This Agreement is entered into as of the date of its execution by TOUCHLYNK GROUP
LLC (Company) and (Client).
The Company and Client may be referred to individually as “Party” or collectively as the
“Parties.”
SUMMARY OF WORK
The Client creates videos of sporting event and forwards video to Company electronically.
Company shall, by utilizing the video supplied by Client, then through the use of
proprietary software, perform statistical analysis of the game and players, and forward this
enhanced analysis to Client.
Therefore, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and adequacy of which is acknowledged by the Parties,
the Parties agree:
1. Client will electronically submit to Company any video to be statistically analyzed
by Company. Client agrees as follows:
a. Client is responsible for the content and the quality of the video, and the
accuracy and content of any information provided by Client to the
Company;
b. Client agrees to indemnify Company for any and all trademark infringement
that may be contained in the video.
c. Client agrees to indemnify Company for any breach of confidentiality claim
that may arise from any image or images that may be contained in the video.
2. Client warrants that the specifications shall not infringe on the intellectual property
rights of any third party or any rights of publicity or privacy.
3. Both parties agree to defend, indemnify, and hold the other harmless for any and
all damages, charges, losses, and expenses (including reasonable attorney fees and
costs) for any claim arising out of the breach of this section, provided that the
indemnifying party receives timely notice of such claim and controls all litigation
and settlements.
4. Term and Fees: Client agrees to listed terms at touchlynk.com, payable upon the
submitting a match video in the system. Such term entitles Client to unlimited film
submissions FOR ONE TEAM ONLY during said one-year term for analysis. Only
one (1) team per agreement and lumpsum fee.
Out-of-Pocket Costs. In the event Client requests any additional out of the ordinary
scope analysis, any costs incurred by Company shall be born by the Client, and
Company shall advise Client in writing of what additional costs and fees would be
incurred for requested additional services/analysis, if available.
5. Term and Termination. This Agreement shall have an initial term of one year, which
shall automatically terminate at its expiration. Upon reaching the end of the Term, the
parties may negotiate for a new term at a rate to be determined by the parties.
6. Damages for Breach. The Parties acknowledge that the maximum sum either party
may claim as damages from the other party is the amount equal to the value of the one-
year cost of the contract.
7. Ownership of Submission, Data, Program and Format.
a. Submission. The Parties acknowledge and agree that the Client owns the
electronic submission, and that Company shall only use said submission for the
sole purpose of creating the statistical analysis as contemplated herein.
b. Data. The Parties acknowledge that the data that is generated by the video
relates only to the team that Client is submitting video for, and therefore, the
data generated belongs to Client.
c. Program and Format. The Parties acknowledge that the Program, and therefore
the format in which that the data is presented to Client belongs to Company,
and Client does not have the right to share such information with outside
sources. The Company in no way intends to share or grant any rights or
privileges to Client for the use of the program or the format in which the data
is gathered and presented to Client.
8. Warranties and Limitations on Damages
a. Limitations on Liability. Client agrees that the data is provided “AS IS” and on
an “AS AVAILABLE” basis based 100% on the information and electronic
submission provided to Company by Client.
THE COMPANY’S LIABILITY TO CLIENT UNDER THIS AGREEMENT IS
LIMITED TO THE WARRANTY AND SERVICE LEVEL GUARANTEE SET
FORTH HEREIN. THE COMPANY DISCLAIMS ANY AND ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY THAT
THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO
EVENT SHALL THE COMPANY OR ANY OTHER PARTY INVOLVED IN
PROVIDING SERVICES UNDER THIS AGREEMENT BE LIABLE TO
CLIENT OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL,
CONSEQUENTIAL PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOST PROFITS OR LOSS OR DAMAGE TO DATA
ARISING OUT OF THE USE, PARTIAL USE, OR INABILITY TO USE THE
SERVICES, WHETHER ARISING IN CONTRACT OR IN TORT, OR
RESULTING FROM THE FAULT OR NEGLIGENCE OF THE COMPANY,
EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
b. Force Majeure. The Company will not be liable for delays, damages, or failures
in performance due to events of force majeure (causes beyond our reasonable
control), including but not limited to acts of a governmental body, acts of God, acts
of third parties, fires, floods, strikes or other labor-related disputes, an inability to
obtain necessary equipment or services, the severing of off-site communication
lines by a third party, or other events of force majeure.
9. Confidential Information
a. Use of Confidential Information. Each Party (a) shall use the same care and
discretion, but in no event less than reasonable care and discretion, to prevent
disclosure, publication, or dissemination of the Other Party’s Confidential
Information (defined below) as it employs with similar information of its own and
(b) shall not use, reproduce, distribute, disclose, or otherwise disseminate the other
party’s Confidential Information except in connection with the performance of its
obligations under this Agreement.
b. Definition of Confidential Information. As used in this Agreement, “Confidential
Information” means any and all data and information relating to the business of the
disclosing Party (1) of which the receiving Party becomes aware as a consequence
of, or through, this Agreement; (2) that has value to the disclosing Party and is not
generally known by its competitors; (3) that is treated by the disclosing Party as
confidential; and (4) that has been reduced to tangible form and marked clearly and
conspicuously with a legend identifying its confidential or proprietary nature;
provided, however, that Confidential Information does not include any data or
information that is already known to the receiving Party, or that (1) has become
generally known to the public through no wrongful act of the receiving Party; (2)
has been rightfully received by the receiving Party from a third party without
restriction on disclosure and without, to the knowledge of the receiving Party, a
breach of an obligation of confidentiality running directly or indirectly to the other
Party; (3) has been disclosed pursuant to a requirement of a governmental agency
or of law without similar restrictions or other protection against public disclosure,
or is required to be disclosed by operation of law; (4) is independently developed
by the receiving Party without use, directly or indirectly, of the Confidential
Information received from the other Party; or (5) is furnished to a third party by the
disclosing Party without restrictions on the third party’s right to disclose the
information. Confidential Information may include, but is not limited to,
information relating to the products, processes, or financial affairs of the disclosing
Party.
10. Miscellaneous
a. Amendment. This Agreement may be modified only by written Agreement signed
by all the Parties that expressly sets forth their intent to modify this Agreement.
b. Applicable Law. This Agreement shall be construed and enforced according to
the laws of the state of Michigan without reference to its conflict-of-law provisions.
c. Assignment. Except as otherwise provided in this Agreement, no Party may
transfer or assign this Agreement or any rights under it without the prior written
consent of the other Party.
d. Attorney Fees. Should any Party reasonably retain counsel for the purpose of
preserving, determining, enforcing, or preventing the breach of any rights under
this Agreement, including but not limited to instituting any action or proceeding to
enforce any provision, for a declaration of any alleged breach of any obligations,
or for any other judicial remedy; if this matter is settled by judicial determination
(including arbitration), the prevailing Party (whether at trial or on appeal) shall be
entitled, in addition to such other relief as may be granted, to be reimbursed by the
losing Party for all costs and expenses incurred, including but not limited to all
attorney fees and costs actually incurred for the services rendered to the prevailing
Party. Further, the prevailing Party shall be entitled to additional awards of attorney
fees for services reasonably rendered in aid of enforcing the judgment or award or
in collecting any monies awarded.
e. Authority. Each of the Parties represents and warrants to the other that the
following are true and correct as of the date of this Agreement:
i. Each Party has the full right, power, and authority to enter into this Agreement
and to perform all of its obligations in accordance with its provisions.
ii. Neither the execution nor the delivery of this Agreement by the Party, nor
the performance of any of its obligations under this Agreement, will result in
the breach or violation of any provision (or constitute a default) under any
indenture, contract, or other agreement or instrument to which the Party is a
party or under which the Party has any rights or obligations.
f. Captions and Headings. The headings and captions in this Agreement are
included as a matter of convenience and shall not be construed as a substantive part
of this Agreement.
g. Time Limitation for Claims . If either Party has any claim against the other Party,
arising out of this Agreement, for performance or damages, then such claim must
be brought within 180 days of the event giving rise to the claims or same shall be
forever barred. By signing this Agreement, the parties waive any limitation periods
to the contrary.
h. Computation of Time. In computing any period of time under this Agreement,
the day of the act, event, or default from which the designated period of time begins
to run shall be included, unless it is a Saturday, Sunday, legal holiday. In that case,
the period will begin to run on the next day that is not a Saturday, Sunday, or legal
holiday, and the period shall run until the end of the next day thereafter that is not
a Saturday, Sunday, or legal holiday.
i. Construction. All pronouns and any variations of them shall be deemed to refer
to the masculine, feminine, neuter, singular, or plural, as the identity of the person
or persons may require in the context of the Agreement.
j. Counterparts and Facsimile Signatures. This document may be signed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement, even though all the Parties
are not signatories to the original or the same counterpart. On request of either
Party, each of the Parties shall sign a sufficient number of counterparts so that each
Party will receive a fully executed original. A facsimile signature shall be deemed
an original. However, the Parties agree to send an executed original of this
Agreement to each of the other Parties within five days following the exchange of
facsimile signatures by all Parties.
k. Dispute Resolution. Any and all disputes arising out of or related to this
Agreement or its breach shall be settled by binding arbitration administered by the
American Arbitration Association under its Commercial Arbitration Rules. The
award shall be based on applicable law and judicial precedent, and judgment on the
award may be entered in any court having competent jurisdiction. By entering into
this Agreement, the Parties are giving up their constitutional right to have any such
dispute decided in a court of law before a jury and instead are accepting the use of
arbitration. Any dispute regarding the validity of this arbitration clause shall be
settled by arbitration as provided in this Agreement.
l. Entire Agreement. This Agreement contains the entire understanding between the
Parties pertaining to the subject matter of this Agreement and supersedes and
replaces all prior or existing written and oral agreements, including
contemporaneous agreements, between the Parties and/or their representatives
pertaining to the subject matter of this Agreement.
m. Exhibits. The Exhibits referred to in this Agreement shall be incorporated as if
set forth in full at the point in this Agreement where they are referred to whether or
not they are attached.
n. Further Action. The Parties shall execute and deliver all documents, provide all
information, and take or forbear from all such action as may be necessary or
appropriate to achieve the purposes of this Agreement.
o. General Understandings. Each Party represents that, in entering into this
Agreement, (a) each Party has read and understands this Agreement and has relied
and is relying solely on the Party’s own judgment, belief, and knowledge of the
nature, extent, effect, and consequences of it, and on the advice of the Party’s own
legal counsel; (b) this Agreement is being made without reliance on any statement
or representation not contained or referenced in this Agreement of any other Party
or any representative, agent, or attorney of any other Party; (c) no promise,
inducement, or agreement not expressed in this Agreement has been made to any
of the Parties; and (d) the terms and conditions contained herein are contractual and
not mere recitals.
p. Good Faith, Cooperation, and Due Diligence. Each Party covenants, warrants,
and represents to each other Party that he or she will act in good faith, act with due
diligence, and provide his or her complete cooperation, and that he or she will do
such other and further acts, including, without limitation, the execution of any
documents or instruments that are reasonable or may be necessary, helpful, or
convenient in carrying out the purposes and intent of this Agreement. These
promises and covenants are mutual and dependent.
q. Notices. Notice under this Agreement shall be in writing and shall be effective
when actually delivered. If mailed, notice shall be deemed effective 72 hours after
mailing as registered or certified mail, postage prepaid, directed to the other Party
at the address set forth below or such other address as the Party may indicate by
written notice to the other:
If to the Company:
__________________________________
__________________________________
__________________________________
__________________________________
If to Client:
__________________________________
__________________________________
__________________________________
__________________________________
r. Parties in Interest. Nothing in this Agreement shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for the benefit
of any third party.
s. Presumptions. No provision in this Agreement is to be interpreted for or against
either Party because that Party or his legal representative drafted the provision.
t. Savings Clause. If any provision of this Agreement or its application is held to be
invalid, void, or illegal, that provision shall be severed and the remainder of this
Agreement shall not be affected. Such a finding shall in no way affect, impair, or
invalidate any other provision of this Agreement, which shall remain in full force
and effect.
u. Successors. This Agreement shall be binding on and inure to the benefit of the
Parties and their respective heirs, representatives, successors, and permissible
assigns.
v. Time of the Essence. With regard to the Parties’ performance of their obligations
under this Agreement, time is expressly made of the essence.
w. Waiver. The waiver by either Party of the breach of any provision of this
Agreement by the other Party shall not operate or be construed as a waiver of any
subsequent breach.
COMPANY:
TOUCHLYNK GROUP LLC
___________________________
By: _______________________
Its: _______________________
Dated: ____________________
CLIENT:
___________________________
___________________________
By: _______________________
Its: _______________________
Dated: ____________________
Exhibit A —Services and Fees
Services
Disk space —20 GB to 400 GB/mo. data transfer; 24/7 access to your account;
anonymous FTP access.
Domain name —The Company will assume the administrative responsibilities for unique
domain name registration. Client will receive an invoice from the registering organization
for the registration and yearly maintenance fees of each domain name, and is responsible
for and agrees to pay directly for such fees. Client waives any and all claims that it may
have, or which may later arise, against the Company for any loss, damage, claim, or
expense arising out of, or related to, the acquisition, registration, and/or use of each such
domain name.
Maintenance and user support —24/7 support for user inquiries with an average response
time of not less than [specify period of time] ; 24/7 monitoring for operational status,
load balance, and traffic routing; prompt correction of any server or traffic problems.
Detailed Web-usage statistics and access to raw log files. The Company shall maintain
daily, weekly, and monthly server logs and shall make them available to Client regularly.
E-commerce capabilities —SSL secure server; CyberCash support; shopping cart script;
third party commerce support.
Email services — [insert]
Multimedia —RealAudio and Real Video; streaming audio; MIDI support; and access to
the Company’s streaming video server.
CGI scripting —local CGI directory; real-time chat; guest book; discussion forum; link
generator; shopping cart script; page access counter.
Other —Client may also request, and the Company may provide, subject to the
Company’s agreement and the availability of the Company personnel and equipment,
additional services as described below:
Fees —Fees for the above-listed services shall be as follows: [insert]
Warranty Disclaimer
THIS PRODUCT AND ANY RELATED DOCUMENTATION IS PROVIDED "AS
IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR
PERFORMANCE OF THE PRODUCT REMAINS WITH YOU.
Limitation of Liability
IN NO EVENT SHALL FREEMAKE BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR
ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR OF INABILITY
TO USE THE PRODUCT.
