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STACK SPORTS SYSTEM LICENSE AGREEMENT (United States)

This System License Agreement (“License Agreement”) is entered into between SPay, Inc. d/b/a Stack Sports, a Delaware corporation located at One Cowboys Way, Suite 190, Frisco, TX 75034 (“Stack Sports”) and your organization (“Customer”) as an authorized user of the Stack Sports System (defined below).

RECITALS

Whereas, Stack Sports provides electronic registration, association, team, club, and league management solutions, scheduling, background checks, web hosting services, and payment processing services including (but not limited to) credit card, debit card, check processing/guarantee, gift/stored value card, ACH, and international processing (“Services”).1

Whereas, Stack Sports intends to combine, share or integrate different Stack Sports IP Assets, as needed, to enhance the Customer’s functionality and broaden the scope of services offered by Stack Sports to Customer (collectively “Stack Sports System”).

Whereas, Customer desires to license the Stack Sports System for use according to the terms and conditions herein.

Whereas, the Stack Sports System is solely owned by Stack Sports. The Stack Sports System is licensed, not sold. Customer hereby agrees the Stack Sports System, as well as the Stack Sports IP Assets, are protected by U.S. and international copyright laws and treaties, as well as other intellectual property laws and treaties.

In consideration of the mutual promises set forth below, the parties agree as follows:

  1. Grant of License
    • 1.1 Effective Date. Customer will acknowledge the payment of certain fees in a separate pricing agreement (“Pricing Agreement”) and the date of execution of said Pricing Agreement will become the Effect Date of the relationship between the parties.
    • 1.2 Scope. Subject to Customer’s compliance with all terms and conditions of this Agreement and the payment of fees agreed to in the Pricing Agreement executed, Stack Sports hereby grants to Customer, for the Term, a limited, personal, nontransferable license to use the Stack Sports System (in object code form only).
    • 1.3 Restrictions. Customer agrees only to use the Stack Sports System for its intended pursuant better described in Stack Sports’s Terms of Use displayed on its’ company websites2 which are hereby incorporated by reference. Except as required to use the Stack Sports System in an authorized manner, Customer warrants that it will not modify, publish, retransmit, participate in the transfer or sale of, create derivative works of, distribute, sublicense, perform or display the Stack Sports System or any intellectual property or other material owned, licensed or developed by Stack Sports, including but not limited to any software, source code, object code, databases, information, communications, graphics or sounds.
    • 1.4 Ownership of System and Intellectual Property. Customer acknowledges and agrees that no title to the intellectual property in the Stack Sports System, including any and all proprietary trade secret information and information about business processes, is transferred to Customer under the terms of this License Agreement. All right, title and interest in and to the Stack Sports System is the sole property of Stack Sports, including any modifications thereto. Other than the limited license explicitly set forth in this Agreement, no interest in or rights or licenses to the Stack Sports System are granted to the Customer, and no interest in or rights or licenses to the Stack Sports System shall inure in or accrue to the Customer, whether by implication, estoppel, or otherwise. All rights of any kind in the Stack Sports System that are not expressly granted in this Agreement are entirely and exclusively reserved to and by Stack Sports, and its successors and assigns.
    • 1.5. Ownership of Data. As between the parties, Customer shall own all data and content that is placed by Customer and Customer’s members and/or users on the Stack Sports System (including any website created by or for Customer through the Stack Sports System). This information shall include, but is not limited to, participant and registration information, site and usage analytics, credit card information and other commerce related information (“Data”). Customer acknowledges that in many cases, certain aspects of the Data will be owned (at least jointly) by Customer’s members and users and that Stack Sports makes no claims of ownership over such Data and cannot guarantee any Customer use rights with respect to such Data; provided, however that the Stack Sports’s Privacy Policy http://stacksports.com/legal-privacy; Children’s Privacy Policy http://stacksports.com/legal-privacy; and, Terms of Use http://stacksports.com/legal-terms (collectively, the “Stack Sports Policies”) shall contain specific provisions addressing the use of such Data by Customer and Stack Sports. In addition to any terms or policies that the Customer may have, Customer agrees that Stack Sports may, in its sole discretion, require any users of the Stack Sports System, including Customer’s members and/or users, to expressly agree to the Stack Sports Policies during the member/user signup process or any time thereafter. Customer further acknowledges that Stack Sports may, and Customer hereby grants Stack Sports any and all rights owned by Customer and necessary to use the Data in any manner permitted pursuant to Stack Sports Policies, including directly contacting the providers of such Data for purposes of informing them of updates to the Stack Sports Policies.
    • 1.6. Permitted Stack Sports System Uses. Stack Sports supports the maintenance of the software product and unlimited support services to clients primarily through registration fees collected from the use of the Stack Sports System. Because of the high quality of the product and the level of service provided, Stack Sports does not provide web site only services. As such, Customer agrees to use registration services during the normal course of their season when using the Stack Sports web site feature and Customer agrees they will not use another registration provider during the time they are using the Stack Sports System.
  2. Payment Processing and Other Fees
    • 2.1 License Fees. In consideration for its license to use the Stack Sports System, Customer agrees to pay certain annual fees, one-time fixed fees, ongoing and credit card processing fees (collectively, “Fees”). These Fees are outlined in the Pricing Agreement provided to Customer via email and are incorporated herein upon acknowledgment by Customer.
    • 2.2 Payment Processing. It is the intent of both Stack Sports and Customer that a material element of this Agreement is to include/use Stack Sports’s credit & debit card processing services (“Processing Services”) as part of, or in combination with, the Stack Sports System. Therefore, Stack Sports and Customer specifically agree that all Processing Services associated with Customer, including but not limited to, all related processing from websites, mobile apps, related club, league, team payments (even if white labeled sites or apps through the Customer) and any P2P payments, will be handled by Stack Sports.
      • 2.2.1 Stack Sports will consider the processing needs of the Customer, the Stack Sports products chosen by the Customer and listed in the Purchase Agreement, the geographical location and currency the Customer accepts and place the Customer with one of Stack Sports’s approved processing partners (“Processing Partners”). Once a Processing Partner is chosen, Customer hereby agrees to provide the necessary information required by that Processing Partner to set-up the merchant account. A list of the approved processing partners is listed below in Addendum A.
    • 2.3 Custom Development. If Customer wants to add additional features for specific design, development or implementation of additional features outside the Stack Sports System, Customer agrees to pay those costs or fees upon receipt of invoice from Stack Sports. Stack Sports will present Customer a separate statement of work confirming the details of the work, the estimated timeline to implement and the cost associated with the project (“SOW”). Stack Sports will proceed once both Stack Sports and Customer will acknowledge (sign and date) the SOW. Once the SOW is acknowledged, it will become an amendment to this Agreement with all other terms and conditions contained herein being adopted.
  3. System Support. Customer shall receive free telephone and email support based on geographical location of customer’s chosen products. The hours of customer service can be found on the Stack Sports website.
  4. Term, Termination and Transition.
    • 4.1 Term. The term of this Agreement shall be for the period set forth in the Pricing Agreement and shall commence as of the Effective Date (“Initial Term”). Following the Initial Term, this Agreement shall automatically renew, for successive twelve (12) month periods (each a “Renewal Term”), unless: (i) either Party provides the other with written notice of its intent not to renew at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term; or (ii) earlier terminated pursuant to the terms of this Agreement. Renewal Terms shall be subject reasonable cumulative annual fee increases of five percent (5%) unless expressly modified in the Pricing Agreement or otherwise superseded by applicable contractual pricing arrangements between Stack Sports and a collegiate or other governing body in so far as such arrangements relate to specific service items for which Customer is an intended beneficiary.
    • 4.2 Termination. Either party shall have the right to terminate this License Agreement prior to the end of the Term upon a material breach of this Agreement by the other party. The non-breaching party shall provide written notice to the breaching party setting forth the basis for such party’s claim of material breach, setting forth in reasonable detail the act(s) or omission(s) or circumstances giving rise to such claim, and stating the desire of the non-breaching party to terminate if the breaching party fails to cure such breach. The breaching party shall have thirty (30) days in which to cure the breach; or commence to cure and present the non-breaching party with an acceptable remediation and cure plan if the breach is curable but cannot be cured within such thirty (30) day time period, If the breach is not cured within thirty (30) days or if the remediation and cure plan presented by the breaching party is rejected by the non-breaching party, then this Agreement shall terminate. Notwithstanding the opportunity to cure provided in the previous sentences, if the material breach is of such a nature that it may not be cured, regardless of the action taken by the breaching party or the passage of time, then the non-breaching party may terminate this Agreement effective immediately upon notice. In addition, Stack may terminate this Agreement upon written notice for Customer’s violation of Section 1 (“Grant of License”) or failure to pay the Fees as set forth in the Pricing Agreement.
    • 4.3 Effect of Termination. Termination of this Agreement for any reason (except the sole material breach by Stack) shall not allow Customer a refund of Fees and Customer agrees to pay all Fees due and owing to Stack up to and until the date Customer ceases all use of the Stack System. Upon termination of this Agreement for any reason, Customer shall make no further use of the Stack System whatsoever. Customer acknowledges that upon disconnection from the Stack System, Customer shall no longer be able to use the features of the Stack System including Customer’s Web Site. All Customer Content shall be accessible by Customer notwithstanding termination of this Agreement for a period of 30 days following termination of this Agreement for archiving by Customer or conversion to another system by Customer.
    • 4.4 Transition Period. If this Agreement expires pursuant to Section 4.1 or if Customer terminates this agreement due to the sole material breach by Stack pursuant to Section 4.2, Customer may request that Stack continue to provide the Stack System for up to three (3) months (the “Transitional Period”). Customer agrees to continue to pay any and all Fees associated with the Stack System that are in place immediately prior to the Transition Period.
    • 4.5 Acceleration of Payments. Any expiration or termination of this Agreement shall not release Customer from its duty to pay any amount which may be then or with the passage of time will become owing to Stack. Furthermore, immediately upon any termination of this Agreement, Customer shall pay to Stack any and all amounts that are or with the passage of time will become due and payable.
  5. Confidentiality.
    • 5.1 The parties acknowledge that each may be exposed to confidential information relating to the other party’s business in performance of this License Agreement, including but not limited to business methods and processes, products, Customers, technology, financial status and the Stack Sports System, which may include the proprietary intellectual property and/or trade secret information of that party. The parties agree that, for the term of this License Agreement as set forth in Section 4.1 and for a period of ten (10) years from the date of termination, neither party will disclose the confidential information of the other to third parties without the prior written consent of the disclosing party.
    • 5.2 The Stack Sports System constitutes trade secrets and confidential information of Stack Sports. The foregoing license is for internal business purposes only and ends on the termination of this License Agreement. On termination of this License Agreement, you shall discontinue use of the Stack Sports System and destroy or return all copies of the Stack Sports System to Stack Sports.
    • 5.3 You may not under any circumstances:
      • Copy the Stack Sports System, except for a single backup copy;
      • Sublicense, distribute, modify, adapt, translate, reverse engineer, decompile, disassemble, or prepare derivative works based on the System;
      • Use or allow use of the Stack Sports System after the termination or expiration of this License Agreement (except pursuant to another valid license or during the Transition Period);
      • Allow others to use, copy, or access the Stack Sports System in connection with a service bureau, application service provider, public computer bulletin board, shareware or timeshare process, or any similar business or service;
      • Access, use, or disclose the Stack Sports System source code;
      • Remove or alter any copyright or other proprietary rights notices included in or affixed to the Stack Sports System;
      • Sell, license, disclose, or distribute any product designed or intended for use with the Stack Sports System;
      • Publish or disclose the results of any benchmark tests relating to the Stack Sports System; or
      • Use the Stack Sports System in applications or systems when failure of the Stack Sports System to perform could reasonably be expected to result in serious physical injury, loss of life, or material damage to property.
  6. Indemnification. Customer agrees to indemnify and hold harmless Stack Sports from any third party claims (i) based on Customer’s or its members’/users’ use of the System, including any Data provided by Customer or its member/users; and (ii) based on or alleging any violation of Customer’s representations and warranties under Section 9, provided that Stack Sports, as applicable, notifies Customer promptly in writing of the claim (provided further that any failure by Stack Sports to provide such prompt shall only relieve Customer of its obligations under this Section 8.1 to the extent that it has actually been prejudiced by such failure), gives Customer reasonable assistance in the defense and allows Customer to control the defense or settlement. Customer may not settle any such third party claim without Stack Sports’s prior written consent.
  7. Representations and Warranties
    • 7.1 By Customer. Customer represents and warrants the following: (i) all information provided by Customer or its members/users to Stack Sports and/or displayed on the Customer Site is true and accurate in all material respects and does not infringe upon the intellectual property and/or proprietary rights of any third parties; (ii) Customer has received all necessary permission from third parties to post all content on Customer Site; (iii) Customer is in compliance in all respects with all applicable laws and regulations; (iv) Customer shall comply with all terms and conditions of this Agreement; (v) Customer shall at all times comply with all applicable laws and regulations related to the collection, use and storage of personal information, and (vi) Customer has the authority to represent and enter into this agreement on behalf of its members/users and access their Data without restriction.
    • 7.2 Exclusive Warranty. Stack Sports represents and warrants that the Stack Sports System will substantially comply with specifications during the term of this License Agreement. Stack Sports agrees to use commercially reasonable efforts to correct material defects in the Stack Sports System (that Stack Sports can replicate) within thirty (30) days of receipt of written notice of such defect from the Customer. EXCEPT FOR THE FOREGOING WARRANTY, THE SYSTEM AND ITS CONTENT IS PROVIDED “AS IS” AND CUSTOMER USES THE Stack Sports SYSTEM AT ITS OWN RISK. FURTHERMORE, SHOULD THE CUSTOMER REQUEST THAT Stack Sports IMPORT CUSTOMER DATA INTO THE Stack Sports SYSTEM, CUSTOMER ASSUMES ALL RESPONSIBILITY FOR PROVIDING THE DATA IN A FORMAT THAT MEETS THE IMPORT REQUIREMENTS OF THE Stack Sports SYSTEM AND PROVIDES THE FORMAT ACCORDING TO THE CUSTOMER NEEDS. Stack Sports SHALL NOT BE RESPONSIBLE FOR ANY ERRORS IN DATA, THE QUALITY OF THE DATA, OR CORRECTIONS TO IMPORTED DATA IN THE SYSTEM. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE Stack Sports SYSTEM MAY NOT PERFORM OR MEET THE CUSTOMER’S OR END USER’S EXPECTATIONS. Stack Sports DOES NOT WARRANT THAT THE USE OF THE Stack Sports SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE. Stack Sports EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  8. Limitation of Liability. IN NO EVENT SHALL Stack Sports BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS AND/OR LOSS OF BUSINESS, ARISING OUT OF OR IN ANY WAY RELATED TO (I) THIS LICENSE AGREEMENT; (II) THE PERFORMANCE OF THIS LICENSE AGREEMENT; (III) THE USE OF ANY PRODUCT, SERVICE OR Stack Sports SYSTEM PROVIDED UNDER THIS LICENSE AGREEMENT; AND/OR (IV) AN ALLEGED BREACH OF THIS LICENSE AGREEMENT, WHETHER OR NOT THAT PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
  9. Survival. The following provisions shall survive termination of this License Agreement for any reason: Section 1.3 (“Restrictions”); Section 1.4 (“Ownership of System and Intellectual Property”); Section 1.5 (“Ownership of Data”); Section 4.3 (“Effect of Termination”); Section 5 (“Confidentiality”); Section 6 (“Indemnification”); Section 7 (“Representations and Warranties”); Section 8 (“Limitation of Liability”); Section 9 (“Survival”) and Section 10 (“General”).
  10. General
    • 10.1 Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
    • 10.2 Severability. In the event of invalidity of any provision of this License Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this License Agreement.
    • 10.3 Governing Law. This Agreement will be governed by the laws of the State of Texas. The parties consent to the exclusive jurisdiction and venue of the state and federal courts in Dallas County, Texas, for any action, suit or proceeding in connection with the Stack Sports System or this License Agreement. The prevailing party in a suit shall be entitled to reimbursement for its costs and expenses, including any costs incurred in collecting overdue payments and attorneys’ fees at trial and on appeal.
    • 10.4 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
    • 10.5 Assignment. This License Agreement and any rights and responsibilities hereunder may not be assigned or delegated by Customer, including by action of law, without the express written consent of Stack Sports. Any assignment or delegation in violation of this Section will be void and of no effect.
    • 10.6 Injunctive and Other Equitable Relief. The Customer agrees that the remedy at law for any breach or threatened breach of this Agreement by the Customer would, by its nature, be inadequate, and that in that event Stack Sports shall be entitled, in addition to damages, to a restraining order, temporary or permanent injunctive relief, specific performance, and other appropriate equitable relief, without showing or providing that any monetary damage has been sustained.
    • 10.7 Entire Agreement. This License Agreement, together with the Stack Sports Policies, is the entire agreement between the parties which supersedes any prior agreement, whether written or oral, relating to the subject matter of this License Agreement. This License Agreement may only be modified by mutual agreement of the parties in writing.

ADDENDUM A
PROCESSING PARTERS

  1. PROPAY, INC.
  2. FIDELITY INFORMATION SERVICES, LLC
    Customer agrees that Stack Sports will electronically deduct all Fees from Customer’s bank account on around the first day of each month and the fifteenth of each month beginning the first month of invoice. Stack Sports will provide Customer with an electronic invoice on or around the first and fifteenth of each month, detailing all Fees to be deducted. Late payment fees shall be assessed at a rate of one and one half percent (1½ %) per month or the highest rate allowed by law, until paid in full.
  3. PAYPAL – EXPRESS CHECKOUT
    Customer agrees that fees for processing will be done at the time of transaction via a billing agreement. A Billing agreement will be setup prior to any online transactions. Fees will be transferred from the Customer’s PayPal account into the Stack Sports PayPal account.
  4. BEANSTREAM INTERNET COMMERCE INC.
    Customer agrees that fees for processing will be transferred electronically by Beanstream to Stack Sports around the 15th day of the month for the transactions for the previous month.

This Software License Agreement was last updated 1-12-16

[1] Stack Sports owns or acquired the assets of Bonzi Technologies, Inc., Pointstreak Sports Technologies, Inc., Saucer Technologies Group, Ltd carrying on business as Goal Line Sports Administration Systems, SDI Camps & Races, LLC, CarmonTech.com, Inc. d/b/a League Lineup, RaceWire, LLC, CaptainU, LLC, Prime Time Sports, LLC, Bigfoot Hoops, LLC., Stack Media, Inc., Global Apptitude, LLC, Ourisman Online Commerce Corp. d/b/a GroupNet Solutions, Student Sports, LLC, Krossover Intelligence, Inc., SportsTG Pty Limited and Real Time Online Pty Limited (“Stack Sports Entities”). As such, Stack Sports owns multiple trademarks and intellectual property assets surrounding the sports and events administration management (“Stack Sports IP Assets”).

[2] stacksports.com

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