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MASTER SERVICES AGREEMENT

DEFINITIONS

Customer means (1) with respect to a Free Trial, the person or entity named in the Free Trial registration form as the “Customer” or (2) with respect to a fee based Service subscription, the person or entity named on the Statement of Work as the “Customer.”

Service Provider means SportsGrid, Inc.

BACKGROUND

WHEREAS,Service Provider is providing proprietary technology enabling distribution of Customer IP and/or Customer Content (as each term is defined within this Agreement); and

WHEREAS, Customer desires to engage Service Provider as an independent contractor to provide white labeling and/or other technology services on behalf of Customer (the “Services”) in accordance with the terms and conditions as set forth in this Agreement.

NOW THEREFORE, for good and valuable consideration and intending to be legally bound, the Parties agree as follows:

AGREEMENT

1. SCOPE OF SERVICES

1.1       During the Term (as later defined herein), Service Provider shall provide the Services per the statement of work attached as Exhibit A hereto and in such other statements of work that are executed by authorized personnel of the Parties (each of Exhibit A and such other statements of work, a “SOW”). Service Provider shall use commercially reasonable efforts to provide the Services for and on behalf of Customer; provided (i) Service Provider does not guarantee any level of performance in accordance with the providing of Services (including, without limitation, that Customer will achieve certain levels of traffic, engage certain levels of consumers, and/or retain any level of consumers as a result of the Services); (ii) Service Provider shall provide the Services on a non-exclusive basis, and shall be free to provide Services and/or similar services to any other person and/or entity during the Term; and (iii) Customer acknowledges that the promise to use best efforts for the provision of Services shall be the entirety of Service Provider’s obligations to Customer under this Agreement and any SOW attached hereto or a made a part hereof.

1.2       Customer acknowledges and agrees that Service Provider’s ability to provide the Services are dependent upon Customer’s timely performance of its responsibilities hereunder, Customer’s reasonable cooperation with respect to Service Provider’s performance hereunder, and any changes in scope or schedule requested by Customer. In the event a change in the schedule or cost of a project is necessary due to a delay in Customer’s performance of its responsibilities or Customer requests a change, the Parties may modify a SOW by executing a change order (“Change Order”). A Change Order may be initiated by either Party in writing.  All proposed Change Orders and the implications of the proposed changes (e.g., schedule changes, pricing changes) will be discussed in good faith by the Parties’ authorized representatives and shall not be binding until executed by an authorized representative of the Parties.

1.3       In furtherance of Service Provider’s performance of services hereunder, Customer shall: (i) employ one suitably qualified person to co-ordinate the activities relating to the development and implementation of the Services, and to manage Customer’s day-to-day operations with respect to such development and implementation; (ii) procure and install the hardware, third-party software, networking equipment, and other infrastructure components that are necessary for the deployment of the Services within Customer’s computer network environments; and (iii) obtain any necessary regulatory clearances or approvals required for the operation of the Services.

1.4       Service Provider may (but shall not be obligated to) provide on-going maintenance and development services in relation to the deliverables provided in accordance with a SOW. Unless otherwise specified in such SOW, such ongoing maintenance and development services will be performed in accordance with the commercial terms set forth in the SOW then in effect.

1.5       Customer hereby grants Service Provider a nonexclusive, revocable license to use, reproduce, and/or display Customer’s IP and/or Customer’s Content in connection with Service Provider’s rendering of the Services. For the purpose of this Agreement, (i) “Customer IP” shall include, without limitation, Customer’s name, trade names, logo, trademarks, service marks, and trade dress in Service Provider’s rendering of the Services, and (ii) “Customer Content” shall include, without limitation, Customer date, video, film or TV content, metatags, metadata, and/or any other content made available at any time by Customer to Service Provider. Such license shall remain in effect throughout the duration of the Service Provider’s performance of Services under a SOW. Service Provider’s use of Customer IP and/or Customer Content shall be in compliance with any written usage guidelines provided by Customer to Service Provider, and all use thereof shall inure solely to the benefit of Customer.

2. COMMERCIAL TERMS

2.1       Customer shall pay Service Provider for its services the fees that are set forth in each SOW (collectively, the “Fees”), in accordance with the payment schedule specified therein.

2.2       Customer will pay, or reimburse Service Provider for, the reasonable out-of-pocket expenses incurred by Service Provider with the prior approval of Customer in connection with Service Provider’s performance of Services under this Agreement.

2.3       Unless otherwise set forth in a SOW, Service Provider will invoice Customer for the Fees and any out-of-pocket expenses on a monthly basis. Customer shall pay the amount indicated on any such invoice within thirty (30) days after the invoice date. Any amounts due hereunder that are not paid by Customer within thirty (30) days from the date of the applicable invoice will thereafter bear interest until paid at a rate equal to the lesser of 1.5% per month and the maximum rate of interest allowed by applicable law.  In addition, if (i) Customer does not pay amounts due hereunder within thirty (30) days of the date of the applicable invoice or (ii) if Service Provider reasonably determines that Customer’s financial condition has deteriorated, then Service Provider may suspend performance under this Agreement or any SOW until Customer pays such amounts or provides reasonable security to Service Provider. If such amounts and/or security is not provided to Service Provider within fifteen (15) days of its request to Customer, Service Provider may terminate this Agreement immediately upon written notice to Customer. Acceptance of any partial payment of an invoice will not waive Service Provider’s rights as to remaining balances, nor in any way constitute accord and satisfaction. Service Provider is entitled to reimbursement of any expenses (including, without limitation, attorney’s fees and costs) associated with the collection of overdue amounts owed by Customer.

2.4       Each Party shall be responsible for its own taxes, duties, levies and other governmental charges (including sale and use taxes) that are imposed by a governmental authority with respect to the transactions contemplated by this Agreement.

3. INTELLECTUAL PROPERTY RIGHTS

3.1       All rights, title, and interest in and to Customer IP and/or Customer Content Customer shall be and remain at all times the sole and exclusive property of Customer, subject to the rights and licenses granted pursuant to this Agreement.

3.2       All rights, title, and interest in and to Service Provider Components shall be and remain at all times the sole and exclusive property of Service Provider, and all rights related thereto, including, but not limited to, all copyrights and other intellectual property or proprietary rights, are hereby owned by Service Provider and its licensors. For purposes of this Agreement, “Service Provider Components” means software, hardware, application program interface (API), codes, intellectual property, data, documentation, technology, or other proprietary materials that are created, developed, or acquired by Service Provider for its performance of Services hereunder. It is expressly understood that no title to or ownership of the Service Provider Components are transferred to Customer under this Agreement. In no event shall Customer reproduce, modify, alter, reorder, reverse engineer, disassemble, decompile, attempt to derive source code or other technology, or otherwise permit or authorize any third parties to do any of the foregoing, with respect to Service Provider Components. Notwithstanding, Service Provider hereby grants Customer a non-exclusive, non-transferable, revocable license to use Service Provider Components solely in connection with Service Provider’s providing of Services under this Agreement.

3.3       Customer acknowledges and agrees that Service Provider may obtain materials from third parties in performing the Services hereunder (“Third Party Materials”).  Any Third Party Materials obtained and/or utilized in connection with the Services performed by Service Provider hereunder will remain the sole and exclusive property of such third parties, and subject to their applicable license terms.

3.4       Nothing in this Agreement is intended to prevent Service Provider or its personnel from using ideas, concepts, know-how, or techniques that are learned in course of performing the Services hereunder with third parties so long as such does not comprise Customer’s Content or Customer IP.

4.  EXCLUDED WARRANTIES

SERVICE PROVIDER HEREBY DISCLAIMS AND MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL SERVICES AND ASSOCIATED DELIVERABLES ARE PROVIDED BY SERVICE PROVIDER ON AN “AS IS” AND “AS AVAILABLE” BASIS. SERVICE PROVIDER DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICES HEREUNDER, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILTY, COMPLETENESS, OR OTHERWISE. THE SERVICE PROVIDER DOES NOT WARRANT THAT THE PROVIDING OF SERVICES WILL RESULT IN ANY SPECIFIC RESULT.

5. INDEMNIFICATION

5.1        By Service Provider: Subject to the remainder of this Section 5.1 and the other terms and conditions set forth in this Agreement, Service Provider shall defend, indemnify and hold harmless Customer and its directors, officers, employees, agents, successors, and assigns (Customer Indemnities”) from any and all actual losses, liabilities, damages, judgments, awards, expenses, claims, actions, lawsuits and costs, including reasonable attorneys’ fees (collectively, “Losses”) that has been reduced to a final, adverse, non-appealable judgment by a court of competent jurisdiction that arise in connection with any third party claim that the Services infringe the intellectual property or proprietary rights of a third party under the laws of the United States. If any part of the Services is, or may become, the subject of any such proceeding, Service Provider may at its expense and option do one of the following: (i) procure for Customer the necessary rights to continue using the Services; (ii) replace or modify the infringing portion of the Services with a functionally equivalent item or portion thereof; or (iii) terminate the Service or the affected part thereof.

a.  Notwithstanding the foregoing, Service Provider shall not have any liability to Customer and/or Customer Indemnities under this Section 5 to the extent that any claim is based upon: (i) Service Provider’s adherence to the SOW and any Customer instructions; (ii) the combination, operation, or use of the Services in combination with any data, equipment, or software not supplied by Service Provider hereunder; (iii) use of the Services in a manner for which it was not designed or not contemplated by Service Provider (including, but not limited to, as set forth within the SOW then in effect), or (iv) modifications to the Services by anyone other than Service Provider.

            b. Service Provider’s indemnification obligations hereunder shall be subject to: (i) Customer’s prompt delivery to Service Provider of written notice of the existence of any such claim or action; (ii) Service Provider having the authority to control the defense of such claim or action; and (iii) receiving the full cooperation of Customer in the defense thereof.

5.2       By Customer: Customer shall indemnify, defend, and hold harmless Service Provider, and its directors, officers, employees, agents, affiliate, subcontractors, successors, and assigns (“Service Provider Indemnities”), from and against any and all claims, damages, demands, losses, liabilities, actions, lawsuits, and other proceedings, judgments, fines, assessments, penalties, awards, costs, and expenses (including reasonable attorneys’ fees) related to third-party claims, whether or not covered by insurance, arising from or relating to (a) any material breach of this Agreement by Customer, (b) any negligent acts or omissions by, or willful misconduct of, Customer, its shareholders, employees, agents or subcontractors pertaining to Customer’s obligations under this Agreement, (c) any acts or omissions of Customer relating to its use of Services in a manner not contemplated by this Agreement and/or SOW, (d) use of Customer’s Content and/or Customer’s IP in accordance with this Agreement, or (e) any injury or damage suffered by a consumer of Customer’s goods and/or services.

6. TERM AND TERMINATION

6.1       Unless otherwise set forth in a SOW, this term shall commence on the SOW Effective Date and shall remain in full force for a period of twelve (12) months (the “Initial Term”). Upon the expiration of the Initial Term, the Agreement shall automatically renew for additional one (1) year periods (each, a “Renewal Term”) unless either Party provides the other Party at least thirty (30) days written notice of its intent not to renew this Agreement. The Initial Term and Renewal Term shall be collectively referred to as the “Term” throughout this Agreement.

6.2       In case of material breach of any terms and conditions of this Agreement by a Party, this Agreement and any SOW may be terminated by the other Party upon written notice to the defaulting Party; provided, however, that if the breach is by its nature reasonably capable of cure, the defaulting Party will be provided a thirty (30) day opportunity to cure such breach. If Service Provider terminates this Agreement under this Section as a result of Customer’s material breach, all rights granted by Service Provider under Section 3 shall automatically terminate.

6.3       Upon any termination of this Agreement or any SOW, Customer shall pay Service Provider’s time charges and reimbursable expenses duly owed hereunder, up to the effective date of termination. Expiration or termination of this Agreement or any SOW will not relieve either Party of any obligations that accrued prior to expiration or termination.

6.4        The provisions of this Agreement which, by their nature, are reasonably interpreted as imposing on-going rights and obligations, including for the avoidance of doubt, Sections 2, 3 (subject to termination of Customer’s license rights pursuant to Section 6.2), 5, 6, 7, 8, 9, and 11, shall continue to remain in force notwithstanding the termination of this Agreement.

7. CONFIDENTIALITY

7.1       As used herein, “Confidential Information” means information disclosed by a Party to the other Party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. For avoidance of doubt, all non-public components of the Service Provider Components are Service Provider’s Confidential Information. Confidential Information does not include information that: (i) was already disclosed to the receiving Party by a third party without any obligation of confidentiality; (ii) becomes generally available to the public through no fault of the receiving Party; or (iii) was independently developed by the receiving Party without reference to the other Party’s Confidential Information.

7.2        Each Party: (i) will protect the other Party’s Confidential Information using the same standard of care it uses to protect its own Confidential Information, provided that in no event will a Party use less than a reasonable standard of care; and (ii) will not disclose the Confidential Information, except to its affiliates, contractors, employees, and agents who need to know it and who have agreed in writing or are otherwise under a legal or ethical fiduciary duty to keep it confidential at a level no less protective than required herein. Each Party (and any affiliates, contractors, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each Party is responsible for any actions of its affiliates, contractors, employees and agents in violation of this Section. Upon the request of a Party, the other shall return or destroy all Confidential Information furnished by the requesting Party, without retaining any copy thereof.

7.3        Each Party may disclose the other Party’s Confidential Information when required by law but only to the extent required to comply with such law and only after it, if legally permissible: (i) uses commercially reasonable efforts to notify the other Party; and (ii) gives the other Party the chance to challenge or limit the disclosure.

8. LIMITATION OF LIABILITY

In no event will Service Provider be liable or responsible for any type of incidental, punitive, indirect, or consequential damages, including, but not limited to, lost revenue, lost profits, loss of goodwill, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise. In addition, Service Provider’s total aggregate liability under this Agreement for any cost, damage, liability, claim or expense of any nature whatsoever shall not exceed the total fees paid hereunder by Customer during the three (3) months immediately preceding the first event giving rise to any such cost, damage, liability, claim or expense.

9. NON-SOLICITATION OF SERVICE PROVIDER’S EMPLOYEES 

Without Service Provider’s written consent, Customer shall not hire or solicit Service Provider’s employees during the Term and for a period of twelve (12) months after the termination of this Agreement. 

10. PRESS RELEASE

The Parties may, upon mutual agreement, issue a press release upon execution of this Agreement and/or issue other public marketing and communications materials during the Term detailing the business arrangement hereunder.

11.  GENERAL PROVISIONS                                                                                           

11.1      In the event that the performance of the obligations under this Agreement by either Party are prevented or hindered in consequence of any act of God, pandemic, technical (i.e. hardware or software) failure, outage, strike, or other circumstances beyond the control of the Parties (each, a “Force Majeure Event”), then such performance or obligations shall wholly or partially be suspended during the period and no Party shall be liable to other Party during such period owing to such circumstances. It is expressly agreed that occurrence of a Force Majeure Event shall only result in the suspension of the Agreement for the duration of the Force Majeure Event, provided that the Party intending to invoke the occurrence of Force Majeure Event must inform the other Party of this within a period not exceeding one (1) week after the occurrence of the Force Majeure Event, by email, specifying the date of suspension of its obligations and the Force Majeure Event justifying the suspension. Notwithstanding the foregoing, in the event the Force Majeure Event lasts for more than thirty (30) days after the notifying Party sends an email notification to the other Party, the non-affected Party will be entitled to terminate the Agreement immediately thereafter without penalty or any liability whatsoever. Notwithstanding, the provisions contained herein shall not apply to any payment obligations of the Parties, which shall not be suspended or modified for any reason relating to a Force Majeure Event.

11.2      The various provisions and sub provisions of this Agreement are severable and if any provision or sub provision or part thereof is held to be unenforceable by any court of competent jurisdiction, then such enforceability shall not affect the validity or enforceability of the remaining provisions or sub provisions or parts in this Agreement.

11.3      This Agreement and any SOW contain the Parties entire agreement relating to the subject matters provided for herein and supersedes any and all prior agreements or understandings. No amendment or addition to this Agreement or any SOW shall be valid unless made in writing and signed by authorized representatives of each Party. Upon execution, each SOW will be deemed attached to and incorporated as part of this Agreement; provided that, in the event of any conflict between an SOW and the provisions hereof, the SOW will supersede to the extent necessary to resolve such conflict.

11.4      Customer may not validly assign all or part of the rights and obligations arising under this Agreement, without the other Service Provider’s prior written consent.

11.5      No modification or amendment to this Agreement and no waiver of any of the terms or conditions hereto shall be valid or binding unless made in writing and duly executed by the Parties.

11.6      Each Party acknowledges that any breach of any provision of Sections 3, 5, or 7 by a Party may cause immediate and irreparable injury to the other Party, and in the event of such breach, the injured Party shall be entitled to seek injunctive relief in any court of competent jurisdiction, without bond or other security, in addition to any other remedies available hereunder at law, or in equity. If any legal action is necessary to enforce the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorney fees, costs and expenses.

11.7      Service Provider will not publicize matters relating to the Services performed by Service Provider under this Agreement without Customer’s prior written consent. Notwithstanding the foregoing, Service Provider may identify Customer as a client of Service Provider for promotional purposes and may use Customer’s IP in connection therewith.

11.8      This Agreement shall be governed by and construed in accordance with the laws of the state of New York, irrespective of its statutes or rules regarding conflict of laws. Except as with respect to a Party seeking injunctive relief pursuant to Section 10.6 above, all disputes arising out of or in connection with this Agreement will be resolved solely by binding arbitration before one arbitrator in accordance with the Commercial Rules of Arbitration of the American Arbitration Association.  The arbitrator’s award will be final and binding, and judgment thereon may be entered in any court of competent jurisdiction.

11.9      Any notice required to be given hereunder shall be given by sending the same by email, overnight express mail or registered or certified mail, postage prepaid, return receipt requested to the address stated herein, or to any subsequent address designated by either Party for the purpose of receiving notices pursuant to this Agreement. All notices shall be deemed validly given: (i) after one (1) business day if sent via email or overnight express mail, or (ii) after five (5) business days if sent via registered or certified mail. 

11.10    Service Provider is an independent contractor, and neither Service Provider nor its employees are, or shall be deemed, Customer’s employees. Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the Parties. Neither Service Provider nor Service Provider’s employees are entitled to any benefits that are available to employees of Customer.

11.11    Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

11.12    This Agreement may be signed in counterparts, each of which shall be deemed an original and both of which shall together constitute one Agreement.

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