ScoreboardBuzz Master Service Agreement
Last Updated: 01/21/2014 8:42 PMThese ScoreboardBuzz Master Service Agreement Terms and Conditions set forth an agreement by and between ScoreboardBuzz Inc. (“ScoreboardBuzz”), an Arkansas corporation, with an office at 3506 SW Crosswinds Blvd, Bentonville, AR 72712 and the person or entity identified in a ScoreboardBuzz Order Form (“Customer”). By entering into a ScoreboardBuzz Order Form, which identifies the products and services that Customer is purchasing, Customer agrees to these ScoreboardBuzz Master Service Agreement Terms and Conditions, which upon acceptance of the Order Form by ScoreboardBuzz, together constitute an agreement between ScoreboardBuzz 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.
Service
ScoreboardBuzz 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 ScoreboardBuzz 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 ScoreboardBuzz, except with ScoreboardBuzz'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
Customer support is provided Monday through Friday, 8AM to 6PM Central Standard Time, excluding holidays.
Term
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 ScoreboardBuzz has reason to believe Customer's use of the Service is fraudulent, unauthorized or may adversely impact the operation of the Service, ScoreboardBuzz may initiate an investigation and, upon notice to Customer, ScoreboardBuzz may suspend Customer's right and license to use the Service while such an investigation is being conducted. Customer shall cooperate with and assist ScoreboardBuzz and in its investigation of any suspected fraudulent or otherwise unauthorized use of the Service. ScoreboardBuzz will notify Customer of the results of its investigation and ScoreboardBuzz, 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 ScoreboardBuzz in its sole discretion.
In addition, ScoreboardBuzz 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 ScoreboardBuzz 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, ScoreboardBuzz may terminate a free account at any time in its sole discretion. Customer agrees and acknowledges that ScoreboardBuzz 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, ScoreboardBuzz shall have no liability for any damages, liabilities or losses (including, without limitation, loss of data or lost profits) that may result from ScoreboardBuzz's deletion of any Customer Data. Upon suspension by ScoreboardBuzz 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 ScoreboardBuzz. 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.
User Licenses
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 ScoreboardBuzz. 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.
Fees
Customer agrees to pay ScoreboardBuzz 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 ScoreboardBuzz 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 ScoreboardBuzz 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 ScoreboardBuzz in writing and shall pay such additional amounts as necessary to ensure that the net amount paid to ScoreboardBuzz, after such deduction and withholding, equals the amount ScoreboardBuzz would have received if no such deduction or withholding had been required. Additionally, Customer shall provide ScoreboardBuzz with supporting documentation evidencing Customer's payment of the withholding and deducted amounts to the relevant taxing authority.
Customizations
Upon request, ScoreboardBuzz 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 ScoreboardBuzz's then-current hourly rates, plus all applicable Monthly Fees.
Availability
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 ScoreboardBuzz benchmark transaction, it does not respond to a request issued by ScoreboardBuzz'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. ScoreboardBuzz's records and data will be the sole basis for all Availability calculations and determinations. Customer may audit ScoreboardBuzz'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.