Background. DVSport, Inc., a Delaware corporation, ("DVSport") develops and produces certain Xchange digital video software programs and services (the "Xchange Software") and desires to license and provide the Xchange Software, as applicable, to the client ("Client") entering into these Terms and Conditions via the DVSport online store or via any other DVSport agreement, invoice or order incorporating these terms or via Client’s use of the Xchange Software. These Terms and Conditions apply to the use of such Xchange Software and/or any related services by Client and the license and provision of such Xchange Software to Client by DVSport. These Terms and Conditions were last updated on June 22, 2020 and are effective between Client and DVSport as of the date of Client’s acceptance of this Agreement.
1. Acceptance. These Terms and Conditions and the sales transaction via the DVSport online store or via any other DVSport agreement, invoice or order incorporating these terms constitute the exclusive and binding agreement between the parties covering the license and use of the Xchange Software and any related services (collectively, the "Agreement"). CLIENT’S ACCEPTANCE OF SUCH DVSPORT ONLINE STORE TRANSACTION, CLIENT’S ACCEPTANCE OF ANY OTHER DVSPORT AGREEMENT, INVOICE OR ORDER INCORPORATING THESE TERMS, OR CLIENT’S USE OF THE Xchange SOFTWARE CONSTITUTES CLIENT’S AGREEMENT TO BE BOUND BY THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING AND AGREEING TO THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING AND AGREEING TO THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACQUIRE OR USE THE Xchange SOFTWARE. The Agreement can be accepted only on these Terms and Conditions. Additional or different terms proposed by Client will not be applicable unless accepted in writing by DVSport. If these Terms and Conditions are construed to be an offer, this offer expressly limits acceptance by Client to the terms of this offer and notice of objection by DVSport to any different or additional terms is hereby given. If these Terms and Conditions are construed to be an acceptance of an offer, this acceptance is expressly conditioned upon Client’s assent to any different or additional terms contained in these Terms and Conditions. No change, modification, or revision of the Agreement or these Terms and Conditions by Client shall be effective unless in writing and signed by both Client and DVSport. DVSport may change, update or modify these Terms and Conditions by posting a updated version of the Terms and Conditions to the DVSport web site (or such other location specified by DVSport); provided, however that version of the Terms and Conditions applicable to Client shall be based upon the applicable version thereof as of the date of Client’s acceptance of this Agreement.
2. Software and License; Support.
2.1 For purposes of the license grant, Xchange Software shall include all modifications, enhancements, new versions and new releases related to the above which may be provided to Client by DVSport from time to time during the Term (defined below). In no event does the license of any Xchange Software to Client transfer any ownership rights to such Xchange Software to Client. DVSport or its licensors retain all right, title, and interest (including all intellectual property rights) in and to such Xchange Software. DVSport hereby grants Client a Term-limited, nonexclusive, non-transferable (except as set forth in Section 6) license to use the Xchange Software solely in connection with Client's internal business purposes in accordance with the terms and conditions of this Agreement. Client's use of the Xchange Software is restricted to the number of users for whose use Client has paid. Any upgrades and releases which may be provided by DVSport will be considered part of the Xchange Software and will be governed by the provisions of this Agreement. DVSport may choose to provide, but will be under no obligation to provide, Client with an installer application to allow Client to install the Xchange Software for users, subject to the terms of this Agreement; provided, however, that the use of any such application shall be subject to Client’s and its users’ compliance with any end user license terms contained therein or otherwise provided to Client by DVSport in connection with the application.
2.2 DVSport and its licensors and/or suppliers, as applicable, shall retain all right, title and interest to the Xchange Software including all patents, copyrights, trademarks, trade secret and other proprietary rights thereto. Client may not make copies of the Xchange Software. Client will not, nor will Client allow any third party to, (i) modify, port, translate, localize, or create derivative works of the Xchange Software; (ii) distribute, sell, lend, rent, transfer, convey, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying user interface techniques, algorithms, databases or proprietary schema of the Xchange Software by any means whatsoever, for any purpose whatsoever; (iii) grant any sublicense, leases or other rights in the Xchange Software to any third party; (iv) access the Xchange Software for purposes of porting data and/or video for use with third party software products or hardware not authorized in writing by DVSport; or (v) take any action that would cause the Xchange Software to be placed in the public domain. The copyright notices and other proprietary legends shall not be removed from the Xchange Software.
2.3 Client will not enable or allow any of its licensors, service providers, contractors, consultants or any other third parties, including without limitation third party licensors of products competitive with the Xchange Software or third party licensors of software that references, incorporates or otherwise uses the Xchange Software (each, a “Third Party”), to access, use, view or reference the Xchange Software (including, without limitation, the underlying database or schema), or enable or allow any Third Parties to develop or deploy software that references or interacts with the Xchange Software (including, without limitation, the underlying database or schema) (each, a “Restricted Activity” and collectively, “Restricted Activities”), without DVSport’s express prior written consent. In the event that Client desires to enable or allow any Third Party to perform any Restricted Activity, Client shall provide written notice of such request to DVSport. DVSport shall have the right, in its discretion, to (i) approve or deny such Restricted Activities, provided that DVSport will not unreasonably withhold its approval to any such Restricted Activity, and (ii) alter the Xchange Software or services provided under this Agreement as DVSport deems appropriate in connection with such Restricted Activities (including, without limitation, encrypting the Xchange Software code if not already encrypted), and/or charge Client and/or such Third Party additional fees in connection with such Restricted Activities in the form and amount as reasonably determined by DVSport in accordance with its then-current standard license fees for such access (e.g., if such Third Party access and/or use (i) requires such Third Party software or products to interact with proprietary portions of the Xchange Software; (ii) decreases the effectiveness, speed and/or capability of the Xchange Software currently in use by Client, or (iii) increases Xchange Software or other requirements in order for the Xchange Software, or related services, or the Third Party product to perform in accordance with their respective specifications). Notwithstanding the above, Restricted Activities not otherwise approved in writing by DVSport shall be considered a material breach of this Agreement. If any such Restricted Activity is expressly approved in writing by DVSport hereunder, in addition to the payment of the fees referenced in this Section 2.3, Client shall be fully responsible for the compliance by such Third Party with the terms and conditions of this Agreement, and shall be responsible for ensuring such Third Party agrees in writing to be bound by such terms and conditions.
2.4 DVSport shall use commercially reasonable efforts to provide email support services s for the Xchange Software during the Term in accordance with DVSport’s then current Xchange Software support policies.
2.5 Client shall be responsible for all content uploaded/posted/shared in connection with Client's use of the Xchange Software. Client may not post, share or communicate in any manner via the Xchange Software, any information or content that is defamatory, libelous, threatening harm or injury, harassing, discriminatory, unlawful, obscene, indecent and/or contains pornography and/or "adult" content. Client may not upload, post, share, email, transmit or otherwise make available any submission containing content Client does not have a right to make available under any law or under any contractual or fiduciary relationship, or that infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary rights of any party. DVSport is under no obligation to monitor Client’s content uploaded/posted/shared in connection with Client's use of the Xchange Software, but DVSport may remove, block, restrict any content in DVSport’s sole discretion and/or DVSport may suspend Client’s access to the Xchange Software for any violation of the foregoing provisions or this Agreement. Furthermore, Client acknowledges that DVSport may establish general practices and limits concerning use of the Xchange Software and any related DVSport cloud solutions, web services and/or interfaces, its features, and the web services offered in connection with the site and this Agreement, including, without limitation, the maximum space allotted to Client on DVSport's storage devices, and that use of the DVSport web services and cloud solutions may be subject to Client's agreement to any additional terms and conditions applicable to the web services and/or cloud solutions.
2.6 In the event that Client desires to transfer any license rights granted under this Agreement within Client's organization, including without limitation to another department of Client’s business organization or another sports team of Client’s educational institution, Client shall provide written notice of such request to DVSport. DVSport shall have the right, in its discretion, to (i) approve or deny such requested transfer, provided that DVSport will not unreasonably withhold its approval to any such transfer, and (ii) charge Client additional fees in connection with such transfer, including without limitation installation fees, training and support fees and Xchange Software reactivation fees, in each case in the form and amount as determined by DVSport.
2.7 If Client fails to comply with any of the terms of this Agreement, then, notwithstanding anything to the contrary in this Agreement, DVSport may immediately terminate the license granted under this Agreement and any services in connection therewith. Upon any termination of such license, Client will destroy all copies of the Xchange Software or, if requested by DVSport, return all copies of the Xchange Software to DVSport and have an appropriate authorized representative certify in writing the return or destruction of all copies of the Xchange Software.
3. Term; Fees; Payment.
3.1 During the Term, DVSport will provide Client with the Xchange Software and related services set forth herein. The "Term" shall begin on the date of acceptance of these Terms and Conditions (the "Effective Date") shall continue for a one (1) year term (unless otherwise agreed in the sales transaction via the DVSport online store or via any other DVSport agreement, invoice or order incorporating these terms) (the “Initial Term”). Upon expiration of the Initial Term or any subsequent Renewal Term, the Term shall automatically renew for an equal term to the Initial Term (each, a “Renewal Term”) unless Client provides DVSport with written notice of its intent not to renew the Term at least sixty (60) days prior to the expiration of the then-current Initial or Renewal Term. Client shall pay DVSport the Xchange Software license price (the “Fee”) as set forth in the DVSport online store or in the applicable DVSport agreement, invoice or order incorporating these terms for the Initial Term and for any Renewal Terms hereunder. Payment shall be made upon the terms set forth in this Agreement or the DVSport online store or in the applicable DVSport agreement, invoice or order incorporating these terms. Further, in the event that Client terminates the Agreement or any prior to the end of the applicable Initial Term or Renewal Term, the unpaid balance of the total fees for such Initial Term or Renewal Term shall become immediately due and payable by Client. DVSport may elect to change the Fees upon written notice to Client (a) for any Renewal Term at least ninety (90) days prior to the end of the then-current Initial or Renewal Term, or (b) for the remainder of the then current Initial or Renewal Term at any time due to a transfer to another Client department or team as permitted under Section 2.6 above.
3.2 Except as otherwise set forth herein, or in the DVSport online store or other DVSport agreement, invoice or order incorporating these terms, DVSport shall invoice Client for the Fees upon the Effective Date and, as applicable, upon any renewal of the Term of this Agreement. The Fees shall be due and payable via the DVSport online store or within thirty (30) days of Client's receipt of an invoice from DVSport (unless otherwise set forth in such applicable DVSport agreement, invoice or order incorporating these terms. All Fees paid by Client are non-refundable for any reason, including without limitation in the event of early termination of the license, this Agreement or services. Client agrees and acknowledges that, upon any termination of the license, this Agreement, or services by Client or by DVSport (for Client’s uncured breach), DVSport will invoice Client all remaining Fees payable and the total amount of fees owed by Client, if any, for the then current Initial or Renewal Term shall be accelerated and immediately become due and payable in full by Client. Payments not made within thirty (30) days of the due date shall be subject to a charge of 1.5% per month or the highest amount permitted by law, whichever is lower. Prices are exclusive of all state and local taxes, and Client is responsible for payment of any such state and/or local taxes if applicable.
4. Warranty. DVSport warrants, during the Term that the Xchange Software shall materially comply with the documentation. Upon written notice from Client during the Term that any of the Xchange Software breaches this warranty, DVSport's sole liability and Client's sole remedy shall be for DVSport to use reasonable efforts to promptly repair the Xchange Software or provide replacement Xchange Software to Client so as to comply with the warranty. Notwithstanding the foregoing, DVSport will not be liable for any noncompliance with this warranty, and Client will pay DVSport at DVSport's then-current rates for all work expended investigating or correcting any noncompliance with such warranty, that DVSport reasonably determines to have been caused by, (i) any non-DVSport provided equipment or software, (ii) any misuse of the Xchange Software, (iii) any Third Parties, (iv) any modification of the Xchange Software by anyone other than DVSport or other than as authorized by DVSport, or (v) improper combination of the Xchange Software with another product or service. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED HEREIN, THE Xchange SOFTWARE, ANY SERVICES, AND ANY RELATED DOCUMENTATION IS PROVIDED “AS IS” AND THE Xchange SOFTWARE AND SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, DVSPORT MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING (A) THE COMPATIBILITY OF THE Xchange SOFTWARE OR SERVICES OR ANY RESULTS TO BE ACHIEVED THEREFROM WITH ANY THIRD PARTY HARDWARE, SOFTWARE OR SERVICES, OR (B) THE ACCURACY, AVAILABILITY OR SECURITY OF ANY CLIENT CONTENT OR DATA CONTAINED IN, DEVELOPED THROUGH OR OTHERWISE USED IN CONNECTION WITH THE Xchange SOFTWARE OR SERVICES. DVSPORT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS TO ANY SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT.
5. Limitation of Liability. DVSport shall not be liable to Client for loss of profits, goodwill or data or special, indirect, incidental, consequential or exemplary damages, including costs or legal expenses, in connection with the supply, use or performance of the Xchange Software or the performance of services even if it is aware of the possibility of the occurrence of such damages. In any event, the total liability of DVSport to Client or any other party in connection with this Agreement shall be limited to the amounts paid by Client to DVSport for the applicable Xchange Software or services giving rise to such claim of liability, during the immediately preceding twelve (12) month period.
6. Confidentiality.
6.1 DVSport may provide Client with proprietary information of DVSport (collectively, "Confidential Information") that includes, but is not limited to, manuals, the Xchange Software or other software in source code or object code, technical data or specifications, and marketing information. Client acknowledges that the Xchange Software is Confidential Information and contains trade secrets of DVSport. Client shall keep confidential and shall not divulge any of the Confidential Information to any other person or entity and shall not use such Confidential Information except in accordance with these Terms and Conditions. The provisions of this Section shall not apply to information which: (i) is in the public domain at the time of disclosure to Client or later enters the public domain other than through breach of this Agreement or other wrongful action by Client; (ii) was in Client's lawful possession prior to disclosure by DVSport that was not subject to any confidentiality obligation; or (iii) is required to be disclosed pursuant to federal or state law.
6.2 Client agrees and acknowledges that any breach of the provisions regarding ownership or confidentiality contained in this Agreement shall cause DVSport irreparable harm and DVSport may obtain injunctive relief without the requirement to post a bond as well as seek all other remedies available to DVSport in law and in equity in the event of breach or threatened breach of such provisions.
7. Notices. Any notice required or permitted to be made or given by either party pursuant to this Agreement shall be in writing and shall be deemed sufficiently made and given if sent to the other party, via certified or registered mail, or other express mail service to the most recent known address of a party; provided that DVSport may also provide notices to any email address utilized by Client via the DVSport online store.
8. Miscellaneous. This Agreement, including any Xchange Software or services provided hereunder, may not be assigned or transferred by Client without the written consent of DVSport. Any failure of either party to enforce any of the provisions of this Agreement will not be construed as a waiver of such provisions or the right of the party thereafter to enforce each and every such provision. In the event any provision of this Agreement is found to be invalid or unenforceable, the parties hereby agree that the court shall enforce such provision to the extent permitted by law and, to the extent such provision is not enforceable, shall enforce the remainder of this Agreement as if such provision were not included in this Agreement. This Agreement, including these Terms and Conditions together with the sales transaction entered into via the DVSport online store or via any other DVSport agreement, invoice or order incorporating these terms, represents the entire agreement and understanding between the parties hereto with respect to the subject matter of this Agreement, and supersedes any other agreement or understanding, oral or written. The terms of Sections 1, 2, 3, 4, 5, 6, and 8 will survive termination of this Agreement for any reason. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of laws provisions.
1. Acceptance. These Terms and Conditions and the sales transaction via the DVSport online store or via any other DVSport agreement, invoice or order incorporating these terms constitute the exclusive and binding agreement between the parties covering the license and use of the Xchange Software and any related services (collectively, the "Agreement"). CLIENT’S ACCEPTANCE OF SUCH DVSPORT ONLINE STORE TRANSACTION, CLIENT’S ACCEPTANCE OF ANY OTHER DVSPORT AGREEMENT, INVOICE OR ORDER INCORPORATING THESE TERMS, OR CLIENT’S USE OF THE Xchange SOFTWARE CONSTITUTES CLIENT’S AGREEMENT TO BE BOUND BY THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING AND AGREEING TO THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING AND AGREEING TO THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACQUIRE OR USE THE Xchange SOFTWARE. The Agreement can be accepted only on these Terms and Conditions. Additional or different terms proposed by Client will not be applicable unless accepted in writing by DVSport. If these Terms and Conditions are construed to be an offer, this offer expressly limits acceptance by Client to the terms of this offer and notice of objection by DVSport to any different or additional terms is hereby given. If these Terms and Conditions are construed to be an acceptance of an offer, this acceptance is expressly conditioned upon Client’s assent to any different or additional terms contained in these Terms and Conditions. No change, modification, or revision of the Agreement or these Terms and Conditions by Client shall be effective unless in writing and signed by both Client and DVSport. DVSport may change, update or modify these Terms and Conditions by posting a updated version of the Terms and Conditions to the DVSport web site (or such other location specified by DVSport); provided, however that version of the Terms and Conditions applicable to Client shall be based upon the applicable version thereof as of the date of Client’s acceptance of this Agreement.
2. Software and License; Support.
2.1 For purposes of the license grant, Xchange Software shall include all modifications, enhancements, new versions and new releases related to the above which may be provided to Client by DVSport from time to time during the Term (defined below). In no event does the license of any Xchange Software to Client transfer any ownership rights to such Xchange Software to Client. DVSport or its licensors retain all right, title, and interest (including all intellectual property rights) in and to such Xchange Software. DVSport hereby grants Client a Term-limited, nonexclusive, non-transferable (except as set forth in Section 6) license to use the Xchange Software solely in connection with Client's internal business purposes in accordance with the terms and conditions of this Agreement. Client's use of the Xchange Software is restricted to the number of users for whose use Client has paid. Any upgrades and releases which may be provided by DVSport will be considered part of the Xchange Software and will be governed by the provisions of this Agreement. DVSport may choose to provide, but will be under no obligation to provide, Client with an installer application to allow Client to install the Xchange Software for users, subject to the terms of this Agreement; provided, however, that the use of any such application shall be subject to Client’s and its users’ compliance with any end user license terms contained therein or otherwise provided to Client by DVSport in connection with the application.
2.2 DVSport and its licensors and/or suppliers, as applicable, shall retain all right, title and interest to the Xchange Software including all patents, copyrights, trademarks, trade secret and other proprietary rights thereto. Client may not make copies of the Xchange Software. Client will not, nor will Client allow any third party to, (i) modify, port, translate, localize, or create derivative works of the Xchange Software; (ii) distribute, sell, lend, rent, transfer, convey, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying user interface techniques, algorithms, databases or proprietary schema of the Xchange Software by any means whatsoever, for any purpose whatsoever; (iii) grant any sublicense, leases or other rights in the Xchange Software to any third party; (iv) access the Xchange Software for purposes of porting data and/or video for use with third party software products or hardware not authorized in writing by DVSport; or (v) take any action that would cause the Xchange Software to be placed in the public domain. The copyright notices and other proprietary legends shall not be removed from the Xchange Software.
2.3 Client will not enable or allow any of its licensors, service providers, contractors, consultants or any other third parties, including without limitation third party licensors of products competitive with the Xchange Software or third party licensors of software that references, incorporates or otherwise uses the Xchange Software (each, a “Third Party”), to access, use, view or reference the Xchange Software (including, without limitation, the underlying database or schema), or enable or allow any Third Parties to develop or deploy software that references or interacts with the Xchange Software (including, without limitation, the underlying database or schema) (each, a “Restricted Activity” and collectively, “Restricted Activities”), without DVSport’s express prior written consent. In the event that Client desires to enable or allow any Third Party to perform any Restricted Activity, Client shall provide written notice of such request to DVSport. DVSport shall have the right, in its discretion, to (i) approve or deny such Restricted Activities, provided that DVSport will not unreasonably withhold its approval to any such Restricted Activity, and (ii) alter the Xchange Software or services provided under this Agreement as DVSport deems appropriate in connection with such Restricted Activities (including, without limitation, encrypting the Xchange Software code if not already encrypted), and/or charge Client and/or such Third Party additional fees in connection with such Restricted Activities in the form and amount as reasonably determined by DVSport in accordance with its then-current standard license fees for such access (e.g., if such Third Party access and/or use (i) requires such Third Party software or products to interact with proprietary portions of the Xchange Software; (ii) decreases the effectiveness, speed and/or capability of the Xchange Software currently in use by Client, or (iii) increases Xchange Software or other requirements in order for the Xchange Software, or related services, or the Third Party product to perform in accordance with their respective specifications). Notwithstanding the above, Restricted Activities not otherwise approved in writing by DVSport shall be considered a material breach of this Agreement. If any such Restricted Activity is expressly approved in writing by DVSport hereunder, in addition to the payment of the fees referenced in this Section 2.3, Client shall be fully responsible for the compliance by such Third Party with the terms and conditions of this Agreement, and shall be responsible for ensuring such Third Party agrees in writing to be bound by such terms and conditions.
2.4 DVSport shall use commercially reasonable efforts to provide email support services s for the Xchange Software during the Term in accordance with DVSport’s then current Xchange Software support policies.
2.5 Client shall be responsible for all content uploaded/posted/shared in connection with Client's use of the Xchange Software. Client may not post, share or communicate in any manner via the Xchange Software, any information or content that is defamatory, libelous, threatening harm or injury, harassing, discriminatory, unlawful, obscene, indecent and/or contains pornography and/or "adult" content. Client may not upload, post, share, email, transmit or otherwise make available any submission containing content Client does not have a right to make available under any law or under any contractual or fiduciary relationship, or that infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary rights of any party. DVSport is under no obligation to monitor Client’s content uploaded/posted/shared in connection with Client's use of the Xchange Software, but DVSport may remove, block, restrict any content in DVSport’s sole discretion and/or DVSport may suspend Client’s access to the Xchange Software for any violation of the foregoing provisions or this Agreement. Furthermore, Client acknowledges that DVSport may establish general practices and limits concerning use of the Xchange Software and any related DVSport cloud solutions, web services and/or interfaces, its features, and the web services offered in connection with the site and this Agreement, including, without limitation, the maximum space allotted to Client on DVSport's storage devices, and that use of the DVSport web services and cloud solutions may be subject to Client's agreement to any additional terms and conditions applicable to the web services and/or cloud solutions.
2.6 In the event that Client desires to transfer any license rights granted under this Agreement within Client's organization, including without limitation to another department of Client’s business organization or another sports team of Client’s educational institution, Client shall provide written notice of such request to DVSport. DVSport shall have the right, in its discretion, to (i) approve or deny such requested transfer, provided that DVSport will not unreasonably withhold its approval to any such transfer, and (ii) charge Client additional fees in connection with such transfer, including without limitation installation fees, training and support fees and Xchange Software reactivation fees, in each case in the form and amount as determined by DVSport.
2.7 If Client fails to comply with any of the terms of this Agreement, then, notwithstanding anything to the contrary in this Agreement, DVSport may immediately terminate the license granted under this Agreement and any services in connection therewith. Upon any termination of such license, Client will destroy all copies of the Xchange Software or, if requested by DVSport, return all copies of the Xchange Software to DVSport and have an appropriate authorized representative certify in writing the return or destruction of all copies of the Xchange Software.
3. Term; Fees; Payment.
3.1 During the Term, DVSport will provide Client with the Xchange Software and related services set forth herein. The "Term" shall begin on the date of acceptance of these Terms and Conditions (the "Effective Date") shall continue for a one (1) year term (unless otherwise agreed in the sales transaction via the DVSport online store or via any other DVSport agreement, invoice or order incorporating these terms) (the “Initial Term”). Upon expiration of the Initial Term or any subsequent Renewal Term, the Term shall automatically renew for an equal term to the Initial Term (each, a “Renewal Term”) unless Client provides DVSport with written notice of its intent not to renew the Term at least sixty (60) days prior to the expiration of the then-current Initial or Renewal Term. Client shall pay DVSport the Xchange Software license price (the “Fee”) as set forth in the DVSport online store or in the applicable DVSport agreement, invoice or order incorporating these terms for the Initial Term and for any Renewal Terms hereunder. Payment shall be made upon the terms set forth in this Agreement or the DVSport online store or in the applicable DVSport agreement, invoice or order incorporating these terms. Further, in the event that Client terminates the Agreement or any prior to the end of the applicable Initial Term or Renewal Term, the unpaid balance of the total fees for such Initial Term or Renewal Term shall become immediately due and payable by Client. DVSport may elect to change the Fees upon written notice to Client (a) for any Renewal Term at least ninety (90) days prior to the end of the then-current Initial or Renewal Term, or (b) for the remainder of the then current Initial or Renewal Term at any time due to a transfer to another Client department or team as permitted under Section 2.6 above.
3.2 Except as otherwise set forth herein, or in the DVSport online store or other DVSport agreement, invoice or order incorporating these terms, DVSport shall invoice Client for the Fees upon the Effective Date and, as applicable, upon any renewal of the Term of this Agreement. The Fees shall be due and payable via the DVSport online store or within thirty (30) days of Client's receipt of an invoice from DVSport (unless otherwise set forth in such applicable DVSport agreement, invoice or order incorporating these terms. All Fees paid by Client are non-refundable for any reason, including without limitation in the event of early termination of the license, this Agreement or services. Client agrees and acknowledges that, upon any termination of the license, this Agreement, or services by Client or by DVSport (for Client’s uncured breach), DVSport will invoice Client all remaining Fees payable and the total amount of fees owed by Client, if any, for the then current Initial or Renewal Term shall be accelerated and immediately become due and payable in full by Client. Payments not made within thirty (30) days of the due date shall be subject to a charge of 1.5% per month or the highest amount permitted by law, whichever is lower. Prices are exclusive of all state and local taxes, and Client is responsible for payment of any such state and/or local taxes if applicable.
4. Warranty. DVSport warrants, during the Term that the Xchange Software shall materially comply with the documentation. Upon written notice from Client during the Term that any of the Xchange Software breaches this warranty, DVSport's sole liability and Client's sole remedy shall be for DVSport to use reasonable efforts to promptly repair the Xchange Software or provide replacement Xchange Software to Client so as to comply with the warranty. Notwithstanding the foregoing, DVSport will not be liable for any noncompliance with this warranty, and Client will pay DVSport at DVSport's then-current rates for all work expended investigating or correcting any noncompliance with such warranty, that DVSport reasonably determines to have been caused by, (i) any non-DVSport provided equipment or software, (ii) any misuse of the Xchange Software, (iii) any Third Parties, (iv) any modification of the Xchange Software by anyone other than DVSport or other than as authorized by DVSport, or (v) improper combination of the Xchange Software with another product or service. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED HEREIN, THE Xchange SOFTWARE, ANY SERVICES, AND ANY RELATED DOCUMENTATION IS PROVIDED “AS IS” AND THE Xchange SOFTWARE AND SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, DVSPORT MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING (A) THE COMPATIBILITY OF THE Xchange SOFTWARE OR SERVICES OR ANY RESULTS TO BE ACHIEVED THEREFROM WITH ANY THIRD PARTY HARDWARE, SOFTWARE OR SERVICES, OR (B) THE ACCURACY, AVAILABILITY OR SECURITY OF ANY CLIENT CONTENT OR DATA CONTAINED IN, DEVELOPED THROUGH OR OTHERWISE USED IN CONNECTION WITH THE Xchange SOFTWARE OR SERVICES. DVSPORT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS TO ANY SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT.
5. Limitation of Liability. DVSport shall not be liable to Client for loss of profits, goodwill or data or special, indirect, incidental, consequential or exemplary damages, including costs or legal expenses, in connection with the supply, use or performance of the Xchange Software or the performance of services even if it is aware of the possibility of the occurrence of such damages. In any event, the total liability of DVSport to Client or any other party in connection with this Agreement shall be limited to the amounts paid by Client to DVSport for the applicable Xchange Software or services giving rise to such claim of liability, during the immediately preceding twelve (12) month period.
6. Confidentiality.
6.1 DVSport may provide Client with proprietary information of DVSport (collectively, "Confidential Information") that includes, but is not limited to, manuals, the Xchange Software or other software in source code or object code, technical data or specifications, and marketing information. Client acknowledges that the Xchange Software is Confidential Information and contains trade secrets of DVSport. Client shall keep confidential and shall not divulge any of the Confidential Information to any other person or entity and shall not use such Confidential Information except in accordance with these Terms and Conditions. The provisions of this Section shall not apply to information which: (i) is in the public domain at the time of disclosure to Client or later enters the public domain other than through breach of this Agreement or other wrongful action by Client; (ii) was in Client's lawful possession prior to disclosure by DVSport that was not subject to any confidentiality obligation; or (iii) is required to be disclosed pursuant to federal or state law.
6.2 Client agrees and acknowledges that any breach of the provisions regarding ownership or confidentiality contained in this Agreement shall cause DVSport irreparable harm and DVSport may obtain injunctive relief without the requirement to post a bond as well as seek all other remedies available to DVSport in law and in equity in the event of breach or threatened breach of such provisions.
7. Notices. Any notice required or permitted to be made or given by either party pursuant to this Agreement shall be in writing and shall be deemed sufficiently made and given if sent to the other party, via certified or registered mail, or other express mail service to the most recent known address of a party; provided that DVSport may also provide notices to any email address utilized by Client via the DVSport online store.
8. Miscellaneous. This Agreement, including any Xchange Software or services provided hereunder, may not be assigned or transferred by Client without the written consent of DVSport. Any failure of either party to enforce any of the provisions of this Agreement will not be construed as a waiver of such provisions or the right of the party thereafter to enforce each and every such provision. In the event any provision of this Agreement is found to be invalid or unenforceable, the parties hereby agree that the court shall enforce such provision to the extent permitted by law and, to the extent such provision is not enforceable, shall enforce the remainder of this Agreement as if such provision were not included in this Agreement. This Agreement, including these Terms and Conditions together with the sales transaction entered into via the DVSport online store or via any other DVSport agreement, invoice or order incorporating these terms, represents the entire agreement and understanding between the parties hereto with respect to the subject matter of this Agreement, and supersedes any other agreement or understanding, oral or written. The terms of Sections 1, 2, 3, 4, 5, 6, and 8 will survive termination of this Agreement for any reason. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of laws provisions.