Terms & Conditions

Metrica Sports – Terms of Use

version: 3.1

date: 9^th November 2020

1.Definitions, references and interpretation

1.1.In the Agreement the references, interpretations, and definitions for capitalized terms apply as described below:

1.1.1.Agreement the agreement between the Customer and Metrica Sports

 for the use of the Service, consisting of the Registration

Form, these Terms of Use and any other agreement

between them, such as by email;

1.1.2.Annex an annex to these Terms of Use;

1.1.3.Customer the club, federation, institution and/or individual, indicated

 as such in the Agreement;

1.1.4.Effective Date the date for the start of the Term, as indicated as such in

 the Agreement, or, if none has been indicated, the date of

 receipt of the Registration Form by Metrica Sports;

1.1.5.Elite Services the “Elite Plan” Service, as described on the Website; .

1.1.6.Fee any fees to be paid by Customer under the Agreement;

1.1.7.Free Service the “Free Plan” Service, as described on the Website;

1.1.8.Information all information that is or may be processed through the use

 of the Service, including but not limited to data,   written text, audio, Videos, images, graphics, personal   data, visualizations and annotations;

1.1.9.Initial Term: 1 year as of the Effective Date, or as agreed upon

 otherwise in the Agreement;

1.1.10.Individual Services the “Individual Plan” Service, as described on the Website;

1.1.11.IP Rights: any intellectual property right and related right, including but  not  limited to copyrights, database rights, design rights, domain name  rights, trade name rights, trade mark rights,  patent rights, portrait  rights, morals rights, whether registered or not, as well as any  application to register any of the aforementioned rights, and (rights  in) trade secrets and know-how;

1.1.12.License Customer’s right to use the Service, under the terms and  conditions of the Agreement;

1.1.13.Metrica Sports:  the limited liability company Metrica Sports B.V., having its  statutory seat in Amsterdam, the Netherlands and its office  address at Paasheuvelweg 40, 1105 BJ Amsterdam, the  Netherlands, registered at the Dutch chamber of commerce  under number 60835869, or any of its subsidiaries;

1.1.14.Metrica Cloud  the online platform to process Videos in order to obtain and  add Information as part of the Service;

1.1.15.Parties: Metrica Sports and Customer;

1.1.16.Registration Form: the Registration Form, by which the Customer has ordered

 the License;

1.1.17.Service: the services rendered by Metrica Sports under and as   described in the Agreement, such as the Free Service, the Trial, the  Individual Service, the Team Service or the Elite Service, in order to  provide Customer the Software, for the purpose of video analysis,  by integrating the Video with Information through the Metrica  Cloud to allow Customer to prepare visualization-enriched video  analysis and/or, if agreed upon additional services;

1.1.18.Software the Metrica Play Software provided by Metrica Sports to  Customer as a download available on the Website, to

 which Customer requires the License, as part of the

Service;

1.1.19.Team Service the “Team Plan” Service as described on the Website;

1.1.20.Term the Initial Term or any subsequent term;

1.1.21.Trial the free, trial-version of the Individual Service provided by Metrica  Sports to you, with limited functionalities of the   Software, for the sole purpose of trying out the Service for a limited  period of fifteen days;

1.1.22.Video the audiovisual content processed by

 Customer through the use of the Service;

1.1.23.Website Metrica Sports’ website, available

 through https://metrica-sports.com/ and all underlying   pages thereof.

1.2.reference to “or” is not exclusive and “include” and “including” shall not be construed or read to be limiting;

1.3.reference to “hereby”, “herein”, “hereof”, “hereunder” and any like words refer to the Agreement, except where on the basis of the context another meaning can be the only reasonable interpretation;

1.4.reference to a law, regulation or statute includes any amendment or modification to such law, regulation or statute and any further rules issued thereunder or any law, regulation or statute in replacement therefor;

1.5.references to a natural person or legal entity includes its successors or assigns, to the extent permitted under the Agreement;

1.6.any rights of either Party may be exercised at any time and from time to time unless specified otherwise in the Agreement;

1.7.reference to “written/in writing” in this Agreement also refers to email communication, provided the identity of the sender and the integrity of the contents is adequately established;

1.8.reference to an article in these Terms of Use shall be a reference to such section of the body of the Agreement, and not to any attachment or other document, unless where explicitly provided otherwise; and

1.9.specific references in (the body of) this Agreement to other parts of the Agreement shall be without prejudice to the full general applicability of any unreferenced provision or part thereof.

1.10.the headings of articles, sections, portions or paragraphs of the Agreement are for ease of reference only and shall not affect the interpretation of the respective rights and obligations of the Parties and shall not form any part of the Agreement for the purposes of construction;

1.11.in the event of any inconsistency or conflict between the various parts of the Agreement, the following order shall apply, whereby any document mentioned in an earlier category shall prevail over any document mentioned in a later category hereunder, and not listed itself in any category hereunder, shall have the same rank and be as binding as the document through which it is referred:

1.11.1.these Terms of Use, or where appropriate, any legally valid change made thereto, which change shall then prevail over conflicting provisions in the body of these Terms of Use;

1.11.2.the Registration Form;

1.11.3.any Annexes;

1.11.4.the Annexes, whereby an Annex with an earlier alphabetical letter shall prevail over any Annexes with a later alphabetical letter (A will prevail over B, B will prevail over C, etc.), unless the Annex with the later alphabetical letter expressly states it takes precedence over the inconsistent or conflicting term in the Annex with an earlier alphabetical letter;

1.12.the wording of the Agreement shall be decisive in interpreting the mutual rights and obligations of the Parties under the Agreement.

2.Scope

2.1.The Terms of Use apply to the Agreement and all use that Customer makes of the Service.

2.2.Metrica Sports may amend these Terms of Use at any time. Customer will be notified of any amendments by email. The new version of the Terms of Use will be available for viewing and downloading on the Website. If Customer continues to use the Service after these Terms of Use have been amended or supplemented, Customer thereby irrevocably accepts the amended or supplemented Terms of Use. If Customer does not agree with the amended or supplemented Terms of Use, Customer’s exclusive remedy is to no longer use the Service and to directly terminate the Agreement.

2.3.If any provision in the Agreement shall be held to be (partly) void or unenforceable, the other provisions of the Agreement will remain in full force and effect. In such a case, Metrica Sports will replace the void or unenforceable provisions with new ones. In doing so, the purpose and meaning of the void or unenforceable provisions will be taken into account as far as possible.

2.4.These Terms of Use have been prepared in English and may have been translated into other languages. In case of a dispute, the English version shall have precedence.

3.Use of the Software and the Service

3.1.Metrica Sports hereby grants Customer a non-exclusive, non-transferable, limited right to download one copy of, and access and use the Software by means of the Service, solely to process the Video for the purpose of video analysis, by integrating the Video with Information to allow Customer to prepare visualization-enriched video analysis, for one user on one computer and for internal business purposes only, in accordance with the terms and conditions of the Agreement and/or as described on the Website. Customer shall download and install the Software itself in accordance with the instructions provided by Metrica Sports.

3.2.In order to be able to use the Service, Customer needs to fill out the Registration Form. Customer can log in to the Service by means of its username and password. Customer is obliged to keep its username and password confidential. It is not allowed to share these log in details with third parties. Customer is responsible and liable for all use made of the username and password.

3.3.Customer acknowledges and agrees that Metrica Sports does not pre-screen Information processed by means of the Service and that Metrica Sports has no influence over the Information processed by means of the Service. Metrica Sports is not liable and/or responsible for the Information processed by means of the Service and/or any use made of the Service by Customer.

3.4.Customer can upload any Video to Metrica Cloud and then download the Information directly to its computer to add data visualizations and annotations to the Video itself.

3.5.Metrica Sports shall have the right (but not the obligation), at its sole discretion, to review, edit, limit or refuse Information processed by means of the Service and/or to limit and/or refuse a Customer access and/or use of the Service, to remove any Information that, according to Metrica Sports, violates these Terms of Use and/or that it deems to be otherwise objectionable.

3.6.Metrica Sports may disclose Customer’s contact details and/or the Information to third parties where it believes, in good faith, that it is necessary to comply with a court order, ongoing judicial proceeding, criminal or civil subpoena, or other legal process or request by law enforcement authorities, or to exercise its legal rights of defend against legal claims.

3.7.Notwithstanding any other provisions of these Terms of Use, the use of the Service shall not be used to:

3.7.1.include software such as viruses or Trojans that can damage or erase computers or data of Metrica Sports and/or third parties or make it unavailable or inaccessible;

3.7.2.bypass technical security measures of the computer systems of Metrica Sports or third parties;

3.7.3.involve unreasonable or disproportionate use of the infrastructure of the computer systems of Metrica Sports or third parties or impede the functionality or functionalities of the Service;

3.7.4.involve manual or automated software, devices, or other processes to “crawl”, “spider” or “scrape” any content of the Service;

3.7.5.constitute unauthorized or unsolicited advertising, junk, spam, bulk email, scam and/or phishing;

3.7.6.infringe any Intellectual Property Rights, privacy rights or any other rights of Metrica Sports or a third party;

3.7.7.involve any illegal activities or activities that are contrary to morality or public order, including but not limited to fraud, illegal gambling and match fixing;

3.7.8.involve false or misleading information;

3.7.9.involve otherwise inappropriate use;

3.7.10.breach these Terms of Use; and/or

3.7.11.be unlawful in any way whatsoever;

3.8.The use of the Service is at Customer’s own expense and risk. Customer is responsible for meeting the technical and functional requirements and using the electronic communication facilities that are necessary to be able to access and use (parts of) the Service. The risk of loss, theft or damage to any Information will at all times be borne by Customer.

3.9.Metrica Sports has the right, but not the obligation, to modify the Software, Service or parts thereof to improve functionality. Customer acknowledges that the functionalities of the Service can be amended by Metrica Sports from time to time, and without prior written notice. If Metrica Sports issues a new version of the Software, Service or parts thereof, it will also provide this to Customer. Customer is obliged to use the offered new version of the Software. The provisions of the Agreement also apply to that new version.

4.Fees and payment

4.1.In exchange for the License, Customer will pay Metrica Sports the Fees specified in this article, except for the Free Service which will be free of charge.

4.2.Any other fees for additional services are subject to Metrica Sports’ then-current rates.

4.3.In the event of a pricing error, we reserve the right to cancel any orders placed at the incorrect price and will provide a full refund for any charges already incurred.

4.4.The License Fee for the Services are indicated on the Website.

4.5.Customer shall be responsible for all taxes, including but not limited to VAT, customs taxes and import taxes.

4.6.All Fees are exclusive of VAT and other applicable tax levies.

4.7.Metrica Sports will submit yearly invoices for the License Fees and other Fees and, as applicable, expenses and taxes, prior to the start of the relevant year, unless another period for invoicing is agreed upon. Customer will pay each invoice within 15 days of the invoice date, without the right of suspension, deduction or set off. Metrica Sports is allowed to invoice electronically.

4.8.Payments must be made in Euros or US Dollars as specified in the invoice.

4.9.Customer is responsible for the timely payment of all invoices. In case Customer does not meet its payment obligation, Customer shall be automatically in default and Metrica Sports is allowed to suspend any of its obligations in the Agreement, including but not limited to suspend the License. If an undisputed amount that is owed is not paid within the payment term by the due date, Metrica Sports may charge Customer interest in the amount of (i) one percent (1%) per month or (ii) the highest rate allowed by applicable law, whichever is higher. If payment of undisputed amounts are not paid on time, Metrica Sports will provide written notice to Customer. Customer’s failure to pay such amounts within 10 calendar days will entitle Metrica Sports to judicial and extrajudicial collections costs, including reasonable attorneys’ fees, fees for collection agencies, and any interest due thereon.

4.10.The claim for payment is immediately due if Customer is declared bankrupt, applies for a moratorium on payments, full attachment is levied on its assets, it goes into liquidation or it is dissolved.

4.11.All Fees are non-refundable and under no circumstance the subject of an obligation to undo.

5.Trial

5.1.If agreed upon, you have the right to a Trial.

5.2.If so, you are permitted a one-time free trial period of 15 days for free, limited use of the Individual Service. The trial period is effective receipt of the Registration Form by Metrica Sports, and will terminate automatically fifteen (15) days from this date. At the end of the Trial period you will no longer have access to the Service.

5.3.Metrica Sports reserves the right to remove, extend, suspend or cancel the Trial at any time.

5.4.Metrica Sports reserves the right to change the features of the Trial at any time.

5.5.By using the Trial, you agree that the Service contains only limited functionality, and is provided on an ‘as is’ basis. Metrica Sports does not have any obligation to you.

5.6.Metrica Sports is not liable for any use of the Trial whatsoever.

5.7.The Terms of Use apply to you and your use of the Trial, as it applies to the Customer and the Customer’s use of the Service, taking into account the provisions of this article.

5.8.If you would like to extend and/or upgrade the use of the Service, you should enter into an Agreement with Metrica Sports, and become a Customer. If no other Agreement for extension and/or upgrade is concluded, you are automatically downgraded to the Free Service.

6.Elite Service:

6.1.If agreed upon, Customer has the right to the Elite Service.

6.2.Elite Services includes functionalities as described in the website under the Elite license.

6.3.Elite services may also include provision of tracking and event data and/or personalized development and reports as agreed between Metrica Sports and the Customer.

6.4.Personalised patterns can be developed and are then detected in a recorded match and added to the Information. Patterns may be standard or, upon request, tailor-made for Customer at a consultancy basis for an additional Fee. If Customer requests a tailor-made pattern, Metrica Sports shall, prior to starting such development process, provide Customer with a fee quote for the pattern development and Customer should sign and return such quote. Payment of such fee should be done within 30 days of approval of the quote.

6.5.The Fee for the Elite Service is indicated in the Agreement.

6.6.Metrica Sports will submit monthly invoices for the Services provided in the previous month and, if applicable, expenses and taxes, at the end of every calendar month.

6.7.Customer is responsible for uploading a correct recording of a match and, when applicable, the raw data provided by a (pre-approved) third party via Metrica Cloud. The requirements described in Annex A are applicable to Customer;

6.8.Metrica Sports renders best efforts to process the Video enriched with the Information ultimately by 8PM CET/CEST the day after the match was uploaded, provided that the Club meets its requirements under this Agreement;

6.9.Metrica Sports renders best efforts to process the Information ultimately 24 hours after the time of uploading the Video.

6.10.In the event that Customer wishes to require the Elite Service from Metrica for a specific match, Customer must inform Metrica Sports in writing thereof ultimately 15 days before the match date.

6.11.If the match has been confirmed, but is cancelled, Customer must notify Metrica Sports thereof. If such notification is received by Metrica Sports less than 3 days before the date of the match, Customer’s payment obligations are still due.

6.12.If for whatever reason and no matter the cause Customer does not provide Metrica Sports with all the necessary information on time, Metrica Sports automatically suspends its obligations hereunder. Metrica Sports cannot be held liable for the (timely) delivery of the Information or data acquisition and analysis and the match fee will be charged.

6.13.After expiration of the Initial Term, or any subsequent term, the Agreement for the Elite Service will be extended automatically for a new period of 1 year, unless terminated in writing by either Party, taking into account a notice period of 2 months before the end of the Term.

6.14.In the event of any unlawful termination of the Agreement for the Elite Service by Customer, any given discount will lapse, Customer will reimburse Metrica Sports for these accumulated discounts, plus the outstanding Fees for the rest of the Term, including equipment lease and maintenance fees. In any case, a termination fee of EUR 5.000 per license will apply immediately, notwithstanding Metrica Sports other rights and remedies. Whichever amount is bigger will have to be paid by Customer within 10 days of termination.

7.Intellectual Property Rights

7.1.Metrica Sports and/or its suppliers reserve all rights not expressly granted to Customer in these Terms of Use. Customer acknowledges and agrees that Metrica Sports and its suppliers retain all rights, title and interest, including the Intellectual Property Rights, in and to the Service as well as any modifications, adaptations or translations thereof. Customer acknowledges and agrees that it does not acquire any rights therein, express or implied, except for the rights expressly granted under these Terms of Use.

7.2.In principle, Customer retains all Intellectual Property Rights, if any, that vest in him with regard to any Information it processes by means of the Service. Customer agrees and acknowledges that by processing any Information by means of the Service he automatically grants Metrica Sports a royalty-free, unencumbered, world-wide, sub-licensable, non-exclusive right to use, reproduce, circulate and make public the content in connection with the Service. Metrica Sports reserves the right to use the Information for internal research and development as well as for demonstration purposes or commercial purposes.

7.3.During the term of the Agreement and after termination, Metrica Sports shall be entitled to use the Customer’s name, logo and emblem for commercial purposes, including but not limited to publication on its Website or in the Service.

7.4.The collection of data by means of the Service is to be regarded as a database within the sense of Directive 96/6/EC on the legal protection of databases and the Dutch Databases Act (“Databankenwet”). Metrica Sports and/or its licensors are the producer(s) of this database and in that capacity has/have the exclusive right to grant consent for the use of data from this database. Customer may only use data from the database insofar as use is allowed pursuant to these Terms of Use. Customer is not allowed, without the prior written consent of Metrica Sports and/or its licensors, to retrieve and re-use a substantial part of the data of the database and/or retrieve and repeatedly and systematically re-use non-substantial parts of the data of the database within the sense of the Directive 96/6/EC and the Dutch Databases Act.

7.5.For the duration of the Agreement, and under the condition precedent that Customer fully complies with its obligations, including its obligation to fully pay all relevant Fees, Metrica Sports grants Customer the License as described in this Agreement.

7.6.Customer is permitted to load, display, execute or store the Software on its own computer, insofar as this corresponds to the intended use of the Service.

7.7.Customer is entitled to keep one backup copy of the Software or to make it for temporary use or for security purposes.

7.8.Customer is not permitted to change the Software.

7.9.Customer is not permitted to reconstruct the source code of the Software by means of reverse engineering. If Customer requires information to ensure Interoperability of the Software with computer software from the Customer himself or third parties, Customer will request Metrica Sports in writing and with reasons for the required information. Metrica Sports will then inform Customer within a reasonable period of time whether Customer can obtain the requested information and the conditions under which it is provided.

7.10.Customer is not permitted to remove any designation regarding copyrights, brands, trade names or other rights of (intellectual) property from the Software and / or the Service.

7.11.Metrica Sports is entitled to examine whether Customer uses the Service in a manner that complies with the terms of the Agreement. Customer undertakes to cooperate in such an audit. Metrica Sports bears both its own costs and the costs of Customer involved in such an audit, unless such audit result in a conclusion of undercompliance / noncompliance by Customer.

7.12.The License is only available to and access is only permitted to persons authorized and employed by Customer and acting in accordance with the terms of the Agreement.

7.13.Customer may not (and do not permit anyone else to) copy, modify, rent, loan, distribute, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, sublicense, assign, grant access to, transfer any right or provide the Service otherwise to any third party. Customer shall not exploit the License in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity. The use of the Service or any part of the Service, except for use of the Service as permitted in the Agreement, is strictly prohibited and infringes on the IP Rights of others.

7.14.Customer represents and warrants that it has the legal title to and ownership of all Videos it processes through the Service, and none of the Videos infringe on the IP Rights or other rights of any third party, including but not limited to the rights of the parties appearing in or having created the Video.

8.Privacy

8.1.The Service may concern the processing of personal data, as meant in the General Data Protection Regulation, to be undertaken by Metrica Sports for the benefit of Customer. For such processing, the Parties agree upon the following.

8.2.Metrica Sports is considered the processor (“Processor”) of personal data.

8.3.Customer is considered the controller (“Controller”) of personal data.

8.4.Processor hereby agrees to process personal data on behalf of the Controller. Processing shall be done solely for the purpose of providing the Service, and all purposes compatible therewith, including statistical purposes, or as determined jointly. Information collected by Metrica Sports may also include technical or diagnostic information related to the Customer’s use that may be used by Metrica Sports to support, improve and enhance its products and services.

8.5.Controller shall inform the data subject in accordance with its obligations under the GDPR.

8.6.The personal data to be processed by Processor and the categories of data will be set out by Controller. Processor shall not process the personal data for any other purpose unless with Controller’s consent.

8.7.Controller shall inform Processor of any processing purposes to the extent not already agreed upon.

8.8.Processor shall comply with all applicable legislation, including at least all data processing legislation such as the General Data Protection Regulation (GDPR).

8.9.Upon first request Processor shall inform Controller about any measures taken to comply with its obligations under this Data Processing Agreement.

8.10.Processor shall, in accordance with Article 30 GDPR, keep a register of all categories of processing activities which it carries out on behalf of the Controller under this data processing agreement. At Controller’s request, Processor shall provide Controller access to this register.

8.11.Processor may process the personal data in any country within the European Union. In addition, Processor may transfer the personal data to a country outside the European Union, provided that country ensures an adequate level of protection of personal data and complies with other obligations imposed on it under this Data Processing Agreement and the General Data Protection Regulation (GDPR), including the availability of appropriate safeguards and enforceable data subject rights and effective legal remedies for data subjects. Processor shall report to Controller of the countries involved. Processor warrants that, considering the circumstances that apply to the transfer of personal data or any category of transfers, the country or countries outside the European Union have an adequate level of protection. In particular Processor shall take into account the duration of the processing, the country of origin and the country of destination, the general and sector-based rules of law in the country of destination and the professional rules and security measures which are complied with in that country.

8.12.Processor is solely responsible for the processing of personal data under this Agreement in accordance with the instructions of Controller and under the explicit supervision of Controller. For any other processing of personal data, including but not limited to any collection of personal data by Controller, processing for purposes not reported to Processor, processing by third parties and/or for other purposes, the Processor does not accept any responsibility.

8.13.Controller represents and warrants that the content, usage and instructions to process the personal data as meant in this Data Processing Agreement are lawful and do not violate any right of any third party.

8.14.Processor shall involve third parties in the processing under this Data Processing Agreement on the condition that such parties are reported in advance to the Controller; Controller may object to a specific third party if its involvement would reasonably be unacceptable to it. In any event, Processor shall ensure that any third parties are bound to at least the same obligations as agreed between Controller and Processor. Processor represents and warrants that these third parties shall comply with the obligations under this Data Processing Agreement and is liable for any damages caused by violations by these third parties as if it committed the violation itself.

8.15.Processor shall use reasonable efforts to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk for the processing operations involved, against loss or unlawful processing (in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed). Processor does not warrant that the security is effective under all circumstances. If any security measure explicitly agreed upon is missing, then Processor shall use best efforts to ensure a level of security appropriate to the risk taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. Controller shall only provide personal data to Processor for processing if it has ensured that the required security measures have been taken. Controller is responsible for the parties’ compliance with these security measures.

8.16.Controller is responsible at all times for notification of any security breaches and/or personal data breaches (which are understood as: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed) to the competent supervisory authority, and for communication of the same to data subjects. In order to enable Controller to comply with this legal requirement, Processor shall notify Controller within 48 hours after becoming aware of an actual or threatened security or personal data breach. A notification under the previous clause shall be made only for actual breaches with severe impact. The notification shall include at least the fact that a breach has occurred. In addition, the notification shall: describe the nature of the personal data breach including, where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned; include the name and contact details of the Data Protection Officer (if appointed) or a contact person regarding privacy subjects; describe the likely consequences of the personal data breach; describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects. Processor shall document all data breaches in accordance with Article 33(5) GDPR, including the facts relating to the personal data breaches, the consequences thereof and the measures taken to correct the respective breach. At Controller’s request, Processor shall provide access hereto.

8.17.In the event a data subject makes a request to exercise his or her legal rights under the GDPR (Articles 15-22) to Controller, Processor shall pass on such request to Controller, and Controller shall process the request. Processor may inform the data subject of this passing on.

8.18.All personal data that Processor receives from Controller and/or collects itself is subject to strict obligations of confidentiality towards third parties. Processor shall not use this information for any goals other than for which it was obtained, not even if the information has been converted into a form that is no longer related to an identified or identifiable natural person. The confidentiality obligation shall not apply to the extent Controller has granted explicit permission to provide the information to third parties, the provision to third parties is reasonably necessary considering the nature of the assignment to Controller or the provision is legally required.

8.19.Controller has the right to have audits performed on Processor by an independent third party bound by confidentiality obligations to verify compliance with the Data Processing Agreement, and all issues reasonably connected thereto. This audit may be performed once every year as well as in the event of a substantiated allegation of misuse of personal data. Processor shall give its full cooperation to the audit and shall make available employees and all reasonably relevant information, including supporting data such as system logs. The audit findings shall be assessed by the parties in joint consultation and may or may not be implemented by either party or jointly. The costs of the audit shall be borne by Controller.

9.Indemnities and warranties

9.1.Metrica Sports does not warrant that the Service will be error free, complete or up-to-date at all times.

9.2.Customer agrees that the Service only provides the functionality and other features as found in the Service at the time of use (“as is”). Metrica Sports does not guarantee that the Service or any part thereof will be accessible at all times and without any interruptions or failures. Failures in the Service can occur as a result of failures in the internet connection or as a result of viruses and/or faults/defects. Metrica Sports is not liable towards Customer for any damage, loss or costs resulting or arising from the Service being (temporarily) unavailable, including but not limited to the loss of data or inability to access or use the Service.

9.3.Metrica Sports is entitled to change and/or update the Service and replace the design and layout and/or any of the functionalities of the Service without any prior notification and without being obliged to pay any compensation whatsoever to Customer.

9.4.Metrica Sports is entitled to put the Service (temporarily) out of service and/or to reduce the use of it without any prior notification and without being obliged to pay any compensation whatsoever to Customer, if in the opinion of Metrica Sports this is necessary, for instance in connection with the reasonably required maintenance of the Service or due to force majeure. Force majeure includes, but is not limited to, all circumstances and occurrences which, where applicable despite due diligence in the conduct and management of business by Customer, cannot reasonably be averted or controlled by Metrica Sports and/or which are not caused by and/or cannot be attributed to Metrica Sports including but not limited to acts of God and the public enemy, site or building blockades, strikes, riots, civil disruption, lock-outs or other labor disturbances, war, acts of terrorism, sabotage, explosions, fires and floods, inclement weathers, epidemics, specific work interruptions, delay in transportation, delay in or cancellation of the delivery to Metrica Sports of parts, goods, services of information from third parties, material changes of treaties, governmental, legal or regulatory restrictions, power shortages and energy black-outs, network black-outs or black-outs with the internet provider, preventing Metrica Sports to provide the Service;

9.5.Customer is responsible and liable for all use he makes of the Service. Customer agrees to defend, indemnify and hold Metrica Sports harmless from any and all third-party claim or damages (including reasonable attorneys’ fees) in connection with or resulting from the use that Customer makes of the Service, a violation by Customer of the Agreement, and/or any unlawful activities, including but not limited to the breach of IP Rights, and/or privacy rights of Metrica Sports and/or third parties.

10.Liability

10.1.Metrica Sports’s liability for attributable failure (in Dutch: “toerekenbare tekortkoming”) to perform the Agreement or any other unlawful act (in Dutch: “onrechtmatige daad”) or caused otherwise will be excluded, to the extent allowed by a mandatory or peremptory rule of law.

10.2.Customer’s only remedy in the event of an attributable failure or an unlawful act of Metrica Sports, is to discontinue the use of the Service and/or to terminate the Agreement.

10.3.In the event that Metrica Sports is liable for damages under a mandatory or peremptory rule of law, the damage will be limited to an amount of EUR 100.00 per event (a series of connected events being considered as one event). In no event will Metrica Sports’s total, aggregate liability, exceed EUR 200.00.

10.4.Metrica Sports’ liability for consequential damages (in Dutch: “indirecte schade”, “gevolgschade”) arising out of, or in connection with the Agreement or these Terms of Use, such as, but not limited to, loss of profit, loss of business, loss of anticipated savings, loss of Information, or any other financial loss or loss of goodwill or reputation, or other incidental, indirect, punitive or exemplary damages of any kind, independent of whether Customer provides notice to Metrica Sports of such potential injury, damages or loss, is excluded.

10.5.In any event, Customer’s right to claim under the Agreement, these Terms of Use, for an unlawful act or otherwise shall lapse one (1) year after the occurrence giving rise to the claim or action.

10.6.The limitations mentioned in the preceding paragraphs of this Article 10 shall not apply if and insofar as the damage or injury is the result of intent (in Dutch: “opzet”) or gross negligence (in Dutch: “bewuste roekeloosheid”) by Metrica Sports or its managers.

11.Term and termination

11.1.The Agreement will come into effect on the Effective Date and continue to be in effect during the Initial Term.

11.2.In the event Parties concluded an Agreement for use of the Elite Service, article 6 applies for term and termination.

11.3.After expiration of the Initial Term, or any subsequent term, the Agreement will be extended automatically for a new period of 1 year, unless terminated in writing by either Party, taking into account a notice period of 2 months before the end of the Term.

11.4.In addition to the other remedies available to Metrica Sports, Metrica Sports is at all times, at its sole discretion, without prior written notice or explanation and without becoming liable to Customer, entitled to:

11.4.1.temporarily or permanently terminate Customer’s use of the Service in the event that Metrica Sports, at its sole discretion, deems such termination necessary;

11.4.2.temporarily or permanently restrict or suspend Customer’s activities in connection with the Service;

11.4.3.partly or wholly edit, delete or refuse any Information;

11.5.All provisions which are meant to survive the termination of the Agreement, including but not limited to all of Customer’s representations, warranties and indemnification obligations, shall survive such termination.

11.6.Either Party may terminate the Agreement immediately upon written notice to the other Party if:

11.6.1.the other Party ceases to carry on its business;

11.6.2.the other Party breaches any material provision of the Agreement (the obligation to pay the Fees is a material provision of the Agreement) and such breach continues uncured for 30 days – or 7 days for breach of any payment obligation – after written notice of this breach;

11.6.3.the other Party becomes insolvent, admits in writing to its inability to pay debts as they mature, is adjudicated bankrupt, or makes assignment for the benefits of its creditors; or

11.6.4.any proceeding under bankruptcy, or insolvency laws is commenced by or against the other Party and is not dismissed within 30 days.

11.7.Amounts invoiced by Metrica Sports prior to termination in connection with what is already properly Performed or delivered in performance of the Agreement shall remain payable in full and shall become immediately due and payable at the time of termination.

11.8.Upon any termination or expiration of this Agreement in any way whatsoever, all rights granted to Customer hereunder shall cease, the License granted in accordance with the Agreement will lapse automatically and all outstanding obligations to pay any amounts to Metrica Sports shall immediately become due and payable,

11.9.Customer shall immediately return to Metrica Sports, or at Metrica Sports’s option destroy, and certify in writing as to such return or destruction of, all Software and goods, including recording systems, including all portions and copies thereof, in Customer’s possession or control, whether in electronic or physical form.

11.10.Upon termination of the Agreement, it is the Customer’s responsibility to copy any Information Customer wants to retain to a computer or any other storage device, before termination. Metrica Sports will not be responsible to the Customer or any third party for any loss of Information that may result or arise out of such termination of the Agreement.

12.Third parties

12.1.Metrica Sports reserves its right to commission third party service providers and their authorized agents to perform any of the services under the Agreement and/or these Terms of Use, either in whole or in part.

12.2.Customer is not entitled to transfer his rights and/or obligations under the Agreement or these Terms of Use to a third party.

13.Applicable Law and conflict management

13.1.These Terms of Use, the Agreement and the use of the Service are governed by the laws of the Netherlands. The applicability of the Vienna Convention on the Sale of Goods is expressly excluded.

13.2.Unless a mandatory or peremptory rule of (international) law prescribes a competent court, any and all disputes arising out of or in connection with this Agreement shall be finally resolved by arbitration in accordance with the Technology Arbitration & Mediation (TAMI) Arbitration Rules (see: tami.nl) before an arbitral tribunal of three arbitrators. Reference to these rules includes a reference to the rules as amended, extended or re-enacted and to any regulation, order, instrument or subordinate legislation under the relevant rules. Each Party shall nominate one arbitrator for confirmation, with the third arbitrator to be jointly nominated by the two co-arbitrators within 30 days of the confirmation of the second arbitrator. If the two co-arbitrators do not nominate the third arbitrator within that period, the third arbitrator shall be appointed by TAMI. The place of arbitration shall be Amsterdam, The Netherlands, and the language of the arbitration shall be English. The arbitral tribunal’s award shall be final and binding and enforceable in any court of competent jurisdiction.

13.3.Nothing in this Agreement will prevent any party from applying to a court of competent jurisdiction for interim or provisional measures, including to preliminary injunctive relief. Such application may be made before or during the arbitration.

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