Last Modified: March 1, 2019
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
These HC Moneyball, LLC Software as a Service (“SaaS”) Terms and Conditions (“Terms and Conditions”) are related to the SaaS Subscription between HC Moneyball, and subscribed Customer (the “Customer”). Customer’s SaaS Subscription (subject to the payment of the Subscription fee and the provisions for termination set out in this Agreement) shall be deemed Customers’ agreement to these Terms and Conditions.
1. Definitions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity, or the right to direct the affairs of a subject entity.
“Subscription” (herein also referred to as “Agreement”) means any Order Forms agreed to and executed by the parties and additional documents and materials incorporated by reference herein.
“Aggregated Data” means statistical information related to use of the Service for internal and customer reporting purposes, but only in an aggregated form that does not identify Customer or Users.
“HC Moneyball” means HC Moneyball, LLC, a Delaware limited liability company, having a principal place of business at 333 East 75th Street, PHC, New York, NY 10021
“HC Moneyball Technology” means all HC Moneyball proprietary technology (including software, products, processes, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information) which HC Moneyball makes available to you from time to time in providing the Service.
“Confidential Information” means any information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form, that is designated confidential or that reasonably should be understood to be confidential given its nature and the circumstances surrounding the disclosure. Confidential Information includes, but is not limited to, the Service, Documentation, HC Moneyball’s pricing and the terms and conditions of this Subscription and Order Form. Notwithstanding the foregoing, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach by the Receiving Party of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is received from a third party without an obligation of confidentiality; or (iv) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.
“Content” means the information, documents, software, products and services contained or made available to you in the course of using the Service.
“Customer”, “you”, or “your” means the entity executing an Order Form and entering into this Subscription.
“Customer Data” means any data, information, including Confidential Information, or material you provide, submit or upload to the Service and any reports generated by HC Moneyball as a result of such submitted data by Customer.
“Data Protection Laws” shall mean with respect to the EU, the GDPR or the law of any such member country implementing the GDPR, and with respect to any other country, any applicable data protection or data privacy laws.
“Documentation” means the user instruction materials, as updated from time to time, describing the use and operation of the Service that are provided in the Service’s “Help” files.
“Downtime” means when you are unable to transmit and/or receive data from the Service, but does not include the effects of any Internet, Customer network or other connectivity issues which are not within HC Moneyball’s control.
“Emergency Maintenance” means maintenance which may delay or interrupt your use of the Service, and the necessity of which is not known to HC Moneyball in advance of its occurrence.
“Effective Date” means the Start Date set forth in your initial Order Form.
“GDPR” shall mean the European Union General Data Protection Regulation, (2016/679/EU) as the same may be amended or replaced from time to time
“Initial Term” means the initial period that commences on the Effective Date for the period set forth in the initial Order Form.
“Intellectual Property Rights” means inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secret rights, and all other intellectual property rights, derivatives thereof and all renewals thereto as well as other forms of protection of a similar nature anywhere in the world.
“Order Form” means a written form evidencing a Subscription for the Service and any subsequent Subscriptions and related services executed by both parties or an online form generated by HC Moneyball and executed by you, specifying the number of Users, the products and services contracted for, and applicable fees, billing periods and other charges as agreed by the parties. Each Order Form is incorporated by reference into this Agreement. Except as specifically provided herein, in the event of a conflict between the terms and conditions of this Subscription and the terms of an Order Form, the terms of the Order Form will prevail.
“Personal Data” shall (a) with respect to the member countries of the EU, have the meaning ascribed to that term in Article 4 of the GDPR or in the applicable implementing Data Protection Laws; and (b) with respect to any other country, mean information that falls within the definition of “personal data”, “personal information” or any comparable term used in the Data Protection Laws of such country.
“Renewal Term” means a period, during which this Agreement is extended, the first of which periods, if any, begins upon expiration of the Initial Term as set forth in an Order Form and as further described in Section 7.1.
“Scheduled Maintenance” means maintenance which may delay or interrupt your use of the Service, and the necessity of which is known to HC Moneyball in advance of its occurrence. HC Moneyball will use commercially best efforts to provide you with an advance notice prior to Scheduled Maintenance and shall schedule Scheduled Maintenance to the extent practicable during periods of non-peak usage among its customer base.
“Service” means HCMoneyball’s online products reflected on an Order Form accessed at a web site designated by HCMoneyball, to which you are being granted access under the Agreement, including the HCMoneyball Technology and Content.
“Term” means the Initial Term together with all Renewal Term(s).
“User” means an individual authorized by you to use the Service, and to whom you (or HC Moneyball at your request) have supplied a user identification and password. Users may include, for example, your employees, consultants, contractors and agents.
2. License Grant & Restrictions
2.1 License Grant. HC Moneyball hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms of this Agreement. All rights not expressly granted to you are reserved by HC Moneyball. Individual User licenses may not be shared or used by more than one individual User but may be reassigned to new Users replacing former Users who no longer use the Service.
2.2 Restrictions. You will not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service; (ii) modify or make derivative works based upon the Service or otherwise violate HC Moneyball’s Intellectual Property Rights in the Service; (iii) create Internet “links” to the Service; (iv) reverse engineer or access the Service in order to: (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics of the Service; or (c) copy any ideas, features, functions or graphics of the Service; (v) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material to the Service; (vi) send or store material containing viruses, worms, Trojan horses, spam or other harmful computer code, files, scripts, agents or programs to or from the Service; (vii) interfere with or disrupt the integrity or performance of the Service or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Service or its systems or networks; or (ix) use the Service in violation of applicable law.
2.3 Affiliates’ Rights. Your Affiliates may use the Service to the same extent you may use the Service, and may access the same without additional charge to you (subject to the limitations set forth herein); provided however, that you will be responsible for the compliance of all such Affiliates with the terms and conditions of this Agreement, as if such Affiliates were parties hereto. All rights granted to an Affiliate hereunder will automatically cease upon that Affiliate ceasing to be your Affiliate.
2.4 Suspension for Ongoing Harm. HC Moneyball may upon written notice to you suspend your access to the Service if HC Moneyball reasonably concludes that your use of the Service is being used to engage in denial of service attacks, spamming, misappropriation of the third party rights or illegal activity, and/or that use of your instance of the Service is causing immediate, material and ongoing harm to HC Moneyball or others. In the extraordinary event HC Moneyball suspends your Service access, HC Moneyball will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with you to resolve the issues causing such suspension. You agree that HC Moneyball shall not be liable for any suspension of the Service under the circumstances described in this Section.
3. Responsibilities
3.1 Your Responsibilities.
3.1.1 Use of the Service. You will: (a) be responsible for all activity occurring under your User accounts; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify HC Moneyball promptly of any such unauthorized access or use; (c) use the Service only in accordance with the Documentation and applicable laws and government regulations; and (d) provide HC Moneyball with all reasonably available information if you report a non-conformance in the Service so that HC Moneyball may diagnose and remedy such non-conformance.
3.1.2 Bring Your Own Data. You will be responsible for any Customer Data that you upload in the Service, and in particular, it is your sole responsibility to ensure that your Customer Data is collected and further processed in compliance with the GDPR, if applicable.
3.2 HC Moneyball’s Responsibilities.
3.2.1. Provision of Service. HC Moneyball will: (a) make the Service available to you pursuant to this Agreement and the applicable Subscription; and (b) provide you with the support as set forth in the Service Level Agreement.
3.2.2 Protection of Customer Data. HC Moneyball acknowledges that it has and will maintain administrative, physical and technical safeguards and an internal information security program, Data Security and Policy, designed to protect the security, confidentiality and integrity of your Customer Data, including the protection against any anticipated threats or hazards to the security or integrity of such Customer Data, and protection against unauthorized access, use, modification or disclosure of Customer Data that could result in substantial harm or inconvenience to Customer. HC Moneyball shall monitor, evaluate and adjust, as appropriate, such information security program in light of changes in technology, changes in the sensitivity of Customer Data and internal or external threats to Customer Data. HC Moneyball shall notify Customer immediately of any unauthorized access, alteration, loss, destruction or theft of Customer Data (each a “Data Security Breach”). If Customer is impacted by a Data Security Breach, HC Moneyball shall disclose to Customer any and all information in its possession regarding the Data Security Breach. If a Data Security Breach occurs due to HC Moneyball’s negligence, Customer may terminate this Agreement immediately. HC Moneyball shall only access your Customer Data: (a) to support your use of the Service and prevent or address service or technical problems; or (b) as you expressly permit in writing.
4. Customer Data. Customer Data is your Confidential Information and will not be accessed, used or disclosed by HC Moneyball except as explicitly set forth herein. You have sole responsibility for the entry, deletion, correction, accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use the Customer Data. HC Moneyball will not be responsible for any destruction, damage, loss or failure to store any Customer Data beyond its reasonable control or resulting from a failure in data transmission or operation of the Service by you. If this Agreement is terminated, HC Moneyball will make available to you a file of the Customer Data within thirty (30) days of termination if you so request at the time of termination. You agree and acknowledge that HC Moneyball has no right or obligation to retain Customer Data more than thirty (30) days after termination or expiration, unless where a statutory obligation, made known to HC Moneyball by Customer, imposes HC Moneyball to retain some of the Customer Data. Nothing herein shall prohibit HC Moneyball from using data received through the Service, or information resulting from your use of the Service, for the purposes of system performance, data enhancement, machine learning, prediction, analysis, benchmarking, and product enhancement, improvement, and/or support. Notwithstanding anything to the contrary in this Agreement, while Company will maintain Customer data on Customer’s behalf and delete any data on request from Customer, this data may be used by Company in an anonymized and aggregated manner for analysis or service enhancements, provided that no Customer identifiable data will be used for marketing purposes, or distributed or displayed directly to any other party in a manner that discloses the identities of the Customer without prior written consent.
5. Ownership of Intellectual Property Rights. HC Moneyball owns all right, title and interest, including all related Intellectual Property Rights, in and to the HC Moneyball Technology, Content, the Service, Aggregated Data and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you directly relating to the Service. Each Party’s name and logo and any product associated thereto are trademarks of each party, and no right or license is granted to use them to either party under this Agreement.
6. Fees and Payments
6.1 Payment Obligations. HC Moneyball charges and collects payment in advance for use of the Service. In accordance with the initial Order Form, you will pay all fees and charges in accordance with the terms contained in each Order Form. All payment obligations are non-cancelable and fees paid are non-refundable except as expressly set forth in Sections 7.4 and 9.1. You are responsible for paying for all User licenses specified in an Order Form, whether or not such User licenses are actively used. Your designated License Administrator may add licenses by executing an additional Order Form online or in hardcopy form. Added licenses will be subject to the following: (i) added licenses will be coterminous with the then-current Term; and (ii) the license fee for the added licenses will be the same as the fee applicable to your then-existing Users, prorated for the remainder of the current billing period. Unless otherwise set forth in an applicable Order From, HC Moneyball reserves the right to modify its fees on an annual basis, effective as of the end of the then-current Term’s anniversary date upon at least thirty (30) days prior notice to you, which notice may be provided by e-mail.
6.2 Billing Information. You agree to provide HC Moneyball with complete and accurate billing and contact information including your legal company name, street address, e-mail, and name and telephone number of an authorized billing contact and License Administrator(s). You agree to update this information within thirty (30) days of any change to it. All fees are billed in U.S. dollars unless otherwise specified in writing by the parties. If you wish to use a third-party payment portal system, all necessary portal information (and purchase orders if applicable) must be provided to HC Moneyball within ten (10) days of the Effective Date. Failure to provide such information within the time period specified may lead to a late payment charge and/or suspension as set forth in Section 6.5 below.
6.3 Payment Disputes. If you believe your bill is incorrect or wish to dispute any charges contained therein, you must notify HC Moneyball in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
6.4 Late Payment and Suspension. Delinquent invoices are subject to interest of one percent (1%) per month on any outstanding balance, or the maximum permitted by law, whichever is greater, plus expenses of collection. If a payment is not disputed in good faith (and in addition to its other rights), HC Moneyball reserves the right to terminate this Agreement or suspend your access to the Service if any delinquent payment is not received by HC Moneyball within thirty (30) days after notice to you of such delinquency. You will continue to be charged for User licenses during any period of suspension.
6.5 Taxes. HC Moneyball’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction based on amounts paid or payable under the Agreement (collectively, “Taxes”). You are responsible for paying all Taxes associated with your use of the Service. If HC Moneyball has the legal obligation to pay or collect Taxes for which you are responsible under this Section, HC Moneyball will invoice you and you will pay that amount unless you provide HC Moneyball with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, HC Moneyball is solely responsible for taxes assessable against HC Moneyball based on its net income, property and employees.
7. Term and Termination.
7.1 Term. This Agreement commences on the Effective Date and will continue for the Initial Term and all Renewal Terms unless terminated in accordance with this Section.
7.2 Renewal.
(i) Upon the expiration of the Initial Term and each subsequent Renewal Term, the Agreement will automatically renew for a Renewal Term and HC Moneyball will issue you an invoice for such Renewal Term, unless (a) you have previously provided HC Moneyball with at least thirty (30) days’ written notice prior to the end of the then current Term that you elect not to renew the Agreement, or (b) HC Moneyball has provided you at least one hundred and eighty (180) days’ written notice prior to the end of the then current Term that HC Moneyball has elected not to renew the Agreement.
(ii) The renewal charge will be equal to the then-current applicable Subscription fee in effect during the prior Term, plus any other recurring fees set forth in a prior signed Order Form, unless (a) HC Moneyball has given you prior notice of a fee increase as set forth in Section 6.1, which will be effective upon renewal, or (b) the parties have executed an Order Form effective upon the renewal date which describes a modified Subscription for the Renewal Term. You may reduce the number of User additional licenses or cancel or reduce HC Moneyball products effective only upon the expiration of the then current Term.
(iii) Fees for other services subscribed to by Customer in an applicable Order Form will be charged on an as-quoted basis.
7.3 Termination. Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.4 Refund or Payment on Termination. If you terminate this Agreement pursuant to Section 7.3, HC Moneyball will issue you a prorated refund for payment previously received by HC Moneyball corresponding to any period after the effective date of such termination. If HC Moneyball terminates this Agreement pursuant to Section 7.3, you will pay any unpaid fees covering the remainder of the then current Term. In no event will any termination relieve you of the obligation to pay any fees payable to HC Moneyball for the period prior to the effective date of termination.
8. Representations & Warranties
8.1 General. Each party represents and warrants that: (a) it has the power to enter into and perform this Agreement; (b) this Agreement’s execution has been duly authorized by all necessary corporate action of the party; (c) this Agreement constitutes a valid and binding obligation on it, enforceable in accordance with its terms; and (d) neither it nor its employees or agents has offered or will offer any illegal bribe, kickback, payment, gift, or thing of value in connection with this Agreement.
8.2 HC Moneyball’s Warranties. HC Moneyball warrants that, when used in accordance with the Documentation, the Service will perform substantially in accordance with the Documentation. If HC Moneyball breaches the foregoing warranty, then HC Moneyball shall use commercially reasonable efforts to remedy the non-conformance. If, despite its commercially reasonable efforts, HC Moneyball is unable to remedy the non-conformance, then your sole remedy, and HC Moneyball’s sole liability, will be the termination of this Agreement for cause in accordance with Section 7.3 and a refund payment in accordance with Section 7.4. HC Moneyball reserves the right to change hosting providers, provided that any successor hosting provider conforms to HC Moneyball’s facility, security and audit requirements related thereto.
9. Mutual Indemnification.
9.1 HC Moneyball’s Indemnification of You. HC Moneyball will indemnify and defend you and your parents, subsidiaries, affiliates, officers, directors, employees, attorneys and agents against any and all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of a claim by a third party alleging that the Service used in accordance with this Agreement infringes its Intellectual Property Rights. HC Moneyball will have no liability or indemnification obligation with respect to any claim based upon (i) the combination, operation or use of technology, data or process(s) not provided by HC Moneyball where such claim or infringement would not have occurred in the absence of such combination (in which case you shall indemnify HC Moneyball for any such claims); (ii) any information, component or application provided or made available by you or any third party; (iii) any modification of the Service by a party other than HC Moneyball or our authorized agents; (iv) the use of other than the latest release of the Service if such claim could have been avoided by use of the latest unmodified release; or (v) your continuance of allegedly infringing activity after being notified thereof, or after being notified of modifications (to be made at no cost) that would have avoided the alleged infringement. If HC Moneyball is required to indemnify you for infringement of a third party’s Intellectual Property Rights in accordance with this Section, or if HC Moneyball reasonably believes the Service may infringe a third party’s Intellectual Property Rights, then HC Moneyball may, in its sole discretion: (x) modify the Service so that it no longer infringes; (y) obtain a license for your continued use of the Service; and/or (z) remove the infringing component from the Service. If, despite its commercially reasonable efforts to do so, HC Moneyball is unable to perform (x), (y) or (z), then HC Moneyball may terminate your Agreement upon ninety (90) days advance written notice to you, in which case HC Moneyball shall issue to you a prorated refund for any prepaid fees covering the remainder of the then-current term after the effective date of termination. The rights and remedies granted to you under this Section state HC Moneyball’s entire liability, and your sole and exclusive remedy, with respect to an infringement by HC Moneyball of a third party’s Intellectual Property Rights.
9.2 Your Indemnification of HC Moneyball. You will indemnify and defend HC Moneyball and its parents, subsidiaries, affiliates, officers, directors, employees, attorneys and agents against any and all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of a claim by a third party alleging that the Customer Data infringes its Intellectual Property Rights or a violation of laws and/or regulations, including, but not limited to, Data Privacy Laws or laws related to export controls. The rights and remedies granted to HC Moneyball under this Section 9 state your entire liability, and HC Moneyball’s sole and exclusive remedy, with respect to an infringement by you of a third party’s Intellectual Property Rights.
9.3. Indemnification Procedures. In the event of an indemnity obligation under this Section 9, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such claim; (ii) allow the indemnifying party sole control of its defense and settlement (provided that a party may not settle or defend a claim unless it unconditionally releases the other party of all liability to any third party); and (iii) provide the indemnifying party all available information and reasonable assistance at the indemnifying party’s cost. A party’s indemnification obligations are expressly conditioned upon the indemnified party’s compliance with this Section 9.3, provided that, the failure to provide notice of a claim will not limit the rights of an indemnified party hereunder except to the extent that such failure materially prejudices the ability of the indemnifying party to defend such claim.
10. Disclaimer. THE EXPLICIT REPRESENTATIONS AND WARRANTIES IN SECTION 8 ARE THE PARTIES’ COMPLETE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES. HC MONEYBALL DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. USE OF THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET WHICH ARE BEYOND HC MONEYBALL’S CONTROL. HC MONEYBALL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. OTHER THAN AS SET FORTH HEREUNDER, HC MONEYBALL DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE
11. Limitation of Liabilities
11.1 Limitation of Liabilities. EXCEPT FOR CLAIMS ARISING UNDER A PARTY’S gross negligence, willful misconduct, misappropriation of intellectual property rights, AN INDEMNIFICATION OBLIGATION, OR YOUR breach of SECTION 2, NEITHER PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT WILL EXCEED THE AMOUNT ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT(S) GIVING RISE TO SUCH CLAIM.
11.2 Exclusion of Consequential and Related Damages. EXCEPT FOR CLAIMS ARISING UNDER A PARTY’S gross negligence, willful misconduct, misappropriation of intellectual property rights, AN INDEMNIFICATION OBLIGATION, OR YOUR breach of SECTION 2, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, or CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND. The limitations IN THIS SECTION AND IN SECTION 11.1 will apply whether an action arises in contract, warranty or tort and EVEN IF THE PARTY FROM WHICH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Exclusion of Payment Obligations. THE LIMITATIONS IN THIS SECTION 11 DO NOT APPLY TO YOUR OBLIGATIONS TO PAY FEES WHEN DUE AND PAYABLE.
12. Confidentiality.The Receiving Party will use at least the same degree of care in protecting the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information, but in no event less than a reasonable standard of care. The Receiving Party shall: (i) not use the Disclosing Party’s Confidential Information except as permitted under this Agreement; and (ii) limit access to the Disclosing Party’s Confidential Information to its, and its Affiliates’, employees and contractors who need such access to perform their duties hereunder and who owe a duty of confidentiality to the Disclosing Party with protections no less stringent than those set forth in this Agreement. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent compelled by law to do so, provided that the Receiving Party uses reasonable efforts to give the Disclosing Party prior notice of the compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, in order to permit the Disclosing Party to contest or limit the disclosure. The foregoing confidentiality obligations shall survive termination of this Agreement, regardless of cause.
13. Notice. HC Moneyball may give notice regarding operational aspects of the Service by means of a general notice on the Service, electronic mail to your e-mail address on record with HC Moneyball, or both. Any other notice by one party to the other hereunder will be by written communication sent by first class mail or reputable overnight delivery service and such notice will be deemed to have been given upon receipt (if sent by overnight delivery service), five (5) business days after mailing (if sent by first class mail) or twelve (12) hours after sending (if sent by e-mail). Notice to HC Moneyball will be addressed to HC Moneyball, LLC, attention: Legal Department. Notice to you will be addressed to your address on record in HC Moneyball’s account information.
14. Assignment; Change in Control. This Agreement, and the rights and obligations hereunder, may not be assigned by either party, whether by operation of law or otherwise, without the prior written consent of the other party, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a competitor of the other party. In the event of an assignment as described in the preceding sentence, the assigning party shall provide the other party with written notice of the assignment. Neither party may assign this Agreement to a competitor of the other party without that other party’s consent. A party’s sole remedy for any purported assignment in breach of this Section shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party.
15. Data Protection.
15.1 For the purposes of this Section, the terms “controller, “data subjects”, “processor” and “processing” shall have the meaning given to them by the GDPR and other applicable Data Protection Laws. Where HC Moneyball provides the Service to you, it may process Personal Data as a processor on behalf of the Customer, who will be the controller. The processing of personal data will be carried out in accordance with the obligations and information set forth in the Privacy Policy.
15.2 Nothing in this Section shall prevent HC Moneyball from complying with any legal obligation imposed by applicable law, regulatory authority or court.
16. Governing Law and Arbitration. This Agreement will be governed by the laws of the State of Delaware and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York. Unless resolved amicably between the parties, any and all disputes, controversies, or differences which may arise between the parties, out of or in relation to or in connection with this Agreement, or the breach thereof, shall be solely and finally settled by binding arbitration pursuant to the then-current rules of JAMS. Such arbitration shall be held in New York, NY, USA. The arbitration shall be conducted by a single arbitrator, who shall be knowledgeable in the subject matter hereof. The parties shall agree upon the selection of the arbitrator, but if the parties cannot agree on such selection within ten (10) days following the submittal of a demand for arbitration by a party, then the arbitrator shall be selected by JAMS. The arbitrator will provide a written explanation to the parties of any arbitration award. Any decision rendered by the arbitrator shall be binding, final and conclusive upon the parties, and a judgment thereon may be entered in, and enforced by, any court having jurisdiction over the party against which an award is entered or the location of the assets of such party, and the parties hereby irrevocably waive any objection to the jurisdiction of such courts based on any ground, including without limitation, improper venue or forum non conveniens. The parties and the arbitrator shall be bound to maintain the confidentiality of this Agreement, the dispute and any award, except to the extent necessary to enforce any such award. Notwithstanding each party agreeing to arbitrate, you acknowledge that your material breach of this Agreement may cause HC Moneyball irreparable harm for which there may be no adequate remedy at law, and that under such circumstances, we shall be entitled to equitable relief by injunction or otherwise in any court having jurisdiction, without the obligation of posting any bond or surety.
17. General Provisions.
17.1 Entire Agreement. This Agreement comprises the entire agreement between you and HC Moneyball and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Neither party has made any oral or written statements that are not included in this Agreement that in any way induced the other party into entering into this Agreement. No text or information set forth on any purchase order, preprinted form or document (other than an executed Order Form, if applicable) will add to or vary the terms and conditions of this Agreement. No modification or amendment of this Agreement shall be effective unless in writing and signed by the parties.
17.2 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
17.3 Relationship of the Parties. No joint venture, partnership, employment, or agency relationship exists between you and HC Moneyball as a result of this Agreement.
17.4 Waiver. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by that party in writing.
17.5 Future Functionality. You agree that your purchase of the Service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by HC Moneyball regarding any future functionality or feature.
17.6 Resolution of Disputes. Except where a party is seeking a remedy related to claims of misappropriation or ownership of Intellectual Property Rights, each party agrees that before it brings any dispute, action, claim or cause of action, it shall provide written notice to the other party of the specific issue(s) in dispute. Within seven (7) days after such notice knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve such matter.
17.7 Compliance with Laws. You are solely responsible for, and agree to comply with, all applicable laws, statutes, ordinances, and other governmental authority, however designated, with respect to the use of and access to the Service, including without limitation United States government laws, regulations, orders or other restrictions regarding export from the United States and re-export from other jurisdictions of software, technical data and information or derivatives of such software, or technical data and information. The Service may be subject to export laws and regulations of the U.S. and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer will not permit Users to access or use the Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
17.8 Survival. The following Sections will survive the termination or expiration of the Agreement: 1 (Definitions), 2.2 (Restrictions), 5 (Ownership of Intellectual Property Rights), 6 (Fees and Payments), 7 (Term and Termination), 9 (Mutual Indemnification), 10 (Disclaimer), 11 (Limitation of Liabilities), 12 (Confidentiality), 13 (Notice) and 16 (Governing Law).