CONDITIONS AND RESTRICTIONS OF USE
1.1 From the earlier of the first log on to the Brokeback Play or the execution date of an Order Form, Client is responsible for its compliance with the terms and conditions herein and shall ensure that its authorized users will comply with these terms and conditions as if such authorized user was a party to this Agreement. Client represents and warrants that (a) such authorized users are members of Client’s organization and (b) Client and its authorized users are at all times acting in a professional capacity.
1.2 The Services are provided for the period defined in the Order Form (“Term”), along with the subscription details and financial conditions, only to Client and its authorized users, unless otherwise approved by Brokeback Play in writing. The Order Form sets out the fees for the Services and Client must pay the fees in accordance with the conditions defined therein and in accordance with the Agreement.
1.3 The Services are provided under certain conditions as detailed in the SLA and further in this Agreement. Client understands and acknowledges that the Services are dependent upon the availability and completeness of content and data provided by Third-Party Platforms.
1.4 The Services include the right for Client to access and use the Brokeback Play and Services, as they are detailed in the Order Form, during the Term and in accordance with the conditions set out in this Agreement, to generate and view analytics and reports for internal business use only. The information, reports, and analytics consulted on the Brokeback Play constitute “Deliverables” which Client acknowledges may quote or incorporate excerpts of certain material owned by Third-Party Platforms.
1.5 Client shall not use the Services as a law enforcement tool or for the tracking of individuals, discrimination of any sort, disciplinary purposes, etc. Further details are provided in the Basic Conditions of Use and Content Limitations.
1.6 Notwithstanding anything contained herein, the rights granted under this Agreement may be subject to additional costs and licenses for certain Third-Party Content. Such costs and licenses, if any, shall be detailed on the Order Form.
1.7 During the Term, and for the sole purpose of providing the Services to Client, Client hereby authorizes Brokeback Play to use, technically modify and integrate into any other derivative works Client Data, including intellectual property rights, if any.
1.8 Client further grants Brokeback Play a worldwide, perpetual (surviving termination or expiry of this Agreement), irrevocable, sublicensable to Brokeback Play’s affiliates, and royalty-free license to use and incorporate into the Services any correction, improvement request, recommendation, suggestion, or other feedback provided by Client.
CONFIDENTIALITY AND PUBLICITY
2.1 Neither Party may use the other’s Confidential Information, as defined below, or disclose it to any other person, other than to its affiliates, for any purpose other than performing its obligations under this Agreement. “Confidential Information” includes Client Data, trade secrets, any source code of any software used within or in relation to the Services, any financial information concerning the Parties, any information regarding either Party’s business or activities, as well as any information that, by nature or given the circumstances of its disclosure, should be understood to be confidential. Client acknowledges that Brokeback Play does not wish to receive any Confidential Information from Client that is not necessary for Brokeback Play to perform its obligations under this Agreement, and, unless the Parties specifically agree otherwise, Brokeback Play may reasonably presume that any unrelated information received from Client is not Confidential Information.
2.2 Confidential Information does not include any information that (a) was already lawfully in the receiving party’s possession before receipt from the disclosing party; (b) is or becomes publicly available through no fault of the receiving party; (c) is rightfully received by the receiving party from a third party who possessed the same information lawfully and without a duty of confidentiality; (d) is disclosed by, or is disclosed with the permission of, the disclosing party to a third party without a duty of confidentiality on the third party; or (e) is independently developed by the receiving party without a breach of this Agreement.
2.3 Unless Client objects in writing, Brokeback Play may disclose that Client is a customer of Brokeback Play and Client hereby grants Brokeback Play the right to use its name and logo on Brokeback Play’s website and in sales material, provided that such right may be revoked at any time upon thirty (30) days written notice to Brokeback Play.
WARRANTIES AND ANTI-CORRUPTION
4.1 General Warranties. Brokeback Play warrants that during the Term it will: (a) provide the Services with reasonable skill and care; (b) maintain all licenses and permissions necessary to perform its obligations under this Agreement; and (c) not make a material adverse change to the functionality of the Services, unless required by a change in legal environment or the terms and conditions of a Third-Party Platform. Brokeback Play and its licensors and suppliers disclaim all other warranties for the Services, whether express, implied, statutory, or otherwise, including any warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment or from a course of dealing, course of performance or usage in trade. Any access by Client of any Third-Party Platform or other website via hyperlink from the Services is subject to the terms of service of such Third-Party Platform(s) or website(s) and at Client’s sole risk. Brokeback Play makes no warranty whatsoever with respect to the accuracy, availability, completeness, functionality, reliability, security, timeliness, usefulness, or any other aspect of any Third-Party Platform or Third-Party Content or website and the data and information contained thereon or obtained therefrom.
4.2 Anti-Bribery and Anti-Corruption. In connection with the services performed under this Agreement and Client’s use of Brokeback Play’s products and services, the Parties represent and warrant that they shall at all times comply with all applicable anti-bribery and anti-corruption related laws, statutes, and regulations (including laws, regulations, ordinances, and legal norms relating to anti-social forces).
5. LIMITATION OF LIABILITY
5.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Brokeback Play SHALL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES; AND (B) LOSS OF GOODWILL, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF DATA OR LOSS OF PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND EVEN IF Brokeback Play HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2 OTHER THAN WITH RESPECT TO FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR ANY LIABILITY TO THE EXTENT THAT IT CANNOT BE LIMITED UNDER APPLICABLE LAWS, Brokeback Play’S MAXIMUM AGGREGATE LIABILITY FOR ALL DAMAGES OR CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, IS LIMITED TO THE TOTAL AMOUNT OF THE NET FEES PAID OR PAYABLE FOR THE Brokeback Play SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE (FIRST) EVENT GIVING RISE TO A CLAIM UNDER OR IN CONNECTION WITH THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE EXISTENCE OF THIS LIMITATION OF LIABILITY IS FACTORED INTO THE PRICING STRUCTURE OF THIS AGREEMENT AND/OR ANY ORDER FORMS.
5.3 Under no circumstances shall Brokeback Play be liable in the event a Third-Party Platform restricts, either temporarily or permanently, access to Third-Party Content in such a manner that would cause any part of the content provided through the Services to no longer be accessible to Client. Client is solely responsible for obtaining, subscribing, installing, maintaining, and operating all adequate software (such as a browser), hardware, computer equipment, or otherwise necessary to use of the Services. Brokeback Play may not be held liable for any defects or delays in the Service arising as a result of any problem associated with the internet.
5.4 The damages as set forth in Section 5 shall be Client’s exclusive remedy for any breach by Brokeback Play of this Agreement.
5.5 To the extent permissible under applicable law, any action against Brokeback Play based on or arising out of this Agreement or any other legal theory must be brought within one (1) year after the cause of action arises or after expiration or termination of this Agreement, whichever is earlier.
6.1 Brokeback Play Indemnity Responsibility. Brokeback Play will defend or settle any third-party claim against Client to the extent that such claim alleges Brokeback Play’s technology used to provide the Services violates any third-party intellectual property right, subject to Client’s compliance with this Agreement. If an infringement claim appears likely, Brokeback Play, in its sole discretion, may modify the Services, procure the necessary rights, or replace the Services or a portion thereof with a functional equivalent. If Brokeback Play determines that none of these options are reasonably available, Brokeback Play may, without further formality, terminate the Services or a portion thereof. In case of termination, Brokeback Play will refund Client any remaining prorated portion of the prepaid fees. Brokeback Play has no obligation for any claim resulting from: (a) Client’s use of Third-Party Platforms, data, and/or content; (b) Client Data; (c) Client’s use of technology not provided or authorized by Brokeback Play; (d) Client’s unauthorized combination of the Services with other technology that Client uses or decides to add to the Services, where the infringement would not have occurred but for such combination; or (e) Client’s use of the Services in non-compliance with this Agreement and/or in violation of applicable law and/or regulations.
6.2 Client Indemnity Responsibility. Client will indemnify, defend, hold harmless, and/or settle any third-party claim against Brokeback Play arising out of any of the following: (a) Client’s use of the Services, Third-Party Content, and/or Third-Party Platforms to which the Services provide access, in breach of this Agreement; (b) Client non-compliance with any term of this Agreement, including non-compliance with the Content Limitations; and/or (c) Client’s violation of any applicable laws or regulations, including applicable privacy and data protection laws.
6.3 Indemnification Process. The indemnified party shall (a) promptly notify the indemnifying party of the claim in writing, (b) cooperate in the defense, (c) allow sole control to defend or settle the claim, and (d) use reasonable efforts to mitigate its losses. The indemnifying party shall (i) pay all costs associated with defending the claim, (ii) any negotiated settlement, (iii) court awarded damages by final court decisions, and (iv) not settle a claim unless it contains a release and no admission on the part of the indemnified party.
6.4 In the event of a claim, Brokeback Play reserves the right to: (a) discontinue Client’s use of the Services, (b) block access to the Services, and/or (c) make inaccessible or delete all or part of the data that Client entered into the Services or that have been added to Brokeback Play’ systems as a result of Client’s use of the Services.
6.5 SECTION 6 CONTAINS CLIENT’S EXCLUSIVE REMEDIES AND Brokeback Play’S SOLE LIABILITY FOR THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.