THIS N-LITE PERFORMANCE INC. SAAS SUBSCRIPTION AGREEMENT is entered into as a global master agreement by and between N-LITE Performance Inc. defined in Section 1 (“N-LITE”) and Customer (“Customer” or “You”) (on behalf of itself and its Affiliates, for whom Customer agrees it is responsible under this Agreement). By using the N-LITE Service or Support, clicking Agree, or electronically or manually signing a Services Order Form, you (“Customer”) agree to be bound by this Subscription Agreement. Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement. This Agreement shall be effective on the date fully executed by the parties (the “Effective Date”).
If you are agreeing to this Agreement on behalf of or for the benefit of a company, organization, or other entity, or another individual, then you represent and warrant that you have the necessary authority to agree to this agreement on behalf of that company, organization, other entity or individual. If you do not have that authority, or if you do not agree to the terms of this agreement, you must not accept this agreement and may not use our products or services.
BY AGREEING TO BE BOUND BY THIS AGREEMENT THE CUSTOMER AGREES TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT AND THE CUSTOMER IS PERMITTED TO PROCEED TO ACCESS THE SERVICES. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, N-LITE IS UNWILLING TO GRANT CUSTOMER ANY RIGHTS TO USE THE SERVICES, AND CUSTOMER MUST STOP INSTALLING AND ACCESSING THE SERVICES.
N-LITE IS NOT A HEALTH CARE PROVIDER OR BUSINESS ASSOCIATE OR INSURER AND AS A RESULT HIPAA IS NOT APPLICABLE. HOWEVER, N-LITE PLACES EXTREME VALUE ON DATA SECURITY AND PRIVACY AND CUSTOMER AND N-LITE BOTH AGREE TO PROTECT ALL DATA AND INFORMATION THAT IS UPLOADED ONTO THE SERVICES BY CUSTOMER OR ANY THIRD PARTIES THAT CUSTOMER REQUESTS INFORMATION FROM THAT ALSO USES THE SERVICES
1.1 “Affiliate” means with respect to a party, any person or entity that controls, is controlled by, or is under common control with that party, where “control” means ownership of more than fifty percent (50%) of the outstanding voting securities (but only as long as that person or entity meets this requirement).
1.2 “Agreement” means, collectively, this N-LITE SaaS Subscription Agreement, any Statement of Work and Order Form agreed to by the parties, as well as any attached or referenced exhibits or schedules, and amendments to this Agreement, each of which are incorporated into the Agreement by this reference.
1.3 “Athlete” means any player athlete age 13 or over who executes the N-LITE End User License Agreement (EULA).
1.4 “N-LITE” means one of the following entities and includes any Affiliate identified on an Order Form or Statement of Work:
(a) “N-LITE Performance Inc” means N-LITE Performance Inc. 910 Foulk Road, Suite 201, Wilmington, DE, 19803.
1.5 “N-LITE Service” “Services” or “Application” means collectively N-LITE’s hosted software application called “N-LITE Next Level ID Tracking Engine” accessible by Authorized Users and Administrative Users solely for the internal business operations of Customer during the Term as ordered by Customer in an Order Form with Schedule, as specified in an Order Form, and new features, functionality, enhancements, upgrades, error corrections and bug fixes to the N-LITE Service that N-LITE makes generally available for no additional charge to Customers. The N-LITE Service is a proprietary software-as-a-service application that enables sports coaches and trainers to track and measure the performance of athletes (the “N-LITE Service” or “Services”). The functionality and description of the features of the N-LITE Service are contained in Our Documentation.
“N-LITE Training Data” means the dataset or sets of data that are used by N-LITE to train and improve the performance of its AI algorithms and models offered by the N-LITE Service. This Agreement does not transfer to Customer any ownership of N-LITE Training Data or any right to access or use N-LITE Training Data.
"Customer AI training data" refers to the dataset or sets of data that are provided or generated by Customer to train and improve the performance of its AI algorithms and models offered by the N-LITE Service. Customer hereby grants N-LITE a perpetual, irrevocable, worldwide, royalty-free license to reproduce, modify, and otherwise access and use Customer Training Data (including without limitation Prompts) to train and otherwise modify the N-LITE products and Services, with the right to sublicense any such right to N-LITE’s contractors supporting such training or modification. N-LITE has no obligation to report on use of Customer Training Data.
1.6 “Authorized User” or “End User” means a named person who is authorized to use the N-LITE Service under a valid subscription or other right granted by N-LITE to Customer, and has been supplied access to the N-LITE Service via a user identification and password by Customer (or by N-LITE at Customer’s request).
1.7 "Customer" means the company, organization, other entity, or individual on behalf of which this Agreement is accepted, as described above, which includes but is not limited to a director or coach of a sports club, high school athletic director or or owner of a college recruiting consulting business.
1.8 “Customer Data” means all electronic data or personal information submitted, uploaded, imported, processed through, collected from, made available by, produced by or resulting from Customer and its authorized users use of the Services during the Term to or through the N-LITE Service for processing, and the outputs and modifications to that data obtained from such processing. Customer Data includes any third party personal information and electronic data (“third party data”) as defined below. All Customer Data has been designed, created and provided solely by Customer, its Authorized Users or by third parties on its behalf without the participation or involvement of N-LITE. Customer is primarily responsible for the Customer Data, and for all activity in its Services accounts that is authorized by Customer or results from Customer’s acts or omissions. Customer is responsible for ensuring that it has all the rights and permissions needed to use the Customer Data in connection with the Services. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data entered into or inputted into the Services. N-LITE assumes no responsibility for the accuracy, legality, propriety, or usefulness to Customer of the Customer Data. Customer acknowledges that it owns all of the Customer Data or has all rights to grant such licenses to N-LITE to use such Information in furtherance of providing the Services without infringement or violation of any third party rights. N-LITE shall not be liable to Customer or any third-parties for any loss, damage or expense whatsoever and howsoever arising from any Customer Data entered into the Services by Customer or by an entity on its behalf. Customer acknowledges that N-LITE will rely on the accuracy of the Customer Data provided to N-LITE by Customer as it performs its requested functions under this Agreement. N-LITE provides no warranties, representations or indemnification to Customer for its access to, and use of the Customer Data. Customer grants N-LITE a revocable license to process, store and use Customer Data as permitted in this Agreement. Customer grants N-LITE a revocable license to use the Customer Data to train Artificial Intelligence (AI) Models.
1.9 “Documentation” OR “FAQ” means the online help materials describing the features and functionality of the N-LITE Service that N-LITE provides for Customer’s use with the N-LITE Service, as may be updated by N-LITE from time to time.
1.10 “Intellectual Property Rights” means patents, patent applications, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection.
1.11 “Order Form” means a document signed by and between both N-LITE and Customer (including Affiliates of either party that enter into an Order Form) that references this Agreement and details the N-LITE Service or Professional Service(s) to be provided by N-LITE, the fees associated therewith, and any other transaction-specific provisions.
1.12 “Statement of Work” or “SOW” means a document (including an Order Form to the extent referencing Professional Services) signed by and between both N-LITE and Customer (including Affiliates of either party that enter into a Statement of Work) that references this Agreement and describes the activities and deliverables for implementation, training or other Professional Services related to Customer’s use of the N-LITE Service.
1.13 “Subscription Term(s)” means the subscription period(s) specified in an Order Form during which Authorized Users may use the N-LITE Service, subject to the terms of the Agreement.
1.14 “Third Party Data” means all data of any kind including personal information that can identify a third party (“third party”) individual personally that is submitted, uploaded, imported, processed through, collected from, made available by, produced by or resulting from Customer, its authorized users, and player athletes and their use of the Services during the Term. Third Party Data may include the name, email addresses, telephone numbers and information of any person logging in to the Services or any information pertaining to third parties including information that is inputted by Customer into the Services including birth dates, social security numbers, and personally identifiable information (PII) including but not limited to financial information, and information whether any athlete or player has any allergies or takes any medications.
2.1 N-LITE Service; Access Right. N-LITE shall host and make the N-LITE Service available to Customer during the Subscription Term(s) as described on one or more Order Form(s). The N-LITE Service includes the features and functionality applicable to the N-LITE Service as ordered by Customer. N-LITE shall host the N-LITE Service and may update the content, functionality, and user interface of the N-LITE Service from time to time in its sole discretion. Some features and functionality may be available only with certain versions or editions of the N-LITE Service, or subject to additional fees or additional provisions.
2.2 Access and Usage Restrictions. Customer has a non-exclusive, non-sublicensable, non transferable (except as specifically permitted in this Agreement) right to access and use the N-LITE Service under this Agreement during the applicable Subscription Term, solely for Customer’s internal business purposes relating to the processing of Customer Data subject to the limitations stated in the Order Form(s). Unless otherwise specifically permitted in this Agreement, Customer shall not (a) sublicense, sell, transfer, assign, distribute or otherwise grant or enable access to the N-LITE Service in a manner that allows access or use of the N-LITE Service by an individual who is not an Authorized User, or to commercially exploit the N-LITE Service; (b) copy, modify or create derivative works based on the N-LITE Service (for the sake of clarity, inputting Customer Data is not considered a creation of a derivative work); (c) reverse engineer or decompile the N-LITE Service (except to the extent permitted by applicable law and only if N-LITE fails to provide permitted interface information within a reasonable period of time after Customer’s written request); (d) copy any features, functions or graphics of the N-LITE Service; (e) use the N-LITE Service to develop machine learning models or related technology; (f) allow Authorized User subscriptions to be shared or used by more than one individual Authorized User (except that Authorized User subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the N-LITE Service for any purpose, whether by termination of employment or other change in job status or function); or (g) access or use the N-LITE Service except as expressly permitted under this Agreement; and (h) access or use the N-LITE Service (i) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (ii) in violation of applicable laws; (iii) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (iv) in a manner that interferes with or disrupts the integrity or performance of the N-LITE Service (or the data contained in the N-LITE Service); or (v) to gain unauthorized access to the N-LITE Service (including unauthorized features and functionality) or its related systems or networks.
Use of the N-LITE Service may be available through a Mobile App (the “User App”) through a compatible mobile device (“Device”), Internet access and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider.When using the N-LITE Service, you are responsible for ensuring that your use of the N-LITE Service is in compliance with all applicable laws in the states you reside or do business in.
N-LITE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO:
2.4 When using Your Devices hereunder: (i) you are responsible for the acquisition, cost and maintenance of Your Devices as well as any necessary wireless data plan; and (ii) N-LITE shall make available the User App for installation on Your Device.
N-LITE hereby grants you a personal, non-exclusive, non-transferable license to install and use the User App on Your Device solely for the purpose of seeking to use the Services. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the User App (or any data associated therewith) with any third party. You agree that: (i) use of the User App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; and (ii) use of the User App on Your Device as an interface with the Services may consume very large amounts of data through the data plan. N-LITE SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
2.5 Downloading User App. You may access the User App which can be downloaded from an applications store or applications distribution platform, such as the Apple User App Store or Google Play, (the “Mobile App Provider”). You acknowledge and agree that: (i) these Terms & Conditions are entered into between us, and not with the Mobile App Provider, and that we are solely responsible for the User App (not the Mobile App Provider); (ii) the Mobile App Provider has no obligation to furnish any maintenance and support services with respect to the User App; (iii) the Mobile App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the User App or your possession and use of the User App, including, but not limited to: (a) product liability claims; (b) any claim that the User App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; (iv) in the event of any third party claim that the User App or your possession and use of that User App infringes that third party’s intellectual property rights, we will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms & Conditions; (v) the Mobile App Provider and its subsidiaries are third party beneficiaries of these Terms & Conditions as it relates to your license of the User App, and that, upon your acceptance of these Terms & Conditions, the Mobile App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms & Conditions as related to your license of the User App against you as a third party beneficiary thereof; and (vi) you must also comply with all applicable third party terms of service when using the Services.
2.6. Key Performance Indicator (KPI’s). Customer further acknowledges that the key performance indicator (KPI’s) and/or metrics that N-LITE Performance creates and develops for talent assessment templates and talent development templates that are part of our Services are the confidential and proprietary information of N-LITE Performance and Customer shall not sell, copy, re-sell, market or profit from any of our KPI’s.
2.7 ARTIFICIAL INTELLIGENCE. The N-LITE Service includes the use of predictive algorithms commonly referred to as artificial intelligence technologies. Customer agrees and acknowledges that: (a) the quality of the outputs resulting from predictive algorithms depends largely from the quality of the inputs. (b) the predictive algorithms analyzes Customer Data based on pre-determined and pre-identified parameters, and unless the Order Form specifies otherwise, such as through the use of machine learning, the outputs from the N-LITE Service depend on the parameters identified as part of the implementation. (c) the choice of parameters and the types of Customer Data inputted in the N-LITE Service may carry assumptions, biases and limitations which will affect the effectiveness, quality, representativeness and accuracy of the outputs. (d) the algorithms within the Services do not replace decision-making. They are intended to provide additional knowledge to support judgment by natural individuals, and not to replace judgment. Customer remains responsible for any judgments and decisions taken as a result of the outputs or the N-LITE Service, and Customer agrees and acknowledges that N-LITE shall have no liability for any of decisions resulting from the use of the outputs or the N-LITE Service. (e) Applicable Laws may provide for additional requirements regarding the use of artificial intelligence technologies in certain contexts or projects. Customer is solely responsible for identifying and complying with the requirements applicable to the implementation of artificial intelligence in Customer’s business processes and generally speaking, for the use of the Services.
Your Content. You may provide input to the Services (“Input”), and receive output from the Services based on the Input (“Output”). Input and Output are collectively “Content.” You are responsible for Content, including ensuring that it does not violate any applicable law or these Terms. You represent and warrant that you have all rights, licenses, and permissions needed to provide Input to our Services.
Ownership of Content. As between you and N-LITE, and to the extent permitted by applicable law, you (a) retain your ownership rights in Input and (b) own the Output. We hereby assign to you all our right, title, and interest, if any, in and to Output. Customer hereby grants N-LITE a perpetual, irrevocable, worldwide, royalty-free license to reproduce, modify, and otherwise access and use Customer’s output (including without limitation Prompts) to train and otherwise modify the N-LITE products and Services, with the right to sublicense any such right to N-LITE’s contractors supporting such training or modification.
Similarity of Content. Due to the nature of our Services and artificial intelligence generally, output may not be unique and other users may receive similar output from our Services. Our assignment above does not extend to other users’ output or any Third Party Output.
Our Use of Content. We may use Content to provide, maintain, develop, and improve our Services, comply with applicable law, enforce our terms and policies, and keep our Services safe.
Opt Out. If you do not want us to use your Content to train our models, you can opt out by emailing Us at info@nlitesports.com. Please note that in some cases this may limit the ability of our Services to better address your specific use case.
2.9 Accuracy . Artificial intelligence and machine learning are rapidly evolving fields of study. We are constantly working to improve our Services to make them more accurate, reliable, safe, and beneficial. Given the probabilistic nature of machine learning, use of our Services may, in some situations, result in Output that does not accurately reflect real people, places, or facts.
When you use our Services you understand and agree:
2.10 Availability & Support. Service Level Agreement (the “SLA”). We warrant 99.9% uptime for the N-LITE Service and Application and components specific to and wholly controlled by Us, excluding scheduled maintenance or upgrade time. We make no warranty of the platforms that Our services may depend upon the third party provider that hosts the Services and Application. For any period that the SLA is not met, We will provide a pro-rated refund to You for the portion of the service package affected, provided that You promptly notify Us in writing and We verify the service outage. From time to time, We may upgrade the Services infrastructure, which may require marginal downtime of the Services. We will notify Your registered administrative user by email, a minimum of seven (7) days in advance of scheduled maintenance. Support parameters (Eastern Standard Time) specific to the Services covered in this Agreement are as follows:
Within 5 working days for issues classified by Us as Low priority
2.11 Security and Integrity of Customer Data. Customer acknowledges that it retains administrative control over to whom it grants access to the Customer Data hosted in the N-LITE Service. Nonetheless, during the Subscription Term, N-LITE shall maintain reasonable administrative and technical safeguards designed for the physical protection, confidentiality, and integrity of Customer Data. N-LITE will not use Customer Data except to provide the N-LITE Service, or to prevent or address service or technical problems, as permitted in this Agreement or as instructed by Customer.
2.12 Usage Limits. Use of the N-LITE Service is subject to the usage limits identified in an Order Form, which may include limitations on features and functionality. If a party detects or becomes aware that Customer exceeds a limit, that party shall promptly notify the other, and Customer shall work with N-LITE to promptly change its usage to comply with the limit. If Customer fails to change its usage or to comply with the limit within thirty (30) days, or if Customer notifies N-LITE of its intent to continue with the excess usage, Customer shall execute an Order Form and pay invoices issued by N-LITE for that excess usage. As may be reasonably requested by N-LITE from time to time, Customer agrees to verify, certify, or provide evidence that its use of the N-LITE Service is within the applicable usage limits.
2.13 Professional Services. shall mean the Order Form and mutually agreed upon Statement of Work (a “Statement of Work”) to create any derivative versions (“Deliverables”) of the Services. When both N-LITE and Customer have executed an Order Form, that Order Form becomes effective, and a part of this Agreement, as of the effective date set forth therein (the “Order Effective Date”).
2.14 Ownership of Deliverables. If Software Development Work is included in any Order Form and mutually agreed upon Statement of Work (a “Statement of Work”) to create any derivative versions (“Deliverables”) of the Services, Customer acknowledges and agrees that N-LITE owns all of the intellectual property rights in the Deliverables and Documentation including without limitation any pre-existing materials and Confidential Information supplied by Customer for incorporation into such Deliverable and the software used to provide the Deliverables. Any modification, enhancement, derivative work, or other improvement of or based upon the Services, which includes a Deliverable, whether developed by N-LITE or a Customer, will be N-LITE’s exclusive property and Customer hereby irrevocably and in perpetuity assigns to N-LITE all worldwide rights, title, and interest therein.
N-LITE grants to Customer a revocable, royalty-free, non-exclusive, non-transferable, non-assignable right to use any Deliverable if an Order Form has been executed, to the extent necessary to permit Customer to use the Deliverable in connection with the Services during the Term until such time that the Agreement ends or is terminated then Customer shall cease using any enhancements, modifications, adaptations and derivative works of the Services made by N-LITE or Customer and Customer shall return all such products to N-LITE immediately. Customer acknowledges that nothing in this Agreement will restrict or limit N-LITE from performing similar services and creating similar Deliverables for any third party.
2.15 No Work Made for Hire. (a) Customer agrees that no Work Product will be developed from a Deliverable as a “work made for hire.” As such, copyright and all other intellectual property rights vest with N-LITE when the Deliverable is fixed in a tangible medium of expression. In the event that Customer is ever determined to own copyrights or other intellectual property rights in the Deliverable, Customer hereby: (i) irrevocably assigns to N-LITE all rights, title, and interest that Customer might have in the Deliverable; (ii) agrees to execute all documents necessary to implement and confirm the letter and intent of this Section; and (iii) irrevocably appoints N-LITE as Customer’s attorney‐in‐fact to execute any ownership documents to perfect such ownership interests of N-LITE, such right being coupled with an interest.
(b) Deliverable as Confidential Information. The Deliverables are deemed to be N-LITE's Confidential Information hereunder and, except as permitted herein, must not be disclosed by Customer without N-LITE's express written approval. Customer may use the Deliverable for any internal business purpose and Customer may disclose the Deliverable to any contractor of Customer that assists Customer with its internal business affairs and operations, provided that Customer first binds such third party contractor or N-LITE to the same restrictions on use and disclosure of the Deliverable contained herein. Any other disclosure or publication of any Deliverable requires N-LITE's prior written consent.
2.16. Third Party Integrated Services. Third Party Integrated Services are third party products, applications or services that are provided and managed by third party providers, and interoperate with the N-LITE Services.
N-LITE allows third party vendors, service providers, software developers and information systems companies to provide third party products, applications, websites and/or features via the N-LITE Services (“integrated Service” or “Integrated Services”). N-LITE offers Integrated Services by either i) licensing technology from a third party and embedding it in the Services; or ii) establishing a connection or conduit with a third party’s software platform or information system enabling the Services to send Customer Data or any type of information to the intended party. (i) and (ii) are collectively the “Embedded Technology”). Customer consents to use Embedded Technology with the Subscription Service.
2.16.1 Integrated Services. Customer acknowledges that: (i) in order to use certain Integrated Services, there may be additionally applicable terms and conditions including those which may establish a direct contractual relationship between Customer and an Integrated Services provider; and (ii); Uptime, availability and support of Integrated Services may be provided by an Integrated Services provider and not N-LITE. If subscribed for Integrated Services, Customer agrees N-LITE may allow the provider of such Integrated Services to access Customer’s Data as required for the interoperation of that Integrated Service with the N-LITE Services. Customer acknowledges N-LITE is not responsible for any disclosure, modification or deletion of Customer’s Data not protected by HIPAA resulting from access by an Integrated Service or its provider. N-LITE does not warrant or support Integrated Services, except as specified in a specific addendum to this Agreement related to the Integrated Service.
Embedded Technology will be used among other ways to collect data and information (“third party information”) from various systems: (i) to identify opportunities in the third party information to be utilized by Customer while using the Services; (ii) to make improvements to the software underlying the Services; and (iii) to measure Key Performance Indicators (KPIs). N-LITE has no duty to verify the accuracy or reliability of all such third party information and KPIs and shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any breach or error, loss, damage, or claim caused by Customer or any third party’s reliance on any such third party information and KPIs.
3. Customer Responsibilities. Customer has exclusive control and responsibility for determining what data Customer submits into the N-LITE Service and for obtaining all necessary consents and permissions for submission of Customer Data and processing instructions to N-LITE. Customer is further responsible for the accuracy, quality, and legality of all Customer Data, and for the acts and omissions of Authorized Users in accessing and using the N-LITE Service. Customer shall use reasonable measures to prevent, and shall promptly notify N-LITE of, any known or suspected unauthorized use of the N-LITE Service or Authorized User access credentials.
4.1 Customer. Customer grants N-LITE a worldwide, non-exclusive license for the limited purpose of allowing N-LITE to host, copy, process, transmit and display Customer Data as reasonably necessary for N-LITE to provide the N-LITE Service as permitted in this Agreement. Subject to this limited license right, as between N-LITE and Customer, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Customer Data.
4.2 N-LITE. N-LITE owns and shall continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the N-LITE Service. Customer acknowledges that the N-LITE name, the N-LITE logo, and the product and feature names associated with the N-LITE Service are trademarks of N-LITE or third parties, and no license to those marks is granted under this Agreement. Customer grants to N-LITE a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to incorporate and use, commercialize and distribute with the N-LITE Service any suggestions, recommendations or other feedback specifically relating to the N-LITE Service as Customer in its discretion may elect to provide and to create derivative works of the same.
5. USE OF AGGREGATE INFORMATION. Customer acknowledges that N-LITE collects, logs, and aggregates usage data as part of the normal operation of the N-LITE Service (“Aggregated Data”). N-LITE may use Aggregated Data for purposes of operating N-LITE’s business, monitoring performance of the N-LITE Service, and improving the N-LITE Service as long as the Aggregated Data is anonymized and N-LITE’s use does not reveal or disclose any Customer Data, Customer Confidential Information, or personally identifiable information or personal data of Authorized Users.
6. Payment Terms
6.1 Fees. Customer can choose monthly or yearly subscription fee plans. Customer is responsible to pay N-LITE for all monthly or yearly Fees (“Fees”) to subscribe to use the Service each month the Term is in effect as set forth on our pricing page. https://nlitesports.com/pricing. By subscribing to use the Services, Customer agrees to pay N-LITE’s applicable monthly and/or yearly fees. Unless otherwise provided in writing by N-LITE, You will pay all fees due according to the prices and terms listed on our pricing page. Payment for all fees shall be due upon the Effective Date and payment shall be made in U.S. Dollars. Fees are based on the Services purchased and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable. Fees are based on annual periods that commence on the Effective Date and end on the anniversary thereof. Fees for any additional Services purchased during the Contract Term will be prorated for the remaining time of the monthly, quarterly or yearly period in which they were purchased. Customer agrees that N-LITE shall be permitted to increase fees by five percent during any year this agreement is in effect.
6.2 BILLING. (a) We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account (your “Billing Account”) for use of the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors by the Payment Processor. By choosing to use Payment Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Payment Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payments using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
(b.) PAYMENT METHOD. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
IF YOU WISH TO TERMINATE YOUR AUTHORIZATION FOR A PAYMENT METHOD OR CHANGE YOUR PAYMENT METHOD, CONTACT US AT: info@nlitesports.com. Or, you can adjust your payment methods in the settings function of the N-LITE Service.
(c) CURRENT INFORMATION REQUIRED
AS PART OF YOUR CONTINUED USE OF THE SERVICES YOU ARE REQUIRED TO PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL REQUIRED INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (INCLUDING PROVIDING A CHANGE IN BILLING ADDRESS, OR UPDATED CREDIT CARD NUMBERS, OR CREDIT CARD EXPIRATION DATES), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE ANY OF THE ABOVE MENTIONED INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAYMENT SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAYMENT SERVICES AS SET FORTH ABOVE.
(d) CHANGE IN AMOUNT AUTHORIZED. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
(e) REAFFIRMATION OF AUTHORIZATION. Your non-termination or continued use of a Payment Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Payment Service.
(f) You can change your payment method yourself by logging into the N-LITE platform and visiting the subscription section.
(g) You shall maintain a valid payment method at all times until the termination of services (not upon notice of cancellation). Your Breach of these provisions shall entitle N-LITE to immediately suspend the services to you.
6.3 Taxes. Fees are exclusive of all applicable taxes, levies, or duties, and Customer is responsible for payment of all of those taxes, levies, or duties, excluding taxes based solely on N-LITE’s income. Customer shall pay all fees free and clear of, and without reduction for, any applicable transaction taxes, including but not limited to sales and use taxes, VAT, GST, gross receipts taxes, withholdings and other similar transactional charges (“Transaction Taxes”); Transaction Taxes imposed on payments of fees will be Customer’s responsibility, and Customer shall provide receipts issued by the appropriate taxing authority to N-LITE on request to establish that the Transaction Taxes have been paid. N-LITE may invoice Transaction Taxes as permitted in applicable law on an invoice as referenced in Section 6.1 or a separate invoice. N-LITE reserves the right to determine Transaction Taxes based on Customer's “bill to” or "ship to" address, or other information provided by Customer on location of Customer’s use of the N-LITE Service. Customer is responsible for any taxes, penalties or interest that might apply based on N-LITE’s failure to charge appropriate tax due to incomplete or incorrect “bill to” or “ship to” location information provided by Customer. If Customer is exempt from Transaction Taxes, Customer shall provide proof of the exemption to N-LITE without undue delay upon execution of the applicable Order Form.
6.4 Effect of Nonpayment. This Agreement and Customer’s access to the N-LITE Services or N-LITE’s provision of Professional Services may be suspended or terminated if Customer fails to make timely payment of undisputed fees when due. Unpaid amounts may be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law plus collection costs. Suspension will not relieve the Customer's obligation to pay amounts due. Upon termination of this Agreement, Customer shall pay the balance due on Customer’s account subject to the provisions of Section 7.3 (“Effect of Termination; Survival”).
6.5 Future Features and Functionality. Customer acknowledges that purchases under this Agreement or any Order Form are not contingent on the delivery of future features or functionality.
7.1 (a) Term; Renewals. Our subscription plans' billing frequency/term is monthly or yearly. 30 days from the Effective Date is the initial term for a monthly subscription (the “Monthly Term”). One year from the Effective Date is the initial term for a yearly subscription (the “Yearly Term”). For the avoidance of doubt monthly subscription plans are for an initial period of 30 days and will thereafter automatically renew for successive 30-day periods. You must provide five (5) days notice to terminate the agreement if you choose the monthly term subscription plan. The yearly one (1) year terms shall automatically renew for successive twelve (12) month periods unless either party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. Pricing during renewal terms shall be increased by up to 5% per year for each sequential year at Our discretion.
7.2.1 Termination for Cause. This Agreement shall terminate upon any breach of the Terms by You or Your Authorized Users, in accordance with the Terms.
7.2.2 Effect of Termination. Upon termination, (i) you shall cease any and all use of the Services and You shall relinquish to Us or destroy any and all parts of the Services in Your control, and (ii) all rights, licenses, consents and authorizations granted by Us to You will immediately terminate. The termination of this Agreement shall not limit Our rights or remedies at law or in equity.
7.2.3. Suspension of N-LITE Service. We may suspend delivery of the N-LITE Service, without liability, if: (i) You fail to pay any amounts due hereunder to Us, and nonpayment continues for more than thirty (30) days from when notice is given to the You by Us, (ii) We reasonably believe that the N-LITE Service is being used in violation of this Agreement, (iii) You do not cooperate with Our reasonable investigation of any suspected violation of this Agreement, (iv) there is an attack on Your server by a third party, Your server is accessed or manipulated by a third party without Your consent, or there is another event for which We reasonably believe that the suspension of Services is necessary to protect Our network or Customers, or (v) required by law. We shall use commercially reasonable efforts to give You reasonable notice of a suspension of Services, unless immediate suspension is necessary to protect Us or Our Customers from imminent significant operational or security risk.
7.2.4 Customer’s Right To Terminate The Agreement. If Customer discovers any material defect with the N-LITE Service, Customer must notify N-LITE in writing and as Customer’s sole and exclusive remedy and N-LITE’s sole obligation, N-LITE will either use reasonable efforts to correct any such defect within sixty (60) days of the date the defect was reported, or create a workaround so as to fix the material defect affected in the Software. If N-LITE is unable to correct or fix the defect in the Software, and the defect renders the Software unusable, the Customer shall be entitled to terminate the Agreement and N-LITE shall issue a pro-rata refund of Subscription Fees for the remaining term of the Agreement. Refund of any such fees is contingent upon Customer’s best efforts cooperation in assisting N-LITE to determine the extent of the defect.
7.2.5 Treatment of Customer Data After Expiration or Termination. Customer agrees that after termination or expiration of this Agreement, or termination or expiration of any Order Form or Statement of Work, N-LITE may immediately deactivate Customer’s account(s) associated with the Agreement or applicable Order Form(s). During the thirty (30) day period after termination or expiration, N-LITE shall grant Customer access to the N-LITE Service for the sole purpose of retrieving any Customer Data that it wishes to retain and deleting any remaining Customer Data. After the 30-day period, N-LITE shall delete Customer’s account, including remaining Customer Data, if any, from the N-LITE Service unless legally prohibited.
7.3 Effect of Termination; Survival. Upon early termination of this Agreement by Customer under Section 7.2.4 for N-LITE’s uncured material breach, Customer is entitled to a prorated refund of prepaid fees relating to the N-LITE Service applicable to the remaining period in the applicable Subscription Term. Upon early termination of this Agreement by N-LITE under Section 7.2.1, fees relating to the N-LITE Service applicable to the duration of any applicable Subscription Term shall become immediately due and payable by Customer. In addition, upon expiration or termination of this Agreement for any reason: (a) all subscription rights granted under this Agreement, N-LITE’s obligation to provide the N-LITE Service, and Customer’s right to access or receive the N-LITE Service, will terminate; (b) Customer Data will be available for retrieval and deleted under Section 7.2.5 (“Treatment of Customer Data After Expiration or Termination”); and (c) Sections 1 (“Definitions”), the restrictions in Section 2.2 (“Access and Usage Restrictions”) for so long as Customer has access to the N-LITE Service, 3 (“Customer Responsibilities”), 4 (“Intellectual Property Rights and Ownership”), 5 (“Use of Aggregate Information”), 6 (“Billing and Payment”), 7.2.5 (“Treatment of Customer Data After Expiration or Termination”), 7.3 (“Effect of Termination; Survival”), 8 (“Representations and Warranties”), 9 (“Indemnification”), 10 (“Limitation of Liability”), 11 (“Confidentiality and Sensitive Data”), and 12 (“General”) will survive.
8.1 By Each Party. Each party represents and warrants that it has the power and authority to enter into this Agreement and that its respective provision and use of the N-LITE Service is in compliance with laws applicable to each party.
8.2 By N-LITE.
(a) Conformity with Documentation. N-LITE warrants that, during the Subscription Term, the N-LITE Service will perform in a manner materially consistent with the applicable Documentation, and N-LITE shall not materially decrease the functionality of N-LITE Service. If a breach of the foregoing warranty occurs, Customer shall provide N-LITE with written notification of the specific way(s) in which the N-LITE Service does not comply with the warranty and with reasonable information for N-LITE to create a reproducible test case. If N-LITE, in its sole discretion, confirms noncompliance, it shall use commercially reasonable efforts to correct that noncompliance within a thirty (30) day period (which may be mutually extended by the parties). If N-LITE cannot correct the noncompliance during the 30-day cure period, Customer may give N-LITE a thirty (30) day notice of intent to terminate. At the end of the notice period, if the N-LITE Service still does not comply with this warranty, Customer may elect to terminate this Agreement (and any applicable Order Form or Statement of Work) and receive a prorated refund of prepaid fees applicable to the remaining period in the then-current Subscription Term. Notwithstanding the foregoing, this warranty shall not apply to any non-conformity due to a modification of or defect in the N-LITE Service that is made or caused by or on behalf of anyone other than N-LITE. THE FOREGOING RIGHTS ARE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER (AND N-LITE’S SOLE LIABILITY) FOR A BREACH OF THE WARRANTY DESCRIBED IN THIS SECTION 8.2(A).
(b) Malicious Code. N-LITE warrants that, to the best of its knowledge, the N-LITE Service is free from, and N-LITE shall not knowingly or intentionally introduce, software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm (“Malicious Code”), provided however, that N-LITE shall not be in breach of this warranty if Customer or any third party introduces Malicious Code.
8.3 By Customer. Customer represents and warrants that it has obtained all necessary consents and permissions from data subjects for the submission and processing of personal data before submission of that personal data to the N-LITE Service.
8.4 WARRANTY DISCLAIMERS. EXCEPT AS WARRANTED IN THIS SECTION 8, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WHEN N-LITE IDENTIFIES A VERSION OF THE N-LITE SERVICE OR OTHER TECHNOLOGY AS BETA, PILOT, TRIAL, LIMITED RELEASE, PRE-RELEASE, EVALUATION, NON-PRODUCTION OR SIMILAR DESIGNATION, THAT VERSION IS PROVIDED “AS IS,” EXCLUSIVE OF ANY AND ALL WARRANTIES, IS NOT SUPPORTED, AND IS NOT SUBJECT TO ANY AVAILABILITY OR SECURITY OBLIGATIONS, AND N-LITE MAY TERMINATE OR DISCONTINUE THAT VERSION AT ANY TIME WITHOUT LIABILITY. N-LITE IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION OR OTHER DAMAGE RESULTING FROM PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS OUTSIDE OF ITS CONTROL.
You further agree that N-LITE Performance does not warrant or guarantee that any product information contained on the website or Services, or any result returned from queries made through the Services, whether made using AI powered generative experiences or otherwise, is accurate, complete, reliable, current, or error-free.
You understand that search results obtained from the Services, whether done through AI powered generative experiences or otherwise, may be the same or similar or vary between different users and at different times, and may not necessarily be identical or consistent. You further agree that N-LITE Performance does not warrant or guarantee that any material created through any AI powered generative experience does not infringe the rights of any third party in any subsequent use of the content you may make. If you purchase, use, or access any such products, content, services, advertisements, offers, or information through the Services or you engage with any Third Party Provider, you agree that you do so at your own risk and that N-LITE Performance will have no liability based on such purchase, use, access, or engagement.
8.5. Disclaimer - Customer Data. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER ACKNOWLEDGES THAT N-LITE IS NOT RESPONSIBLE FOR THE INTEGRITY OF THE CUSTOMER DATA PROCESSED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, ITS COMPLETENESS, ACCURACY, VALIDITY, AUTHORIZATION FOR PROCESSING AND INTEGRITY OVER TIME AND SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, OF SUCH CUSTOMER DATA.
8.6. Disclaimer - Third Party Integrated Services and Integrated Services. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER ACKNOWLEDGES THAT N-LITE IS NOT RESPONSIBLE FOR THE USE OF ANY THIRD PARTY PRODUCTS, THIRD PARTY INTEGRATED SERVICES, INTEGRATED SERVICES AND EMBEDDED TECHNOLOGY THAT INTEROPERATE WITH THE N-LITE SERVICES.
8.7 Disclaimer - Account Credentials. CUSTOMER IS RESPONSIBLE FOR ENSURING THAT END USERS ARE KEEPING THEIR CREDENTIALS TO ACCESS THEIR ACCOUNTS CONFIDENTIAL AND SECURED, INCLUDING BY FOLLOWING INFORMATION SECURITY BEST PRACTICES REGARDING PASSWORDS. IF ACCOUNTS ARE COMPROMISED AS A RESULT OF END USERS’ NEGLIGENCE, N-LITE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM THIS NEGLIGENCE.
8.8. YOU ACCEPT AND AGREE THAT ANY USE OF OUTPUTS FROM OUR SERVICES IS AT YOUR SOLE RISK AND YOU WILL NOT RELY ON OUTPUT AS A SOLE SOURCE OF TRUTH OR FACTUAL INFORMATION, OR AS A SUBSTITUTE FOR PROFESSIONAL ADVICE.
9.1 By N-LITE. N-LITE shall defend, indemnify and hold Customer harmless from and against any damages and costs (including reasonable attorneys’ fees and costs incurred by Customer) finally awarded against Customer (or, subject to Section 9.3, the amount of any settlement N-LITE enters into) resulting from any claim, demand, suit or proceeding from an unaffiliated third party (“Claim”) specifically alleging that the N-LITE Service directly infringes or misappropriates a valid copyright, trademark, or trade secret of a third party. N-LITE shall have no indemnification obligation for Claims to the extent arising from: (a) Customer’s or any Authorized User’s use of the N-LITE Service other than as permitted under this Agreement; (b) the combination of the N-LITE Service developed by N-LITE with any Customer Data or with any Customer or third party products, services, hardware, data, content, or business processes; or (c) from the modification of the N-LITE Service by any party other than N-LITE or N-LITE’s agents, or modification by N-LITE or N-LITE’s agents based on Customer instructions. The foregoing is N-LITE’s exclusive obligation for infringement claims. If N-LITE becomes aware of a Claim alleging infringement or misappropriation, or N-LITE reasonably believes such a Claim will occur, N-LITE may, at its sole option: (i) obtain for Customer the right to continue use of the N-LITE Service; (ii) replace or modify the N-LITE Service so that it is no longer infringing; or, (iii) if neither (i) nor (ii) is reasonably available to N-LITE, terminate the N-LITE Service, in which case N-LITE’s sole liability (in addition to the indemnification obligations set out in this Section 9.1) is to refund to Customer a prorated amount of prepaid fees for the N-LITE Service applicable to the remaining period (from the date N-LITE is notified of the infringement claim by Customer) in the then-current Subscription Term.
9.2 By Customer. Customer shall defend, indemnify and hold N-LITE harmless from and against any damages and costs (including reasonable attorneys’ fees and costs incurred by N-LITE) finally awarded against N-LITE (or, subject to Section 9.3, the amount of any settlement Customer enters into) resulting from any Claim arising from (a) your unauthorized use of, or misuse of, the N-LITE Services or Software; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) allegations that use of the Customer Data infringes a valid copyright, trademark, or trade secret, privacy, or publicity rights of a third party; (d) Customer’s failure to obtain consents and permissions from data subjects for the submission and processing of personal data and Customer data in the N-LITE Service; or (e) instructions by Customer or its Authorized Users for processing data other than as specifically allowed in this Agreement.
9.3 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the Claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the Claim; and (c) providing to the indemnifying party all available information and assistance resulting from the Claim, at the indemnifying party’s request and expense. The indemnified party may participate in the defense of the Claim, at the indemnified party’s sole expense (not subject to reimbursement). Neither party may settle any claim that includes a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought without that party’s prior written consent. Neither party may admit liability for or consent to any judgment or concede or settle or compromise any Claim unless that admission or concession or settlement or compromise includes a full and unconditional release of the other party from all liabilities in respect of the Claim.
10.1 CUSTOMER ASSUMES THE ENTIRE COST OF ANY DAMAGES RESULTING FROM CUSTOMER’S USE OF THE N-LITE'S SERVICE, THE INFORMATION CONTAINED IN OR COMPILED BY THE N-LITE'S SERVICE, THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE, SOFTWARE, THIRD PARTY PRODUCTS, THIRD PARTY INTEGRATED SERVICES, INTEGRATED SERVICES AND EMBEDDED TECHNOLOGY WHETHER PROVIDED BY N-LITE OR A THIRD PARTY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL N-LITE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPECIAL, DIRECT, EXEMPLARY, INDIRECT, RELIANCE, LIQUIDATED, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, REVENUE OR SAVINGS, BUSINESS INTERRUPTION, BUSINESS OPPORTUNITIES, LOSS OR CORRUPTION OF BUSINESS INFORMATION OR ANY PERSONAL OR CUSTOMER DATA, LOSS OF GOODWILL, CYBERATTACK, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION, IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS, BODILY HARM, EMOTIONAL DISTRESS OR LOSS OF LIFE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE N-LITE'S SERVICE, OR THE INCOMPATIBILITY OF THE N-LITE SERVICE WITH ANY HARDWARE, SOFTWARE OR USAGE, THIRD PARTY PRODUCTS, THIRD PARTY INTEGRATED SERVICES, INTEGRATED SERVICES AND EMBEDDED TECHNOLOGY REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF N-LITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
10.2 IN NO EVENT SHALL EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, AGENTS, REPRESENTATIVES AND/OR LICENSORS, WHETHER ARISING BY STATUTE, CONTRACT TORT OR OTHERWISE, WILL EXCEED THE AMOUNTS PAID OR PAYABLE BY (AND NOT OTHERWISE REFUNDED TO) CUSTOMER TO N-LITE UNDER THIS AGREEMENT FOR THE SERVICES WHICH FORM THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT WHICH GAVE RISE TO SUCH CLAIM.
10.3 Conditions. The exclusions and limits in this “Limitation of Liability” section reflect the parties’ allocation of risk and will apply under any legal theory (including, without limitation, contract or tort), even where a party was aware of the possibility of such damages, the damages were foreseeable, and/or any remedies hereunder fail of their essential purpose. Such exclusions and limits will not apply to the extent they are prohibited by law.
10.4 Limitation of Liability Restrictions. Notwithstanding the foregoing, nothing in this Section 10 shall exclude or limit the liability of either party or its Affiliates for death or bodily injury caused by the negligence of that party or that party’s Affiliates arising out of the performance of Professional Services under this Agreement, or for any other liability to the extent that liability may not be limited as a matter of applicable law.
10.5 Customer assumes the entire cost of any damages it may incur or suffer of any kind resulting from Customer’s use of any third party products, or N-LITE’s use of Third Party Products, Third Party Integrated Services, Integrated Services and Embedded Technology with the N-LITE Service.
10.6 Limitations Fair and Reasonable. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY STATED IN THIS SECTION 10 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF THOSE LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
11.1 Confidentiality. “Confidential Information” means this Agreement, the N-LITE Service, N-LITE pricing information, N-LITE technical information, Customer Data and any other information disclosed by one party (“Discloser”) to the other (“Recipient”) related to the provision or use of the N-LITE Service that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights under this Agreement. Recipient will not disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and subcontractors who have a need to know and who are bound in writing to keep that information confidential under confidentiality requirements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and at a minimum will use at least the degree of care a reasonable person would use. The foregoing will not apply to any information that: (a) was in the public domain at the time it was communicated to the Recipient by the Discloser; (b) entered the public domain after the time it was communicated to the Recipient by the Discloser through no fault of the Recipient; (c) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated to the Recipient by the Discloser; (d) was rightfully communicated to the Recipient free of any obligation of confidence after the time it was communicated to the Recipient by the Discloser; (e) was developed by employees or agents of the Recipient independently of and without reference to any information communicated to the Recipient by the Discloser; or (f) is expressly permitted to be disclosed under the terms of this Agreement.
11.2 Compelled Disclosure. The Recipient shall not be in violation of Section 11.1 for a disclosure that was in response to a valid order by a court or other governmental body, as long as the Recipient provides the Discloser with prior written notice of the disclosure to permit the Discloser to seek confidential treatment of that information.
11.3 Sensitive/Personal Data. Customer agrees that it shall not submit into the N-LITE Service the following types of information except with N-LITE’s prior written approval: government-issued identification numbers, consumer financial account information, credit reports, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs).
12.1 Governing Law. By using N-LITE’s Website or Services, you agree that the laws of the State of Delaware without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and N-LITE.
12.2 Disputes/Arbitration.
ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF N-LITE’S WEBSITE OR SERVICES SHALL BE SUBMITTED TO CONFIDENTIAL BINDING ARBITRATION IN NEW YORK CITY, NEW YORK EXCEPT FOR INTELLECTUAL PROPERTY CLAIMS BROUGHT BY EITHER PARTY (WHICH FOR PURPOSES OF THIS SECTION DO NOT INCLUDE PRIVACY AND PUBLICITY CLAIMS) AND CLAIMS THAT MAY BE BROUGHT IN SMALL-CLAIMS COURT.
CONFIDENTIAL ARBITRATION UNDER THIS AGREEMENT SHALL BE RESOLVED EXCLUSIVELY UNDER THE COMMERCIAL ARBITRATION RULES THEN PREVAILING OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA'S CONSUMER RULES"), EXCLUDING ANY RULES AND PROCEDURES GOVERNING OR PERMITTING CLASS OR REPRESENTATIVE ACTIONS. THE RULES ARE AVAILABLE AT THE AMERICAN ARBITRATION ASSOCIATION'S WEBSITE.
YOU AND N-LITE AGREE TO EXPRESSLY WAIVE ANY RIGHTS TO FILE CLASS OR REPRESENTATIVE ACTIONS OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS IN ANY JURISDICTION OR FORUM.
THE ARBITRATOR SHALL APPLY DELAWARE LAW, AND THE ARBITRATOR'S AWARD SHALL BE BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THERE SHALL BE NO APPEAL FROM ANY AWARD OF THE ARBITRATOR. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION UNDER THIS AGREEMENT SHALL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. IF ANY PART OF THIS ARBITRATION PROVISION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL, THE REST OF THIS PROVISION SHALL REMAIN IN EFFECT.
IF THE ENTIRE ARBITRATION PROVISION IS FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE PARTIES CONSENT TO PERSONAL JURISDICTION AND EXCLUSIVE VENUE IN THE STATE COURT LOCATED IN NEW YORK CITY, NEW YORK.
13.1 SMS Messaging/Restrictions. You understand and agree that N-LITE utilizes CometChat, Inc. a third party messaging service to facilitate your sending SMS and text messages through the Services and that N-LITE has no liability for any damages you might suffer while using CometChat, Inc. https://www.cometchat.com/legal-terms-of-service. https://www.cometchat.com/legal-privacy-policy.
You must comply with all applicable foreign, federal, state, provincial, and local laws, including privacy, data protection and access to information laws, when using the N-LITE Service. For example, you are responsible for complying with all telephone recording laws and requirements, including notifying parties that telephone calls are being recorded when required. You are also responsible for, as applicable, complying with the Telephone Consumer Protection Act (TCPA), including ensuring that all voice calls, text messages and any other commercial electronic messages are sent with the recipients’ valid consent and include prescribed information and an effective unsubscribe mechanism, to the extent required. Except as may be expressly permitted by applicable law or authorized by us in writing, you will not, and will not permit anyone else to:
a.Use the N-LITE Service for any illegal purpose or in violation of any local, state, provincial, national, or international law;
b.harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. use the N-LITE Service in violation of any applicable advertising and marketing laws such as CAN-SPAM, the TCPA, and the FTC’s Telemarketing Sales Rule, including those that relate to (i) permitted calling times; (ii) customers’ consent to be contacted by telephone and/or text messages (including opt in/opt out consent where applicable and do not call lists); (iii) the required content of text messages and requirements for enabling and promptly implementing unsubscribe requests; (iv) any registration requirements relating to do not call lists; and (v) any notices that need to be given to potential customers during telephone calls.
e. import or transfer to the N-LITE Service any data that is sensitive financial information (including credit card numbers), health information, medical information, pharmaceutical information, any personal information whatsoever about or regarding children under 13 years of age, or other sensitive or regulated information (for example, Social Security Numbers or Social Insurance Numbers);
You represent, warrant, and agree that: (i) You or your business shall send instructions to anyone who uses the website or services on how to opt out from receiving messages (STOP instructions), as well as how they can get help information (HELP instructions).\; and (ii) Your business is required to have a privacy policy conspicuously disclosed on your business’ website containing a Text/SMS policy.
13.2 Customer’s Obligations and Responsibilities With Regard to Customer and/or Third Parties Uploading Their Personal Information or Data To The N-LITE Service. In the event that Customer or its Customers (“third parties”) upload personal information or data to the N-LITE Service that can identify someone (a third party) individually (“third party data”), Customer understands and agrees that as part of its obligations under this Agreement to continue to access the N-LITE Service it will undertake certain obligations and duties with regard to third parties as follows:
(i) Customer shall obtain written consent from third parties permitting: (a) Customer to upload and submit third party data or personal information up into the N-LITE Service; (b) N-LITE to maintain and process all third party data or personal information of any kind that Customer obtains from third parties; and (c) N-LITE to use the Third Party Data and personal information to train Artificial Intelligence (AI) Models.
(ii) Customer shall not market, sell, or license the third party data or personal information to any third parties and shall only use the third party data and third party personal information in its use of the Services. Customer shall be permitted to use the third party data and personal information in the operations of its business but not in furtherance of Customer’s marketing and sales efforts; (iii) Customer shall maintain administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of third party data and personal information; (iv) Customer shall maintain Terms of Use and Privacy Policy Agreements on its public facing websites which must include language that Customer shall protect third party data and personal information and that Customer shall not market, share, sell or license any third party data and personal information to any third parties not a party to this Agreement.
14.1 Export Laws. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the N-LITE Service. Without limiting the generality of the foregoing, Customer represents that it is not named on any U.S. government denied-party list, and shall not make the N-LITE Service available to any user or entity that is located in a country that is subject to a U.S. government embargo, or is listed on any U.S. government list of prohibited or restricted parties.
14.2 Remedies. Unless stated otherwise in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Where Customer controls any Affiliate, N-LITE is entitled to remedies from Customer for the obligations and liabilities of Affiliates who place orders under this Agreement.
14.3 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and N-LITE as a result of this Agreement or use of the N-LITE Service or Professional Services.
14.4 U.S. Government End Users. If Customer is a branch agency or instrumentality of the United States Government, the following provision applies. If Customer is the U.S. Federal Government, N-LITE provides the N-LITE Service, including related software and technology, under the following: Government technical data and software rights related to the N-LITE Service include only those rights customarily provided to the public as defined in this Agreement. This customary access right and license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with N-LITE to determine if there are acceptable terms for transferring those rights, and a mutually acceptable written addendum specifically conveying those rights, must be included in any applicable contract or agreement.
14.5 Waiver; Modification. The failure of a party to enforce any right or provision in this Agreement will not constitute a waiver of that right or provision unless the waiver is in writing signed by the waiving party. No modification hereof will be effective unless in writing and signed by both parties.
14.6 Severability. If any provision of this Agreement is unenforceable, that provision will be changed and interpreted to accomplish the objectives of that provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Section 10 (“Limitation of Liability”) will remain in effect notwithstanding the unenforceability of any provision in Section 8 (“Representations and Warranties”).
14.7 Entire Agreement; Execution. This Agreement (including the Exhibits hereto) constitutes the entire understanding and agreement between the parties with respect to the subject matter addressed herein and supersedes any and all prior or contemporaneous oral or written communications with respect to such subject matter. In the event of a conflict between the terms and conditions in this Agreement and any Exhibits to this Agreement, including purchase order forms, the terms and conditions in this Agreement will control. The parties agree that in the event Customer utilizes a purchase order, any term therein which purports to modify or supplement the terms of this Agreement will be void with no force or effect. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies). A party does not waive its rights under this agreement by granting an extension or forbearance to another party.
This Agreement will be construed as if drafted by both parties and will not be strictly construed against either party. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of that section. Reference to words like (a) “includes” and “including” is inclusive and means “includes (or including), but not limited to”; and (b) “arising” (or which “arise” or “arises”) “out of this Agreement” means matters which occur under this Agreement or relate to the provision or use of the N-LITE Service that directly flow from a party’s performance of or failure to perform its obligations under this Agreement. Any preprinted terms on any Customer ordering documents or terms referenced or linked in those terms will have no effect on the terms of this Agreement and are hereby rejected, including where the Customer ordering document is signed by N-LITE. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties hereby consent to the use of electronic signatures for execution of this Agreement, and further agree that electronic signatures to this Agreement are legally binding with the same force and effect as manually executed signatures.
14.8 Force Majeure. Neither party will be liable to the other for a failure or delay in its performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control or by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, or other causes beyond such party's reasonable control, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible.
14.9 No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
14.10 Assignment. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, executors, administrators, legal representatives, successors, and assigns of the Parties.
14.11 Notices. Notices to a party will be sent by first-class mail, overnight courier, or prepaid post to the address for that party as identified on the first page of the Agreement (or as subsequently updated in writing to the other party) and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt. Customer shall address notices to N-LITE’s CEO, with a copy to N-LITE Inc., at the address in Section 1.4, when Customer has sent a notice to an entity other than N-LITE Inc.
Definition of terms:
a. “Athlete” shall mean any person who participates in an organized sport, is a member of a team or club and whose personal information is uploaded to the Application or Services.
b. "Name, Image, and Likeness" or "NIL" shall mean any athlete’s individual names, signatures, photographs, images, likeness, voices, and any other indicia of their identities.
c. By using the Application or Services you are not granted any license or right to use, sell, market or profit from the NIL of any athlete, minor or user.