This WINTHROP INTELLIGENCE SOFTWARE AGREEMENT (the “Agreement”) shall set forth the terms and conditions pursuant to which Winthrop Intelligence, LLC (“WI”) shall make available to each WI customer (the “Customer”) the WI Software as more fully described on the WI online Order Form (the “Order Form”) to the entity that has completed the WI Order Form.
BY CLICKING ON THE “I ACCEPT” BUTTON ON THE ORDER FORM CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER SHOULD NOT USE THE SOFTWARE IF THEY DON’T AGREE WITH THIS AGREEMENT.
WI MAY MODIFY THE TERMS OF THIS AGREEMENT AT ANY TIME. IN THE EVENT OF A MATERIAL CHANGE TO THIS AGREEMENT, WE SHALL PROVIDE YOU NOTICE BY AT OUR WEBSITE (WWW.WINTHROPINTELLIGENCE.COM), BY EMAIL OR WHEN YOU USE THE SOFTWARE . IN SUCH EVENT THE VERSION DATE ABOVE SHALL BE UPDATED. UNLESS SO MODIFIED BY WI, THE CURRENT VERSION OF THESE TERMS SHALL APPLY TO ALL ORDER FORMS SUBMITTED BY CUSTOMER TO WI ON OR AFTER THE ABOVE VERSION DATE. TO THE EXENT THE SOFTWARE LICENSE “TERM” DESCRIBED BELOW IN SECTION 2 IS EXTENDED BY CUSTOMER, CUSTOMER AGREES THAT THE TERMS OF THE THEN CURRENT VERSION OF THIS AGREEMENT SHALL APPLY TO THE NEW SOFTWARE LICENSE TERM.
TO THE EXTENT THAT A CUSTOMER HAS LICENSED THE WI SOFTWARE SUBJECT TO WI TERMS OTHER THAN THOSE SET FORTH IN THIS AGREEMENT, SUCH CUSTOMER AGREES THAT THE TERMS OF THIS AGREEMENT SHALL APPLY TO SUCH CUSTOMER’S USE OF THE WI SOFTWARE IN THE EVENT THAT SUCH CUSTOMER AGREES TO EXTEND THE THEN CURRENT LICENSE TERM FOR SUCH SOFTWARE.
The particular software to be provided by WI to the Customer shall be described in the Order Form (the “Software”). The Order Form shall describe the Software to be licensed by the Customer, the term pursuant to which the Software shall be provided, the cost, charge or fee for such Software and all other relevant terms and conditions. To activate use of the Software the Customer must complete and submit the Order Form and pay the fee associated with the Software.
2. Term; Termination; Survival of Provisions
2.1 The Software shall be provided by WI to Customer during the term set forth in the Order Form. The Software license term, including any renewal of the term, shall be referred to as the “Term”. After the initial Term set forth in the applicable Order Form, or any renewal thereof, the Agreement shall renew for successive one (1) year terms unless either party provides notice of termination to the other party at least ninety (90) days prior to the end of any initial or subsequent renewal Term. Any such notice of termination shall be sent pursuant to the notice requirements set forth in Section 8.5 below.
2.2 This Agreement may be terminated for cause by either party immediately and without further notice if the other party defaults in the performance of any of its material obligations under this Agreement and does not cure the default within thirty (30) days after receipt of notice in writing from the non-defaulting party. Upon termination for cause by Customer, WI shall promptly refund the pre-paid Software Fee (as defined below) to Customer on a pro-rata basis. The following sections of this Agreement shall continue in full force and effect upon termination of this Agreement or expiration of the Term: 5, 6 and 8.
2.3 Upon termination of this Agreement for any reason, WI shall return to the Conference (as defined below) any Documents (as defined below) regarding any Conference Members (as defined below) provided by Customer to WI except to the extent that such Conference Members are subject to open records laws. WI further agrees that upon any such termination they shall make no other use of any such Documents except for such documents or reports from Conference Members who are subject to open records laws.
3.1 Subject to the provisions of this Agreement, WI grants to the Customer a non-exclusive, non-transferable, revocable, limited license for up to ten (10) Customer employees to concurrently access and use the Software during the Term. Any such access or use of the Software shall be solely in a manner consistent with the terms of this Agreement. Except for the license granted in this Section 3.1, the Customer acknowledges that it acquires no other rights to the Software and that all right, title and interest in and to the Software shall remain with WI and its licensors. The Customer shall not decompile copy, disassemble, modify, decrypt, translate, extract or otherwise reverse engineer the Software.
3.2 In addition, if the Customer is an athletic conference (“Conference”), and the Conference elects to provide Documents from private institutions that are Conference members (“Conference Members”) in conjunction with use of the Conference Database and Reports portion of the Software, WI shall then provide access to the such portion of the Software to Conference Members who are not then current customers of WI and who provide Documents to WI pursuant to this Agreement. In that case, Customer who is a Conference acknowledges that it is in the parties’ mutual interest for WI to obtain records relating to private institution Conference Members in a timely and cost effective manner (all such documents, including the NCAA Financial Reports, as defined below, shall be collectively referred as the “Documents”). Customer who is a Conference agrees to make every commercially reasonable effort to provide WI with the Documents that are in the possession of such Conference Members and/or the Conference, as reasonably requested by WI for the purpose of WI providing the Services; and to provide the Documents without redaction at no cost at WI. Further, the Conference shall make available to WI the NCAA Revenues and Expenses Reporting document that is filed annually with the NCAA by each such private institution Conference Member (these reports shall be referred to as the “NCAA Financial Reports”). The NCAA Financial Reports shall be provided to WI in both an XLS and PDF format via email to a designated WI employee. The Conference shall make available to WI the current NCAA Financial Reports, all subsequent NCAA Financial Reports and, at the sole discretion of Conference, past NCAA Financial Reports. All such subsequent NCAA Financial Reports shall be provided to WI within ten days following the NCAA’s submission deadline or any extension, as applicable. Subject to the license to use the Documents granted to WI in this Section 3.2, WI shall treat all Documents as confidential and with the same degree of care with respect to preserving its confidentiality as WI accords to information of a similar nature regarding WI or its business, but in no event less than reasonable care. Any such access or use of the Software shall be solely in a manner consistent with the terms of this Agreement.
3.3 Customer has the option to obtain Win AD+ Benchmark Analysis, an in-depth analysis comparing Customer’s department and sport programs to conference, subdivision, and custom peer groups in order to gain a better grasp of each sport’s standing amongst their peers. If Customer elects to obtain this report, it agrees to one of the following: A) an additional $1,500 added to the Services Fee for the Win AD+ Select Benchmark Analysis, comprised of a four-sport analysis and department-wide analysis, or B) an additional $3,500 for the Win AD+ Comprehensive Analysis, which reviews each sport supported by Win AD data, along with the department-wide analysis.
3.4 Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software; (b) modify or make derivative works based upon the Software; (c) create Internet “links” to the Software or “frame” or “mirror” the Software on any other server or wireless or Internet-based device; (d) interfere with or disrupt the integrity or performance of the Software or the data contained therein; or (e) attempt to gain unauthorized access to the Software or its related systems or networks.
3.5 Except for those licenses granted in Sections 3.1 and 3.2 above, Customer agrees it shall be a material breach of this Agreement if its users of the Software share or provide access to or use of the Software to anyone else. Notwithstanding the termination provisions of section 2.2 above, WI may terminate this Agreement, without notice and without having to refund any portion of the Software Fee, if Customer’s users of the Software share or provide access to or use of the Software to anyone else.
4. Use of Software and, Support
4.1 WI shall provide Customer with a User ID and password for each user identified in Section 3.1 that will permit Customer to access and use the Software. Customer is solely responsible for the security and use of each user’s ID and password. Customer agrees that each user identified in Section 3.1 who obtains a User ID and password to use the Software pursuant to this Agreement shall: (a) choose a strong and secure password; (b) keep their password secure and confidential; and (c) not share or transfer User ID and password with any other person or entity. If the security of the user ID and/or password is compromised, Customer shall promptly contact WI at firstname.lastname@example.org or at (800) 218-2280.
4.2 WI shall provide email based support concerning use of the Software Monday through Friday (excluding Federal holidays) from 9:00 AM to 5:00 PM (Eastern Standard Time). All inquiries concerning support and use of the Software shall be sent to email@example.com by one named representative selected by Customer.
5. Payment and Billing
5.1 The Software shall be provided at the fee set forth in the Order Form (the “Software Fee”). WI shall invoice Customer for the Software Fee on the date that Customer submits a completed Order Form to WI. The Software Fee shall be paid by Customer to WI by check, by use of Customer’s credit card or through Customer authorized ACH. Customer hereby authorizes WI to use Customer’s credit card information or Customer’s ACH authorization, as provided on the Order Form or otherwise, to accept payment for the Software Fees. Customer shall pay the Software Fee in accordance with the terms of the Order Form and Invoice. WI will not be responsible for any costs associated with Customer paying WI the Services Fee. In addition to any other rights granted to WI herein, WI reserves the right to suspend or terminate this Agreement and the Customer access to the Software if the Customer fails to pay any amount due on the payment due date or if WI is unable to use Customer’s credit card information or ACH authorization to accept payment of the Software Fee. If collection efforts related to non-payment or late payment of WI invoices proves necessary, Customer agrees to pay all fees incurred by that process, including reasonable attorney fees and court costs.
5.2 In no event shall the annual Service Fee for the above Term be greater than that charged to any of WI’s other customers who sign a contract of equal (or lesser) duration during the above Term. If WI offers Service Fees to such customers during the above Term that are less than those annual fees set forth in this Amendment, then WI shall amend the Service Fee in this Amendment to reflect the lower price for the remainder of the above Term.
5.3 If WI offers a new database module during the above Term, then Customer may license such modules (“Additional Services”) from WI under the terms of the Agreement, either at no charge, at WI’s sole option; or, at WI’s then-current list price, if WI does not offer such modules at no charge. In cases where WI does charge separately for such Additional Services, the Service Fee attributable to Additional Services obtained by Customer during the above Term shall not be greater than the Service Fee for Additional Services charged to any of WI’s other customers who sign a contract of equal (or lesser) duration during the above Term. If WI offers a Service Fee to any of such customers for Additional Services during the above Term that is less than the Service Fee attributable to Additional Services charged to Customer, then WI shall amend the Agreement and offer the same pricing attributable to Additional Services to Customer for the remainder of the above Term.
6. Limitation of Liability.
EXCEPT FOR BREACH OF THOSE RESTRICTIONS SET FORTH IN SECTION 3 ABOVE (LICENSE) , IN NO EVENT SHALL (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME, GOODWILL OR DATA, OR THE INABILITY TO UTILIZE THE SOFTWARE; AND (B) ONE PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY EXCEED THE SOFTWARE FEES ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
7. Representations and Warranties
7.1 WI represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which WI is a party or is otherwise bound; (c) its performance under this Agreement shall comply with all applicable laws, rules and regulations; (d) it is the owner or authorized licensee of the Software; (e) has undertaken commercially reasonable efforts and steps to verify the accuracy of the data contained within the Software, including keeping such data current; and (f) regarding Customer’s access to the Software during the Term, WI shall use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week except for: (i) planned downtime (of which WI shall give notice to the Customer name representative), or (ii) any unavailability caused by circumstances beyond WI’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, or unpredicted functionality glitches.
7.2 WI warrants to the Customer that the Software shall be performed in substantial accordance with the functional descriptions of the Software set forth on the Order Form. If the Software fails to so conform to that description of the Software, then WI shall, as the Customer’s sole remedy, make a commercially reasonable effort to correct the Software; provided however Customer shall be entitled to the refund set forth in Section 2.2 upon termination for Cause by Customer if WI is unable to cure such failure. All warranty claims related to the Software must be made within the then current Term for such Software.
7.3 The Customer represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which the Customer is a party or is otherwise bound; and (c) its performance under this Agreement, and its use of the Software, shall comply with all applicable laws, rules, regulations and policies, including, but not limited to, those established by the university or college which Customer is associated, the athletic conference which the Customer is a participant or member and the National Collegiate Athletic Association.
7.4 Customers who are public institutions and subject to open records law agree that they shall, subject to applicable law, (a) provide certain information to WI, as reasonably requested by WI, pursuant to applicable open records laws, but without regard to any residency requirement, on a timely basis (i.e. in less than thirty days following WI’s request); and (b) provide copies of all such information without redaction to WI at a total cost of $.10 per page or $100 annually, whichever is less. Except to the extent that such information is made available by Customer at a public website that permits WI to access and then download all such information, all such information shall be provided by Customer to WI through use of WI’s digital upload feature (the feature is further described here: [http://winthropintelligence.com/tour-winad/#fndtn-contract-upload]).
7.5 OTHER THAN AS SET FORTH IN THIS SECTION 7, WI SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WI DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL MEET ALL OF THE CUSTOMER’S REQUIREMENTS; OR (C) ALL ERRORS OR DEFECTS WILL BE CORRECTED.
8. Other Provisions
8.1 In the event that WI is unable to provide the Software because of any cause reasonably beyond its control, including, without limitation, acts of God (each a “Force Majeure event”), WI shall promptly give notice to the Customer and shall take all measures to resume performance. If the period of non- performance exceeds thirty (30) days from the receipt of notice, the Customer may give written notice to WI terminating this Agreement effective upon receipt.
8.2 Neither party may assign this Agreement to any person or entity without the prior written permission of the other party, which shall not be unreasonably withheld.
8.3 This Agreement, along with each completed and submitted Order Form, and the Software description found on the Order Form, all of which are hereby incorporated by reference, constitutes the entire understanding of the parties and supersedes all prior discussions and agreements with respect to its subject matter. This Agreement may not be amended by Customer without the prior written consent of WI.
8.4 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. The failure of WI 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 WI in writing.
8.5 Either party may give notice by personal service, by nationally recognized overnight courier service (e.g. FedEx or DHL) or by written communication sent by certified mail, return receipt requested, to the address noted on the Order Form. Such notice shall be deemed to have been given upon delivery in the case of personal service or overnight courier and the expiration of forty-eight (48) hours after above mailing or posting.