License Agreement

Terms and Conditions | License Agreement

IMPORTANT - USE OF NEWSPORT MEDIA'S SOFTWARE IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THIS LICENSE AGREEMENT BEFORE USING THE SOFTWARE.

This license is a legal "Agreement" concerning the use of Software between you, the end user, either individually or as an authorized representative of the company purchasing the license, and NewSport Media. USE OF SOFTWARE INDICATES YOUR COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. If you do not agree to these terms and conditions, promptly return or, if received electronically, certify destruction of Software and all accompanying items within 10 days after receipt of Software and receive a full refund of any license fee paid.

1. GRANT OF LICENSE.

The software programs (including and not limited to web application software) you are installing, downloading, or have acquired with this Agreement, including any updates, modifications, revisions, copies, and documentation ("Software") are copyrighted, trade secret and confidential information of NewSport Media or its licensors who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. NewSport Media or its authorized distributor grants to you, subject to payment of appropriate license fees, a nontransferable, nonexclusive license to use Software solely: (a) in machine-readable, object-code form; (b) for your internal business purposes; and (c) on the computer hardware or at the site for which an applicable license fee is paid, or as authorized by NewSport Media. A site is restricted to a one-half mile (800 meter) radius.

2. BETA CODE.

2.1

Portions or all of certain Software may contain code for experimental testing and evaluation ("Beta Code"), which may not be used without NewSport Media's explicit authorization. Upon NewSport Media's authorization, NewSport Media grants to you a temporary, nontransferable, nonexclusive license for experimental use to test and evaluate the Beta Code without charge for a limited period of time specified by NewSport Media. This grant and your use of the Beta Code shall not be construed as marketing or offering to sell a license to the Beta Code, which NewSport Media may chose not to release commercially in any form.

2.2

If NewSport Media authorizes you to use the Beta Code, you agree to evaluate and test the Beta Code under normal conditions as directed by NewSport Media. You will contact NewSport Media periodically during your use of the Beta Code to discuss any malfunctions or suggested improvements. Upon completion of your evaluation and testing, you will send to NewSport Media a written evaluation of the Beta Code, including its strengths, weaknesses and recommended improvements.

2.3

You agree that any written evaluations and all inventions, product improvements, modifications or developments that NewSport Media conceives or makes during or subsequent to this Agreement, including those based partly or wholly on your feedback, will be the exclusive property of NewSport Media. NewSport Media will have exclusive rights, title and interest in all such property. The provisions of this subsection shall survive termination or expiration of this Agreement.

3. RESTRICTIONS ON USE.

You may copy Software only as reasonably necessary to support the authorized use. Each copy must include all notices and legends embedded in Software and affixed to its medium and container as received from NewSport Media. All copies shall remain the property of NewSport Media or its licensors. You shall maintain a record of the number and primary location of all copies of Software, including copies merged with other software, and shall make those records available to NewSport Media upon request. You shall not make Software available in any form to any person other than your employer's employees and contractors, excluding NewSport Media's competitors, whose job performance requires access. You shall take appropriate action to protect the confidentiality of Software and ensure that any person permitted access to Software does not disclose it or use it except as permitted by this Agreement. Except as otherwise permitted for purposes of interoperability as specified by the European Union Software Directive or local law, you shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive from Software any source code. You may not sublicense, assign or otherwise transfer Software, this Agreement or the rights under it without NewSport Media's prior written consent. The provisions of this section shall survive the termination or expiration of this Agreement.

4. LIMITED WARRANTY.

4.1

NewSport Media warrants that during the warranty period Software, when properly installed, will substantially conform to the functional specifications set forth in the applicable user manual. NewSport Media does not warrant that Software will meet your requirements or that operation of Software will be uninterrupted or error free. The warranty period is 90 days starting on the 15th day after delivery or upon installation, whichever first occurs. You must notify NewSport Media in writing of any nonconformity within the warranty period. This warranty shall not be valid if Software has been subject to misuse, unauthorized modification or installation. NEWSPORT MEDIA'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT NEWSPORT MEDIA'S OPTION, EITHER (A) REFUND OF THE PRICE PAID UPON RETURN OF SOFTWARE TO NEWSPORT MEDIA OR (B) MODIFICATION OR REPLACEMENT OF SOFTWARE THAT DOES NOT MEET THIS LIMITED WARRANTY, PROVIDED YOU HAVE OTHERWISE COMPLIED WITH THIS AGREEMENT. NEWSPORT MEDIA MAKES NO WARRANTIES WITH RESPECT TO: (A) SERVICES; (B) SOFTWARE WHICH IS LOANED TO YOU FOR A LIMITED TERM OR AT NO COST; OR (C) EXPERIMENTAL BETA CODE; ALL OF WHICH ARE PROVIDED "AS IS."

4.2

THE WARRANTIES SET FORTH IN THIS SECTION 4 ARE EXCLUSIVE. NEITHER NEWSPORT MEDIA NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SOFTWARE OR OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. NEWSPORT MEDIA AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

5. LIMITATION OF LIABILITY.

EXCEPT WHERE THIS EXCLUSION OR RESTRICTION OF LIABILITY WOULD BE VOID OR INEFFECTIVE UNDER APPLICABLE STATUTE OR REGULATION, IN NO EVENT SHALL NEWSPORT MEDIA OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF NEWSPORT MEDIA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NEWSPORT MEDIA'S OR ITS LICENSORS' LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR SERVICE GIVING RISE TO THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID, NEWSPORT MEDIA AND ITS LICENSORS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER.

6. LIFE ENDANGERING ACTIVITIES.

NEITHER NEWSPORT MEDIA NOR ITS LICENSORS SHALL BE LIABLE FOR ANY DAMAGES RESULTING FROM OR IN CONNECTION WITH THE USE OF SOFTWARE IN ANY APPLICATION WHERE THE FAILURE OR INACCURACY OF THE SOFTWARE MIGHT RESULT IN DEATH OR PERSONAL INJURY. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS NEWSPORT MEDIA AND ITS LICENSORS FROM ANY CLAIMS, LOSS, COST, DAMAGE, EXPENSE, OR LIABILITY, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR IN CONNECTION WITH SUCH USE

7. INTELLECTUAL PROPERTY RIGHTS.

All right, title, and interest to all intellectual property with respect to the Software, including that which may be or become protectable by patent, copyright, trademark, trade secret, or similar laws, shall remain exclusively with NewSport Media. No license or other right of any kind is granted by NewSport Media's furnishing the Software to you, except for the limited right to use and test the Software as expressly provided in this Agreement. You shall not use NewSport Media's copyrights, trademarks, trade names, or other intellectual property in any way. You shall not remove, alter or destroy any proprietary, trademark or copyright markings or notices placed upon the Software.

8. INFRINGEMENT.

8.1

If an infringement claim is made, NewSport Media may, at its option and expense, either (a) replace or modify Software so that it becomes noninfringing, or (b) procure for you the right to continue using Software. If NewSport Media determines that neither of those alternatives is financially practical or otherwise reasonably available, NewSport Media may require the return of Software and refund to you any license fee paid, less a reasonable allowance for use.

8.2

NewSport Media has no liability to you if the alleged infringement is based upon: (a) the combination of Software with any product not furnished by NewSport Media; (b) the modification of Software other than by NewSport Media; (c) the use of other than a current unaltered release of Software; (d) the use of Software as part of an infringing process; (e) a product that you design or market; (f) any Beta Code contained in Software; or (g) any Software provided by NewSport Media's licensors which do not provide such indemnification to NewSport Media's customers.

8.3

THIS SECTION 8 STATES THE ENTIRE LIABILITY OF NewSport Media AND ITS LICENSORS AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED PATENT OR COPYRIGHT INFRINGEMENT BY ANY SOFTWARE LICENSED UNDER THIS AGREEMENT.

9. TERM.

This Agreement remains effective until expiration or termination. This Agreement will automatically terminate if you fail to comply with any term or condition of this Agreement or if you fail to pay for the license when due and such failure to pay continues for a period of 30 days after written notice from NewSport Media. If Software was provided for limited term use, this Agreement will automatically expire at the end of the authorized term. Upon any termination or expiration, you agree to cease all use of Software and return it to NewSport Media or certify deletion and destruction of Software, including all copies, to NewSport Media's reasonable satisfaction.

10. EXPORT.

Software is subject to regulation by local, which prohibit export or diversion of certain products, information about the products, and direct products of the products to certain countries and certain persons. You agree that you will not export in any manner any Software or direct product of Software, without first obtaining all necessary approval from appropriate local agencies.

11. THIRD PARTY BENEFICIARY.

For any Software under this Agreement licensed by NewSport Media from other licensors, the applicable licensor is a third party beneficiary of this Agreement with the right to enforce the obligations set forth in this Agreement.

12. CONTROLLING LAW.

This Agreement shall be governed by and construed under the laws of Ontario, Canada.

13. SEVERABILITY.

If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from this Agreement and the remaining provisions will remain in full force and effect.

14. MISCELLANEOUS.

This Agreement contains the entire understanding between the parties relating to its subject matter and supersedes all prior or contemporaneous agreements, including but not limited to any purchase order terms and conditions, except valid license agreements related to the subject matter of this Agreement which are physically signed by you and an authorized agent of NewSport Media. This Agreement may only be modified by a physically signed writing between you and an authorized agent of NewSport Media. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse. The prevailing party in any legal action regarding the subject matter of this Agreement shall be entitled to recover, in addition to other relief, reasonable attorneys' fees and expenses.