Terms
These SaaS Terms and Conditions (the “Terms”) govern access to and use of the Modern Football software, services, and related offerings identified in an Order.
1. AGREEMENT AND ORDERS
1.1 Agreement
These Terms, together with each Order entered into between Modern Football, Inc. (“Modern Football”) and the customer identified in the Order (“Customer”), constitute the agreement between Modern Football and Customer (the “Agreement”).
If applicable to Customer’s use of the Services, Modern Football’s Data Processing Addendum (“DPA”) is also incorporated into the Agreement.
Modern Football’s Privacy Policy describes Modern Football’s privacy practices but does not create additional contractual warranties or obligations except to the extent expressly required by applicable law or incorporated through the DPA.
1.2 Orders
An “Order” means an order form, quote, subscription order, or similar ordering document issued by Modern Football and accepted by Customer.
An Order becomes binding when signed or otherwise electronically accepted by Customer.
The “Order Date” is the date Customer signs or electronically accepts the applicable Order.
Each person signing or accepting an Order on behalf of Customer represents and warrants that the person has authority to bind Customer and that all approvals required for Customer to enter into the Agreement have been obtained.
1.3 Order of Precedence
If there is a conflict between documents forming the Agreement, the following order of precedence applies:
the applicable Order;
any mutually executed amendment or addendum expressly applicable to that Order;
the DPA, solely with respect to processing of personal data; and
these Terms.
Customer purchase orders, procurement portals, vendor forms, or similar administrative documents do not modify the Agreement, even if accepted or processed by Modern Football, unless Modern Football expressly agrees in a writing signed by an authorized representative.
2. SUBSCRIPTION TERM
2.1 Subscription Start Date
The “Subscription Start Date” is the date identified as the subscription start date in the applicable Order.
If an Order does not specify a Subscription Start Date, the Subscription Start Date is the Order Date.
2.2 Subscription Term
The “Subscription Term” begins on the Subscription Start Date and continues for the period stated in the Order unless terminated earlier in accordance with this Agreement.
Expiration or termination of one Order does not terminate any other Order.
2.3 Provisioning
Modern Football may provision the Services at any time on or after the Order Date, including before the Subscription Start Date or before Customer has been invoiced or paid the applicable Fees.
“Provisioning” occurs when Modern Football sends Customer or any of its authorized users the initial license credentials, account credentials, activation instructions, access link, or other information enabling Customer to access or use the applicable Software or Services.
Provisioning does not accelerate an expressly agreed invoice date or payment due date.
2.4 Cancellation
Before Provisioning, Customer may request cancellation of an Order. Any cancellation is effective only if Modern Football approves it in writing.
Once Provisioning occurs, the applicable Order is non-cancellable and all Fees committed under that Order are non-refundable and remain payable for the entire Subscription Term, regardless of Customer’s actual use of the Services.
Customer’s inability or decision not to use the Services, including because of staffing changes, personnel changes, budget changes, funding changes, scheduling changes, changes in operations, or changes in Customer’s needs, does not relieve Customer of its payment obligations.
Nothing in this Section limits Customer’s express termination rights under Section 19 for an uncured breach by Modern Football.
3. MODERN FOOTBALL’S OBLIGATIONS
Modern Football will make the Software and Services identified in the applicable Order available to Customer during the Subscription Term in accordance with the Agreement.
Modern Football will perform any professional, implementation, onboarding, or training services identified in an Order with commercially reasonable care and skill.
4. CUSTOMER ACCESS AND RESPONSIBILITIES
Customer is responsible for:
(a) its use of the Software and Services;
(b) the acts and omissions of its authorized users;
(c) maintaining the confidentiality and security of user credentials;
(d) providing the devices, internet access, networks, personnel, and other resources reasonably necessary to use the Services; and
(e) ensuring that its use of the Services complies with applicable law and the Agreement.
Customer will promptly notify Modern Football of any known unauthorized access to Customer accounts.
5. LICENSE AND ACCESS RIGHTS
5.1 Subscription License
Subject to Customer’s compliance with the Agreement and payment of applicable Fees, Modern Football grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to access and use the Software and Services identified in the applicable Order solely for Customer’s internal business, athletic, coaching, and team operations.
5.2 Restrictions
Customer will not, and will not permit any third party to:
(a) sell, sublicense, distribute, rent, lease, or otherwise provide the Software or Services to a third party;
(b) reverse engineer, decompile, disassemble, or attempt to discover source code or underlying non-public technology, except to the limited extent such restriction is prohibited by applicable law;
(c) circumvent technical restrictions or security measures;
(d) use the Services to develop, train, benchmark, validate, or improve a competing product or service;
(e) provide a competitor of Modern Football access to the Services or Modern Football Confidential Information without Modern Football’s prior written consent;
(f) use the Services unlawfully or maliciously; or
(g) interfere with the integrity, operation, or security of the Services.
6. IMPLEMENTATION, ONBOARDING, AND SUPPORT
Modern Football will provide the implementation, onboarding, training, and support services expressly identified in the applicable Order or otherwise made generally available for Customer’s subscription level.
Unless otherwise stated in an Order, dates for implementation and onboarding are estimates and depend on Customer’s timely cooperation and availability.
Customer delays or failure to participate in implementation, onboarding, or training do not delay the Subscription Start Date, invoice date, or payment obligations.
7. CHANGES TO THE SERVICES
Modern Football may modify, improve, update, add to, or discontinue features of the Services from time to time as part of its normal product development.
Modern Football will not materially reduce the core functionality of the purchased Services during the applicable Subscription Term.
8. CUSTOMER DATA
8.1 Ownership
As between the parties, Customer retains ownership of data and content submitted to the Services by or on behalf of Customer (“Customer Data”).
8.2 License to Modern Football
Customer grants Modern Football a worldwide, non-exclusive license during the Subscription Term to host, copy, transmit, process, modify, and otherwise use Customer Data as reasonably necessary to provide, secure, support, maintain, and improve the Services and perform Modern Football’s obligations under the Agreement.
8.3 Aggregated and De-identified Data
Modern Football may create and use aggregated, statistical, and de-identified information derived from use of the Services, provided that such information does not identify Customer or an individual.
Modern Football owns such aggregated and de-identified information and may use it for analytics, benchmarking, research, product development, commercialization, security, and other lawful business purposes.
9. FEES AND PAYMENT
9.1 Fees
Customer will pay the fees specified in each Order (“Fees”).
Except as expressly provided in the Agreement, Fees are non-cancellable and non-refundable after Provisioning.
9.2 Invoicing and Payment
Modern Football will invoice Customer according to the invoicing schedule stated in the applicable Order.
Unless the Order states otherwise, invoices are due within thirty (30) days after receipt.
An agreed deferred invoice date or payment schedule does not delay formation of the Agreement, the Order Date, Provisioning, or Customer’s commitment to purchase the Services.
9.3 Late Payment
If Customer fails to pay an undisputed amount when due, Modern Football may, after providing at least five (5) business days’ notice:
(a) suspend or restrict Customer’s access to the Services until payment is made; and/or
(b) charge interest at the lesser of 1.0% per month or the maximum rate permitted by applicable law.
Customer remains responsible for all undisputed amounts due during any suspension.
9.4 No Setoff
Customer will make payments without setoff, deduction, or withholding except as required by applicable law.
10. TAXES
Fees exclude applicable sales, use, excise, and similar transaction taxes.
Customer is responsible for taxes arising from its purchase of the Services, excluding taxes based on Modern Football’s net income, property, or employees.
If Customer is tax-exempt, Customer must provide Modern Football with a valid exemption certificate or other documentation reasonably requested by Modern Football.
11. INTELLECTUAL PROPERTY
Modern Football and its licensors retain all right, title, and interest in and to the Software, Services, Documentation, technology, designs, methodologies, know-how, improvements, modifications, derivative works, and all related intellectual property rights.
Except for the limited rights expressly granted in the Agreement, no rights are transferred to Customer.
If Customer provides suggestions, ideas, enhancement requests, recommendations, or other feedback regarding the Services, Modern Football may use that feedback without restriction or obligation.
12. CONFIDENTIALITY
12.1 Confidential Information
“Confidential Information” means non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or that reasonably should be understood to be confidential given its nature and the circumstances of disclosure.
Modern Football Confidential Information includes non-public Software functionality, product plans, demonstrations, screenshots, documentation, pricing, security information, technical information, and trade secrets.
12.2 Obligations
Recipient will:
(a) use Confidential Information only to exercise its rights and perform its obligations under the Agreement;
(b) protect Confidential Information using at least reasonable care; and
(c) disclose Confidential Information only to its employees, contractors, professional advisors, and representatives who have a need to know and are subject to confidentiality obligations.
12.3 Exclusions
Confidential Information does not include information Recipient can demonstrate:
(a) is publicly available through no breach of the Agreement;
(b) was lawfully known to Recipient without confidentiality restrictions;
(c) was lawfully received from a third party without confidentiality restrictions; or
(d) was independently developed without use of Discloser’s Confidential Information.
12.4 Required Disclosure
Recipient may disclose Confidential Information when required by law, subpoena, court order, or governmental request, provided Recipient gives Discloser reasonable advance notice when legally permitted.
13. DATA PROTECTION
Each party will comply with applicable privacy and data-protection laws in connection with its performance under the Agreement.
Where Modern Football processes personal data on Customer’s behalf and a DPA is legally required or otherwise applicable, the parties’ DPA governs that processing.
Customer is responsible for providing required notices and obtaining any permissions, authorizations, or consents necessary for Customer Data that Customer provides to Modern Football.
14. SECURITY
Modern Football will maintain commercially reasonable administrative, technical, and organizational safeguards designed to protect Customer Data against unauthorized access, use, alteration, or disclosure.
Customer is responsible for maintaining appropriate security for its accounts, credentials, devices, and systems used to access the Services.
15. USAGE VERIFICATION
Modern Football may monitor use of the Services as reasonably necessary to operate and secure the Services, provide support, enforce license restrictions, and verify compliance with the Agreement.
If Modern Football reasonably believes Customer is materially exceeding purchased usage rights or violating license restrictions, Customer will reasonably cooperate with Modern Football to verify compliance.
16. WARRANTIES AND DISCLAIMERS
16.1 Modern Football Warranty
Modern Football warrants that it will provide the Services in a professional and commercially reasonable manner.
16.2 Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
MODERN FOOTBALL DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
MODERN FOOTBALL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT CUSTOMER’S USE OF THE SERVICES WILL PRODUCE ANY PARTICULAR ATHLETIC, COMPETITIVE, FINANCIAL, OR OTHER RESULT.
17. INDEMNIFICATION AND LIMITATION OF LIABILITY
17.1 IP Indemnification
Modern Football will defend Customer against a third-party claim alleging that Customer’s authorized use of the Services infringes a United States patent, copyright, or trademark and will indemnify Customer against damages finally awarded or amounts agreed in settlement by Modern Football.
This obligation does not apply to claims arising from:
(a) Customer Data;
(b) modification of the Services by anyone other than Modern Football;
(c) use of the Services contrary to the Agreement or Documentation;
(d) combination of the Services with products, services, or technology not provided by Modern Football where the claim would not otherwise have arisen; or
(e) continued use after Modern Football provides a substantially equivalent non-infringing alternative.
Customer must promptly notify Modern Football of the claim, provide reasonable cooperation at Modern Football’s expense, and permit Modern Football to control the defense and settlement.
17.2 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO AN ORDER WILL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THAT ORDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.
NEITHER PARTY WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS, REVENUE, BUSINESS, GOODWILL, OR ANTICIPATED SAVINGS ARISING OUT OF OR RELATING TO THE AGREEMENT.
These limitations do not apply to liability that cannot lawfully be limited or excluded.
18. FORCE MAJEURE
Neither party is liable for delay or failure to perform an obligation, other than an obligation to pay amounts due, to the extent caused by circumstances beyond its reasonable control, including natural disasters, war, terrorism, civil unrest, governmental action, labor disruptions, widespread telecommunications or internet failures, or utility failures.
The affected party will use commercially reasonable efforts to resume performance.
19. TERMINATION
19.1 Termination for Cause
Either party may terminate an affected Order by written notice if the other party materially breaches the Agreement and fails to cure the breach within thirty (30) days after receiving written notice describing the breach.
If a breach is not reasonably capable of cure, the non-breaching party may terminate the affected Order upon written notice.
Either party may terminate an affected Order immediately if the other party becomes insolvent, makes an assignment for the benefit of creditors, becomes subject to bankruptcy or similar proceedings that are not dismissed within sixty (60) days, or ceases substantially all business operations.
19.2 Effect of Customer Termination
If Customer validly terminates an Order under Section 19.1 because of Modern Football’s uncured material breach, Modern Football will refund any prepaid Fees allocable to the period after the effective termination date.
Except for a valid termination by Customer under Section 19.1, termination, cancellation, non-use, or cessation of access by Customer after Provisioning does not relieve Customer of its obligation to pay all Fees committed under the applicable Order.
19.3 Effect of Termination
Upon expiration or termination, Customer’s rights to access and use the applicable Services end.
Sections that by their nature should survive expiration or termination will survive, including provisions concerning payment obligations, intellectual property, confidentiality, data rights, disclaimers, indemnification, limitations of liability, dispute provisions, and accrued rights.
20. PUBLICITY
Modern Football may identify Customer by name and logo as a Modern Football customer in customer lists, websites, presentations, and marketing materials.
Modern Football will not issue a press release, case study, testimonial, or other marketing communication implying Customer’s endorsement without Customer’s prior approval, unless otherwise expressly agreed in an Order.
21. NOTICES
21.1 Contractual Notices
Any notice required or permitted under the Agreement must be in writing and may be delivered by:
(a) email;
(b) nationally recognized overnight courier; or
(c) certified or registered U.S. mail.
Notices to Customer may be sent to the email address of Customer’s signatory, billing contact, administrative contact, or other business contact identified in the applicable Order or subsequently designated by Customer.
Notices to Modern Football must be sent to legal@modernfootball.com, with a copy to any additional notice address identified in the applicable Order.
21.2 When Notice Is Effective
A notice sent by email is effective when transmitted to the applicable email address, provided the sender does not receive an automated message indicating that delivery failed.
A notice sent by overnight courier is effective upon confirmed delivery.
A notice sent by certified or registered U.S. mail is effective upon delivery or documented refusal of delivery.
21.3 Operational Communications
Routine account, billing, support, product, security, and administrative communications may be provided electronically to Customer’s users or business contacts and do not need to satisfy the formal notice requirements above unless the Agreement expressly requires formal notice.
22. ELECTRONIC TRANSACTIONS AND SIGNATURES
The parties consent to conducting transactions electronically.
Electronic signatures, electronic acceptance, and electronic records have the same force and effect as manually signed paper documents to the maximum extent permitted by applicable law.
Orders may be executed electronically and in counterparts, each of which is deemed an original and all of which together constitute one instrument.
23. GENERAL
23.1 Entire Agreement
The Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes prior or contemporaneous proposals, representations, communications, and agreements concerning that subject matter.
23.2 Amendments
An amendment to an Order or these Terms must be in writing and agreed by authorized representatives of both parties.
Modern Football may update these Terms from time to time, but an updated version will not materially diminish Customer’s rights or materially increase Customer’s obligations under an existing Order during its then-current Subscription Term unless required by applicable law or agreed by Customer.
23.3 Governing Law; Venue
The Agreement is governed by the laws of the State of Delaware, without regard to conflict-of-laws principles.
Subject to any law applicable to a governmental or public-sector Customer that cannot validly be waived by contract, the state and federal courts located in Delaware will have exclusive jurisdiction over disputes arising out of or relating to the Agreement, and each party consents to personal jurisdiction and venue in those courts.
23.4 Assignment
Customer may not assign or transfer the Agreement without Modern Football’s prior written consent, except in connection with a merger, reorganization, or sale of substantially all of Customer’s assets where the successor assumes Customer’s obligations under the Agreement.
Modern Football may assign the Agreement to an Affiliate or in connection with a merger, reorganization, financing, sale of equity, sale of substantially all assets, or other change of control.
23.5 No Third-Party Beneficiaries
The Agreement is solely for the benefit of Modern Football and Customer and does not create any rights or remedies in any third party.
23.6 Waiver
A waiver is effective only if in writing and applies only to the specific circumstance for which it is given.
Failure or delay in exercising a right does not waive that right.
23.7 Severability
If any provision of the Agreement is held invalid or unenforceable, it will be enforced to the maximum extent permitted by law and the remaining provisions will remain in effect.
23.8 Independent Contractors
The parties are independent contractors. The Agreement does not create a partnership, joint venture, fiduciary, franchise, employment, or agency relationship.
Neither party has authority to bind the other except as expressly stated in the Agreement.
23.9 No Purchase Order Requirement
Customer’s obligation to pay Fees is not contingent upon Customer issuing a purchase order or completing its internal procurement procedures unless the applicable Order expressly states otherwise.
If Customer requires a purchase order, Customer is responsible for obtaining and providing it sufficiently in advance of the applicable invoice date.
Customer’s failure to issue a purchase order or complete an internal administrative process does not excuse or delay payment of Fees under a binding Order.
23.10 Public-Sector Customers
If Customer is a governmental entity, public school, school district, public university, or other public body, any provision of the Agreement that Customer is prohibited by applicable law from accepting will apply only to the maximum extent permitted by law.
Customer represents that the individual accepting an Order has authority to bind Customer or has obtained all approvals necessary for Customer to enter into the Order.
Customer will promptly notify Modern Football before signing an Order if applicable law requires a purchase order, board approval, appropriation, funding contingency, statutory contracting procedure, or other prerequisite to Customer’s contractual commitment.
Customer’s internal policies or procedures do not modify the Agreement unless expressly incorporated into an Order signed by Modern Football.
24. DEFINITIONS
“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with a party.
“Customer” means the entity identified as the customer in the applicable Order.
“Customer Data” has the meaning stated in Section 8.
“Documentation” means Modern Football’s user documentation made available for the Services.
“Fees” means the amounts Customer is required to pay under an Order.
“Order” has the meaning stated in Section 1.2.
“Order Date” means the date Customer signs or electronically accepts an Order.
“Provisioning” has the meaning stated in Section 2.3.
“Services” means the Software, cloud services, support, implementation, onboarding, training, professional services, and other services identified in an Order.
“Software” means Modern Football’s proprietary software applications and related technology made available under an Order.
“Subscription Start Date” has the meaning stated in Section 2.1.
“Subscription Term” has the meaning stated in Section 2.2.