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Terms: FieldLevel Services Agreement

FieldLevel Services Agreement

This FieldLevel Services Agreement (this "Agreement") is made and entered into as of the Effective Date (defined in Exhibit B) by and between FieldLevel, Inc., a Delaware corporation with its principal place of business at 2716 Ocean Park Blvd., Suite 3025, Santa Monica, CA 90405 ("FieldLevel"), and the party identified in Exhibit B ("Client").

This Agreement sets forth the terms and conditions under which FieldLevel will provide Client remote access to FieldLevel's proprietary services described on Exhibit A (the "Services") and in connection therewith license to Client FieldLevel's Software (defined in Section 1 below), in each case for Client's internal purposes only. FieldLevel's provision, and Client's use, of the Services and Software shall be governed by the terms of this Agreement.

1. DEFINITIONS. As used in this Agreement:

1.1 "FieldLevel Site" means the website located at www.fieldlevel.com (or its successor) through which FieldLevel will provide the Services and Software to Client under the terms of this Agreement.

1.2 "Client Content" means all information and content entered into the Software by Users to receive the Services for Client's internal purposes, but excluding Personal Data.

1.3 "Documentation" means the documentation FieldLevel makes available to Client in hard copy or electronic form describing the use of the Services or Software.

1.4 "FieldLevel Privacy Policy" means FieldLevel's privacy policy located at http://www.fieldlevel.com/privacy, as such privacy policy may be updated from time to time by FieldLevel as described in such privacy policy.

1.5 "Initial Term" has the meaning given to such term in Section 13.1.

1.6 "Personal Data" has the meaning given to such term in the FieldLevel Privacy Policy.

1.7 "Renewal Term" has the meaning given to such term in Section 13.1.

1.8 "Software" means the FieldLevel proprietary software modules described on Exhibit A and licensed by FieldLevel to Client subject to Section 3 below, including any modified, updated, or enhanced versions of such programs that FieldLevel may use or provide to Client pursuant to this Agreement.

1.9 "Term" has the meaning given to such term in Section 13.1.

1.10 "User" has the meaning given to such term in Section 2.

2. GENERALLY.

Subject to the terms and conditions of this Agreement, including Client's payment obligations, during the Term, FieldLevel will use reasonable commercial efforts to provide Client remote access to the Services based on the mix of Software modules specified on Exhibit A and licensed by Client subject to Section 3 below. Without limiting any other obligations of Client specified in this Agreement, Client shall ensure that only those coaches and enrolled students of Client who are authorized in writing by Client to access and use the Services and Software for Client's internal purposes and who have agreed in writing with Client to terms and conditions regarding the Services and Software that are at least as protective of FieldLevel as this Agreement may access and use the Services and Software ("Users"). Client shall be solely responsible, at its own expense, for acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary for the Users to connect to and access and use the Services and Software. Additional Software module licenses may be made available by FieldLevel from time to time for purchase by Client subject to such additional fees and terms as may be agreed by the parties and amending Exhibit A hereto. Except as set forth in this Agreement, FieldLevel is not obligated to provide Client any software or services.

3. LICENSE GRANT.

Subject to the terms and conditions of this Agreement, including Client's payment obligations, FieldLevel grants to Client a non-exclusive, non-transferable, revocable, limited license, during the Term, to allow Users to: (a) remotely access the Software over the Internet solely for the purpose of using the Services for Client's internal purposes and (b) reproduce and use a reasonable number of copies of the Documentation, solely for the purpose of using the Software and Services for Client's internal purposes.

4. RESTRICTIONS.

Client agrees that (a) it will not permit any third party to access or use the Services, Software, or Documentation, other than Users who need to access and use the Services, Software, or Documentation for Client's internal purposes; (b) it will not, nor will it permit any User or any third party to, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (c) it will not, nor will it permit any User or third party to, modify, adapt, translate, or create derivative works based on the Software or Documentation; (d) it will not, nor will it permit any User to, reproduce, use, distribute or otherwise make available to any third party any part of the Services or portion of the Software or Documentation; and (e) it will not, nor will it permit any User to, provide any output or reports generated by the Software, without FieldLevel's prior written consent (provided that coaches who are Users pursuant to this Agreement ("Coach-Users") may provide "Scouting Reports" generated by the Software for the sole and exclusive purpose of promoting athletes who are currently enrolled with Client ("Roster Athletes")). Client agrees not to remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Field Level or its suppliers on or within the FieldLevel Site, Services, Software, or Documentation.

5. OWNERSHIP.

The Software, Documentation, and Services, including all worldwide intellectual property rights therein, are the exclusive property of FieldLevel and its suppliers. All rights in and to the Software or Documentation not expressly granted to Client in this Agreement are reserved by FieldLevel and its suppliers. There are no implied licenses in this Agreement.

6. SECURITY.

Client will be assigned a username and password for access to and use of the Services and Software by each User notified in writing to Client, subject to a not to exceed maximum number of Users, if at all, set forth in Exhibit B. FieldLevel reserves the right to change or update usernames and passwords in its sole discretion from time to time upon written notice to Client. Client shall be responsible for ensuring the security and confidentiality of the usernames and passwords assigned by FieldLevel to Users. Client shall not, and shall cause its Users not to, transfer such usernames and passwords. Client will promptly notify FieldLevel in writing when any coach or student no longer requires access to or use of the Services and Software for Client's internal purposes or is no longer authorized by Client to do so. Each username and password may only be used to access the Services and Software during one (1) concurrent login session by the User to whom that username and password has been assigned by FieldLevel. Client agrees not to, and Client shall cause each User not to, allow any third party to use any username or password other than the specific User to whom that username and password has been assigned by FieldLevel. Client shall notify FieldLevel promptly of any actual or suspected unauthorized use of any username or password or any other breach or non-compliance or suspected breach or non-compliance with the terms and conditions of this Agreement. Client acknowledges and agrees that it will be fully responsible for all liabilities incurred through use (whether lawful or unlawful) of the usernames and/or passwords by Client's Users. Client will be deemed to be in breach of this Agreement if any User does not comply with these terms and conditions. FieldLevel reserves the right, in its sole discretion, to suspend or terminate any username and password if FieldLevel reasonably determines that username or password may have been used by an unauthorized third party; provided, however, that FieldLevel will provide written notice to Client of its concern within a reasonable period of time following such suspension or termination.

7. FEES AND PAYMENT

7.1 Fees and Payment. If a Client purchases any FieldLevel services that are offered for a fee, either on a one-time or subscription basis, the Client agrees to pay FieldLevel the applicable fees for the services (including, without limitation, periodic fees for premium accounts) as they become due plus all related taxes, and to reimburse FieldLevel for all collection costs and interest for any overdue amounts. The Client’s obligation to pay fees continues through the end of the subscription period during which the Clients cancel the subscription. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid. FieldLevel will be entitled to suspend providing the Services to Client until all amounts due are paid in full. In addition, FieldLevel reserves the right, at any time during the Term, to increase the fees payable by Client hereunder upon written notice to Client. All fees paid under this Agreement are non-refundable.

7.2 Taxes. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and Client will be responsible for payment of all such taxes (other than taxes based on FieldLevel's net income), and any related penalties and interest, arising from the payment of the fees or the access or use of the Services or Software by Client.

8. SUPPORT.

Subject to the terms of this Agreement, FieldLevel will use commercially reasonable efforts during the Term, to provide Client support by email, Monday through Friday, 9:00 AM to 5:00 PM Pacific Standard Time, U.S. bank holidays excluded, for troubleshooting daily usage and hosting issues. FieldLevel will use commercially reasonable efforts to respond to Client's support requests within twenty-four (24) hours (excluding weekends and U.S. bank holidays). FieldLevel will update the Software used to provide the Service within a reasonable period of time after any such updates are generally made available by FieldLevel to its other similar clients. Notwithstanding the foregoing, FieldLevel will have no responsibility or liability of any kind, whether for breach of warranty or otherwise under this Agreement, arising or resulting from (a) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by FieldLevel; (b) nonconformities resulting from Client's or its Users', or any third party's, misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Service or Software; (c) problems or errors caused by third party products, services, or equipment; or (d) modification, amendment, revision, or change to the Service or Software by any party other than FieldLevel.

9. DATA.

9.1 Personal Data. To provide the Services, FieldLevel may require Users to provide Personal Data. In addition, Coach-Users may enter in to the Software Personal Data of Client's students and other third parties in the course of using the Services and Software. Client hereby grants to FieldLevel all proprietary rights and licenses in and to all such Personal Data reasonably necessary for FieldLevel to provide the Services or Software to Client and its Users. Client represents and warrants that it has all the rights necessary (a) to grant the licenses granted herein to FieldLevel in and to such Personal Data and (b) for its Coach-Users to disclose the Personal Data contained in the "Scouting Reports" to third-party recipients and for such third-party recipients to use such Personal Data. Client agrees to defend, indemnify and hold harmless FieldLevel from any and all claims, suits, actions, losses, costs, damages, liabilities and expenses (including attorney's fees) incurred or arising from any claim by a third party (including any User) relating to arising out of any breach of any of the foregoing representations or warranties. Client agrees that FieldLevel's obligation to protect any Personal Data obtained in the course of providing the Services will be as set forth in the FieldLevel Privacy Policy.

9.2 Anonymous Data. Anonymous Data, as such term is defined in the FieldLevel Privacy Policy, shall be solely owned by FieldLevel and may be used by FieldLevel for any lawful business purpose without a duty of accounting to Client or any User, provided that the Anonymous Data is used only in an aggregated form, without specifically identifying the Client or any User as the source of the Anonymous Data.

10. Limited Warranty and Disclaimer

10.1 Limited Warranty. FieldLevel represents and warrants solely to Client that for a period of thirty (30) days following the date the Software is first made remotely available to Client (the "Warranty Period"), the Software will perform substantially in accordance with its Documentation when used in accordance with such Documentation. FieldLevel's sole obligation, and Client's exclusive remedy, for any breach of this warranty will be for FieldLevel, at its option and expense, to repair or replace the defective Software module to the extent the defect is reproducible, and if the foregoing remedies are not commercially feasible, terminate this Agreement and the portion of the Service impacted by the defective Software module and refund a proportionate amount of the fees paid by Client for the impacted Services. The foregoing remedy is conditioned upon Client providing FieldLevel with a written notice describing the defect in reasonable detail within the Warranty Period.

10.2 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1 (LIMITED WARRANTY), THE SERVICES, SOFTWARE, DOCUMENTATION, AND FIELDLEVEL SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND FIELDLEVEL AND ITS SUPPLIERS AND AGENTS, MAKE NO (AND HEREBY DISCLAIM ALL) WARRANTIES, OR REPRESENTATIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, VALIDITY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OF THE FIELDLEVEL SITE OR THE SERVICES, SOFTWARE, OR DOCUMENTATION. ALL USE, MISUSE, OR INABILITY TO USE, IN WHOLE OR IN PART, THE FIELDLEVEL SITE OR THE SERVICES, SOFTWARE, OR DOCUMENTATION, IS AT CLIENT'S OWN RISK. FIELDLEVEL AND ITS SUPPLIERS AND AGENTS DO NOT WARRANT THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE OPERATION OF THE FIELDLEVEL SITE, SERVICES, OR SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, SECURE, OR RELIABLE. CLIENT ACKNOWLEDGES AND AGREES THAT THIS SECTION 10.2 IS AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

11. LIMITATION OF LIABILITY.

IN NO EVENT WILL FIELDLEVEL OR ITS SUPPLIERS OR AGENTS BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOST PROFITS OR LOST DATA, REGARDING THIS AGREEMENT OR RESULTING FROM OR IN CONNECTION WITH FIELDLEVEL'S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE, IN WHOLE OR IN PART, THE FIELDLEVEL SITE OR THE SERVICE, SOFTWARE, OR DOCUMENTATION, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF FIELDLEVEL HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT WILL FIELDLEVEL BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE MAXIMUM CUMULATIVE LIABILITY OF FIELDLEVEL ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT AND THE FIELDLEVEL SITE, SERVICE, SOFTWARE, AND DOCUMENTATION, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY CLIENT TO FIELDLEVEL DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM GIVING RISE TO THE LIABILITY AROSE. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS LIMIT ON FIELDLEVEL'S LIABILITY. Client agrees that the limitations of liability set forth in this Section 11 will survive and continue in full force and effect despite any failure of an exclusive remedy. Client acknowledges that the fees set forth in this Agreement reflect the allocation of risk set forth in this Agreement and the Agreement is entered into by FieldLevel in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

12. CONFIDENTIALITY.

"Confidential Information" means, with respect to (a) FieldLevel, the Software, Documentation, Feedback, Users' usernames and passwords, and all other materials and information disclosed under this Agreement relating to the provision of the Services by FieldLevel, and (b) Client, Personal Data (excluding any Anonymous Data) and Client Content. The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement or the FieldLevel Privacy Policy. The receiving party will limit access to the Confidential Information of the disclosing party to those of its employees and in addition, in the case of FieldLevel, to FieldLevel's subcontractors, who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the receiving party will protect the Confidential Information of the disclosing party from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, and in no event with less than reasonable care. The confidentiality obligations set forth herein will not apply to any information that the receiving party can prove that the information (a) has become generally available to the public through no fault of the receiving party; (b) is lawfully provided to the receiving party by a third party free of any confidentiality duties or obligations; (c) was already known to the receiving party at the time of disclosure; or (d) was independently developed by employees or contractors of the receiving party who had no access to the Confidential Information of the disclosing party. In addition, the receiving party may disclose Confidential Information of the disclosing party without violating this Section to the extent that such disclosure is necessary for the receiving party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party to seek an appropriate protective order. Upon any termination or expiration of this Agreement, each party will destroy or return to the other all Confidential Information of the other party in its possession or control, (except for copies retained solely for archival purposes) and upon the disclosing party's request will certify in writing that it has fully complied with this obligation.

13. TERM AND TERMINATION

13.1 Term. Unless earlier terminated as set forth below or elsewhere in this Agreement, this Agreement commences on the Effective Date and will remain in effect for a period of one (1) year (the "Initial Term"). This Agreement will automatically renew for consecutive one (1) year terms (each, a "Renewal Term") unless either party provides written notice to the other of its intention not to renew at least thirty (30) days prior to the expiration of the then-current term. The Initial Term and Renewal Terms are collectively referred to as the "Term."

13.2 Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement, and such breach is not cured within thirty (30) days after receipt of written notice describing the breach in reasonable detail. FieldLevel may terminate this Agreement immediately upon written notice to Client if Client fails to pay FieldLevel any amounts hereunder when due.

13.3 Effect of Termination. Upon any termination or expiration of this Agreement, any amounts owed to FieldLevel under this Agreement before such termination or expiration will be immediately due and payable, all licenses granted to Client herein will immediately terminate, and Client's and its Users' access to the Service will be discontinued. The following Sections will survive any termination or expiration of this Agreement: 1 (Definitions), 4 (Restrictions), 5 (Ownership), 7 (Fees and Payment), 9.2 (Anonymous Data), 10.2 (Disclaimer), 11 (Limitation of Liability), 12 (Confidentiality), 13.3 (Effect of Termination), and 14 (Miscellaneous).

14. MISCELLANEOUS

14.1 Governing Law and Venue. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different state. Client hereby expressly consents to the exclusive jurisdiction and venue in the state and federal courts for Santa Clara County, California for any lawsuit filed under this Agreement.

14.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Client agrees that Section 11 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any exclusive remedy specified in this Agreement.

14.3 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

14.4 Remedies. Each party acknowledges that any actual or threatened breach of the Sections 3 (License Grant), 4 (Restrictions), 5 (Ownership), or 12 (Confidentiality) will constitute immediate, irreparable harm to the other party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.

14.5 Assignment. Client may not assign this Agreement, or any rights or obligations under this Agreement, without FieldLevel's prior written consent. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. FieldLevel may freely assign this Agreement, or any rights or obligations under this Agreement.

14.6 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, Internet outage, power outage, failure of FieldLevel's internet service provider, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

14.7 Change in Software or Services. FieldLevel reserves the right to change, modify, and otherwise convert the technology used to provide the Software and/or Services; provided that the basic functionality and quality of the Software and Services will not be reduced.

14.8 Independent Contractors. Client's relationship to FieldLevel is that of an independent contractor, and neither party is an agent or partner of the other.

14.9 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the signature page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.

14.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

14.11 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to."

14.12 Entire Agreement. This Agreement, including its Exhibits, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Except for the FieldLevel Privacy Policy which may be modified or amended by FieldLevel in the manner specified in the FieldLevel Privacy Policy, no modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of FieldLevel and Client. There are no third party beneficiaries under this Agreement.

Date of Last Revision: January, 2012

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