1 OPERATION OF THIS AGREEMENT
1.1 General
1. (a) These terms and conditions, together with Orders, Modern Football’s Privacy Policy and the Data Protection Addendum (DPA) described in clause 14(b), govern the supply and use of the Equipment, Software and Services.
2. (b) These terms and conditions are version v0.27.
1.2 Orders for Equipment, Accessories, Software and Services
1. (a) You and Modern Football may enter into Orders for Equipment, Accessories, Software and Services from time to time.
2. (b) Modern Football will submit draft orders to you. You may accept or reject any draft order you receive from you. A draft order becomes an Order when you notify Modern Football that you accept the draft order. If you make any amendments to the draft order, your proposed amended order is a counteroffer that Modern Football can accept or reject in its discretion.
3. (c) When a draft order is accepted and executed by you, a separate agreement is formed between the parties for the Equipment, Accessories, Software and Services to be supplied. The terms and conditions of that separate agreement comprise the terms and conditions of this agreement (which are incorporated in each Order) and the terms and conditions of that Order.
4. (d) A reference in these terms and conditions to ‘this agreement’ includes the Order for the purposes of the incorporation of the terms and conditions of this agreement into that Order.
1.3 Outright Purchases and Subscriptions
1. (a) Modern Football offers two different commercial models for you to procure the supply of Software and Services (and the associated Equipment as applicable depending on the specific Order):
1. (i) Outright Purchase, where you purchase the Software and receive title to the Software on payment of the Fees; or
2. (ii) Subscription, where Modern Football retains the title to the Software and makes the Software available to you for use by you and your Personnel subject to the ongoing payment of the Fees.
2. (b) The Order will specify whether Software is acquired and supplied as an Outright Purchase or a Subscription.
3. (c) Some of the provisions in this agreement apply differently depending on whether you and Modern Football have agreed an Outright Purchase or Subscription under the Order, and this agreement indicates which provisions are applicable in each instance.
4. (d) For clarity, Accessories are only available to be purchased outright (so that you acquire title in the Accessories), and cannot be supplied on a subscription basis.
2 TERM
This agreement starts on the Commencement Date and continues for the period specified in the Order (the Term) unless terminated earlier under clause 18.
3 MODERN FOOTBALL’S OBLIGATIONS
3.1 General
Modern Football must provide and make available to you:
1. (a) the Equipment and Accessories (as applicable depending on the Order);
2. (b) the Software;
3. (c) the Services,
during the Term subject to the terms of this agreement.
3.2 Performance of the Services
Modern Football must perform the Services with due care and skill.
4 SUPPLY OF EQUIPMENT AND ACCESSORIES
4.1 General
(a) You must use the Equipment, and procure that your Personnel use the Equipment, only in accordance with the Documentation.
(b) Subject to Modern Football receiving payment of the amount specified in the Order and invoiced to you in advance of delivery, Modern Football will deliver the Equipment and Accessories to you at the delivery address specified in the Order. Any delivery dates specified in an Order are estimates only and Modern Football is not obligated to deliver the Equipment and Accessories on that delivery date.
(c) Risk in the Equipment will pass to the you when the Equipment is shipped from the Modern Football premises.
4.2 Supply of Equipment – Subscription
This clause 4.2 applies to Subscriptions only
Where and to the extent the Equipment is procured on behalf of Customer on a Subscription basis:
(a) Modern Football will source and procure the Equipment during the Term (as applicable depending on the Order). Title in, and ownership of, Equipment will be the Customers at all times;
(b) you must:
1. (i) keep the Equipment in good order and repair (reasonable wear and tear excepted);
2. (ii) notify Modern Football within 24 hours of becoming aware that any Equipment has been lost, stolen, damaged or destroyed, or has become inoperable;
3. (iii) not sell, dispose of, sub-license or encumber the Equipment in any way (or attempt to do the same);
4. (iv) not make any alteration, modification or repairs (or similar) to the Equipment without the prior written consent of Modern Football; and
(c) to the maximum extent permitted by law, you indemnify, and must keep indemnified, each Modern Football Group Company and their respective Personnel (together, Modern Football Indemnified Persons) from and against:
1. (i) all Losses that the Modern Football Indemnified Persons incur arising out of or in connection with any loss of or damage to the Software; and
2. (ii) the payment of any deductible amount on an insurance policy maintained by Modern Football (or a Modern Football Group Company) in respect of the Software.
Your liability under this paragraph (c) is not subject to any limit or exclusion of liability under clause 17.2.
4.3 Supply of Equipment – Outright Purchase
This clause 4.3 applies to Outright Purchases only
Where and to the extent the Equipment is procured on behalf of Customer as an Outright Purchase:
1. (a) title in, and ownership of, Equipment will remain with Modern Football (and will not pass to you) until you have paid Modern Football in full for that Equipment;
2. (b) until such time as title in any Equipment passes to you under paragraph 4.2(a), you hold that Equipment (Unpaid Goods) as the fiduciary agent and bailee of Modern Football and must ensure that the Unpaid Goods are clearly identifiable as the property of Modern Football and are properly stored and protected and remain fully insured. You must not sell or otherwise dispose of or deal in the Unpaid Goods; and
3. (c) without limiting any other rights, Modern Football is entitled to dispose of any repossessed Unpaid Goods and apply the proceeds of sale to your indebtedness to Modern Football.
4.4 Supply of Accessories
Title in, and ownership of, Accessories will remain with Modern Football (and will not pass to the Company) until the Company has paid Modern Football in full for those Accessories.
5 SUPPLY OF SOFTWARE
5.1 Grant of license and usage rights (a) Modern Football grants to you:
1. (i) a non-exclusive, non-transferable, perpetual license to use the Local Software; and
2. (ii) a non-exclusive, non-transferable, right to access the Cloud Services during the Term, in connection with your use of the Equipment and subject to the following:
3. (iii) You must not use the Local Software and Cloud Services to provide services, including performance monitoring services or the supply of performance data, and in-game decision making to third parties;
4. (iv) you must comply with, and ensure that users of the Software accept and comply with, the terms of the then-current EULA. The EULA is the end user license agreement presented to users at the time of registering for the Cloud Services, using the Cloud Services or using Local Software (as applicable depending on the specific item of Software).
(b) The license and right of access granted under paragraph (a) do not include the right to sub-license, grant access to or otherwise provide the Software to any third party.
5.2 Delivery of Local Software; access to Cloud Services
1. (a) Modern Football will deliver the Local Software to you at the delivery address specified in the Order on or around the specified delivery date.
2. (b) Modern Football must provide you with access to and use of the Cloud Services via the method specified by Modern Football from time to time.
5.3 Changes to Local Software
1. (a) During the Term, Modern Football will provide to you all patches and updates of the Local Software made generally available by Modern Football to Subscribers of the Software at no additional cost.
2. (b) You acknowledge and agree that each patch and update will be automatically downloaded and installed by the Software at a time determined by Modern Football, with or without notice from Modern Football.
3. (c) You must always use the latest versions and updates of the Local Software as provided by Modern Football.
5.4 Changes to Cloud Services
Modern Football may correct errors, change, add or delete the functions, features, performance, or other characteristics of the Cloud Services from time to time.
6 SUPPLY OF SERVICES
6.1 Training
Modern Football must provide the training (if any) specified in the Order in the manner and for the Fee specified in that Order.
6.2 Software Maintenance Services
Modern Football must provide the Software Maintenance Services.
7 REPAIR AND REPLACEMENT
1. (a) If you believe the Software requires repair or replacement, you must deliver the Equipment to Modern Football’s nominated services center, at your risk and cost, for analysis by Modern Football.
2. (b) Modern Football will examine the Equipment delivered to it and if Modern Football determines (acting reasonably) that the Equipment is:
1. (i) Warranted Equipment, then Modern Football will repair or replace (at its option) such Warranted Equipment, and deliver the repaired or replacement Equipment to you at Modern Football’s cost and reimburse you for the costs of delivering the Equipment to the nominated services center; or
2. (ii) is not Warranted Equipment, then Modern Football will notify you of that determination and will, at your cost, repair or replace (at Modern Football’s option) the Equipment and deliver repaired or replacement Equipment to you. The costs will be determined in accordance with Modern Football’s then-current standard rates, and will include Modern Football’s then-current minimum inspection fee for Equipment returned to Modern Football, plus parts, labor and return delivery costs. Modern Football will invoice you for these costs at or around the time of sending the repaired or replacement Equipment to you.
8 YOUR OBLIGATIONS
1. (a) Subject to paragraph 17.2(e), you are responsible for all risks arising out of or in connection with the possession, operation and use of the Equipment and Software by you and your Affiliates, and their respective Personnel.
2. (b) You must ensure that your Personnel comply with the terms of this agreement, and you are liable for the acts and omissions of your Personnel as if they were your acts and omissions.
3. (c) You must, and you warrant that you have, obtained all necessary rights, permissions and consents from each Equipment and Software User to permit Modern Football to do the things, and exercise the rights, set out or referenced in clauses 13(b) and 14.
(d) You must procure that each user of the Software keeps their individual login details for the Software secure and confidential and does not permit any other person to use that user’s individual login details.
(e) You are responsible for and must provide all computers, hardware, software, networks and other equipment and services necessary to access and make use of the Software.
(f) You are responsible for implementing and maintaining, and must implement and maintain, adequate back-up and recovery procedures to protect and preserve the Data.
(g) You must not, and must ensure that your Personnel do not:
(i) reverse engineer, reverse compile, decompile or disassemble the object code of any part of the Software or otherwise attempt to derive the source code of the Software;
(ii) use the Cloud Services unlawfully, fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Cloud Services or systems;
(iii) transmit or process via the Cloud Services any material that is defamatory, offensive or otherwise objectionable;
(iv) use the Cloud Services in a way that could damage, disable, overburden, impair or compromise Modern Football’s systems or security or interfere with other users; and
(v) collect or harvest any information or data, or attempt to decipher any transmissions to or from the systems used by Modern Football.
9 FEES AND PAYMENT
(a) You will pay Modern Football the fees payable in accordance with this agreement within 30 days of your receipt of a invoice.
(b) If any taxes, charges, duties, levies or fees (Taxes) are required by law to be withheld from any payment for any good or service provided by Modern Football under this agreement, you must gross up such payment such that the balance payable to Modern Football after deduction of the applicable withholding taxes shall be equivalent to the original amount due to Modern Football. In the event any avoidance of double taxation treaty is applicable to such payments, Modern Football will cooperate with you to obtain the full benefit of that treaty.
(c) If you do not pay any amount owing to Modern Football by the due date for such payment, Modern Football may:
(i) on 5 Business Days’ notice to you, suspend, limit or restrict your access to the Software and/or suspend the performance of any of Modern Football’s other obligations to you until such amount is paid in full; and/or
(ii) charge interest on the amount outstanding at the rate of 10% per annum (or the maximum rate permitted by law, if lower), calculated from and including the date on which the payment became due until the date on which the payment is made. You must pay the interest on Modern Football’s written demand.
10 TAXES
10.1 Sales taxes
An Order may set out provisions relating to the collection and payment of sales, valued added and similar taxes applicable to that Order.
10.2 Withholding tax
All payments to be made under this agreement must be made without any deduction or set-off and free and clear of, and without deduction for or on account of, any taxes, levies, imports, duties, charges, fees and withholdings of any kind and whether imposed by any governmental or any other authority, except as required by law. If you are required by law to make any such deduction, you must pay to Modern Football such additional amounts as are necessary to ensure that Modern Football receives the full amount which it would have received but for the deduction.
11 INTELLECTUAL PROPERTY
(a) Each party will retain its Pre-existing IPR and nothing in this agreement assigns or transfers the Pre-existing IPR of one party to the other.
(b) Modern Football grants to you a worldwide, royalty-free, perpetual, non-exclusive license to use the IPR in the Documentation for the purposes of making use of the Equipment and Software.
12 CONFIDENTIALITY
(a) A recipient of Confidential Information may only use the Confidential Information of the discloser for the purposes of performing the recipient’s obligations or exercising the recipient’s rights under this agreement.
(b) A recipient must:
(i) not disclose the Confidential Information of the other to any person except if this agreement permits;
(ii) not assist or permit any person to make any unauthorized use of the discloser’s Confidential Information;
(iii) take reasonable steps to safeguard the Confidential Information, including co-operating with the discloser as reasonably required to protect the confidentiality of its Confidential Information.
(c) A recipient may disclose Confidential Information to:
1. (i) its Representatives on a “need to know basis”; or
2. (ii) any other person only with the discloser’s prior written consent.
Before doing so, the recipient must ensure that those persons are aware of the confidential nature of the Confidential Information and are bound by confidentiality obligations consistent with this agreement.
(d) On expiry or termination of the agreement, you must destroy and certify the destruction of all documents and other materials in any medium in your possession or control which contain or refer to Modern Football’s Confidential Information. However, you may retain a single copy of any document or other material containing or referring to the Confidential Information to the extent you are required to do so by law.
13 DATA
(a) Data is and remains your property at all times.
(b) You agree that Modern Football may, and grant Modern Football the rights to:
1. (i) access, use, adapt, modify, reproduce, reformat, transform, and process the Data during the Term to the extent necessary to provide the Equipment, Software and Services and to otherwise perform Modern Football’s obligations under this agreement;
2. (ii) during or after the Term create Derivative Materials from the Data, only to extent that the Derivative Materials do not incorporate your Confidential Information in a form that could reasonably identify any individual; and
3. (iii) during or after the Term use information about you, users of the Equipment and Software, or your use of the Equipment, Software and Services, for the purpose of improving the Equipment, Software and Services, detecting and addressing threats to the functionality, security, integrity and availability of the Software, detecting and addressing breaches of this agreement or any of Modern Football’s other policies and to help Modern Football to resolve service requests.
(c) Subject to paragraph (a), any IPR in any Derivative Materials vest in Modern Football absolutely immediately on creation.
14 PRIVACY
1. (a) Each party must:
1. (i) collect, process, store and use personal data in accordance with applicable privacy law and consistent with the consent provided by each data subject;
2. (ii) comply with its own privacy policy;
3. (iii) maintain and enforce appropriate technical and organizational measures to protect its information technology systems for the protection of personal data;
4. (iv) inform the other party of any request from a data subject regarding their personal data and the action being taken to comply with such request.
2. (b) You confirm that you have obtained written consent, in accordance with any applicable privacy law, from all data subjects whose personal data is collected, stored or processed in accordance with this agreement
3. (c) Each party agrees to comply with their respective obligations as set out in the DPA at www.Teammofo.com which is incorporated in, and forms part, of this agreement.
15 AUDIT
Modern Football may:
1. (a) monitor your usage of the Software; and
2. (b) on reasonable notice audit your systems and records relating to the use of the Software and Equipment,
for the purposes of verifying your compliance with the terms of this agreement.
16 WARRANTIES
16.1 Modern Football warranties
Modern Football represents and warrants to you that:
1. (a) no Service or Software, or the use of any of the foregoing, will result in any unauthorized use of the rights (including IPR) of any person; and
2. (b) 3rd party Equipment and measuring devices are not warranted by Modern Football.
16.2 Disclaimer
(a) Subject to clause 16.1 and paragraphs 16.2(b) and 17.2(e), Modern Football excludes and disclaims to the maximum extent permitted by law all guarantees, conditions, warranties or terms of any kind, whether express or implied or imposed by any applicable law.
(b) Some jurisdictions do not allow the exclusion of guarantees, conditions, warranties or terms implied or imposed by any applicable law. Nothing in this agreement excludes, restricts or modifies any guarantee, warranty, term or condition, right or remedy implied or imposed by any applicable law which cannot lawfully be excluded, restricted or modified.
17 INDEMNITIES AND LIABILITY
17.1 Indemnities
1. (a) Modern Football indemnifies you and your employees, officers, agents and contractors from and against all losses, damages, liability, costs and expenses sustained or incurred by those indemnified and which arise out of or in connection with any demand, allegation, claim or action that the Equipment, Software or Services, or their use, infringe the rights (including any IPR) of any person (Third Party IP Claim).
2. (b) You must:
1. (i) as soon as reasonably practicable, notify Modern Football if you become aware of any Third-Party IP Claim;
2. (ii) to the extent permitted by law and Modern Football’s sole expense, permit Modern Football to conduct the defense or settlement of any Third-Party IP Claim; and
3. (iii) provide Modern Football with reasonable assistance in conducting the defense or settlement of any Third-Party IP Claim if requested by Modern Football and at Modern Football’s sole expense, and Modern Football’s liability under this clause 17.1 is limited to the extent that your failure or delay to do any of these things prejudices Modern Football’s ability to defend or settle the Third-Party IP Claim.
3. (c) Modern Football’s liability under this clause 17.1 is not subject to any limit or exclusion of liability under clause 17.2.
17.2 Liability
(a) To the extent permitted by law and except as otherwise expressly set out in this agreement:
(i) the liability of a party under or in respect of an Order is limited in the aggregate to an amount equal to the amounts paid and payable by you under that Order; and
(ii) a party is not liable to the other party for:
(A) any special, indirect, incidental or consequential loss or punitive loss or damage; or
(B) loss of profits, revenue, business, goodwill, bargain, anticipated savings or management time, whether or not the first party was aware of should have been aware of the possibility of such loss or damage.
(b) If any guarantee, condition, warranty or term is implied or imposed by any applicable law and cannot be excluded (a Non-Excludable Provision), and Modern Football is able to limit your remedy for a breach of the Non-Excludable Provision, then Modern Football’s liability for breach of the Non-Excludable Provision is limited exclusively (so far as applicable laws do not prohibit) to one or more of the following at Modern Football’s option:
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
(c) To the extent permitted by law, a party’s liability to the other party under or in connection with the agreement is reduced to the extent, if any, to which the other party’s acts or omissions cause or contribute to its own loss or damage.
(d) The limitations and exclusions of the liability set out in this clause 17 apply regardless of the basis on which such liability arises, whether in contract, breach of statutory duty, tort (including negligence), in equity or under statute.
(e) Nothing in this Agreement shall exclude or limit either party’s liability for death or personal injury caused by its (or its agent’s or sub-contractor’s) negligence or for fraud or fraudulent misrepresentation or for any other liability that cannot, as a matter of law, be limited or excluded.
18 FORCE MAJEURE
1. (a) A party will be relieved of its obligations (other than an obligation to pay money) to the extent those obligations are prevented by an event outside the reasonable control of the party and that event:
(i) was not caused or contributed to by that party;
(ii) could not have been prevented by reasonable precautions or remedied by reasonable expenditure by the party which is seeking to rely on the event as the basis for relief,
and such relief will continue for the duration of that event.
2. (b) The party affected by the event must take all reasonable steps to resume the performance of its affected obligations as soon as reasonably possible.
19 TERMINATION
(a) Without limiting any other rights which a party may have at law, a party may immediately terminate this agreement by written notice to the other party if the other party:
(i) breaches a material term or condition of this agreement (including any of clauses 4, 5, 8, 9, 11, 12, 13, 14 and 20); or
(ii) breaches a non-material term of this agreement and fails to remedy such breach within 30 days of receipt of a written notice from the other party requiring it to do so; or
(iii) the party becomes insolvent, bankrupt, or becomes subject to a presumption of insolvency under any laws, suffers a meeting of its creditors, has any sort of administrator or receiver appointed in respect of any of its assets, executes a deed of company arrangement, has a petition presented to appoint any such administrator or receiver, is unable to pay its debts or threatens or ceases to carry on its business or suffers any execution which remains unsatisfied for 10 days or anything similar or equivalent to any of these things.
(b) The rights and obligations under clauses 12, 13, 17 and 20 and any other clause which by its nature is intended to survive the termination of expiry of this agreement will continue in full force and effect after this agreement ends.
(c) All rights that a party has accrued before the agreement ends continue after expiry or termination.
20 PUBLICITY
(a) Subject to paragraph (b), a party must not make any public statement about this agreement, the subject matter of this agreement or its relationship with the other party without the other party’s prior written approval.
(b) You agree that Modern Football may use your name and logo in Modern Football’s customer lists and marketing materials in an informative manner and in a manner no more materially prominent than any other Modern Football Group customer in those lists and materials, during and after the Term.
21 NOTICES
Any notice or other communication that is required or permitted to be given under this agreement will be given in writing and may be delivered by hand or sent by mail to the applicable address specified in the Order or as otherwise advised from time to time.
22 GENERAL
(a) This agreement forms the entire agreement between Modern Football and you in relation to its subject matter and replaces all previous agreements, arrangements, understandings, representations or other communications between the parties in relation to that subject matter.
(b) Any changes to this agreement must be agreed in writing by Modern Football and you.
(c) This agreement is governed by the laws of Delaware, United States and the parties submit to the jurisdiction of the courts of Delaware.
(d) A person who is not a party to this Agreement has no right under this Agreement, pursuant to Contracts (Rights of Third Parties) Act 1999, to enforce any term of this Agreement but this does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
(e) No waiver of a right or remedy under this agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted. A single or partial exercise of a right or remedy under this agreement does not prevent a further exercise of that or of any other right or remedy.
(f) Any provision of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The remainder of this agreement will remain in full force and effect.
(g) The words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as nor are intended to be interpreted as words of limitation.
(h) Unless context requires otherwise, a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;
(iii) a party includes its successors and permitted assigns;
(iv) a document includes all amendments or supplements to, or replacements of, that document;
(v) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced.
(i) This agreement may be executed in any number of counterparts, each of which, when executed, is an original. Those counterparts together make one instrument.
23 DEFINITIONS
Accessories means garments, pouches and vests (and similar) and any other items specified in an Order to be ‘Accessories’.
Affiliate means, in respect of an entity or other person, an entity or other person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, that entity or other person.
Modern Football means the relevant Modern Football entity specified in the Order.
Modern Football Inc. means Modern Football and its Affiliates. Modern Football Company means a member of Modern Football Inc.
Cloud Services means the services specified in the Order as Cloud Services, which are ‘software as a service’ services hosted by Modern Football and made available to you via the internet.
Commencement Date means the date so specified in the Order.
Confidential Information means in relation to a party, information that is by its nature confidential, is designated by that party as confidential, or the other party knows or ought reasonably to know is confidential, and includes any information relating to the financial affairs, assets or liability of a party, or any information relating to the internal management of a party, its personnel, policies, plans, strategies, customers, suppliers, products or services. Confidential Information does not include information or material which:
(a) is or becomes generally known to the public other than through a breach of this agreement;
(b) at the time it was first disclosed to a party, was already in that party’s lawful possession;
(c) is developed independently by a party; or
(d) is disclosed to a party by a third party entitled to disclose it.
Data means all data and information created, about or relating to you and Equipment Users that is entered into, stored in, generated by or processed by the Software, and includes tendency, biometric, athlete performance-related and capability-related data.
Derivative Materials means materials, data and insights created by or on behalf of Modern Football and which are based on, or created or derived from, the Data.
Documentation means the user manuals and online documentation which are provided by or on behalf of Modern Football to you Customer.
Equipment means the equipment purchased and provided as described in the Order.
Equipment User means those coaches, athletes and individuals that are monitored and measured using the Equipment and Software.
EULA has the meaning given in clause 5.1(a)(v).
Fee means an amount payable in accordance with clause 9.
GST Law has the meaning in clause 10.2(c)
IPR means all industrial and intellectual property rights of any kind including copyright, patents, trademarks, design, moral rights and other proprietary rights.
Local Software means the items of software specified in the Order as Local Software Services, which are made available to you for installation and use on computers and systems operated by you.
Non-Excludable Provision has the meaning in clause 17.2(b)
Order means an order form for Equipment, Software, Accessories and/or Services in the format specified by Modern Football from time to time and which is accepted and executed by Modern Football as contemplated in clause 1.2.
Outright Purchase has the meaning given in clause 1.3(a)(i).
Personnel of a party means officers, employees, contractors, agents, subcontractors and professional advisors of that party, and includes officers, employees, contractors, agents and subcontractors of any subcontractor.
Pre-existing IPR means a person’s IPR existing prior to the Commencement Date or subsequently brought into existence other than in the course of performing this agreement (including any improvements, modifications or developments of such IPR).
Representatives means, in relation to each party, any person acting for or on behalf of that party and includes any director, officer, employee, agent, contractor, legal advisor or professional advisor.
Services means:
1. (a) the training services (if any) set out in the
Order; and
2. (b) the Software Maintenance Services.
Software means the Local Software and the Cloud Services.
Software Maintenance Services means the services described in Appendix A to these terms and conditions.
Subscription has the meaning given in clause 1.3(a)(ii).
Taxes has the meaning in clause9(b).
Term has the meaning given in clause 2.
Third Party IP Claim has the meaning given in clause 17.1(a)
Unpaid Goods has the meaning in clause 4.3(b).
Warranted Equipment has the meaning given in clause 7(a).
Appendix A – Software Maintenance Services
1 MODERN FOOTBALL SUPPORT
1. (a) Modern Football will use its reasonable endeavors to operate and maintain Modern Football Support between the hours of 9.00 a.m. and 5.00 p.m. Monday to Friday, excluding public holidays, in the United States (for customers in the Americas), as applicable (Hours of Service).
2. (b) You may contact Modern Football Support:
1. (i) by phone on +1-310-526-8424; or
2. (ii) by email on Support@Teammofo.com.
3. (c) Modern Football will acknowledge receipt of each notification to the help desk as soon as practicable. For notifications received by telephone, Modern Football is required to immediately acknowledge receipt during Hours of Support only. If, for any reason, Modern Football is unable to respond to a help desk notification during the Hours of Service, Modern Football will use its reasonable endeavors to respond to such message following the recommencement of the Hours of Service.
4. (d) Modern Football will use its reasonable endeavors to respond to messages received by Modern Football Support outside of the Hours of Service following the recommencement of the Hours of Service.
2 SUPPORT REQUESTS
2.1 Troubleshooting
1. (a) You must first work through the applicable Support Troubleshooting Guides provided on Modern Football’s portal prior to submitting any Support Request to Modern Football.
2. (b) If you are unable to resolve any actual or suspected issue having worked through the Support Troubleshooting Guide, you must submit a reasonably detailed Support Request to Modern Football Support via the “Submit a Request” feature at Support@Teammofo.com.
2.2 Qualified Employees
You must provide on Modern Football’s request suitably qualified and informed Personnel to provide assistance and information to Modern Football, including with respect to knowledge or control of matters that may assist Modern Football in performing its obligations under this agreement.
2.3 Modern Football Response
Modern Football will determine the nature, potential severity and impact of the issue giving rise to your Support Request and consistent with your product type, Modern Football will during the Hours of Service investigate the problem and respond to you where reasonably possible within one Business Day from the time of the first telephone consultation with you and will, as and when necessary, provide you with the following information by email response:
1. (a) an outline of the problem;
2. (b) the proposed corrective action; and
3. (c) to the extent possible, the proposed timeframe for performing such corrective action.
3 EXCLUDED SERVICES
The following matters are outside the scope of the Software Maintenance Services:
(a) any maintenance services in respect of superseded versions of the Software;
(b) correction of Errors caused by operation of the Software in a manner other than that expressly authorized by this agreement or the Documentation;
(c) consulting and training services;
(d) making changes to the Software designed to provide functionality not specified in the Documentation or this agreement;
(e) reviewing or advising in relation to the method of use of the Software or its integration with any of your systems or processes;
(f) maintenance of any computers, hardware, software, networks and other equipment and services necessary to access and make use of the Software.
4 DEFINITIONS
(a) Modern Football Support means the support service described in clause 1(a) of Appendix A.
(b) Excluded Services has the meaning given in clause 3 of Appendix A.
(c) Hours of Service h as the meaning given in clause 1(a) of Appendix A.