the quarter during which the payments were collected.
- Upon reasonable written request made to MaxOne, Licensee shall have the right, at its expense, to audit or engage a third-party to audit the reports during normal business hours to verify their accuracy. Any information provided by MaxOne to Licensee pursuant to such request shall be made available to Licensee in the form and location determined by MaxOne in its reasonable discretion. If Licensee does not object to the monthly reports within six (6) months of receipt, the calculation of the amounts payable shall be binding upon the Parties. If any audit reveals an underpayment of 5% or greater, MaxOne shall reimburse Licensee the cost of the audit.
- Definition of Confidential Information. “Confidential Information” means all 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. Confidential Information of Licensee includes Licensee Data and formulas and algorithms proprietary to Licensee; Confidential Information of MaxOne includes the ALS Services; and Confidential Information of each party includes the terms and conditions of this ALS 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 does not include any information that, without breach of any obligation owed to the Disclosing Party, (i) is or becomes generally known to the public, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party, (iii) is received from a third party, or (iv) was independently developed by the Receiving Party.
- Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect its own confidential information, but not less than reasonable care, to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this ALS Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this ALS Agreement and who have signed confidentiality agreements with the Receiving Party containing protections materially as protective of the Confidential Information as those herein.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 that Confidential Information.
- DISCLAIMERS, INDEMNIFICATION AND LIMITATION OF LIABILITY
- EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE ALS Services are provided “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
- Indemnification by MaxOne. MaxOne will defend Licensee against any claim, demand, suit or proceeding made or brought against Licensee by a third party alleging that the ALS Services infringes or misappropriates such third party’s intellectual property rights, and will indemnify Licensee from any damages, attorney fees and costs finally awarded against Licensee as a result of, or for amounts paid by Licensee under a settlement approved by MaxOne in writing; provided Licensee (a) promptly gives MaxOne written notice of the Claim Against Licensee, and gives MaxOne sole control of the defense and settlement of the Claim Against Licensee. If MaxOne receives information about an infringement or misappropriation claim related to the ALS Services, MaxOne may in its sole discretion (i) modify the ALS Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Licensee’s continued use of the ALS Service in accordance with this ALS Agreement, or (iii) terminate this ALS Agreement. The above defense and indemnification obligations do not apply to the extent a claim arises from Licensee’s breach of this ALS Agreement or applicable Service Orders. This Section 5.2 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 5.
- Indemnification by Licensee. Licensee shall defend, indemnify, and hold MaxOne, its Affiliates, and their respective officers, directors, agents and employees, harmless against any Loss to which MaxOne may become subject as a result of a third party Claim that arise out of or relate to: (a) Licensee’s use of the MaxOne Software or services; (b) Licensee’s infringement or violation of any intellectual property, privacy, or other rights of a third party; and (c) an uncured breach by Licensee of this Agreement.
- Limitation of Liability. OTHER THAN LIABILITIES ARISING FROM A BREACH OF SECTION 2.3 (“LICENSE RESTRICTIONS”), OR SECTION 4 (“CONFIDENTIALITY”), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY ARISING HEREUNDER EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY LICENSEE HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION ALL CAUSES OF ACTION WHETHER IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
- Exclusion of Consequential and Related Damages. IN NO EVENT, OTHER THAN LIABILITIES ARISING FROM A BREACH OF SECTION 2.3 (“LICENSE RESTRICTIONS”) OR SECTION 4 (“CONFIDENTIALITY”), WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING HEREUNDER FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- Term and Termination. This ALS Agreement commences on the Effective Date and continues as set forth in the Quote. It will automatically renew for additional periods equal to the expiring term, unless either party gives the other notice of non-renewal at least ninety (90) days before the end of the relevant subscription term. A party may terminate this ALS 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.
- Surviving Provisions. Sections 2.2 (“License Restrictions”), 3 (“Fees”), 5 (“Confidentiality”), 6 (“Disclaimers, Indemnification and Limitation of Liability”), 7 (“Term”) and 8 (“General”) will survive any termination or expiration of this ALS Agreement.
- Relationship of the Parties. The parties are independent contractors and this ALS Agreement does not create a partnership, joint venture, agency, fiduciary or other relationship between the parties. There are no third-party beneficiaries hereunder.
- Waiver and Severability. No failure or delay in exercising any right under this ALS Agreement will constitute a waiver of that right. If any provision of this ALS Agreement is found by a court of competent jurisdiction to be invalid, the provision will be deemed null and void, and the remaining provisions of this ALS Agreement will remain in effect.
- Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent, which shall not be unreasonably withheld; provided, however, either party may assign this ALS Agreement in its entirety, without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
- Governing Law. This ALS Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of the State of Michigan, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in Grand Rapids, Michigan will have exclusive jurisdiction over any dispute relating to this ALS Agreement, and each party consents to the exclusive jurisdiction thereof.
This agreement was last updated on 08/01/2020