ERS Enterprises, P.C.

 

This Coaching Agreement ("Agreement") is entered into and made effective as of date of registration, (the "Effective Date"), by and between ERS Enterprises, P.C., a Nebraska professional corporation (“ERS”), and registered member of ERS product offerings (“The Client”).

 

R E C I T A L S:

 

WHEREAS, ERS is in the business of providing coaching, systems, strategies, and accountability to individuals interested in expanding their knowledge in and around residential real estate to The Client, along with certain other back office services;

 

WHEREAS, ERS desires to provide The Client registered for the "Team Leader" product, on a non-exclusive basis, a weekly livestream feed of their flagship team, Omaha’s Elite Real Estate Group’s, Wednesday agent training, Thursday high-level topic call, Friday dialogue training, designated Special Events, access to the private ERS Google Drive, and access to the ERS Livestream Facebook community. All live feeds will be recorded and made available to view at a later date. ERS desires to provide The Client registered for the "Agent" product, on a non-exclusive basis, Wednesday agent training and Friday dialogue training. The Client desires to accept such engagement, in accordance with the terms and conditions set forth herein.

 

NOW THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

 

1. Payment Terms. The Client agrees to pay ERS $497.00 per month with a one-time $197.00 account setup fee for selecting the "Team Leader" monthly subscription. The Client agrees to pay ERS $17.00 per month with a one-time $47.00 account setup fee for selecting the "Agent" monthly subscription. These prices may change subject to ERS providing The Client a voucher that my increase or decrease the monthly subscription price, and/or the one-time account setup fee. The Client understands that this authorization will remain in effect until cancelled in writing, and agrees to notify Elite Real Estate Systems in writing of any changes in the account information or termination of this authorization at least 30 days prior to the next billing date. If the payment dates fall on a weekend or holiday, The Client understands that the payments may be executed on the next business day. The Client acknowledges that the origination of ACH transactions to their account must comply with the provisions of U.S. law. The Client certifies that he/she is an authorized user of the credit card used for registration and will not dispute any scheduled transactions with their bank or credit card company; so long as the transactions correspond to the terms indicated in this Agreement.

 

2. Term; Termination. This Agreement will commence on the Effective Date and will remain in effect on a month-to-month basis unless and until either party provides the other party with written notice, 30 days prior to termination, of its intention to terminate the Agreement, for any reason or no reason, Sections 3-9 and this Section 2 shall survive the termination of this Agreement, to the extent applicable. Upon the required 30-day written notice of termination, The Client understands that s/he will incur one final payment on his/her regular billing date that occurs within the 30-day notice of cancellation. The Client will have access to all features and benefits of his/her selected level of membership for 29 calendar days after his/her last payment date. 

 

3. Intellectual Property. ERS shall retain ownership of all intellectual property rights, including, without limitation, all patents, inventions, Marks, copyrights, designs, plans, strategies, concepts, ideas, trade secrets and know-how (“Intellectual Property”), embodied in or related to ERS. Nothing in this Agreement shall be construed to grant or transfer to The Client any right, title, or interest in or to any Intellectual Property owned by ERS. The Client shall not share, modify, alter, adapt, copy, decompile, disassemble, or reverse engineer ERS’s (“Intellectual Property”).

 

4. Confidentiality. During the term of this Agreement, ERS may provide The Client with certain confidential and proprietary information (“Confidential Information”). Confidential Information includes, without limitation, the terms of this Agreement, the Intellectual Property, ERS’s business plans, financial and accounting information, technical data, computer programs, customer lists, marketing strategies, operating manuals and know-how, and any other information of ERS that is marked “confidential” or “proprietary,” any information that is orally disclosed and identified as confidential at the time of disclosure, as well as any information or material which, by its nature and under the circumstances surrounding its disclosure, is generally considered confidential, regardless of whether it is properly marked or identified as such. Confidential Information does not include information that (i) is publicly known at the time of its disclosure or becomes publicly known through no fault of The Client; (ii) is lawfully received by The Client from a third party not under an obligation of confidentiality to ERS; or (iii) is independently developed by The Client without use of or reference to ERS’s Confidential Information. The Client shall not use the ERS’s Confidential Information except to the extent necessary to perform its obligations under this Agreement and shall restrict its disclosure of The Client’s Confidential Information to those of its officers, employees, and agents who have a need-to-know in order for The Client to perform its obligations hereunder. The Client shall remain liable for any breach of this Section 4 by its officers, employees, and agents. In the event The Client is required to disclose any Confidential Information by a governmental agency, court order or other legal process, The Client may do so, provided that The Client shall (x) first notify ERS of such requirement; (y) cooperate with ERS in its efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information; and (z) disclose only that portion of the Confidential Information that is legally required.

 

5. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY THE OTHER PARTY, A REFERRED CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY OF THE LIMITED REMEDIES OF THIS AGREEMENT FAILS TO FULFILL ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ERS’ AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY The Client DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.

 

6. Indemnification. The Client agrees to indemnify and hold harmless ERS and its directors, officers, agents and employees (the “Indemnified Parties”) from and against any and all claims, demands, liabilities, damages, losses and expenses (including reasonable attorneys’ fees) arising out of or related to The Client’s (i) negligence or willful misconduct; (ii) breach of any term of this Agreement; or (iii) violation of any law, rule or regulation.

 

7. Relationship Between the Parties. The relationship between the parties is that of independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

 

8. Notices. All notices required or permitted to be given hereunder shall be in writing and shall be (i) personally delivered to the party, (ii) sent by certified mail, postage prepaid, or (iii) sent by prepaid overnight nationally recognized courier, properly addressed to a party at the address set forth below its signature hereto or at such other address as shall be designated by such party in a written notice to the other party. All such notices and communications shall be effective (i) if personally delivered, when delivered, (ii) if sent by certified mail, three days after having been deposited in the mail, postage prepaid, or (iii) if sent by overnight courier, one business day after having been given to such courier.

 

9. Miscellaneous. The parties hereto shall take such actions, or execute and deliver such further documents, as are reasonably necessary, appropriate or desirable to give effect to the terms of this Agreement. The terms, covenants, and conditions of this Agreement may not be altered, changed or modified except by in writing signed by the parties hereto. Neither party shall assign this Agreement, in whole or in part, without the prior written consent of the other party, except that either party may assign this Agreement in the event of a change in control of such party, by merger or otherwise, or a sale of all or substantially all of such party’s assets. This Agreement and the Schedules attached hereto, each of which is incorporated herein by this reference, constitutes the entire agreement of the parties hereto respecting the subject matter hereof and shall supersede and replace all prior and contemporaneous agreements and understandings between the parties hereto concerning the subject matter hereof. This Agreement is made and entered into for the sole benefit of the parties hereto, their successors and permitted assigns, and no other person shall be a direct or indirect beneficiary of, or have any direct or indirect cause of action or claim under or in connection with this Agreement. The provisions of this Agreement shall be deemed to be independent and several in that the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any other provision hereof, and this Agreement shall be construed as if such unenforceable provision had not been contained herein. The waiver of any breach of this Agreement by any party hereto shall not constitute a continuing waiver, or a waiver of any other breach, of the same or any other provision of this Agreement. This Agreement shall be controlled by, and is to be construed under, the laws of the State of Nebraska. Any suit arising from or in any way related to this Agreement or the subject matter hereof shall be filed in the state or federal courts located in Douglas County, Nebraska.

 

10. Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, all of which together shall constitute one and the same instrument.

 

 

InPlayer, Ltd.

 

 

Terms & Conditions

for anyone registering through an InPlayer paywall

 

1. Accepting These Terms

 

This document and the other documents that we reference below make up our house rules, or what we officially call our Terms and Conditions (the “Terms” for short).

 

The Terms are a legally binding contract between you, as a User and InPlayer.

 

This contract sets out your rights and responsibilities when you use InPlayer’s service (“Services”) and our Platform (“Platform”) to access, purchase or start a membership for one of our Merchant’s Premium Content (“Premium Content or Content”). A “Merchant” is either a business or individual entity, making use of InPlayer’s Services.

 

By using any of our Services, you (“Customer”) are agreeing to the Terms. If you don’t agree with the Terms, you may not use our Services. You with us? Great, read on!

 

2. Provisions of Service

 

InPlayer will use its best and reasonable endeavors to provide the Services on an error-free basis and without interruption. Notwithstanding, InPlayer, does not provide any guarantee that provision of the Services will be error-free or without interruption and reserves the right to alter or suspend provision of the Services without prior notice to Customers. By accepting these Terms and Conditions, you acknowledge that the Services may change in form or nature at any time.

 

InPlayer shall have the right, exercisable at its sole discretion, to terminate provision of the Services without prior notice to Users.

 

3. Your Account with InPlayer

 

You’ll need to create an account with InPlayer to use our Services and access Premium Content made available by a Merchant. Here are a few rules about the accounts you create with InPlayer:

 

  1. Be honest with us. Make sure to provide accurate information about yourself. It’s not OK to use false information or impersonate another person or company through your account.

  2. You are responsible for your account. You’re solely responsible for any activity on your account, so please make sure that all the information you’ve used to create your account will be kept accurate and up-to-date. We have the right to disable any user accounts, at any time, if in our reasonable opinion, you have fail to comply with any of the provisions of these Terms.

  3. Protect your account. As we mentioned above, you’re solely responsible for any activity on your account, so it’s important to keep your account password secure and not share it with any third parties. We have the right to disable any user identification code or password, whether chosen by You or allocated by Us, at any time, if in Our reasonable opinion, You have failed to comply with any of the provisions of these Terms.

  4. Someone is impersonating you? If you, as a Customer have a reason to believe that your account details have been obtained by another user without consent, immediately contact InPlayer to suspend your account and cancel any unauthorized payments or memberships that may be pending. In case an unauthorized use is made before you notify us of the unauthorized nature of the order or payment, InPlayer will suspend access to the Services and the withdrawal of any scheduled payments pending investigation. We will begin an investigation, after which we will be able to determine whether or not to cancel access to the Services and make a full or partial refund of the payment to you.

 

4. Payments and Memberships

 

You can make a payment or start a membership by using different payment methods, made available through PayPal, Visa, MasterCard, and/or other payment methods available via the Platform. You should be aware that the available payment methods may vary per Merchant.

 

The cost associated with purchasing access to the Premium Content will be indicated on the Platform. The prices due in respect of Premium Content may be revised at any time, however, this will not affect any previously purchased Premium Content.

 

Recurring Memberships? If you choose to start a membership plan for any Premium Content and provide or designate a payment method, you authorize InPlayer to charge you on a recurring monthly/ 3-monthly/6-monthly/12-monthly (depending on your chosen membership package) membership fee at the then current rate.

 

The Merchant who has made the Premium Content available reserves the right to adjust the price for their membership models in any manner and at any time as they may determine in their sole and absolute discretion. If the Merchant decides to change the price of your ongoing membership, you will be notified via email before the price change takes effect.

 

Cancellations.You may cancel your membership at any time without any prior notices to the Merchant or InPlayer, and therefore, cancel any recurring payment plans. Failure to cancel before the next billing date will result in another automatic payment.

 

5. Refunds

 

Refund policies are Merchant specific. If you are having trouble locating the Terms on the Website on which you’ve made a payment or started your membership, please don’t hesitate to contact us at support@inplayer.com.

 

InPlayer’s refund policy:

 

To make sure that as a Customer, you are protected by InPlayer, we do have our own refund policy.

 

You will be granted a refund within 72 hours after the refund request was submitted, in the same payment method of the original payment, in case:

 

  1. You have made a duplicate purchase using the same email address.

  2. The availability of the content you have purchased was cancelled.

  3. The Premium Content wasn’t published by the Merchant.

  4. More than 80% of the Premium Content delivery had quality issues (no sound, or poor sound & video quality).

  5. The content was misleading – the description didn’t relate to actual Premium Content.

 

InPlayer will not issue refunds based on personal reasons which may have prevented you from accessing the Premium Content.

 

Request for refunds can be made within 72 hours from the original transaction.

 

InPlayer reserves the right to refuse a request for refund at any time.

 

Not satisfied with the Premium Content? You are free to submit a refund request, but make sure to do it within 72 hours of the original purchase. InPlayer will certainly contact you for more information and report back to the Merchant who will ultimately decide whether your refund request is approved.

 

6. Your Use of Our Services

 

License to Use Our Services. We grant you a limited, non-exclusive, non-transferable, and revocable license to use our Services—subject to the Terms and the following restrictions in particular:

 

  1. Don’t Use Our Services to Break the Law. You agree that you will not violate any laws in connection with your use of the Services. This includes any local, state, federal, and international laws that may apply to you. You will also not use the Services to store or transmit any content that infringes upon any person’s intellectual property rights.

  2. Don’t Steal Our or Merchants’ Stuff. You agree not to download, decipher, decompile, “crawl,” “scrape,” or “spider” any page of the Services or to reverse engineer or attempt to obtain the source code of the Services. These restrictions shall not apply to Premium Content made available by a particular Merchant where you can download their Premium Content, using our Service as intended.

  3. Don’t Try to Harm Our Systems. You agree not to interfere with or try to disrupt our Services, for example by distributing a virus or other harmful computer code.

 

7. Warranties and Limitation of Liability (or the Things You Can’t Sue Us For)

 

Premium Content You Purchase or Become Member Of. You understand that InPlayer does not manufacture, store, or inspect any of the items made available for purchase through our Services. We provide the Service; the Premium Content in marketplaces are produced, listed, and monetized directly by independent Merchants, so InPlayer cannot and does not make any warranties about their quality, safety, or even their legality. Any legal claim related to a Premium Content you purchase must be brought directly against the Merchant who has made the Premium Content available for purchase.

 

Premium Content You Access. You may come across materials that you find offensive or inappropriate while using our Services. We make no representations concerning any content posted by Merchants through the Services. InPlayer is not responsible for the accuracy, copyright compliance, legality, or decency of content posted by the Merchants that you accessed through the Services. You release us from all liability relating to that content.

 

8. Your Privacy

 

We know your personal information is important to you, so it’s important to us, too!

 

Like many other software companies, we are implementing our company-wide GDPR compliance strategy leading up to May 25, 2018, and beyond. We appreciate that our Customers have requirements under GDPR that are directly impacted by their use of InPlayer’s Services, and we are committed to helping our Customers fulfill their requirements under GDPR.

 

Read our Data Processing Agreement here.

 

Article 1 – Definitions

 

The following definitions shall have the following meanings as used in these general terms and conditions:

 

Agreement the agreement between InPlayer and the Client pursuant to which the Client makes use of the Services (including the Cover Sheet at the front of this document, the Schedule, the Appendix and these General Terms)

 

Client the party, either a business or individual entity, making use of the Services

 

Confidential Info means information of either party which is marked or expressed as being confidential, the content of this Agreement and any information which could reasonably be deemed to be confidential from its nature, content or the circumstances in which it is provided including without limitation information relating to the business, customers, products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities and business affairs of either party and/or (if either party is part of a larger group of companies) information relating to any other group company

 

Control Panel a secured part of the Client’s personal page on the Website, which can only be accessed by the Client by using their personal username and password. The Control Panel shows an overview of the Client’s account transactions and other information resulting from their use of the InPlayer Plugin

 

Customer any individual or business entity desiring to purchase access to the Client’s services and/or products by making use of the Services

 

General Terms these general terms and conditions

 

IPRs all patents, unpatented inventions, design rights, copyrights (including, without limitation, rights in computer software), rights in databases, topography rights, trade marks, service marks, trade names, rights in goodwill or to bring an action in passing off, rights in trade secrets, confidential information or know-how and all other intellectual property rights of any nature whatsoever, and all rights of a similar nature or having similar effect, throughout the world, whether registered or unregistered, and including all applications and rights to apply for any of the same

 

Online Video Players software provided by third parties used by the Client to make available online video content to the Customers (“OVP”)

 

Gross Revenue the total amount of revenue actually received by InPlayer from (i) Suppliers (relating to the Customer’s use of the Services described in article 5.1 a. below)

 

Parties InPlayer and the Client

 

Plugin the InPlayer provided .swf file accessed by the third party OVP used by the Client

 

Services the services offered by InPlayer on the Website and as a Plugin to an OVP and via mobile applications

 

Supplier the merchant service or other operator providing for the means to allow the Customer to add funds to their InPlayer account

 

Term means the period from the date of this Agreemnt until the Agreement is terminated in accordance with its terms

 

Website InPlayer’ website with (at least) the domain name InPlayer.com included but not limited to all related software, design and databases PCM or pcm means per calendar month. 

 

Article 2 – Agreement

 

2.1 The Agreement shall come into force and effect upon its execution by representatives of both Parties. The Client shall, on execution of this Agreement, fill out the required details for registration on the Website and InPlayer shall subsequently provide e-mail confirmation of the Client’s registration. The Client guarantees the completeness and accuracy of any information provided.

 

2.2 The Client shall receive a personal username and password, which is strictly private and confidential. The Client will be fully responsible for all activities that occur under this account and for any misuse of the username or password that are/is within its control.

 

2.3 After registration and confirmation by InPlayer as mentioned in article 2.1 of this Agreement, the Client will have access to the Website and Plugin and will be able to use the Website and Plugin as links to provide their Customers the Services.

 

2.4 The Client warrants that it is legally authorised and has obtained all necessary regulatory approvals and certificates to conclude the Agreement and to provide any services and/or sell any products it intends to sell. The Client further warrants that it will comply at all times with all applicable laws, rules and regulations.

 

Article 3 – Services and Payment

 

3.1 The Services consist of:

 

  1.  An account management system for the control of the applications that make up the InPlayer platform

 

   2. Any additional functionality that is added to the Client’s InPlayer account in the form of ‘Apps’. These may be subject to an addendum             to this agreement or additional term sheet.

 

3.2 When the Customer pays for the Client’s services/products (using the InPlayer Services described in article 3.1 a. above) the cost shall be deducted from the Customer’s InPlayer account by the Supplier and transferred to InPlayer. Once such amount is received by InPlayer from the Supplier it shall be deemed to be Gross Revenue and the client revenue share payable in accordance with the Schedule will be credited to the Client’s nominated account in accordance with article 3.3 below.

 

3.3 InPlayer shall remit client revenue share outpayments to the client within 30 days of the end of the month during which the Gross Revenue was received by InPlayer. The minimum amount for outpayment is $250. In the event that $250 of funds is not reached, revenue shall continue to accrue until this sum is reached or until the end of the contract.

 

3.4 Subject to the Client’s prior approval, InPlayer is allowed to introduce other methods of payment which makes it possible for a Customer to pay for access to the services and/or products on a Website of the Client. Any associated processing costs for these shall be paid for from InPlayer’ portion of the Gross Revenue, or deducted from a Customer’s balance at point of add funds transaction.

 

3.5 Refund policies are publisher specific.  Please refer to their Website to download of copy of their latest refund policy. If you are unable to locate this information, please contact our support team at support@inplayer.com, and we will send you a link to the specific publisher’s policy.


InPlayer’s refund policy is as follows:
The Customer will be granted a refund within 72 hours after the refund request was submitted, in case:

 

  1. The Customer made a duplicate purchases using the same email address.

  2. The live streaming was cancelled.

  3. The content wasn’t published by the Client.

  4. More than 80% of the content delivery had streaming issues (no sound, or poor sound & video quality).

  5. The content was misleading – the description didn’t relate to actual content.

 

The Customer refunds will be issued in the same method of payment as the original payment.
In case the Customer is not entirely satisfied with their purchase can submit a refund request. Inplayer Ltd. may contact the Customer for more information and/or the Publisher who will decide if the Customer request is valid for a refund.


In case the Customer is not entirely satisfied with their purchase can submit a refund request. Inplayer Ltd. may contact the Customer for more information and/or the Publisher who will decide if the Customer request is valid for a refund.

 

Inplayer Ltd. doesn’t refund request based on the personal reasons, that prevented the User from watching/accessing the content after purchasing.

 

Request for refunds can be made within 72h with the original receipt/invoice copy.
At any time, Inplayer Ltd. reserves the right to refuse a request for refund.

 

3.6. Charge-backs: Return of funds to a consumer, forcibly initiated by the issuing bank of the payment method used by a consumer for his purchase. Charge-back and refund fees are transferred at the burden of the Client and the original cost from the provider offering the Form of payment. Starting December 13th 2015, the fees for charge-backs will be €30, $30, £25/£23 based on payment currency.

 

Article 4 – Compliance

 

4.1 The Client warrants and represents to InPlayer that it shall:

 

  1.  refrain from infringing any InPlayer or third party’s IPRs;

  2. refrain from violating any law or regulation, including but not limited to penal laws, privacy laws, advertisement laws and tort law, inter alia acting in any way detrimental, discriminatory, immoral, obscene, inappropriate or otherwise inadmissible pursuant to applicable law;

  3. not make use of the Services to send unsolicited messages (spamming);

  4. not mislead the Customer in any way or/and refrain from offering illegal services or distributing unlawful material;

  5. refrain from hacking the Website or the server(s) on which the Website or Plugin is located, or circumventing any security measures made to it, or in any other way hinder or influence the operation of the Website.

 

4.2 InPlayer warrants and represents to Client that it shall:

 

  1.  refrain from infringing any Client or third party’s IPRs;

  2. refrain from violating any law or regulation, including but not limited to penal laws, privacy laws, advertisement laws and tort law, inter alia acting in any way detrimental, discriminatory, immoral, obscene, inappropriate or otherwise inadmissible pursuant to applicable law;

  3. not mislead the Customer in any way or/and refrain from offering illegal services or distributing unlawful material;

  4. comply at all times with the terms set out in the Appendix;

  5. ensure that the Plugin does not contain any malware or viruses;

  6. provide the Services using reasonable skill and care; and

  7. subject to article 6.4, ensure that the Services and Plugin are available 99.5% of the time.

 

Article 5 – Intellectual property rights

 

5.1 The Client acknowledges and agrees that all IPRs in the Website and Plugin will at all times be exclusively owned by InPlayer. InPlayer acknowledges that all IPR’s in the Client’s content will at all times, as between the Client and InPlayer, be exclusively owned by the Client. The Client acknowledges and agrees that InPlayer shall be permitted to store a copy of the Clients’ video content on its server solely in order to improve the provision of services to the Customer. All copies will be deleted by InPlayer within 7 days of the expiry or termination of this Agreement.

 

5.2 InPlayer hereby grants to the Client a non-exclusive, revocable, non-transferable licence during the Term (without right to assign or sub-license) to use the Plugin on the URL’s/publisher IDs specified in the Schedule, on the terms and conditions of this Agreement. The Client shall not use the Plugin, the Services, or any product of the Services except as expressly permitted under this Agreement and in accordance with InPlayer’ instructions from time to time. The Client is entitled to use InPlayer’ name and logo on its own website during the Term of this Agreement provided any goodwill accrues exclusively to InPlayer.

 

5.3 The Client shall not and shall not allow any third party to: (i) take any action which might invalidate the title of InPlayer to the IPRs or any product of the Services; (ii) create, or produce anything which utilises or applies any of the principles, concepts, designs, functionality or purposes of the Website or Plugin, or (iii) copy, adapt, reverse engineer, modify, decompile, disassemble, translate, or create derivative works based on the whole or any part of the Website or Plugin, all or any part of the program code, or any product of the Services.

 

5.4 The Client shall refrain from using, reproducing or altering the Website or any part of it in any other way than provided for by means of this Agreement, without InPlayer’ prior written consent. The Client shall immediately cease and desist the unauthorized use of InPlayer’ IPRs upon InPlayer’ first notice.

 

5.5 InPlayer shall suspend use of the Plugin immediately on notice from the Client.

 

5.6 InPlayer acknowledges that the Client shall be entitled to immediately suspend the Plugin at anytime.

 

Article 6 – Liability and force majeure

 

6.1 Nothing in this Agreement shall be construed as excluding or limiting the liability of either party (i) for fraud or fraudulent misrepresentation, or (ii) for death or personal injury caused by that party’s negligence.

 

6.2 Subject to article 6.1, in no event shall either party be liable to the other for any:

 

6.2.1 special, indirect or consequential losses; or

 

6.2.2 loss of profit, loss of revenue, loss of anticipated savings, loss of contract, loss of opportunity, loss of data in each case whether direct or indirect; or

 

6.2.3 any direct or indirect loss of or damage to goodwill, in each case arising out of or in connection with this Agreement or the subject matter hereof and in each case whether or not such losses were in the contemplation of the Parties or were notified by one party to the other on or prior to the date of this Agreement.

 

6.3 The Parties acknowledge that no representations were made by the other prior to entering into this Agreement, and that they did not rely on any representations (whether written or oral) of any kind, other than those expressly set out in this Agreement.

 

6.4 The Services and the Plugin are provided on an “as is” basis, and InPlayer makes no guarantees that the Plugin or Services will be available on a continuous or uninterrupted basis or that it is or will be free of errors or bugs. Save to the extent expressly stated herein, InPlayer does not give, and hereby expressly excludes tothe fullest extent permitted by applicable law, any and all other representations, warranties, guarantees, terms or conditions, whether implied, statutory or otherwise with respect to the Services and the Plugin, or the performance of its obligations hereunder. The Client understands and agrees that from time to time the Services and/or the Plugin may be inaccessible, unavailable or inoperable for causes beyond the control of InPlayer or which are not reasonably foreseeable by InPlayer and InPlayer shall not be liable for any failure to perform its obligations under this Agreement caused by any such causes. The Client further acknowledges that from time to time it may be necessary to perform planned periodic maintenance procedures or repairs, affecting the availability of the Services and/or Plugin. The Client warrants and represents that it shall keep such planned procedures to an absolute minimum and shall notify the Client in advance of such procedures.

 

6.5 The Client shall submit any complaints with regard to the Services in writing within 10 days after the grounds for complaint have arisen, with a clear description of the grounds for the complaint. InPlayer endeavours to resolve the complaint without delay.

 

6.6 The Client shall indemnify InPlayer from and against any claims, liabilities, losses, damages, costs and expenses, including reasonable legal fees, arising out of or in connection with (i) any breach of its obligations under this Agreement, or (ii) any claim or allegation that the Client’s website(s), including any content therein or any downloads available therefrom: (a) infringes any third party’s patent, copyright, trade secret or other IPRs; or (b) violates any law or regulation; or (c) violates any right of or causes injury to any third party, including any right of publicity or privacy, or is defamatory or obscene.

 

6.7 InPlayer shall indemnify the Client from and against any claims, liabilities, losses, damages, costs and expenses, including reasonable legal fees, arising out of or in connection with (i) any breach of its obligations under this Agreement, or (ii) any claim or allegation that the Website, the Plugin or Services: (a) infringes any third party’s patent, copyright, trade secret or other IPRs; or (b) violates any law or regulation; or (c) violates any right of or causes injury to any third party, including any right of publicity or privacy, or is defamatory or obscene.

 

6.8 InPlayer undertakes to maintain insurance cover that InPlayer reasonably believes would provide adequate cover for this Agreement (including without limitation errors and omissions, cyber liability and public liability) and will note the Client’s interest upon such insurance policies. InPlayer shall upon request provide the Client with the relevant policies and evidence of payment of the current premiums.

 

Article 7 – Term and termination

 

7.1 The Agreement shall commence on the date of this Agreement and continue until the end of the Initial Term unless terminated earlier as provided herein. In addition the Initial Term will automatically renew for an additional one year period (“Renewal Term”) unless InPlayer or the Client gives the other party at least three (3) months notice of its intention to terminate at the end of the Initial Term.

 

7.2 Without prejudice to the accrued rights and liabilities of the Parties at termination, the Client has the right to terminate this Agreement without cause upon 30 days prior notification.

 

7.3 This Agreement may be terminated forthwith by either party giving to the other written notice in the event that the other party:

 

7.3.1 has committed a material breach of this Agreement and has failed to remedy it within fourteen (14) days of written notice to do so having been given by the party not in default;

 

7.3.2 has committed a material breach of this Agreement which is incapable of remedy; or

 

7.3.3 ceases or threatens to cease carrying on the whole or substantially the whole of its business, or the other party suffers or threatens to suffer any form of insolvency including where an order is made or resolution passed for a voluntary winding up of the other party, or where the other party has an administrative order made in relation to it or has a receiver or administrator appointed over any of its property, undertaking or assets or if the other party is unable to pay its debts as and when they fall due, or any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction that has an effect equivalent or similar to any of the events mentioned in this article 7.3.3.

 

7.4 After termination of this Agreement, the Client will immediately cease the use of the Services, Plugin, the name, logo and the domain name of InPlayer and InPlayer will make any payments due to the Client pursuant to article 3 without delay. InPlayer will be authorized to block the Client from using the Website and/or Plugin.

 

Article 8 – Data Ownership & Protection

 

8.1 Both parties warrant and represent that they will duly observe all their obligations under the Data Protection Act 1998 which arise in connection with this Agreement and any other applicable data protection legislation.

 

Article 9 – General provisions

 

9.1 Neither party may assign its rights and obligations pursuant to this Agreement without the other party’s prior written consent, such consent not to be unreasonably withheld or delayed.

 

9.2 If any provision of this Agreement is held to be unlawful, void or unenforceable by any judicial or administrative authority, this shall not in and of itself affect the validity or enforceability of the remaining provisions of this Agreement, provided that the cancellation of such provision does not materially alter the commercial balance of this Agreement.

 

9.3 Any waiver of either party of a breach of any provision of this Agreement shall not be considered to be a waiver of any subsequent breach of the same or any other provisions. No waiver shall be implied by taking or failing to take any other action.

 

9.4 A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This article does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.

 

9.5 This Agreement shall not be varied unless such variation is in writing signed by a duly authorised representative of each party.

 

9.6 Neither party shall be liable to the other in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely circumstances beyond the control of either party which shall include without limitation acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riots, labour strikes, civil commotion or civil authority including acts of local government and parliamentary authority. In such eventuality, the parties shall meet together to devise ways of overcoming the difficulty.

 

9.7 Any notices given by either party under this Agreement shall be given in writing and provided to the recipient at its address set out above (or such address as such party may notify the other for the purposes of this Agreement). Any such notice shall be deemed to be delivered:

 

9.7.1 if delivered personally, at the time of delivery;

 

9.7.2 if sent by first class post, forty-eight (48) hours after posting; and

 

9.7.3 if sent by facsimile, at the time of transmission as confirmed by a transmission report from the sender’s facsimile machine.

 

Article 10 – Applicable law and jurisdiction

 

The Agreement and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. The parties to the Agreement irrevocably agree to submit to the exclusive jurisdiction of the courts of England and Wales in relation to all matters arising out of or in connection with the Agreement (including non-contractual disputes or claims).

 

Article 11 – Confidentiality

 

11.1 Each party shall:

 

11.1.1 hold in confidence all Confidential Information obtained from the other party; and

 

11.1.2 not disclose to any third party without the express permission of the other party any Confidential Information obtained from the other party.

 

11.2 The provisions of Article 11.1 shall not apply to any information which:

 

11.2.1 is or becomes public knowledge other than by breach of this Article 11;

 

11.2.2 is in the possession of the receiving party without restriction in relating to disclosure before the date of receipt from the disclosing party;

 

11.2.3 is received from a third party who lawfully acquired or developed it and who is under no obligation restricting its disclosure; or

 

11.2.4 must be disclosed by the receiving party in the discharge of its obligations to supply information for parliamentary, governmental or judicial purposes.

 

APPENDIX: SECURITY CLAUSES

 

  1. Information Security Obligations With respect to any matter that may reasonably affect the security of any software or hardware used in relation to this Agreement InPlayer agrees to comply in full with any and all guidelines or policies pertaining to the provision of its obligations under this Agreement as notified to InPlayer by the Client from time to time during the Term. For the avoidance of doubt, the InPlayer shall have the following obligations:

 

   2. InPlayer must have information systems in place and must provide a copy of such procedures to individuals who are granted access to             the Website and Plugin and any Client Confidential Information;

 

   3. InPlayer must ensure that the software used for the purposes of this Agreement (including any upgrades or updates) are tested for                   security vulnerabilities prior to release, and upon discovery, InPlayer will take prompt action to fix the same prior to release to the end             user;

 

iii. if and when InPlayer obtains knowledge of any security vulnerability in any software it must notify the Client as soon as possible but in any event in less than twenty-four (24) hours;

 

  1.  should an operating system vendor provide a critical security patch to protect against a known vulnerability, InPlayer must ensure that the product will operate correctly or make product enhancements so that the patch can be applied as soon as practicable;

 

   2. without limiting the foregoing, InPlayer will comply with any security procedures and protections set forth in this Appendix and will give written notice to the Client prior to making any substantive changes to such security procedures and protections.

 

   3. Information Security Auditing

 

   4. For the purposes of ensuring compliance with and assessing the security of any software or hardware used in relation to this Agreement, the Client shall be entitled to regularly review and audit services, systems and facilities of InPlayer and access at the Client’s own cost and expense in order to verify InPlayer’s ongoing compliance with this Appendix with appropriate notice.

 

   5. InPlayer shall provide the Client with confirmation that it is compliant with any security audit that the Client has directed InPlayer to undertake and that the Client has been marked as named client on such audit within a reasonable time after such audit.

 

iii. In the event that there is a suspected or confirmed incident of a serious breach, attempted breach or impairment of security which may involve the Client’s data, InPlayer will immediately report this to the Client’s [NOMINATED PERSON AND PHONE NUMBER] and in writing to the person designated by the Client to receive notices under this Agreement. In such event, the Client may engage a third party to assist with forensic analysis at the Client’s expense. Results of the investigation must be delivered to the Client in accordance with the confidentiality and notice provisions of this Agreement and marked “CONFIDENTIAL”. In the event that such forensic analysis reveals that InPlayer was in breach of its obligations hereunder InPlayer shall reimburse the Client for the costs of such audit.

 

  1. Payment Card Issuer Compliance

  2. InPlayer agrees to comply with VISA’s, Mastercard’s and any other credit card issuer rules and regulations, including but not limited to their respective data security programme requirements. InPlayer agrees to provide data security reports as required by such issuer, pay to such issuer any fines and/or penalties in the event that InPlayer or any third party fails to comply with such data security requirements, provide full cooperation and access to permit such issuer to conduct a security review of InPlayer’s policies and procedures. The Client reserves the right to terminate this Agreement forthwith in the event that such issuer finds that InPlayer has failed to comply with its data security requirements or if InPlayer has failed to obtain a “passing grade” from such issuer.