Engage API Terms and Conditions

PLEASE READ THESE ENGAGE API TERMS AND CONDITIONS (THESE “TERMS”) CAREFULLY BEFORE USING THE ENGAGE API (THE “API”) OFFERED BY UNIVERSAL TENNIS, LLC, D/B/A UTR SPORTS (“UTR”). BY USING THE API, CLICKING “I AGREE,” “I ACCEPT” OR OTHER SIMILAR BUTTON INDICATING ASSENT, OR EXECUTING ONE OR MORE ORDER FORMS WITH UTR WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“LICENSEE”) AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF AN ENTITY , THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THESE TERMS. UTR AND LICENSEE MAY EACH BE REFERRED TO IN THESE TERMS AS A “PARTY” AND COLLECTIVELY REFERRED TO AS THE “PARTIES.”

1. LICENSED USES AND RESTRICTIONS.

1.1 API and API Data License Grant. Subject to these Terms, UTR grants Licensee a limited, non-exclusive, non-sublicensable, non-transferable license (a) to make calls or queries to the API for purposes of sending and receiving data; and (b) to use and display the data received from the API (“API Data”) only for Licensee’s business purposes. Except as expressly set forth in these Terms, Licensee has no right to distribute or allow access to the API or API Data to any third party. Licensee’s use of the API must comply with the technical documentation, usage guidelines, call volume limits, and other documentation and instructions that UTR makes available to Licensee (“Documentation”). If Licensee’s call volume is limited under these Terms, such limits may be increased only if (i) UTR consents in writing (email acceptable) to increase the call volume limits, in which case such increased limits shall apply unless and until UTR revokes such consent (email acceptable). In the event of any conflict between the Documentation and these Terms, these Terms shall control. In the event of any conflict between these Terms and any Order Form, if applicable, these Terms shall control. Except to the limited extent expressly provided in these Terms, neither Party grants, and the other Party shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any property of the first Party pursuant to these Terms.

1.2 General Restrictions. In addition to the other terms and conditions contained herein, Licensee agrees not to do the following, absent UTR’s express written consent or as expressly set forth herein:

(a) Disclose or provide the API, Documentation, Licensee account information or credentials or API Data to any person or entity other than to Licensee’s employees or independent contractors who are individuals, provided (i) such independent contractors enter into an agreement with Licensee at least as protective of UTR and UTR’s rights as these Terms, and (ii) Licensee hereby agrees to be responsible for, and liable to UTR for, any breaches of any such agreements by any of Licensee’s independent contractors;

(b) Use the API for any illegal, unauthorized or otherwise improper purposes, or in any manner which would violate these Terms or the Documentation, or breach any laws or regulations, or violate the rights of third parties;

(c) Remove any notices of any kind contained in or on any materials Licensee receives or accesses pursuant to these Terms;

(d) Sell, lease, share, transfer, or sublicense the API or API Data, directly or indirectly, to any third party, including any data broker;

(e) Use the API in a manner that, exceeds reasonable request volume (or, if applicable, the call volume limit), constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the Documentation; or

(f) To the extent any such restriction is not prohibited by applicable law, copy adapt, reformat, reverse-engineer, disassemble, decompile, translate or otherwise modify the API, Documentation, API Data, or other UTR data, content or services, through automated or other means, or transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature through Licensee’s use of the API.

2. PROPRIETARY RIGHTS.

2.1 Ownership. As between the Parties, UTR owns all rights, title, and interest in and to the API, Documentation, API Data and UTR trade names, trademarks, service marks, logos and domain names, and notwithstanding anything to the contrary in these Terms, the API, Documentation, and API Data remain Confidential Information of UTR and subject to the confidentiality provisions of these Terms. As between the parties, Licensee owns all rights, title and interest in and to the data that Licensee sends via the API (“Licensee Data”). Notwithstanding the foregoing, Licensee hereby grants a non-exclusive, perpetual, royalty-free, irrevocable, fully paid, transferable, sublicensable license to use, reproduce, display, transmit, modify, create derivative works of and otherwise exploit the Licensee Data for the purpose of providing products and services to Licensee and to its customers (including, without limitation, in connection with UTR’s proprietary rating/ranking systems) and to improve existing, and develop new, products and services. Licensee represents and warrants that it has obtained all rights, authorizations, permissions, and consents to transfer the Licensee Data to UTR and for UTR to exercise the foregoing license, and Licensee agrees to (a) defend UTR from any claim by a third party arising from any breach of this sentence and (b) indemnify UTR for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) finally awarded and arising out of such claim. All use by a Party of the other Party’s trade names, trademarks, service marks, logos and domain names, and any goodwill associated therewith, shall inure to the benefit of the other Party.

2.2 Feedback. Licensee may from time to time elect, in Licensee’s sole discretion, to provide suggestions, comments, improvements, ideas or other feedback to UTR related to the UTR products and services (“Feedback”). If Licensee provides such Feedback, then Licensee hereby grants and agrees to grant to UTR a non-exclusive, perpetual and irrevocable right and license to use such Feedback in any manner. Licensee agrees not to provide Feedback that Licensee knows is subject to any intellectual property claim by a third party or any license terms which would require products or services derived from such Feedback to be licensed to or from, or shared with, any third party.

3. SUPPORT; MODIFICATIONS. UTR will use reasonable efforts to provide support for Licensee’s use of the API in accordance with UTR’s standard support policy. UTR may provide modifications (including new releases) for the API from time to time in UTR’s sole discretion.

4. PAYMENTS. If applicable, Licensee shall pay UTR fees as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all invoices issued under these Terms are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Licensee shall be responsible for all taxes associated with these Terms (excluding taxes based on UTR’s net income). All Fees paid are non-refundable and are not subject to set-off. If Licensee exceeds any user or usage limitations set forth on an Order Form, then (a) UTR shall invoice Licensee for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at UTR’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the then-current term of these Terms, and (b) if such term renews (in accordance with Section 5, such renewal shall include the additional fees for such excess users and usage.

5. TERMINATION.

5.1 Term. If no term is set forth in an applicable Order Form, these Terms are effective as of the date of execution, and, unless earlier terminated in accordance herewith, shall remain in effect until the date that is one (1) year thereafter. Except as otherwise set forth in an Order Form, this Agreement shall renew automatically for additional terms of one (1) year each, unless Licensee notifies UTR of its intention not to renew no later than thirty (30) days prior to the expiration of the then-current term. If no Fees were collected in connection with these Terms, UTR may terminate these Terms at any time, for any reason or no reason, effective immediately upon written notice to Customer.

5.2 Termination for Cause. Either Party may terminate these Terms and any or all active Order Forms upon the occurrence of a material breach of these Terms by the other Party, if such breach is not cured within thirty (30) days (or 10 days, in the case of non-payment by Licensee) after written notice identifying the matter constituting the material breach is received by the breaching Party.

5.3 Effect of Termination. Upon termination of these Terms, (a) except as otherwise set forth herein, all rights and licenses granted will terminate immediately, (b) any and all payment obligations will be due, and (c) upon request and subject to UTR’s continuing right to use Licensee Data as set forth herein, each Party will promptly return to the other Party or destroy all API Data (as defined herein) of such other Party in its possession, custody or control. UTR may request that Licensee certify in writing its compliance with this Section 5.3, and Licensee agrees to comply promptly with any such request.

5.4 Survival. The definitions and the rights, duties and obligations of the Parties that by their nature continue and survive will survive any termination of these Terms, including Sections 1.2, 2, 4 (for amounts incurred prior to termination), 6-10, and this Section 5.4.

6. CONFIDENTIALITY. If either Party (the “Receiving Party”), during the term of these Terms, gains access to confidential information of the other Party (the “Disclosing Party”) concerning the Disclosing Party’s prices, business, plans, technology, products, services, or any other non-public information of the Disclosing Party, including, in the case of UTR, the API, the API Data, and all information related thereto (collectively, “Confidential Information”), then the terms of this Section 6 will apply. Confidential Information includes all information in tangible or intangible form that is marked or designated as confidential by the Disclosing Party or that, under the circumstances of its disclosure or the nature of the disclosure, should be considered by a reasonable person to be confidential. The Disclosing Party owns all right, title and interest, including all patent, copyright, trademark, trade secret rights and any other intellectual property or proprietary rights in any jurisdiction, including any and all applications, renewals, extensions and restorations thereof, in the Disclosing Party’s Confidential Information. Each Party agrees that it will not use in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, these Terms, nor disclose to any third party any of the Disclosing Party’s Confidential Information (for clarity, notwithstanding anything set forth within this Section 6, UTR shall be permitted to use and modify Licensee Data as set forth in Section 2). Each Party will take reasonable precautions to protect the confidentiality of the other Party’s Confidential Information, but in any event precautions that are at least as stringent as it takes to protect its own Confidential Information.

Information will not be deemed Confidential Information under these Terms if (a) it was in the public domain or was rightfully known to the Receiving Party without any obligations of confidentiality prior to its receipt from the Disclosing Party; (b) it has become publicly known, except through a breach of these Terms by the Receiving Party; or (c) it was rightfully communicated to the Receiving Party free of any obligation of confidence subsequent to the time it was communicated by the Disclosing Party; or (d) it has been entirely independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Notwithstanding the above, the Receiving Party may disclose the Disclosing Party’s Confidential Information, without violating these Terms, to the extent such disclosure is requested by a valid order of a court or other governmental body having jurisdiction, provided that, to the extent permitted by law or legal process, the Receiving Party gives the Disclosing Party reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the ;Disclosing Party in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued. The Receiving Party shall be responsible and liable for any breach of any of its obligations under this Section 6 by its employees and independent contractors.

7. ACKNOWLEDGMENT. Licensee hereby acknowledges that UTR’s ability to update the API Data is subject to factors outside of UTR’s reasonable control, including whether third parties responsible for generating the API Data are updating the API Data or making such updates to the API Data generally available. In addition, because UTR cannot control third parties responsible for generating the API Data and/or making the API Data available, UTR cannot guarantee that all API Data will be available at all times throughout the term of these Terms. UTR reserves the right to update, modify, add to, remove and request removal of API Data at any time. Licensee further acknowledges that certain API Data may be subject to the rights of third parties, and that UTR may become subject to a request from any such third party to delete such data. Licensee therefore agrees that, in the event that UTR requests that Licensee delete or cease the use of any API Data, Licensee will comply with such request immediately, and Licensee will promptly certify such compliance to UTR in writing (email being acceptable).

8. DATA PROCESSING. Licensee agrees that the collection, use, disclosure or other processing (“Processing”) of any API Data that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual (“API Personal Data”) that is will be Processed in accordance with this Agreement, applicable law, and Licensee’s then current privacy policy and only in furtherance of the limited and specific purpose of promoting and developing the growth of tennis in a manner that is compatible with the context in which the API Personal Data was collected. Licensee is responsible for complying with the obligations under applicable law that apply to it as an “independent controller” or “business” of any API Personal Data that it receives under this Agreement. Without limitation to the foregoing, Licensee shall, upon request by UTR, promptly correct, delete, provide an account of, or restrict the Processing of anyAPI Personal Data and shall promptly provide any cooperation requested by UTR to respond to any inquiry or other communication from an individual or legal or regulatory authority with respect to any API Personal Data. Licensee shall reasonably provide to UTR all materials, documents, assessments and other information to enable UTR to confirm that Licensee has complied with its obligations under this Agreement and applicable law, and UTR may take reasonable steps to ensure that Licensee only Processes such API Personal Data in a manner consistent with applicable law, including auditing compliance with this Agreement. Licensee must notify UTR if it determines it is unable to meet its obligations with respect to such API Personal Data under applicable laws, and UTR may, upon notice to Licensee, take reasonable and appropriate steps to stop and remediate any unauthorized Processing of API Personal Data, including to require Licensee to cease Processing API Personal Data. Licensee shall protect, defend, indemnify and hold harmless UTR from all claims or actions, damages, liabilities, assessments, losses, costs, and other expenses arising out of or resulting from (a) any breach by Licensee of its warranties or representations in this Agreement related to API Personal Data; (b) any acts and omissions of Licensee in Processing API Personal Data; or (c) any incident, data breach, or other unauthorized Processing of API Personal Data.

9. WARRANTY DISCLAIMER. THE API, DATA, DOCUMENTATION, AND UTR TRADE NAMES, TRADEMARKS, SERVICE MARKS, LOGOS AND DOMAIN NAMES, AND THE LICENSEE DATA, AS APPLICABLE, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. UTR DOES NOT WARRANT THAT THE API, DATA, DOCUMENTATION, OR UTR TRADE NAMES, TRADEMARKS, SERVICE MARKS, LOGOS AND DOMAIN NAMES, AS APPLICABLE, WILL MEET LICENSEE’S REQUIREMENTS OR BE ERROR-FREE, ANY OPERATIONS OR TRANSMISSIONS WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, ANY OR ALL DATA WILL BE ACCURATE, RELIABLE OR COMPLETE, OR THAT ANY RESULTS CAN BE ACHIEVED. LICENSEE DOES NOT WARRANT THAT THE LICENSEE DATA WILL MEET UTR’S REQUIREMENTS OR BE ERROR-FREE, ANY OR ALL LICENSEE DATA WILL BE ACCURATE, RELIABLE OR COMPLETE, OR THAT ANY RESULTS CAN BE ACHIEVED. TO THE FULLEST EXTENT PERMITTED BY LAW, UTR, ITS AFFILIATES AND VENDORS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE API, DATA, DOCUMENTATION, UTR’S TRADE NAMES, TRADEMARKS, SERVICE MARKS, LOGOS AND DOMAIN NAMES, AS APPLICABLE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY , INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE, ITS AFFILIATES AND VENDORS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSEE DATA, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY , INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM UTR OR THROUGH OR FROM THE API, DATA, DOCUMENTATION, OR PLATFORM, AS APPLICABLE, SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS.

10. LIMITATION OF LIABILITY. IN NO EVENT SHALL UTR (OR ITS LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS OR ANY APPLICABLE ORDER FORM, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY , GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) API FEES PAID OR PAYABLE BY LICENSEE HEREUNDER DURING THE TWELVE (12) MONTHS PERIOD PRIOR TO THE CLAIM AND (II) $1,000, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THE ADDENDUM AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY .

11. GENERAL TERMS.

11.1 Governing Law; Attorneys’ Fees. These Terms will be governed by and construed in accordance with the laws of the State of Delaware, without regards to the conflict of laws provisions thereof. In the event litigation between the Parties arising out of or related to these Terms, the prevailing Party will be entitled to recover its attorneys’ fees and costs incurred.

11.2 Remedies; Injunctive Relief. Any breach of Sections 1.1, 1.2, 6 or 7 may cause irreparable harm for which money damages are not an adequate remedy. Therefore, in addition to any other remedy, each Party, as applicable, shall be entitled to seek an injunction or similar equitable relief against any such breach without the necessity of posting any bond or proving actual damages.

11.3 Assignment. Licensee may not assign these Terms or any active Order Form, in whole or in part, without UTR’s prior written consent. Any assignment in violation of this section is null and void. UTR may assign these Terms and any active Order Form freely without Licensee’s prior written consent. These Terms will be binding upon, and inure to the benefit of, the permitted assigns of the Parties.

11.4 Export Laws. Licensee shall comply with applicable export laws and regulations of the United States with respect to any technical data received under these Terms.

11.5 Miscellaneous. These Terms, together with any applicable Order Form, constitute the entire agreement between the Parties with respect to the subject matter hereof. These Terms cancel and supersede any and all prior proposals (oral and written), understandings, representations, conditions, warranties, covenants and other communications between the Parties, which relate to the subject matter of these Terms. If any provision of these Terms is found by a court of competent jurisdiction to be illegal, void or unenforceable, such provision will be construed so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of these Terms; and if such provision will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby. These Terms may only be amended by a written instrument signed by both Parties, or as permitted herein. A Party’s waiver of any breach of these Terms by the other Party will not constitute a waiver of any rights or any subsequent breach of the same or different provision thereof. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving Party. Where written consent is required, such consent must be in signed by a duly authorized representative of the consenting Party, except where email consent is expressly permitted.