“Affiliate” shall mean, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.
“End Users“ shall be defined as people who register for, sign up, or otherwise use the Paid Services in connection with Events.
“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or destructive code, files, scripts, agents or programs.
“Order Form” shall mean the ordering documents for Customer’s purchases of Paid Services from Upper Hand that are executed by the parties or accepted by the Customer from time to time.
“Platform” shall mean Upper Hand’s proprietary sports software technology platform.
“Start Date” shall mean the date on which Upper Hand shall make the Paid Services available to Customer as set forth in an applicable Order Form or SOW.
“Statement of Work” or “SOW” shall mean the document describing the scope and schedule of Paid Services, if any, to be performed by Upper Hand for Customer.
“Subscription Term” shall mean the subscription period set forth on an applicable Order Form or SOW.
2. Use of Paid Services
2.1. Upper Hand Responsibilities. Upper Hand shall: (a) make the Paid Services available to Customer in a manner that is consistent with generally accepted industry standards; (b) use commercially reasonable efforts to ensure that the Paid Services perform in material compliance with any documentation or user guides provided to Customer; (c) provide standard support to Customer at no additional charge, unless otherwise set forth in the applicable Order Form or SOW; and (d) use commercially reasonable efforts to make the Platform available twenty-four (24) hours a day, seven days a week, except for: (i) planned downtime (for which Upper Hand shall give at least eight (8) hours electronic notice); or (ii) any unavailability caused by a Force Majeure Event.
3. Fees and Payment
3.1. Fees. Customer shall pay all fees, expenses or charges specified in all Order Forms and/or SOWs (“Fees”). Except as otherwise provided in these Subscriber Terms or the applicable Order Form or SOW, all payment obligations are non-cancelable and all amounts paid are non-refundable.
3.2. Invoicing and Payment. If the Order Form or SOW specifies that payment will be by credit card, debit card or ACH, Customer will provide Upper Hand with valid and updated payment information and hereby authorize Upper Hand to process payment for all Paid Services listed in the Order Form or SOW for the Subscription Term (including any renewal subscription term(s)). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form or SOW. If the Order Form specifies that payment will be by some other method, Upper Hand will invoice Customer in advance and otherwise in accordance with the relevant Order Form or SOW. Unless otherwise stated in the applicable Order Form or SOW, invoiced charges are due upon receipt. You are responsible for providing complete and accurate billing and contact information to Upper Hand and notifying Upper Hand of any changes to such information.
3.3. Overdue Charges. Customer’s failure to timely pay any Fees that are not the subject of a good faith dispute of which Customer notifies Upper Hand in a detailed writing (“Undisputed Fees”) shall constitute a material breach of the Agreement. If any amounts for which Customer is responsible are overdue, then Upper Hand may provide Customer with written notice of the same (a “Late Notice”). If Customer fails to pay all overdue amounts within ten (10) business days after Customer’s receipt of the Late Notice, then Upper Hand may, in addition to any of its other rights or remedies, suspend access to the Paid Services until all overdue amounts are paid in full. If Customer fails to pay all overdue amounts within thirty (30) days after Customer’s receipt of the Late Notice, then Upper Hand: (a) may terminate this Agreement, including all Order Forms and SOWs the in effect; (b) shall be entitled to recover from Customer (i) interest on all overdue amounts at the lower of a rate of one and one half percent (1.5%) per month or the maximum rate permitted by law (“Interest”); and (ii) all fees and costs (including reasonable attorneys’ fees, court costs and collection agency fees) incurred in seeking collection of such overdue amounts (“Collection Costs”).
3.4. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Upper Hand has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Upper Hand with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Upper Hand is solely responsible for taxes assessable against Upper Hand based on Upper Hand’s income, property and employees.
3.5. Chargebacks. It is your responsibility to notify End Users of your refund policy. You must ensure that your refund policies are consistent with this Agreement. You agree that all fees for a given Event are earned by you only following either the conclusion or delivery of the applicable Event (as applicable) and all amounts ultimately due to you will be net of all service fees, reversals, refunds, disputed charges, chargebacks and other deductions, whether due to customer complaints, allegations of fraud, discrepancies related to the applicable Event or otherwise. No payments shall be made to you with respect to any Event that is cancelled. If payments have already been made by Upper Hand to you for a cancelled Event or if Upper Hand reasonably determines that it is prudent or otherwise necessary to pay a refund to or honor a chargeback request from an End User, Upper Hand may issue an invoice or offset an equivalent amount from your account or payment owed by Upper Hand to you and return the value to the End User, and if sufficient funds are not available, you must reimburse Upper Hand on demand. Upper Hand will notify you of the reason for such offset provided that it is lawful to do so.
4. Warranties and Disclaimers
4.1. Upper Hand Warranties. Upper Hand represents and warrants that: (a) the functionality of the Platform will not be materially decreased during a Subscription Term; (b) it will utilize software and other security means designed to prevent the Platform from containing or transmitting Malicious Code; (c) it owns or otherwise has sufficient rights in the Paid Services to grant to Customer the rights to use the Paid Services granted herein; and (d) the Paid Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards.
5.1. By Upper Hand. Upper Hand shall defend, indemnify and hold Customer, its Affiliates, and their respective officers, directors, agents and employees, harmless against any loss, damage or costs (including reasonable attorneys’ fees) (“Losses”) incurred in connection with any claim, demand, suit or proceeding (“Claim”) made or brought against Customer by a third party relating to: (a) Upper Hand’s violation of applicable law, rule or regulation in providing the Paid Services; and/or (b) Customer’s use of the Paid Services in a manner permitted by these Subscriber Terms and the Terms Use that infringes the intellectual property rights of such third party; provided, however, that Upper Hand shall have no such indemnification obligation if the Claim relates (i) to a third-party product made available through the Paid Services or (ii) to use of the Paid Services in combination with data, software, products, processes, or other materials not provided by Upper Hand where such infringement would not have occurred but for the combination.
5.3. Procedure. As an express condition to the indemnifying party’s obligation under this Section 5, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought, provided that failure to timely provide such notification shall not release the indemnifying party from its indemnification obligations except to the extent such failure has prejudiced the party seeking indemnification; (b) grant the indemnifying party sole control over the defense of such claim; and (c) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the indemnifying party to defend and settle such Claim.
6. Subscription Term, Termination and Suspension
6.1. Term and Renewal. Your subscription period will be specified in your Order Form, and your Subscriptions to Paid Services will automatically renew for the shorter of the subscription period, or one year. If you add products during the Subscription Term, the fees for these additional products will be pro-rated and they will renew along with your subscription, unless otherwise indicated in your Order Form.
The renewal pricing set forth in your Order Form will apply, subject to adjustment as specified in the ‘Fees and Payments’ section above. If renewal pricing is not included in your Order Form, then our standard pricing available on our Pricing Page will apply. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription
See the ‘Limits’ section below for the applicability of product limits on renewal. To prevent renewal of the subscription, the required notice must be provided within the timeframe as specified in the ‘Subscription Types’ section below.
6.2. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and you cannot cancel it before its expiration. We do not provide refunds if you decide to stop using the Upper Hand subscription during your Subscription Term.
6.3. Termination for Cause. Either party may terminate this Agreement for cause for a material breach of this Agreement by the other party upon thirty (30) days’ prior written notice thereof if such breach remains uncured at the expiration of such period. Upon any termination for cause by Customer, Upper Hand shall refund to Customer any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. Notwithstanding the foregoing, termination for cause by Customer shall not relieve Customer of the obligation to pay any Fees accrued or payable to Upper Hand prior to the effective date of termination.
6.4. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the HubSpot email send service that results in excessive bounce-backs, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
6.5. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription to Paid Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription to Paid Services is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription to Paid Services.
6.6. Suspension for Present Harm. If your website on, or use of, the Subscription to Paid Services: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription to Paid Services or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription to Paid Services. We will try to limit the suspension to the affected portion of the Subscription to Paid Services and promptly resolve the issues causing the suspension of the Subscription to Paid Services.
6.7. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
6.8. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the affected Subscription to Paid Services and Upper Hand Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data (unless, of course, you have a source other than the Subscription to Paid Services for such Enrichment Data.) We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in the ‘Retrieval of Customer Data’ section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
6.9. Surviving Provisions. Section 1 and Sections 3 through 7 shall survive any termination or expiration of this Agreement, regardless of the cause of termination.
(1) Full-Service Subscriptions: Core Software Plan and our Add-On products.
(2) Limited Service Subscriptions: Monthly Plans.
(3) Free Subscriptions: Digital Content on the Upper Hand Blog.
7.2. Limits. The limits that apply to you will be specified in your Order Form, this Agreement or on our Pricing Page, and for our Free Subscriptions, these limits may also be designated only from within the product itself. You must be 18 years of age (or 20 years of age, if you are subject to the laws of Japan) or older to use the Subscription Service.
All of our Full-Service Subscriptions, regardless of billing cycle, are on an annual 12-month contract basis. Following the 12-month contract, you may cancel per the non-renewal and/or termination policy as listed in these Subscriber Terms. For any website add-on, if the number of paid billing cycles is currently under the 12-month contract, you may pay off the remaining term of your contract, plus a $3,000 breakage fee to transfer ownership. If we make modifications to the limits set forth on the Pricing Page that would negatively impact you, these modifications will not apply to you until the start of your next renewal Subscription Term. On renewal, the current product usage limits on our Pricing Page will apply to your subscription, unless you and we otherwise agree.
For our Limited Service Subscriptions, we may change the limits that apply to you at any time in our sole discretion.
For our Free Subscriptions, we may change the limits that apply to your use at any time in our sole discretion without notice to you, regardless of whether or not these are used in conjunction with other products or services for which you pay us a fee.
7.3. Downgrades. For our Full-Service Subscriptions, you may not downgrade your subscription and in order to avoid additional charges, you should purchase the appropriate tier of Subscription Service for your anticipated needs. For our Limited Service Subscriptions, you may downgrade your subscription at the start of your next renewal Subscription Term, as specified in the ‘Fee Adjustments at Renewal’ section above.
7.4. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience.
For our Full-Service Subscriptions, we will not make changes to the Subscription Service that materially reduce the functionality provided to you during the Subscription Term.
For our Limited Service Subscriptions and Free Subscriptions, we may make changes that materially reduce the functionality provided to you during the Subscription Term.
7.5. Customer Support. For our Full-Service and Limited Service Subscriptions, phone and webform support is included in your Subscription Fee. Phone support for these Subscriptions is available from 8am EST (Eastern Standard time) to 5pm EST (Eastern Standard time) / EDT (Eastern Daylight Time), Monday through Friday, with reduced hours during holidays in Singapore, Ireland, and the US. We accept webform support questions 24 Hours per Day x 7 Days per Week. Webform questions can be submitted through the help widget in the lower right hand corner of your portal or by following the link at https://upperhand.zendesk.com/hc/en-us. Webform responses are provided during phone support hours only. We attempt to respond to webform support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
7.6. Notice of Non-Renewal. Your subscription will automatically renew according to the ‘Term and Renewal’ section above.
To prevent renewal of a Full-Service Subscription, you or we must give written notice of non-renewal and this written notice must be received no more than ninety (90) days but no less than forty-five (45) days in advance of the end of the Subscription Term. If you decide not to renew, you may send the notice of non-renewal by email to email@example.com.
To prevent renewal of a Limited Service Subscription, you or we must give written notice of non-renewal and this written notice must be received before the next renewal period begins. If you decide not to renew, you may send this non-renewal notice to us by indicating that you do not want to renew by accessing the billing details information in your Upper Hand billing portal, or by following the steps here, as applicable.
To prevent continuation of the Subscription Term of a Free Subscription, you or we may close your account.
7.7. Retrieval of Customer Data. For our Full-Service Subscriptions, as long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. If we provide you with temporary access to the portal, we may charge a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
For our Limited Service and Free Subscriptions, we will not provide you with any access to Customer Data after termination or expiration of your subscription.
8. General Provisions
8.1 Relationship of the Parties; Third Party Beneficiaries.
The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Unless otherwise provided in the applicable Order Form or SOW, there are no third-party beneficiaries to the Agreement.
8.2. Force Majeure. Neither party is responsible for delays or failures to perform its responsibilities under the Agreement (other than payment obligations) due to causes beyond its reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, tornadoes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, Malicious Code, denial of service attacks, and inability to obtain energy (each a “Force Majeure Event”); provided, however, that it will resume performance as soon as reasonably practicable.
8.3. Notices. Unless otherwise specified herein, any notice, request, approval or written consent required under the Agreement shall be sufficiently given if in writing and delivered in person or mailed (certified or registered mail, return receipt requested) by one party to the other at the address set forth in the applicable Order Form or SOW or to such other address as the recipient may furnish in writing to the sender. Notice shall be effective upon receipt.
8.4. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter set forth in the Order Forms and SOWs, 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 any Order Form or SOW shall be effective unless in writing and signed or accepted by both parties hereto. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms and SOWs) shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void.
8.5. Changes to these Subscriber Terms. Upper Hand may, in its sole discretion, change, modify or amend these Subscriber Terms from time to time, in whole or in part, by posting revised Subscriber Terms on its website at least thirty (30) days prior to the effective date of such change. Customer may terminate this Agreement in its entirety (including all Order Forms and SOWs) during such thirty (30) day period upon written notice to Upper Hand and Upper Hand shall refund to Customer any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. Notwithstanding the foregoing, termination for cause by Customer shall not relieve Customer of the obligation to pay any Fees accrued or payable to Upper Hand prior to the effective date of termination. Customer’s continued use of the Paid Services after any such change constitutes Customer’s acceptance of the new Subscriber Terms.
This Agreement was last modified on July 1, 2018.