Scoreboard Buzz Master Service AgreementLast Updated: 01/21/2014 8:42 PM
These Scoreboard Buzz Master Service Agreement Terms and Conditions set forth an agreement by and between Scoreboard Buzz Inc. (“Scoreboard Buzz”), an Arkansas corporation, with an office at 3506 SW Crosswinds Blvd, Bentonville, AR 72712 and the person or entity identified in a Scoreboard Buzz Order Form (“Customer”). By entering into a Scoreboard Buzz Order Form, which identifies the products and services that Customer is purchasing, Customer agrees to these Scoreboard Buzz Master Service Agreement Terms and Conditions, which upon acceptance of the Order Form by Scoreboard Buzz, together constitute an agreement between Scoreboard Buzz and Customer (collectively, this “Agreement”). If an individual enters into an Order Form on behalf of a company or other legal entity, then such individual hereby represents and warrant that he/she has the authority to bind such entity to this Agreement.
Scoreboard Buzz hereby grants Customer, subject to Customer's ongoing compliance with all of the terms and conditions of this Agreement, a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Scoreboard Buzz Web-based service (“Service”) for its internal business purposes only. Customer shall have no right to access or use the Service if it is a direct competitor of Scoreboard Buzz, except with Scoreboard Buzz's prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Customer support is provided Monday through Friday, 8AM to 6PM Central Standard Time, excluding holidays.
The term of this Agreement begins on the Effective Date (defined in the Order Form) and remains in effect for the “Term” specified on the Order Form, unless terminated in accordance with this Section 3 or Section 4 below (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term. Collectively the Initial Term and all renewal terms shall be referred to herein as the “Term”. Either party may terminate this Agreement and reduce the number of User Licenses, effective only upon the expiration of the Term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the Term.
Suspension and Termination
In the event Scoreboard Buzz has reason to believe Customer's use of the Service is fraudulent, unauthorized or may adversely impact the operation of the Service, Scoreboard Buzz may initiate an investigation and, upon notice to Customer, Scoreboard Buzz may suspend Customer's right and license to use the Service while such an investigation is being conducted. Customer shall cooperate with and assist Scoreboard Buzz and in its investigation of any suspected fraudulent or otherwise unauthorized use of the Service. Scoreboard Buzz will notify Customer of the results of its investigation and Scoreboard Buzz, in addition to all other available remedies, shall have the right to terminate this Agreement for cause if Customer has engaged in any fraudulent or unauthorized use of the Service, as determined by Scoreboard Buzz in its sole discretion.
In addition, Scoreboard Buzz may suspend Customer's right and license to use the Service or terminate this Agreement in its entirety for cause immediately in the event (i) Customer commits a breach of any of the provisions of this Agreement and such breach has not been fully cured within thirty (30) days of notice of such breach, (ii) Customer is in default of any of its payment obligations and such default is not fully cured within five (5) days following notice of such default, (iii) provision of the Service (or any portion thereof) to Customer is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason, as determined by Scoreboard Buzz in its sole discretion, or (iv) subject to applicable law, of Customer's liquidation, commencement of dissolution proceedings, disposal of Customer's assets, failure to continue Customer's business, assignment for the benefit of creditors, or if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding.
In addition, Scoreboard Buzz may terminate a free account at any time in its sole discretion. Customer agrees and acknowledges that Scoreboard Buzz has no obligation to retain Customer Data (defined below), and may delete such Customer Data following termination of this Agreement. Notwithstanding anything in this Agreement, Scoreboard Buzz shall have no liability for any damages, liabilities or losses (including, without limitation, loss of data or lost profits) that may result from Scoreboard Buzz's deletion of any Customer Data. Upon suspension by Scoreboard Buzz of Customer's use of the Service, in whole or in part, for any reason, (a) Monthly Fees will continue to accrue for any portion of the Service that remains accessible by Customer, notwithstanding the suspension, (b) Customer shall remain liable for all fees, charges and any other obligations Customer has incurred through the date of suspension with respect to the Service, and (c) all of Customer's rights with respect to the Service shall be terminated during the period of the suspension.
Effect of Termination
Upon termination of this Agreement for any reason (i) Customer shall remain liable for all fees, charges and any other obligations it has incurred under this Agreement through the effective date of termination, and (ii) all of Customer's rights under this Agreement shall immediately terminate and revert to Scoreboard Buzz. Each party's rights and obligations under Sections 7, 10, 15, 17-20, 22, 24 and 26-32 will survive any termination of this Agreement.
Customer is permitted to use the Service only by the number of unique users specified in the Order Form (“Users” or “User Licenses”). User Licenses are for named Users only and cannot be shared or used by more than one User, but initially named Users may be replaced by, and assigned to, new Users from time to time by Customer providing notification thereof to Scoreboard Buzz. Either party may reduce the number of User Licenses, effective only upon the expiration of the Initial Term or the then-current renewal term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the Initial Term or such renewal term.
Customer agrees to pay Scoreboard Buzz on the Effective Date the one-time Setup Fee specified in the Order Form for account creation and other administrative tasks. In addition, Customer agrees to pay Scoreboard Buzz on a monthly basis the recurring charge amounts set forth in the Seat Pricing Schedule corresponding to the product specified in the Order Form (“Monthly Fee”). On each anniversary date of the Effective Date, the recurring charge specified in the Seat Pricing Schedule shall increase automatically, without notice, by three percent (3%) of the then-current rate, unless otherwise agreed by the parties in writing.
Customer agrees to pay Scoreboard Buzz all Setup Fees and the first Monthly Fee starting on the Effective Date and, thereafter, all Monthly Fees shall be due and payable in advance on the first day of each month during the Term. If the Effective Date is a day other than the first day of a month, then the amount of the Monthly Fee for the first month will be pro-rated. Customer may add additional User Licenses during the Term by executing an additional Order Form. User Licenses added by Customer during the Term will remain in effect for the remainder of the Term and cannot be terminated or removed by Customer before the end of the Term.
If additional Users are added on a day other than the first day of a month, Customer will be charged a pro-rated amount of the Monthly Fee for such additional Users for the first month. All payment obligations are non-cancelable and all amounts paid are non-refundable. Customer is responsible for paying for all User Licenses ordered for the entire Term, whether or not such User Licenses are used. All amounts payable by Customer under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, Customer shall notify Scoreboard Buzz in writing and shall pay such additional amounts as necessary to ensure that the net amount paid to Scoreboard Buzz, after such deduction and withholding, equals the amount Scoreboard Buzz would have received if no such deduction or withholding had been required. Additionally, Customer shall provide Scoreboard Buzz with supporting documentation evidencing Customer's payment of the withholding and deducted amounts to the relevant taxing authority.
Upon request, Scoreboard Buzz shall provide Customer with custom software development services designated in writing by both parties in an Order Form. All customizations of the Service, including lead source integrations not included in the Service, will be billed at Scoreboard Buzz's then-current hourly rates, plus all applicable Monthly Fees.
9a. Formula: The availability of the Service for a given month during the Term will be calculated according to the following formula (“Availability”): Availability = (1 - (TMU/TMM)) x 100 TMM = Total minutes in the month TMU = Total minutes in month Service is Unavailable. For purposes of this calculation, the Service will be deemed to be “Unavailable” if, based upon availability of monitoring of the Scoreboard Buzz benchmark transaction, it does not respond to a request issued by Scoreboard Buzz's monitoring process. Further, the Service will not be deemed Unavailable for any downtime or outages excluded from such calculation by reason of the exceptions set forth in Section 9b below. Scoreboard Buzz's records and data will be the sole basis for all Availability calculations and determinations. Customer may audit Scoreboard Buzz's records and data, upon not less than ten (10) days' prior written notice, for the sole purpose of verifying the accuracy of Availability calculations and determinations.