This License Agreement for Content Syndication (this "Agreement") is entered into by and between XML Team Solutions, LLC, a Delaware corporation ("Company"), including its photo division Icon Sportswire, and the member registering online and becoming a party hereto ("Licensee").
WHEREAS, Company receives and collects sports information, including but not limited to sports scores, schedules, standings, statistics and news (collectively, the "Textual Content"), and photographs (the "Image Content") (collectively, the "Content") via third-party content providers ("Content Providers") and internal sources; and
WHEREAS, Company wishes to provide the Content to Licensee pursuant to a limited, non-exclusive license herein provided, and Licensee wishes to so receive the Content pursuant to such license;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and the agreements herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Grant of License.
Company hereby grants Licensee a limited, non-exclusive, non-sublicensable, and non-assignable license to retrieve the Content from any Company website accessible by Licensee's login credentials (collectively, the "Site"), in order for Licensee to store, format, and display the Content solely for the purposes and in the manner set forth herein.
Licensee may format the Content, including, but not limited to, displaying portions of the Content online, adapting the Content for wireless and/or audio devices and otherwise modifying the "look-and-feel" and layout of the Content, cropping the Image Content, and editing the caption for Image Content. Licensee agrees not to rotate, alter (other than cropping), change or tamper with, either manually or electronically, Image Content without express written permission from Company. In all cases, Licensee agrees that it shall strictly maintain the editorial integrity of the Content. Defamation of any person, or to violate a person's right to privacy or to infringe upon any copyright, trademark or trade name of any kind is strictly prohibited. Content may not be used for any pornographic or unlawful purpose or use of any kind.
Licensee shall use Image Content solely in contexts that are editorial in nature, relating to events that are newsworthy or of public interest, and may not be used for any commercial, promotional, advertising, or merchandising use.
Company grants archive rights to Licensee to archive and use the Content while Licensee maintains an up-to-date profile detailing its contact information and its usage of the Content, and is not in breach of any of its contractual obligations to Company, as described in this section. The Company grants this extended license for archive rights of Content to Licensee in perpetuity, in accordance with the license grant and scope set forth in this Section 1, provided that Licensee adheres to the license scope and restrictions in this Section 1 and Section 4. In the event Licensee breaches this Agreement, and does not cure such breach within thirty (30) days of receiving notification from Company, then all archive rights provided hereunder to Client shall cease immediately and Client shall delete all Content in its possession, and shall ensure that any and all of its sub-contractors do likewise. In the event the Licensee is in breach of any of its contractual obligations to Company, then all archive rights provided hereunder to Licensee shall cease immediately and Licensee must immediately cease republication of all Content.
Section 2. Pricing and Payment Method.
The term "Invoicing Platform" means a system for denoting which Content was selected by Licensee, how much it costs for the licensing of that Content, and, potentially, additional terms for the licensing of the content.
The Invoicing Platform can refer to a computer-generated or pre-printed invoice provided in paper or electronic form by Company that includes, without limitation, identifying descriptions of Content that was licensed, along with corresponding prices, permitted scopes of use for the Content by the Licensee, and additional licensing limitations.
The Invoicing Platform can refer to an online tracking system for recording payments by Licensee to Company for Content already licensed, or for Content to be licensed in the future. The Invoicing Platform can track payment transactions made via check, electronic funds transfer, or credit card, and the Invoicing Platform can identify which Content was selected by Licensee, and which portion of those payments applied to which Content.
Licensee shall be able to pay for licensed Content either via fulfillment of digital invoices issued by Company to the Licensee, or by the pre-purchasing of Content credits ("Credits") via credit card on the Company website. Company and Licensee shall mutually agree on which of these two methods of payment shall be used.
The number of Credits charged for any particular item of Content shall be listed on pricing pages online, and may be changed at any time by Company provided that it has given at least seven (7) days prior notice of any such price change. Notice shall be provided via an update clearly posted by Company within the online membership sections of the website. Credits purchased shall not expire and shall not be refundable. Licensee shall be charged for each time it downloads an item of Content such that if Licensee downloads the same item of Content more than once it shall be charged each time it downloads such item of Content.
Company shall use its best efforts to provide Licensee with editorial revisions and corrections to items of Content at no charge, provided that Licensee has purchased an earlier revision of that item of Content. In the event that Licensee believes that an item of Content it has purchased contains an inaccuracy, and Company has not made available a freely downloadable revision of that item of Content which does not contain the claimed inaccuracy, Licensee may apply to have the Credit(s) it used to purchase the item of Content reinstated to its account by posting a request via Company's online technical support system.
Requests for Credit reinstatements must be accompanied by the unique identification code for the document which Licensee claims contained an inaccuracy, and either a detailed description of the claimed inaccuracy or the unique identification code of another document made available by Company that has corrected the claimed inaccuracy. The final decision as to whether or not a Content item contains an inaccuracy shall be made by Company in its sole and unreviewable discretion.
Section 3. Company's Obligations.
(a) Content Deliverables. Company will make available normalized data in the SportsML format or into standard metadata-containing image formats, as well as selected renditions of the Content, as produced by Company's rendering processors. Company shall use reasonable efforts to keep the Content Inventory list accurate and updated, but makes no guarantees as to whether documents listed there will be available for download. Company only commits to licensing Content that is currently available online. Company makes no guarantees for future Image Content or Textual Content to be offered. Company reserves the right to delete Content or remove it from the licensing pool at any time.
(b) Service. Company will maintain hosting of the Content for delivery or transmission to Licensee for a minimum of 95% uptime per month, exclusive of any scheduled maintenance or failure due to a Force Majeure Event (as such term is defined herein).
Section 4. Licensee's Obligations.
(a) Use Terms and Conditions. Licensee shall use the Content according to the following terms and conditions:
1. Licensee shall strictly maintain the editorial integrity of the Content. Licensee shall not introduce and/or mix new data values, new metadata values, or editorial information with Content obtained from Company, unless such information is mathematically derivable from the data supplied or unless the Content components retrieved from Company are clearly noted.
2. Licensee may republish only Content that has been purchased by Licensee from Company and not any Content freely obtained from Company's Trial Database, sets of thumbnails of Image Content, watermarked Image Content, associated image captions, and Content metadata (collectively, the "Content Availability Listings").
3. Within any one minute, Licensee may not make more than three queries provided free of charge (whether these requests be automated or manually initiated) such as requests for Content Availability Listings, requests for editorial revisions, requests for listings of Image Content, and requests for corrections to documents previously puchased by Licensee.
4. Prior to republishing any Textual Content, Licensee shall render such Content into a formatting language. Licensee may not publish or distribute the Textual Content in either the same SportsML format supplied by Company or in another XML format that has the same metadata emphasis and design goals as SportsML, as determined by Company in its sole and unreviewable discretion. Should Licensee be granted access to Image Content in high resolution formats suitable for print publications ("High Resolution Image Content"), then Licensee may not publish or distribute online the High Resolution Image Content in a digital, high resolution format.
5. Licensee agrees to immediately notify Company once it is made aware of or suspects that any third party is wrongfully using the Content, in whole or in part, or is violating any of Company's intellectual property rights, including, but not limited to, its trademarks and copyrights.
6. Content may contain listed restrictions of use (either on the Invoicing Platform, a specific Content web page, and/or editorial list), including, without limitation, restrictions as to time, display medium, print run, placement, size, industry and territory of use.
7. Company gives no rights and makes no warranties with regard to the use of people, names, trademarks, logos, registered, unregistered or copyrighted designs or works of art depicted in any Content. Unless otherwise agreed in writing, no model, property, team logo, trademark or other releases are delivered by Company in connection with the delivery of Content. Licensee bears the responsibility of obtaining any and all necessary individual, property, team logo, trademark and other releases, approvals and clearances from third parties prior to using the Content.
8. Licensee grants to Company the irrevocable, perpetual, royalty-free, non-exclusive right and license to use samples of Licensee's End Use of Content (as such term is defined herein) solely for the promotion of Company. "End Use of Content" shall mean any end product produced by Licensee pursuant to this Agreement, including but not limited to use in magazines, books, feature films, television productions, websites, mobile sites, and other print and digital publications.
(b) Attribution. Licensee shall display a notification alongside all renditions of the Textual Content attributing the URLs of the original publisher of the data and the distributor of the data, as described in the Attribution page in the Technical Details section of our online documentation.
Licensee shall maintain any photo credit appearing on any Image Content. The photo credit shall take the following form: "[Photographer's Name]/[Third-Party Image Partner, if any]/Icon Sportswire", or as otherwise specified on Company's documentation or Content web pages. Any changes in photo credit format shall be communicated in writing by Company to Licensee. Licensee shall maintain within the electronic metadata embedded inside Image Content the copyright notice, Company name (or its relevant image-licensing division, e.g., Icon Sportswire), and image ID number as supplied within original Image Content.
Licensee must also display user restrictions, in a prominent area of every publication featuring the Content, prohibiting any subscriber or end-user from transmitting, framing, reproducing, distributing or copying the Content, as described in the Attribution page in the Technical Details section of our online documentation.
(c) Membership Information and Content Usage. Licensee shall update and keep current all membership information associated with it, including but not limited to its description of how and where it is using the Content (the "Usage Contexts"). In the event that Licensee wishes to modify the Usage Contexts it has previously provided, Licensee shall submit via Company's online technical support system a request for any such modification to Company prior to displaying the Content with such new Usage Context. The decision whether to allow any such modification in Usage Context shall be made by Company in its sole and unreviewable discretion.
Company reserves the right to withhold its approval of any application to become a Licensee based upon the Usage Contexts described for any reason whatsoever.
(d) Confidentiality: Licensee shall (i) keep its username and password for access strictly confidential and (ii) prevent unauthorized usage of its account. Licensee shall prevent unauthorized copying or distribution of the Content.
Licensee acknowledges that Confidential Information (as such term is defined herein) shall be disclosed to it by Company. Licensee shall not disclose the Confidential Information to anyone other than such party's employees, directors, officers and agents, and only in the event that such parties are required to know such Confidential Information in order to fulfill Licensee's rights and obligations under this Agreement. "Confidential Information" shall mean any proprietary or confidential information, including, without limitation, any plans or any other information relating to engineering, present or future products and services or business.
Section 5. Termination. Company may terminate this Agreement on commercially reasonable grounds at any time. For example only and not by way of limitation, Company may terminate the Agreement with a Licensee that has not purchased Content for a significant period of time. Company shall refund any unused Credits for any Licensee whose Agreement is terminated for any reason other than a material breach of this Agreement. The decision whether to refund unused Credits for Licensees whose Agreement is terminated for a material breach of this Agreement shall be made by Company in its sole and unreviewable discretion. In the event of a termination of this Agreement by Company, Licensee may no longer publish the Content.
Section 6. Ownership of Intellectual Property Rights. Licensee hereby agrees and acknowledges that Company and/or the providers of the Content retain all rights in and to the Content and that Licensee has not acquired any rights whatsoever in and to the Content except as provided herein.
Section 7. Indemnification. Licensee will indemnify, defend and hold harmless Company from and against every claim, allegation, damage, liability and obligation, including without limitation attorneys' fees and court costs (collectively, "Losses"), to the extent related to any act or omission by Licensee or its agents, employees, representatives, or clients, concerning: (a) the hosting operation, transmission, delivery, facilitating or arranging for transmission or delivery, alteration, modification, reformatting of the Content by Licensee or its agents, employees, representatives, or clients; (b) any claim that Licensee's modification or alteration of the Content infringes, violates or misappropriates any third party's copyright, U.S. patent, trademark, rights of privacy, publicity, moral rights or any other proprietary right, or violates any applicable law, rule or regulation; or (c) the breach of any representation or warranty made by Licensee.
Section 8. Limitation of Liability.
(a) Content Shall be Delivered on "As Is" Basis. The delivery of the Content shall be on an "as is" basis and, except as otherwise provided herein, Company disclaims any and all warranties, including but not limited to the implied warranties of fitness and merchantability for a particular purpose relating to this Agreement, the service, the Content, or performance under this Agreement. For example only and not by way of limitation, Company does not warrant the accuracy, timeliness, completeness, adequacy, merchantability or fitness for a particular purpose of the Content, including caption information for Image Content, and Company shall not be liable to Licensee or to any third party with respect to any actual or alleged inaccuracy, untimeliness, incompleteness, inadequacy, unmerchantability or unfitness. Licensee shall not make any statement respecting the Content that is contradictory to or inconsistent with the foregoing statements.
(b) Limitation of Damages. Company shall not be liable for any indirect, incidental, special or consequential damages, including lost profits, whether or not foreseeable, arising under or out of the performance of this Agreement, whether or not Company had any knowledge, actual or constructive, that such damages might be incurred, whether based on breach of warranty, contract, negligence or strict liability.
Section 9. Website and Content.
Company and its Content Providers retain all title, right and interest to all copyrights, trademarks and trade secrets to the content on this Site. All content is the copyright of Company and must not be used for any purpose without the limited licenses specified in this Agreement.
All elements of Company's Site, including, but not limited to, the general design and the Content, are protected by copyright, trademark and other laws relating to intellectual property rights. Except as explicitly permitted under this or another written license or agreement with Company, no portion or element of this Site or its Content may be copied or retransmitted via any means and all related rights shall remain the exclusive property of Company, its Content Providers or its third-party partners.
(a) Use of Site. This Site and its Content are intended for customers of Company. Customers includes 1) individual listed as the registrant to the Company Site or 2) registrant acting as an agent on behalf of an Employer or Third Party. Content and end use of this Site is solely for the benefit of the registrant and registrant's Employer or Third Party. Any other use of Content and this site by registrant and registrant's Employer or Third Party must be obtained through a separate agreement. Any use of the Content, this Site or any of its functionality for a purpose not permitted by this Agreement is grounds for the immediate termination of access and use of this Site without notice.
(b) Disclaimers. This site and its Content are provided by Company and its Content Providers "as is" and without any warranty of any kind, express or implied, regarding the Content, its online systems, continued access or availability or interruption of service or any rights and licenses under this Agreement. Company will not be liable for any damages arising from the use of this Site or unavailability of the Site, including, but not limited to, lost profits and direct, indirect, incidental and consequential damages.
Although Company uses reasonable efforts to ensure the accuracy, correctness and reliability of the Content, we make no representations or warranties as to the Content's accuracy, correctness or reliability. Company is not liable, nor makes any warranties, for 1) any claims made against Content which has been modified by Licensee, 2) has been combined by Licensee with other Content, text, products or materials and 3) Company has notified Licensee not to use Content prior to the start of the Term of the license for the applicable Content.
This Site may contain hyperlinks to other websites. However, these other websites are not controlled by Company and we are not responsible for any content contained on any such website or any loss or damage suffered by you in relation to your use of such websites. Company is not liable, nor makes any warranties, regarding the inclusion of links to outside websites or your use of those websites.
Company adheres to strict accounts security and privacy practices involving 1) Personal information, 2) Payment information, 3) Cookies, 4) Email. When you visit this site, information, such as your IP and email address, navigational, search, download and purchase information may be collected automatically as part of the site's operation.
Personal information is for internal purposes to process orders, maintain or update accounts, track what Content is used, and send updates about special offers, new services, special promotions, and noteworthy news and events. In addition, account information may be used by Company to create personalized content, services, and advertising on this site. Company also aggregates Site usage activity so that Company may better understand the users that are visiting our Site, including reports on the most popular search terms collected from general search term data based on individual searches.
When users visit the Company Site, a small text file called a cookie will be saved in the browser directory of the user's computer's hard drive. A cookie is a small piece of information that a website can store using the web browser and later retrieve. Cookies allow Company to make its Site more useful by storing information about preferences, including the date and time of visit, registration information, lightbox data, and navigational and purchase activity. Cookies do not personally identify an Internet user, although they do identify a user's computer. Users can set their browser's option not to accept Cookies; however, by doing so, the user may not be able to access all of the features on the Site.
Company may send email to registered users as notifications about recent orders and account updates, as well as email to inform about Company offers, updates, and features. You may opt out of email lists by un-checking the appropriate box on your online registration form or by notifying your account executive. If you did not opt out when you registered, and later decide that you are not interested in receiving information from Compnay or Company's partners, you can opt out at any time by emailing us at or speaking with your account executive.
Section 10. Miscellaneous.
(a) Notices. All notices to any party required or permitted hereunder shall be sent by email to the primary contact email supplied by Licensee and to
(b) Force Majeure. If Company is prevented from performing any of its obligations under this Agreement due to any cause beyond its control, including, without limitation, an Act of God, fire, flood, war, terrorism, strike, embargo, explosion, government regulation, civil or military authority, acts or omissions of vandals or hackers (a "Force Majeure Event") the time for Company to rectify any problems will be extended for the period of the delay or the inability to perform due to such occurrence.
(c) Limits on Authority. Nothing in this Agreement shall be construed to make the parties hereto partners or joint venturers. Except as provided herein, neither party shall have the authority to bind the other without the other party's prior written consent.
(d) Governing Law. The provisions of this Agreement shall be governed by and in accordance with the laws of the State of Delaware without regard to conflict of law principles thereof. Except as required herein, the parties agree to submit for final resolution of any disputes to the jurisdiction of the Supreme Court of the State of Delaware. In the event of a dispute over breach of the Agreement between Company and Licensee where Company prevails, Company shall be entitled to recover its reasonable legal expenses and court costs.
(e) No Assignment. Licensee may not assign its rights and obligations under this Agreement, in whole or in part, without the prior written consent of Company, which such consent shall not be unreasonably withheld.
(f) Survival. Those sections in this Agreement covering Confidentiality and Limitation of Liability shall survive any termination of this Agreement.
(g) Severability. In the event any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law. Other provisions of this Agreement shall remain in full force and effect.
(h) No Modification. No modification or amendment of this Agreement shall be binding unless in writing and executed by the parties hereto.