Terms of ServiceThese Terms of Use ("Agreement") is entered into by and between Vectis Technologies, Inc., a Delaware corporation doing business as Benchmark ("Vendor"), and the customer entity identified in the applicable Order Form ("Customer"). This Agreement governs Customer's use of Vendor's software described below (the “Software”) and related services. By either executing an Order Form with Vendor or clicking “I ACCEPT” when registering a username and password to access and use the Software, you and Customer agree to comply with the terms of this Agreement. If you are agreeing to this Agreement on behalf of another entity, you represent and warrant that you have the authority to bind such entity to this Agreement.In addition, by agreeing to this Agreement, you agree to the terms of our Privacy Policy, which is hereby incorporated by reference. All personal information provided to us as a result of your or Customer's use of the Software will be handled in accordance with the Privacy Policy.Vendor reserves the right to modify or add to this Agreement at any time, effective as of the posting of the new terms or a later date as may be specified in the new terms. Customer agrees that Vendor may notify Customer of the new terms through the Software and that continued use of the Software after the effective date of the new terms constitutes Customer's agreement to the new terms.
1. Term and TerminationThe term of Customer's access to the Software shall be as set forth an order form executed between Customer and Vendor (each, “Order Form”). Each such Order Form may renew in accordance with the terms set forth in the Order Form. All Order Forms all non-cancelable and all fees contained therein are non-refundable. Customer may grant authority to its employees to the Software. Customer is responsible for its authorized users' use of the Software.Either party may terminate this Agreement and/or any Order Form for cause, which is defined strictly as a material breach of the Agreement that remains uncured thirty (30) days after written notice is provided by the non-breaching party.
2. License ScopeSubject to Customer's compliance with the terms of this Agreement, Vendor grants Customer a non-exclusive, non-transferable, revocable license to access and use the Software in accordance with the Order Form. This license is provided on a flat-rate basis, as further set forth in the Order Form.If Customer exceeds any entitlements or seats set forth in the Order Form, Customer shall promptly notify Vendor and pay for the additional usage. The Software licensed under this Agreement is Benchmark; Parties acknowledge that Vendor may release future upgrades and enhancements under revised pricing and service levels which Customer will have the option to purchase during the Term, subject to a new Order Form under this Agreement.
3. Restrictions on Use; OwnershipCustomer shall not, and shall not permit any third party to, sublicense, resell, reverse engineer, disassemble, or create derivative works based on the Software or Content or use the Software or Content in an unauthorized manner. In addition, Customer agrees: that it will only use the Software and Content in accordance with all applicable laws; in accessing and using the Software or any Content, Customer will keep intact any copyright or other proprietary notices on the Software and/or such Content. Customer also agrees that it will not (a) use any robot, spider, rover, scraper, or any other data-mining technology or automatic or manual process to monitor, cache, mask, extract data from, copy or distribute the Software or Content (except as may be a result of standard search engine or Internet browser usage); or (b) modify, provide access to, frame, reproduce, archive, sell, lease, rent, exchange, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party website, or otherwise use the Software or any Content in any way except as specifically permitted by this Agreement. Customer agrees not to allow or assist any third party in violating or attempting to violate any of the above restrictions or prohibitions.Content, such as reports and data, may be made available to Customer through the Software. Customer may only use such data or reports exported from or made available through the use of Software (e.g., PDFs or Excel files) for internal athletic department purposes, and Customer shall always include Vendor's watermark, other identifying marks, or attribution when appropriate. Customer shall not grant access to the Software, or demonstrate or disclose any part of the Software, Content or its outputs, to any third party without Vendor's prior written consent, except where required by law. Customer may not modify any such Content or extract any component of the data or report for any purpose.The Vendor's name and logos, all product and service names, all graphics, all button icons, and all trademarks, service marks and logos appearing within the Software or any such data or reports are owned by Vendor. Customer is not authorized to display or use any such marks in any manner without prior written permission.The Software, including all its software and code comprising or used to operate the Software, and all of the text, photographs, images, illustrations, graphics, sound recordings, video and audio-video clips, literary property, works of authorship and/or other information, documents, materials or content available on or through the Software, including all reports and data (“Content”) are protected under applicable intellectual property laws of the United States. The Software, Content and intellectual property rights therein are the property of Vendor. All rights not expressly granted in this Agreement are reserved.If Customer provides any feedback, suggestions or ideas regarding the Software to Vendor (“Feedback”), Customer hereby assigns to Vendor all rights in and to such Feedback, including all worldwide rights, title and interests in the Feedback.
4. SupportVendor shall provide reasonable technical support via email Monday through Friday, 9:00 a.m. to 6:00 p.m. Eastern Time, excluding U.S. federal holidays.
5. Payment TermsCustomer agrees that Vendor will charge the fees on an annual basis. Fees are due in full at the beginning of each contract year, except for the first payment, which will be due within fifteen (15) days of the start of the Order Form. There is no grace period for late payments. Vendor reserves the right to suspend access in the event of non-payment.
6. Mutual Limitation of LiabilityIN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR STATUTORY LIABILITY (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST BUSINESS, LOST PROFITS, LOST SAVINGS, OR TO BUSINESS REPUTATION), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.In no circumstance shall the aggregate liability under this Agreement for either party exceed the total fees paid by Customer in the six (6) months preceding the claim.The foregoing exclusions and limits shall not apply to Customer's indemnification obligations or any gross negligence or willful misconduct of a party.
7. IndemnificationCustomer shall indemnify and hold harmless Vendor and its affiliates, parent and subsidiaries, and each of their respective directors, officers, shareholders, employees, licensees, contractors and agents against any third-party claims arising out of Customer's use or misuse of the Software.
8. WarrantiesVendor makes no warranties regarding the accuracy, availability, or reliability of the Software and disclaims all warranties, express or implied.THE SOFTWARE, SERVICES AND ALL CONTENT IS PROVIDED AS IS AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VENDOR DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) RELATING TO THE SECURITY OF THE SOFTWARE; (C) THAT THE CONTENT OR THE SOFTWARE IS ACCURATE, COMPLETE OR CURRENT; OR (D) THAT THE SOFTWARE WILL OPERATE SECURELY OR WITHOUT INTERRUPTION OR ERROR. CUSTOMER AGREES THAT THE USE OF THE SOFTWARE OR ANY CONTENT OR ANY DECISIONS MADE BASED ON THE SOFTWARE ON CONTENT IS AT CUSTOMER'S OWN RISK.
9. Force MajeureNeither party shall be liable for any delay or failure to perform due to causes beyond its reasonable control, including but not limited to natural disasters, acts of war, pandemics, cyberattacks, or utility outages.
10. ConfidentialityEach party agrees to treat non-public, proprietary, or confidential information of the other party as confidential and to use such information only for the purposes of performing under this Agreement.
11. FOIA / Public RecordsIf Customer is subject to public records laws, it shall provide Vendor with prompt written notice prior to disclosing any part of this Agreement or related communications in response to a public records request. Customer shall cooperate with Vendor to redact trade secrets or proprietary information.
12. Governing LawThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
13. AssignmentNeither party may assign this Agreement without the prior written consent of the other party, except that Vendor may assign this Agreement without consent in connection with a merger, acquisition, corporate reorganization, or sale of substantially all its assets.
14. Marketing RightsVendor may list Customer's name and logo as a customer in marketing materials unless Customer opts out in writing.
Vectis Technologies, Inc. d/b/a BenchmarkTheBenchmarkCompany.ai