Fantix Basic Terms

1. License

   • License Grant. Subject to and conditioned on Client’s payment of Fees and compliance with the terms and conditions of this Agreement, Fantix hereby grants Client a non-exclusive, non-sublicenseable, and non-transferable (except in compliance with Section 9(d)) license during the Term to use the Services and the Data solely for Client’s internal business purposes (the “Permitted Use”). The total amount of usage by the Client will not exceed the limits set forth in the Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the fees payable hereunder.
   • Use Restrictions. Client shall only use the Data for the Permitted Use and shall not disclose, release, distribute, or deliver the Data or the Service, or any portion thereof, to any third party without Fantix’s prior written consent. Any purpose or use not specifically authorized herein is prohibited unless otherwise agreed to in writing by Fantix. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Client shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services or Data, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or the Data; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Services or the Data or methods used to compile the Data, in whole or in part; (iv) remove any proprietary notices included within the Services or the Data; (v) publish, enhance, or display any compilation or directory based upon information derived from the Services or the Data; or (vi) use the Services or the Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
   • Client Data; Reservation of Rights. For the purpose of clarity, Data shall not include any proprietary data provided to Fantix hereunder, including for the purpose of providing the services described hereunder (“Client Data”). Client hereby grants Fantix a non-exclusive, non-sublicenseable, and non-transferable (except in compliance with Section 9d)) license during the Term to use the Client Data solely for the purpose of providing the services described herein. Client reserves all rights not expressly granted to Fantix in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Fantix or any third party any intellectual property rights or other right, title, or interest in or to the Client Data. Fantix reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Services and the Data.
   • Delivery. Client shall access the Services through the Fantix website, all connections to which are Client’s sole responsibility.

2. Fees and payment

   • Fees. Client shall pay Fantix the fees (”Fees”) set forth in the Order Form without offset or deduction. Client shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Client fails to make any payment when due, in addition to all other remedies that may be available: (i) Fantix may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Client shall reimburse Fantix for all reasonable costs incurred by Fantix in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 60 days following written notice thereof, Fantix may prohibit access to the Data until all past due amounts have been paid, without incurring any obligation or liability to Client or any other person by reason of such prohibition of access to the Data.
   • Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Fantix’s income.
   • Auditing Rights and Required Records. Client agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Fantix may, at its own expense, on reasonable prior notice, periodically inspect and audit Client’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Client has underpaid Fantix with respect to any amounts due and payable during the Term, Client shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 2. Client shall pay for the costs of the audit if the audit determines that Client’s underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of two years after the termination or expiration of this Agreement.

3. Confidential information and data security

   • Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Without limiting the foregoing, for purposes of this Agreement, the Data will be deemed Confidential Information of Fantix. Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
   • Data Security. Client shall use all reasonable legal, organizational, physical, administrative and technical measures, and security procedures to safeguard and ensure the security of the Data and to protect the Data from unauthorized access, disclosure, duplication, use, modification, or loss.

4. Intellectual property ownership

   Client acknowledges that, as between Client and Fantix, Fantix owns all right, title and interest, including all intellectual property rights, in and to the Services and the Data. Client further acknowledges that: (a) the Data is an original compilation protected by United States copyright laws; (b) Fantix has dedicated substantial resources to collect, manage and compile the Data and create the Services; and (c) the Data constitutes trade secrets of Fantix. Fantix acknowledges that, as between Client and Fantix, Client owns all right, title and interest, including all intellectual property rights, in and to the Client Data.
   

5. Disclaimer of warranties

   THE SERVICES AND THE DATA ARE PROVIDED “AS IS” AND FANTIX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. FANTIX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, THE DATA, OR ANY PRODUCTS OR RESULTS OF ITS USE, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
   

6. Privacy; compliance with laws

   • To the extent applicable to each Party’s performance and obligations under this Agreement, Fantix and Client shall adhere to any applicable privacy laws, regulations, codes, and self-regulatory guidelines. Each Party will post a privacy policy conspicuously on its respective web site that is in accordance with all applicable laws, regulations, codes, and self-regulatory guidelines. Neither Party shall use the Data or Services to collect, transmit, provide, or otherwise make available on/to the Platform “sensitive information,” which is defined as the following: personally identifiable information about a natural person: his or her financial account numbers, insurance plan numbers, precise information about health or medical conditions, and government-issued identifiers (such as a Social Security number), as well as those elements described as sensitive information under the NAI Code. Any personally identifiable information about a minor under the age of 13 is also “sensitive information.” Customer may not merge or otherwise associate personally identifiable information with information collected via the Platform unless such merger or association is conducted in accordance with the NAI Code and without use of the Platform.
   • Client shall not, (and will not authorize or allow any third party to), directly or indirectly, (i) resell, sell, license, sublicense, lease, share, transfer, assign or rent any of the Data, Platform or any aspect of the Services, (ii) reproduce; modify, create other works from, distribute, decompile, disassemble, reverse engineer, or otherwise attempt to determine the functionality of any portion of, the Platform, any as of the Services, any software programs, platform or application programming interface(s) made available or accessed hereunder, or any Data or other data or deliverables provided by Fantix hereunder (iii) use the Platform, Services, Data or any other data provided by Fantix hereunder, or any deliverables received hereunder, in violation of applicable law or regulation (including applicable privacy laws), this Agreement, for malicious, defamatory, discriminatory, obscene or unethical purposes, in a manner that promotes illegal behavior, or for any purpose not permitted hereunder (iv) use the Data to validate, benchmark or otherwise evaluate data from any third party source, or (v) use any of the Services hereunder in a manner that exceeds reasonable request volume, or constitutes excessive or abusive usage, as mutually determined by the parties.

7. Idemnification

   • Fantix Indemnification.
     • Fantix shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, or costs (including reasonable attorneys’ fees) (”Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that Client’s Permitted Use of the Services or the Data infringes or misappropriates such third party’s US intellectual property rights, provided that Client promptly notifies Fantix in writing of the claim, cooperates with Fantix, and allows Fantix sole authority to control the defense and settlement of such claim.
     • If such a claim is made or appears possible, Client agrees to permit Fantix, at Fantix’s sole discretion, to (A) modify or replace any such infringing material to make it non-infringing, or (B) obtain rights to continue use. If Fantix determines that none of these alternatives is reasonably available, Fantix may terminate this Agreement, in its entirety or with respect to the affected part or feature of the Services or the Data, effective immediately on written notice to Client.
     • This Section 6(a) will not apply to the extent that the alleged infringement arises from (A) use of the Services or the Data in combination with data, software, hardware, equipment, or technology not provided by Fantix or authorized by Fantix in writing or (B) Client’s violation of Section 1(b) of this Agreement.
   • Client Indemnification. Client shall indemnify, hold harmless, and, at Fantix’s option, defend Fantix from and against any Losses resulting from any Third-Party Claim based on Client’s: (i) negligence or willful misconduct; (ii) use of the Services or the Data in a manner not authorized by this Agreement, or (iii) that Fantix’s use of the Client Data infringes or misappropriates such third party’s US intellectual property rights, provided that Client may not settle any Third-Party Claim against Fantix unless such settlement completely and forever releases Fantix from all liability with respect to such Third-Party Claim or unless Fantix consents to such settlement, and further provided that Fantix shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
   • Sole Remedy. THIS SECTION 7 SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR THE DATA INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

8. Limitations of liability

   IN NO EVENT WILL FANTIX BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (c) LOSS OF GOODWILL OR REPUTATION, (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA OR BREACH OF DATA OR SYSTEM SECURITY, OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL FANTIX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO FANTIX UNDER THIS AGREEMENT IN THE ONE PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1,000, WHICHEVER IS LESS.
   

9. Term and termination

   • Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until two years from such date (the “Initial Term”). This Agreement will automatically renew for additional successive one year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 90 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
   • Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
     • Fantix may terminate this Agreement, effective on written notice to Client, if Client: (A) fails to pay any amount when due hereunder, and such failure continues more than 90 days after Fantix’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 1(b) or Section 3;
     • either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
     • either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   • Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Client’s obligations under Section 3, Client shall cease using and delete, destroy, or return all copies of the Data and certify in writing to the Fantix that the Data has been deleted or destroyed. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund.
   • Survival. This Section 8(d) and Sections 2, 3, 6, 7, and 10 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

10. Miscellaneous

    • Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
    • Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (i) personal delivery to the party to be notified, (ii) when sent, if sent by electronic mail, with confirmation of receipt, during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on the signature pages hereto, or such other address as one party may have informed the other in accordance with this section.
    • Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    • Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of [or related to] this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    • Assignment. Client may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Fantix, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
    • Export Regulation. The Data may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the Data to, or make the Data accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Data available outside the US.
    • Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3 or, in the case of Client, Section 1(b) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    • Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

EXHIBIT A