COMPANY: Echelon Competitions, LLC (“Company”) a Delaware limited liability company
CLIENT: User of the software by Echelon Competitions, LLC
- Company has a web-based software platform (“Platform”) and related services for marketing, planning, and implementing fitness competitions (“Services”).
- Client desires to retain Company to render non-exclusive Services for Client on the terms and conditions set forth in this Service Agreement (“Agreement”).
- In consideration of their mutual promises and obligations, the parties agree as follows:
- Fees. As consideration for the Services to be provided by Company and other obligations, the Client will pay to Company the fees are set forth on the Echelon website. This includes a 3% charge for all credit card transactions. Company reserves the right to change the fees or applicable charges and to institute new charges and fees upon execution of each new competition.
- Payment. Company will withold all applicable fees upon payment to the Client once the competition is complete. Company will provide receipt to Client for the amounts deducted.
- Term and Termination. Company will serve as a Company to the Client for a period commencing on the Effective Date and continuing until the expiration or termination of the competition unless earlier terminated in accordance with this Agreement. Notwithstanding the above, either party may terminate this Agreement at any time.
- Confidentiality. Confidential information of any nature that either party acquires regarding any aspect of the other party’s business will be treated in strict confidence. Information so obtained will not be divulged, furnished or made accessible to third parties without the written permission of the other party to this Agreement. Both parties retain the right to do business with third parties in matters that may be competitive with the interests of the other party to this Agreement. However, the confidentiality constraints above will be binding and have precedence over these business matters. Upon termination of this Agreement, the terms of this paragraph will remain in effect for 2 years. Upon termination of this Agreement, or upon request by either party, the other party will surrender to the requesting party all tangible evidence of the requesting party’s Confidential Information.
- Intellectual Property. “Intellectual Property Rights” means any and all rights arising in the US or any other jurisdiction throughout the world in and to (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and works of authorship (whether copyrightable or not), including computer programs, and rights in data and databases, (d) trade secrets, know-how, and other confidential or proprietary information, and (e) all other intellectual property, in each case whether registered or unregistered, and including all registrations and applications for such rights and renewals or extensions thereof, and all similar or equivalent rights or forms of protection in any part of the world. The Intellectual Property rights of each party will be governed by the following:
- Client Intellectual Property. The parties understand that Company has created a variety of processes, templates, designs, and materials (collectively “Company Materials”) that it uses for marketing, planning, and implementing fitness competitions and to provide the Services. As such, the Company is and will be the sole and exclusive owner of all right, title, and interest throughout the world in and to all work product (including all Intellectual Property Rights therein) developed authored, edited, modified, conceived or created by Company in the course of performing the Services (“Company Work Product”).
- Client Intellectual Property. As between the Company and Client, the Client is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any documents, trademarks, logos, data, files, and other materials provided to Company by the Client (“Client Materials”), including all Intellectual Property Rights therein. Company will have no right or license to reproduce or use any Client Materials except solely during the Term to the extent necessary to perform its obligations under this Agreement. All other rights in and to the Client Materials are expressly reserved by the Client.
- License by Company. Client will have a non-exclusive, non-assignable, non-sublicensable, royalty-free, paid up, limited license to use Company Work Product for the Event.
- License by Client. To the extent Company Work Product includes Client Materials and subject to the terms and conditions of this Agreement, Client grants to Company a worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free, paid up, limited license to use Client Materials solely as necessary to perform Company’s obligations under this Agreement and as specifically described.
- No Liability; Indemnification. Nothing in Company’s statements or advice to Client relating directly or indirectly to the Services will be construed as a promise or guarantee about the outcome of any matter. Company will not be held liable for any claims or damages, whether direct, indirect, or consequential from Client’s use or reliance upon any statement, advice, suggestion, or recommended course of action given by Company. Client agrees to indemnify, defend and hold harmless Company against any and all loss, liability, expenses and costs (including attorneys’ fees, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Company in connection with any threatened, pending, completed or future action suit or proceeding to which Company is, or is threatened to be, made a party arising from (i) any accident, incident, or occurrence in any way connected to the Event(s); or (ii) any bodily injury, including death therefrom, and/or property damage, including damage to equipment or other property, which are caused by any act, error, or omission of Clients, their agents, servants, or employees.
- Insurance Requirements. During the Term of this Agreement, Client will carry and maintain at its own cost, all necessary insurance (which will include as a minimum, the requirements set forth below), for damages incurred at any fitness competition in which Company provides Services or caused or contributed to, by Client, and insuring Client against third party claims which may arise out of or result from the performance or failure to perform by Client, its principals or agents. Client’s insurance coverage will be primary and non-contributory with respect to all other available sources of insurance pertaining to activities or services performed by the Client. Failure to provide and maintain the required insurance coverage throughout the term of this Agreement will constitute a material breach of this Agreement.
- Worker’s Compensation and Employer’s Liability insurance, with statutory limits for workers’ compensation and Employer’s Liability limits of $500,000 each accident/disease/employee. Where permissible by law, Client and its insurer(s) will waive all subrogation rights against Company for any benefits under Company’s Workers’ Compensation policy;
- Commercial General Liability insurance, insuring against claims for bodily injury, property damage, completed operations and contractual liability with a limit of $1,000,000 per occurrence and $2,000,000 in the aggregate. Company will be included as an Additional Insured on this policy. Client and its insurer(s) will waive all subrogation rights against Company for any benefits under Company’s Commercial General Liability policy;
- Conflicts with this Agreement. The parities represent and warrant that neither is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. The parities represent and warrant that performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by either party in confidence or in trust prior to commencement of this Agreement. Company will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third party in the performance of the Services.
- Entire Agreement. This Agreement contains the entire agreement of the parties regarding the subject matter and may not be modified or amended, except in writing signed and dated by both parties. Any prior agreements between Company and Client concerning the subject matter of this Agreement are superseded by this Agreement and are void and without force and effect.
- Governing Law. This Agreement is governed and interpreted in accordance with Delaware law notwithstanding applicable choice of law principles. Any action brought to enforce this Agreement will be brought in a court of competent jurisdiction in Quincy, Massachusetts and the parties waive any objection to that/those courts as an improper venue, jurisdiction or inconvenient forum.
- Severability. If any part of this Agreement is held invalid or unenforceable by a Court of competent jurisdiction, that portion of the Agreement may be conformed to Delaware law or removed from the Agreement if conformity is not possible. The remaining portions of this Agreement will continue in full force and effect.
- Binding Nature. This Agreement is binding upon the parties and their heirs, personal representatives, fiduciaries, successors and assigns.
- Non-Waiver. A waiver by either party with respect to any breach or violation of this Agreement or of any provision of the Agreement by the other party will not be deemed as or operate as a waiver of any subsequent breach or violation.
- Amendments. No modification of or amendment to this Agreement will be effective unless in writing signed by the parties to this Agreement.
- Successors and Assigns. Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives. The Client may assign any of its rights and obligations under this Agreement. No other party to this Agreement may assign, whether voluntarily or by operation of law, any of its rights and obligations under this Agreement, except with the prior written consent of the Client.