Playertek – Terms & Conditions
PLAYERTEK Terms & Conditions
PLAYERTEK – Athlete monitoring Agreement
This Athlete Monitoring Agreement (“Agreement”) is entered into as of the date you execute the quotation that was sent to you by Catapult (“Quotation”, and constituting an “Order Schedule”) between the Catapult entity named in the Quotation (“Catapult”), and the Purchaser named in the Quotation (“Purchaser”, “you”, “your”). This Agreement sets forth the terms and conditions that apply to the goods, equipment, software licenses and services you receive from Catapult and its affiliates.
Your initial order for the goods that Catapult provides to you (the “Equipment”) and the Software licenses (and other goods and services) is set forth in the Quotation. Additional orders may be made by separate signed written agreement in a form agreed by the parties (such agreement constituting an “Order Schedule”). By purchasing the Equipment and Software licenses, you represent that Equipment Users using the Playertek Team solution are at least 16 years of age or in the case of Equipment Users under the age of 16, that each Equipment User’s parent or guardian has provided consent to use the Equipment and Software and in relation to data privacy as more fully set out in clause 10.5 below. You may not use the Equipment and the Software licenses for any illegal or unauthorised purpose nor may you, violate any laws in your jurisdiction (including but not limited to copyright laws).
2.1.1. You purchase all Equipment set out in each Order Schedule
2.1.2. Title in, and ownership of, Equipment will remain with Catapult (and will not pass to you) until You have paid the Equipment Fee (see the applicable Order Schedule) in full. Catapult may, at Catapult’s expense, take whatever measures it deems necessary to to make a public record of Catapult’s ownership of the Equipment.
2.1.3. Until title in any Equipment passes to You in accordance with section 2.1.2, You holds those items (“Unpaid Equipment”) as the fiduciary agent and bailee of Catapult and must ensure that the Unpaid Equipment are clearly identifiable as the property of Catapult and are properly stored and protected and remain fully insured.
2.1.4. You may not assign the Software or Data except pursuant to Section 18.1.
3.1. Athlete Licenses: Subject to the terms of this Agreement, Catapult grants you, for the Term, one (1) non-exclusive, non-sublicensable, nontransferable licence to use Catapult’s software for each monitor you have purchased (athlete tracking unit) through an Order Schedule, (the “Software” or the “Hosted Software”). The Software may be used to monitor the performance and capabilities of one (1) unique individual who has provided the consent detailed in 10.5. You may designate a single unique individual as an exclusive user of a monitor (an “Athlete”).
3.2. Analyst User Licenses: During the Term, Catapult grants to you, subject to the terms and conditions of this Agreement, one (1) non-exclusive, non-sublicensable, nontransferable license, to permit one (1) unique individual (an “Analyst User”), to access a copy of the Hosted Software. You may designate a single unique employee of yours as your Analyst User.
4.1. Equipment Fee: All Equipment Fees specified in any Order Schedule are payable prior to the Equipment being delivered to you.
4.2. Subsequent Annual Fees (if any): If the term of any Order Schedule is extended beyond the Initial Term (including in accordance with section 16.1), annual fees (“Annual Fees”) are payable for each Year (or the remaining part thereof) after the Initial Term in accordance with the following:
4.2.1. Catapult may give notice (including by way of invoice) (“Annual Fee Notice”) for the Annual Fees for that Year (or remaining part thereof);
4.2.2. You may terminate any extension of an Order Schedule by providing written notice to Catapult within 30 days of receiving the Annual Fee Notice, and the failure to terminate in such time shall be an acceptance by Purchaser of the Annual Fee Notice (and relevant Annual Fee) and any renewal of the term;
4.2.3. If the extension of the Order Schedule (or remainder thereof) is not terminated in accordance with section 4.2.2 and:
(a) The Annual Fee Notice is given prior to or on the first day of the relevant Year, the relevant Annual Fee is effective from the first day of that Year; or
(b) The Annual Fee Notice is given after the first day of the relevant Year, the relevant Annual Fee is effective from the date of the Annual Fee Notice;
4.2.4. “Year” means each year of an Order Schedule starting on the First Day set out therein.
4.3. Subsequent Annual Fees Payment Terms: All Annual Fees, including Intial Annual Fee and any subsequent Annual Fees are payable, upfront, sum within 30 days of the date of acceptance of the relevant Annual Fee Notice (or prior to the first day of the relevant Year, if later).
4.4. Taxes: “Tax” means any tax or charge levied by any governmental body including but not limited to any value-added, sales, use, or withholding tax assessable by any local, state, provincial, federal, or foreign jurisdiction. Catapult’s fees do not include any Taxes and you are responsible for paying all Taxes associated the goods and services Catapult supplies to you. If Catapult has an obligation to pay or collect Taxes for which you are responsible, Catapult may invoice the amount to you which are payable within 30 days.
4.5. Late Payment: Amounts not received by the due date shall bear interest, without demand, at a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law (if lower), from the date such payment was due until the date paid. If any payment owing to Catapult is outstanding 30 or more days, Catapult may, in addition to Catapult’s rights under Section 16.2, restrict your ability to access or use the Equipment and/or Software, and/or suspend any of Catapult’s other obligations to you under this Agreement.
4.6. Currency: All amounts due under this Agreement are payable in the currency specified in the Order Schedule.
5. Equipment and Software
5.1. Delivery: Catapult will deliver Equipment to you at your risk to the place identified in the applicable Order Schedule.
5.2. Your Obligations. You must:
5.2.1. Operate the Equipment and Software only in accordance with the applicable documentation;
5.2.2. While any items of Equipment constitutes Unpaid Equipment, keep those items in good order and repair (reasonable wear and tear excepted) and maintain those items in accordance with the applicable documentation;
5.2.3. During the Term, use the Equipment, Software and Data only to monitor and analyze the athletic performance of the Athletes for your own internal use (“Licensed Purpose”) and without limiting the foregoing, you must not use the Equipment, Software or Data to provide information or services to third-parties, whether for a fee or otherwise.
5.3. Limitations of the Software and Equipment.
5.3.1. Modification of Hosted Software: Purchaser acknowledges and agrees that Catapult may modify the Hosted Software from time to time.
5.3.2. Your Self-Reliance: You acknowledge that you have relied on your own skill, knowledge, experience, and judgment to verify that the Software and Equipment meets your requirements and that you are not relying on any implied warranty of fitness for your needs.
5.3.3. Your Systems: Catapult shall have no liability with regard to the Software if your computer network and communications systems (including software) do not conform to Catapult’s minimum specifications or recommended configurations or if you do not have adequate backup and recovery systems. The minimum specifications are available from Catapult. Catapult has no obligation to provide any computers to the Purchaser.
5.4. No representations or warranties.
5.4.1. Catapult and Catapult’s affiliates and licensors provide the Software, Equipment and other goods and services provided by Catapult and Catapult’s affiliates and licensors, on an as is basis.
5.4.2. Conspicuous Disclaimer of Warranties and Representations: Except as set forth in this Agreement, Catapult DISCLAIMS all representations and warranties, express or implied (by fact or operation of law, statute or otherwise), regarding the Equipment and Software (and other goods and services) including, without limitation, any warranties for fitness for any purpose, quality, merchantability, workmanlike service or otherwise, and any warranties arising out of a course of dealing or performance, trade usage, or trade practice. Except as set forth herein, Catapult makes no warranty or representation concerning the suitability of any Equipment or Software for use with any other item.
5.4.3. No Representation or Warranty For Interaction With Your Computer: Catapult DOES NOT WARRANT OR REPRESENT that the Software is free from errors or that it will interface without any problems with your computer system. Catapult shall NOT BE LIABLE for any damage or loss to any computer or data resulting from the use of the Equipment or the Software. It is your responsibility to back up your computer or otherwise save important data before accessing or installing the Software or Equipment and to continue to back-up your important data at least daily.
5.4.4. No Support Warranties or Representation. Catapult DOES NOT REPRESENT OR WARRANT:
(c) That the Software or any training or support Catapult provides will be uninterrupted, free of errors, or free from unauthorized access or interruption by external parties; or
(d) That Catapult’s commercially reasonable efforts will be adequate to correct any defects in the Software.
5.4.5. Third Party Limitations: Your access to the Hosted Software is subject to the availability to you of an Internet connection. Catapult is not responsible or liable for service interruptions of third-party suppliers.
5.5. Repair/Replacement of Equipment.
5.5.1. Defects and Wear: During the period starting on the date of delivery of any item of Equipment and ending on the day being 6 months from that date, Catapult will repair or replace (at Catapult’s election), at Catapult’s cost, any Equipment that is defective in materials or workmanship or that malfunctions due to ordinary wear and tear under ordinary use in accordance with Catapult’s instructions. Equipment repaired or replaced in accordance with this Section 5.5.1 constitutes “Warranted Equipment”.
(a) You must prepay the shipping and insurance for any item you return to Catapult. The risk of loss or damage of any item shall transfer to Catapult when the item arrives at Catapult. Reasonable shipping costs incurred by you in relation to return of any item are reimbursable to you if that item constitutes Warranted Equipment, in the form of a credit against future fees.
(b) Catapult will ship to you repaired, or replacements of, Warranted Equipment at Catapult’s cost. Repaired, or replacements of, non-Warranted Equipment will be shipped to you at your cost (payable within 30 days of demand by Catapult).
(c) The risk of loss or damage of any item shall transfer to you when the item is delivered to you.
5.5.3. Fees: Catapult may charge you a replacement/repair fee if Catapult determines that an item of Equipment is not Warranted Equipment. Fees shall be based on Catapult’s then standard fee for analyzing the item ($150 minimum as at the date of this Agreement) and the cost of the replacement unit (if applicable), (such costs payable within 30 days of demand by Catapult).
6. Hosted Software Availability
6.1. Hours: Catapult will use commercially reasonable efforts to make any Hosted Software available to you 24 hours a day, seven days a week. Catapult may take the Hosted Software off line (including to perform maintenance as appropriate).
6.1.1 PlayerTek by Catapult team customers have the ability to work in a non hosted environment if they choose to do so via a Bluetooth upload from the device to an iOS application.
6.2. Catapult’s Responsibilities. Catapult shall:
6.2.1. Use commercially reasonable efforts to provide you with access to the Hosted Software (accessible via the Internet);
6.2.2. Take commercially reasonable steps to ensure that third persons are not able to access confidential information you have stored on Catapult’s computer through the Hosted Software without your prior written consent or as permitted herein.
6.3. Catapult’s Back-up: Catapult will use commercially reasonable efforts to implement back-up and recovery procedures to protect and preserve information you transfer to Catapult or that your use of the Software and Equipment generates (“Data”) while your Data is stored on Catapult’s computers. Catapult’s back-up responsibilities do not diminish your responsibility to implement your own back-up procedures in case of any failure of Catapult’s back-up procedures.
7.1. Catapult will use commercially reasonable efforts to provide to you the
support services provided to similar customers of Catapult.
8. Your Responsibilities
8.1. Active Obligations. You are responsible for:
8.1.1. The use, supervision, management, and control of the Equipment;
8.1.2. Making sure that your computer network and communication systems (including software) are suitably configured, maintained, and operated so as to enable you to access the Hosted Software;
8.1.3. Establishing adequate alternative, backup, and recovery systems to prevent adverse consequences if the Software malfunctions or fails;
8.1.4. Assigning the user names and passwords that Catapult provides for each Analyst User only and ensuring that they are not provided to other persons; and
8.1.5. Preventing unauthorized or inappropriate use of the Equipment and Software, or use of the same outside the scope of this Agreement.
8.2. Modification, Reverse Engineering, and Derivative Works. You shall not, and you shall not permit any agent or third party:
8.2.1. To copy any Software, or documentation (“Materials”) other than as unambiguously permitted in this Agreement;
8.2.2. To decompile, disassemble, or otherwise reverse engineer the Equipment (including without limitation firmware) or Software or determine any source code, algorithms, methods, or techniques (or similar) used or embodied in the Materials;
8.2.3. Access the Materials for the purpose of monitoring its availability, performance, or functionality or for benchmarking, reverse engineering, or other competitive purpose;
8.2.4. Embed the Materials in any other application;
8.2.5. Modify, translate, or otherwise create derivative works based upon the Materials or copy ideas, features, functions, or graphics of the Software for use in another product, service, or function;
8.2.6. Remove or alter any copyright, trademark, or other notices, legends, symbols, or labels appearing in connection with the Materials.
8.3. Certain Excluded Uses. You may not access or use the Software if you compete or plan to compete in the business of athletic performance monitoring. In addition, you must not:
8.3.1. Send or store materials containing software viruses, worms, trojan horses or other harmful computer code, files scripts, agents or programs;
8.3.2. Interfere with or disrupt the integrity or performance of the Software;
8.3.3. Alter or modify disabling mechanisms which may be resident in the Software or mechanisms that control access to use of the Software; or
8.3.4. Gain or attempt to gain unauthorized access to the Hosted Software or its related systems or networks for any reason whatsoever.
9. Ownership Of Materials
Catapult and/or Catapult’s affiliates and licensors own all intellectual property rights in and to the Materials. Any suggestions, ideas, enhancement requests, feedback, recommendations, templates, widgets, libraries, or other software or information you provide to or jointly develop with Catapult that relate to the Materials shall belong solely to Catapult. All rights not expressly granted to you are reserved by Catapult and Catapult’s affiliates and licensors.
10. Use And Disclosure Of Confidential Information
“Confidential Information” means non-public information one party (an “Owner”) discloses to the other party (the “Recipient”), whether orally or in writing, that the Owner designates as confidential or that the Owner discloses in connection with this Agreement if the information reasonably should be understood to be confidential given the nature of the information and the circumstance of disclosure. Your Confidential Information shall include your Data (but excluding De-identified Data). Without limitation, Catapult’s Confidential Information shall include the non-public aspects of the Software. “Confidential Information” also includes the non-public terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include any information that:
10.1.1. Is or becomes generally known to the public without breach of any obligation to the Owner;
10.1.2. Is known to the Recipient in its compiled form at the time of receipt without breach of any obligation to the Owner;
10.1.3. Is received from a third party without breach of any obligation to the Owner; or
10.1.4. That either party independently develops without using the other party’s Confidential Information.
10.2. Protection of Confidential Information. Except as otherwise permitted in this Agreement or in writing by the Owner:
10.2.1. The Recipient shall use at least the same degree of care that the Recipient uses to protect the confidentiality of the Recipient’s own Confidential Information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Owner for any purpose outside the scope of this Agreement; and
10.2.2. The Recipient shall limit access to Confidential Information of the Owner to those of Recipient’s employees, contractors, and agents who need access for purposes consistent with this Agreement.
10.4. HIPAA Compliance: Terms in quotes in this Section 10.4 have the meanings specified for those terms in the US Health Insurance Portability & Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009, as amended (collectively, “HIPAA”). To the extent that Data stored on Catapult’s computers is “protected health information,” Catapult will comply the provisions of HIPAA that apply to Catapult as your “business associate”. To the extent Catapult has already provided to you, or received from you, “protected health information” that is the subject of a request for “access” under HIPAA, Catapult may refer the person requesting the information to you and need not otherwise provide the requested access.
10.6.1. Purchaser acknowledges and agrees that the Equipment and Software (and other goods and services) are being acquired by Purchaser for the sole purpose of the Licensed Purpose.
10.6.2. You agree that, during and after the Term: (i) the Data may be accessed and used by Catapult at any time for the purpose of performing its obligations under the Agreement and monitoring its rights under the Agreement and the performance of the Equipment and/or Software; (ii) De-identified Data may be created and used by Catapult or permitted third parties for aggregate reporting purposes, research and development, and for use in respect of the development of new products and services, and enhancements to existing products and services; and (iii) Data may be accessed by Catapult or permitted third parties from the date that is 12 months after the date that such Data was created and used by Catapult (and permitted third parties) for aggregate reporting purposes, research and development, and for use in respect of the development of new products and services, and enhancements to existing products and services.
10.6.3. You grant Catapult a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, sub-licensable, assignable, transferable license to use, reproduce, modify, adapt, create derivative works from, distribute and otherwise deal with the: (i) Data for the purposes set out in section 11.6.2(i) and 11.6.2(iii); and (ii) De-identified Data for the purposes set out in section 11.6.2(ii).
10.6.4. You warrant to Catapult that: (i) you have the right to grant Catapult the licenses set out in section 11.6.3; and (ii) you have obtained all necessary consents required in relation to the collection, storage, use (including by permitted third parties), sub-license, assignment and transfer of the Data, including any consents required in accordance with any privacy law that applies to any applicable individual and/or the Athlete.
10.6.5. Data is “De-identified Data” if Catapult has no reasonable basis to believe the Data can be used to identify the performance capabilities of a specific athlete.
10.6.6. Without limitation, you shall not use, and you shall not permit third parties to use, the Data for commercial purposes (including, without limitation, commercialization or monetization of Data).
10.6.7. Except as unambiguously set out in sections 11.6.3, you must not assign your rights in the Data to any other person or grant any other person the right to access or use the Data.
10.6.8. Notwithstanding anything to the contrary in this Agreement, any access to or use of the Data permitted in this Section 11.6 shall not constitute a breach of this Agreement by Catapult.
10.7. Required Disclosure: In the event that Recipient (or its affiliates) is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, governmental or civil investigative demand or similar process) to disclose any of the Confidential Information, it is agreed that Recipient will (to the extent permitted) provide the Owner with prompt notice of such request(s) so that Owner may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Owner grants a waiver hereunder, Recipient (or its affiliates) may furnish that portion (and only that portion) of the Confidential Information which Recipient is legally compelled to disclose and will exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished. The Owner shall be responsible for reimbursing Recipient’s reasonable costs associated with compiling and providing secure access to the disclosed information.
10.8. Return of Confidential Information: Subject to Sections 11.4 and 17.6 or as otherwise expressly set out herein, at the end of the Term, the Recipient shall destroy all physical copies and delete all electronic copies of the Owner’s Confidential Information in the Recipient’s possession, power, or control, including any notes, reports, and other documents that contain or refer to the Owner’s Confidential Information.
10.9. Permitted Matters: Notwithstanding anything to the contrary in this Agreement, any disclosure by the Australian Stock Exchange (ASX) listed affiliate of Catapult made under ASX listing rules shall not constitute a breach of this Agreement.
11. Risk of Injury
You represent that each Athlete will be aware of the risks and hazards connected with exercise, sports, and other physical activity and that each Athlete will acknowledge (by executing the Equipment User Consent) that use of the Equipment, Software and other goods and services of Catapult and its affiliates and licensors can result in injury to both property and person during physical activity. You covenant to inform each Athlete, and each Athlete will acknowledge (through the Equipment User Consent) that Catapult does not require anyone to use the Equipment and that although the Equipment and Software has been designed to minimize the risk of personal injury and property damage, such risk cannot be eliminated entirely. You assume the risk of any personal injury, death and property damage to any person (including Athletes) that may occur while using the Equipment or Software.
12. Your Indemnification
12.1. You indemnify and hold Catapult and Catapult’s licensors, parent companies, and affiliates, and their respective officers, directors, employees, attorneys, and agents, harmless from all liability and expense (including attorney fees and costs) arising out of or in connection with:
12.1.1. A claim alleging or arising out of your misuse of the Software or Equipment or use of the Software or Equipment other than in accordance with Catapult’s written instructions;
12.1.2. A claim alleging physical injury or death;
12.1.3. A claim alleging that access or use of the Data as permitted in this Agreement, infringes the rights of, or has caused harm to, a third party;
12.1.4. A claim arising out of the misuse or release of, or access to, your Data by any person you have authorized to use the Software or Equipment or who gained unauthorized access to your Data through your facilities or with a user name and password or other credentials issued to you;
12.1.5. You, (including your personnel, and Athletes and Analyst Users) doing, permitting or otherwise authorizing anything that results in an infringement of any of Catapult’s (and its affiliates’ and licensors’) intellectual property rights, including intellectual property rights in the Equipment and Software;
12.1.6 A claim alleging that your use of the Software or Equipment, when combined with a technology that Catapult did not provide, infringes the intellectual property rights of a third-party;
12.1.7. A claim arising from your breach of this Agreement or your breach of any of Catapult’s confidentiality or security policies; or
12.1.8. The use of the Equipment or Software by an Equipment User without obtaining a fully executed Equipment User Consent.
13. Catapult’s Indemnification
13.1. Catapult shall indemnify and hold you and your licensors, parent companies, and affiliates, and their respective officers, directors, employees, attorneys, and agents, harmless from all liability and expense (including attorney fees and costs) arising out of:
13.1.1. Any claim that the Software or Equipment, as used within the scope of this Agreement, infringes the intellectual property rights of a third-party,
13.1.2. Any physical injury that you have not otherwise assumed and which results directly from the use of the Software or Equipment in accordance with Catapult’s negligent written instructions or written instructions which amount to willful misconduct; and
13.1.3. Breach by Catapult of this Agreement.
13.2. If you believe you are entitled to indemnification, you must:
13.2.1. Notify Catapult in writing of the claim promptly upon learning of the claim;
13.2.2. Provide Catapult with sole control of the defense and all related settlement negotiations; and
13.2.3. Cooperate with Catapult, at Catapult’s expense, in defending or settling the claim.
13.3. In connection with the indemnification set out in Section 13.1.1, Catapult, at Catapult’s sole option, may (a) obtain for you the right to use the Hosted Software in accordance with this Agreement; or (b) use commercially reasonable efforts to make the Hosted Software non-infringing without materially diminishing the Hosted Software’s utility to you. Catapult shall have no liability for any claim of infringement arising out of your misuse of the Hosted Software or for your intentional infringement.
14. Limitation of Liability
14.1. Notwithstanding anything to the contrary contained herein or otherwise, in no event shall the aggregate liability of Catapult’s and its affiliates and licensors under or in connection with this Agreement exceed the amount of Fees paid by you in respect of the purchase of the Equipment and licenses granted to you relating to the twelve (12) month period immediately preceding the event giving rise to the subject claim.
14.2. In no event shall Catapult and/or Catapult’s affiliates and licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential, or other damages of any type or kind (including loss of data, revenue, profits, use, or other economic advantage) arising out of, or in any way connected with, this Agreement, including but not limited to the use or inability to use the Software or Equipment or any interruption, inaccuracy, error, or omission, regardless of cause, even if you have previously advised Catapult of the possibility of such damages.
15. U.S. Government Rights
Use, duplication, reproduction, release, modification, disclosure, or transfer of the Software is restricted in accordance with FAR 12.212, DFARS 227.7202, and this Agreement. For these purposes, the Contractor is Catapult with the contact details set out in the Quotation.
16. Term and Termination
16.1. Term: “Term” means the term of this Agreement starting on the earlier of: the date Quotation is signed; the First Day specified in the IOS; the day that you first come into possession of the Equipment; or the day that you first access the Software. The Term ends on expiration of all Order Schedules or earlier termination of this Agreement. “Initial Term” means the Initial Term of an Order Schedule specified therein starting on the First Day specified therein. Subject to Purchaser’s rights to terminate any Order Schedule in accordance with Section 4.2.2, each Order Schedule shall automatically renew from time to time for additional one (1) year periods starting on the day immediately following the last day of the relevant Initial Term unless either party gives written notice of nonrenewal to the other at least three months before the expiration of the then-current term of that Order Schedule.
16.2. Termination for Cause. Either party may terminate the Agreement by giving written notice to the other party:
16.2.1. 30 days after giving written notice of a material breach of this Agreement by the other party if the breach remains uncured at that time; or
16.2.2. If the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
16.3. Notice of Breach: Notice of any breach of this Agreement shall include language sufficient to permit the recipient to understand the facts constituting the breach and the provisions of this Agreement that are alleged to be breached, shall alert the recipient that the notifying party may terminate the Agreement or exercise other remedies if the breach is not cured by a specific date, and shall inform the recipient of the date (if any) by which the recipient must cure the breach.
16.4. Refunds: Fees paid under this Agreement are not refundable.
16.5. Obligations Upon Termination.
16.5.1. Upon termination or expiration of this Agreement, you shall:
(a) Cease to access any Hosted Software;
(b) Immediately pay Catapult all fees owing (including Equipment Fees and Annual Fees); and
(c) Confirm completion of such actions to Catapult. Upon receipt of the confirmation, Catapult will provide you with a copy of your Data in spreadsheet or database format.
16.5.2. Termination of the Agreement does not terminate the obligations of the parties under this Agreement, and all obligations that by their nature survive the termination of the Agreement shall remain in effect.
16.5.3. On 5 days’ written notice to you, you hereby authorize Catapult to enter any premises (accompanied by any of your nominated personnel) with your permission (not to be unreasonably withheld) where Catapult reasonably believes that unreturned items or Unpaid Equipment may be located and to take possession of those items. You hereby release Catapult from any liability or damage you suffer as a result of Catapult’s reasonable actions in taking or attempting to take possession of any such items.
16.6. Data Hosting: You may purchase Data hosting services (“Hosting Services”) from Catapult within 30 days after expiration or termination of this Agreement (“End Date”) if you are in compliance with all of your obligations under this Agreement. No fee is payable in respect of hosting of Data during the Term. The fee payable for the first year of Hosting Services is $10 per Athlete per year. Thereafter Catapult reserves the right to modify its prices for subsequent years. Fees for Hosting Services are payable annually in advance. The Hosting Services will allow you to view your Data as it existed as of the End Date but not to upload any Data. Catapult may offer to extend the Hosting Services, on the same or with different pricing, by delivering an invoice to you for the period of the extended services. The hosting services shall be so extended upon your payment of the invoice on or before the date specified in the invoice. If you do not purchase or pay for the Hosting Services in accordance with this Section or Catapult’s invoices, Catapult may, without notice, at any time, delete any Data you have uploaded to the Hosted Software.
17.1. Successors and Assigns: This Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns to the extent this Agreement permits. All references to a party in this Agreement shall also refer to each person who becomes a permitted successor or assignee of the party’s rights under this Agreement. You may not assign (directly or indirectly) this Agreement or your rights or obligations under this Agreement, or license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available any part of the Software or Data (unless set out herein) to any person or party, without Catapult’s prior written consent. For this purpose, a change in control of you shall constitute an assignment of this Agreement.
17.2. Force Majeure: Each party (for the purposes of this section 17.2 only “first party”) and the first party’s affiliates and licensors shall not be liable for any delay or failure in the performance of obligations (other than an obligation to pay money) that arises out of causes beyond its control, including but not limited to electrical and or energy outages, Internet failures, computer failures, communications failures, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, and severe weather, war, governmental action, labor conditions, and acts or omissions of subcontractors or third parties.
17.3. No Third‑Party Beneficiaries. Athletes are not intended beneficiaries of this Agreement. Except as this Agreement provides with respect to indemnified persons and in Sections 5.4, 9, 10, 13, 14, 14, 17.1, 17.2, 17.12 and 18.13, nothing in this Agreement:
17.3.1. Confers any right on a person other than the parties and their respective permitted successors and assigns;
17.3.2. Discharges the obligation of any third person to any party; or
17.3.3. Gives any third person a right of subrogation or action against any party.
17.4. Notices. Any notice given under or in connection with this Agreement shall:
17.4.1. If given to Purchaser, be given to any of the contact information (including email address) for Purchaser set out in the Quotation;
17.4.2. If given to Catapult, be given to any of the contact information (including email address) for Catapult set out in the Quotation, with a copy to firstname.lastname@example.org or such other contact information of either party, notified by that party to the other.
17.5. Modifications: This Agreement may not be amended or otherwise modified except pursuant to a later written document, signed by the parties to this Agreement, evidencing the intent to amend or modify this Agreement.
17.6. Dispute Resolution: The parties shall negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of both parties, then each party shall nominate one senior officer as its representative. The representatives shall, after delivery of a written request by either party for a meeting, meet in person and alone (except for one assistant for each party) and attempt in good faith to resolve the dispute. If the representatives cannot resolve the dispute, the representatives shall, within 30 days after the date of delivery of a written request, meet for one (1) day with an impartial mediator to consider dispute resolution alternatives to litigation. If the parties do not agree to an alternative method of dispute resolution within 30 days after the mediation, either party may begin litigation. This Agreement does not preclude a party from seeking prejudgment remedies and emergency relief from a court of competent jurisdiction.
17.7. Attorney Fees: The prevailing party in any suit, action, counterclaim, or arbitration arising out of this Agreement (including without limitation enforcement of any award or judgment obtained with respect to this Agreement and the attorney fees and costs associated with any appeal from any award or judgment) shall be entitled to recover a reasonable allowance for attorney fees, litigation expenses, and the cost of arbitration in addition to court costs. This Section 17.7 shall survive any judgment, and shall not be deemed merged into any judgment.
17.8. Equitable Remedies: Each party agrees that any breach of this Agreement by the other party may cause irreparable damage to the other party and that, in the event of such breach, and in addition to any remedies at law, the other party shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction to enforce this Agreement, without the requirement of posting a bond or undertaking or proving injury as a condition for relief.
17.9. Governing Law, Jurisdiction, and Venue: This Agreement shall be governed by the law of the State set out in Purchaser’s billing address in the Quotation (or if none, Victorian law in Australia), without regard to its choice or conflicts of law provisions. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Software be subject to the non-exclusive jurisdiction of the state and federal courts located in in Victoria, Australia.
17.10. Entire Agreement: This Agreement (including the Quotation and any other Order Schedules) comprises the entire agreement between Catapult and you and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter hereof. No text or information set forth on any purchase order, preprinted form, or document that does not conform to this Agreement shall add to or vary the terms of this Agreement.
17.11. Severability; No Partnership; No Waiver: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Catapult and you as a result of this Agreement or your use of the Software. The failure of Catapult to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Catapult in writing.
17.12. Nonsolicitation of Employees: During the Term and for one (1) year after the end of the Term, you shall not, directly or indirectly on behalf of you or any person or entity, solicit, induce, influence, combine or conspire with, or attempt to solicit, induce, influence, combine or conspire with, any of the officers, employees or contractors of Catapult to terminate their employment or engagement with Catapult or compete against Catapult or any of Catapult’s present or future subsidiaries, parents or affiliates.
17.13. Nondisparagement: During and after the Term, each party agrees that it will not, will procure that its and its affiliates’ personnel do not, and will not permit any third party to, take any action that may directly or indirectly damage the reputation of the other party or the other party’s affiliates or otherwise disparage the other party or the other party’s affiliates or their respective goods and services. Any matter or thing permitted under this Agreement shall not constitute a breach of this Section 17.13.
17.14. Additional Defined Terms: “Data” includes, without limitation, biometric and athlete performance-related and capability-related data. “permitted third parties” means Catapult’s third party partners, sub-licensees, assignees and transferees permitted to access and use Data and De-identified Data solely in accordance with Section 10.6. “products and services” includes, without limitation, physical goods and digital applications.
17.15. Counterparts: The parties may execute this Agreement in any number of counterparts, each of which shall be an original, and all of which together shall constitute one instrument. A signature by facsimile machine or the transmission of a scanned signature shall bind the party so signing with the same effect as the party’s original signature.