Software License and Hosting Services Agreement

COACHMEPLUS SOFTWARE LICENSE AND HOSTING AGREEMENT

THIS LICENSE AND SERVICES AGREEMENT (this “Agreement”) is made effective as of the date in the Commercial Agreement (the “Effective Date”) by and between you (including your affiliates and subsidiaries, agents and employees, referred to collectively herein as “Coaching Organization” or “You”) and Virtuvia, LLC (referred to herein as, “CoachMe”), with its principal place of business at 2495 Main St, Buffalo, NY.

1. DEFINITIONS:

1.1 “Commercial Agreement” has the meaning set forth in Section 2.1 below.

1.2 “End User(s)” shall mean athletes, students, gym members, and employees and agents of the Coaching Organization authorized by Coaching Organization to access, display, perform and otherwise use the Software and Services.

1.3 “EULA” shall mean the end user license agreement executed by End Users as amended from time-to-time by CoachMe.

1.4 “Services” shall mean all support services, training, consulting services and the hosting of the Software which are provided by CoachMe.

1.5 “Software” shall mean the CoachMePlus athlete management system and related Updates and any and all documentation related thereto.

1.6 “Third-Party Programs” shall mean any other third party programs provided or accessed by use of the Software.

1.7 “Update” shall mean a subsequent major or minor release of Software or any patch or bug fix that CoachMe makes generally available at no additional charge. Updates shall not include any future product or new modules of the Software which CoachMe offers only for an additional fee.

2. LICENSE:

2.1 License Grant. CoachMe grants, subject to the restrictions set forth in this Agreement, Coaching Organization and its parent and subsidiaries a personal, non-exclusive and non-transferable (except as provided in Paragraph 2.2 below), worldwide right and license (“License”) during the Term (defined below):

To have up to the number of End Users specified in the Athlete Management System Agreement between you and CoachMe (the “Commercial Agreement”) access, display, perform and otherwise use the Software and Services (including, without limitation, for the purpose of adding, managing, editing and deleting configuration settings and inviting, adding, managing and removing End Users) for management, analysis, and storage of a broad array of training information including strength and conditioning workouts, athletic testing data, video information, surveys, and reporting information from third party measurement devices. The Software shall be maintained by CoachMe on a server controlled and provided by CoachMe.
(ii) To copy, print, display, modify as permitted by this Agreement and the Commercial Agreement, and distribute the output from the Software or the Services.

2.2 License Restrictions. The License granted hereby shall have the following restrictions:

(i) Coaching Organization shall not modify or revise the Software, or create any derivative works based on the Software;
(ii) Coaching Organization shall not cause, attempt, or knowingly permit a third party to reverse-engineer or decompile the Software or otherwise attempt to obtain or access the source code of the Software;
(iii) Coaching Organization shall not (a) engage in harassing or damaging behaviors while using the Software or the Services, (b) defeat or attempt to defeat any security measures placed upon CoachMe’s network infrastructure or on any other connected systems, (c) damage or attempt to damage, hinder or prevent from proper functioning the Software, the Services or any system of CoachMe or any connected system or service, (d) forge any IP address information or login information, or (e) post any materials of any kind that will violate or infringe upon the intellectual property rights of any third party or contain libelous, defamatory or otherwise unlawful material;
(iv) Coaching Organization shall not sell, assign, pledge, sublicense, or otherwise transfer the License or this Agreement; provided, however, that Coaching Organization may transfer its entire interest in this Agreement to an affiliate or to a transferee which succeeds to substantially all of Coaching Organization’s business and assets to which this Agreement pertains provided that the transferee assumes all of the obligations of Coaching Organization under this Agreement and Coaching Organization remains liable for such transferee’s performance hereunder;
(v) No part of the Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted rented, leased, sold, licensed, sublicensed, assigned, published, transferred, or otherwise made available or transmitted in any form or by any means, including but not limited to electronic, electro-magnetic, mechanical, photocopying, recording, residual recollection, or other means;
(vi) Except as may be required by applicable law, Coaching Organization shall not disclose any review or analysis of the Software to any third party, including but not limited to the results of any tests, to any third party without CoachMe’s prior written approval;
(vii) Coaching Organization agrees to communicate the terms and restrictions contained in this Agreement to all End Users and other persons who have access to the Software through Coaching Organization;
(viii) Coaching Organization shall not build an athlete management system which competes with the Software or the Services;
(ix) Coaching Organization agrees that it will not allow its employees, coaches, and agents to knowingly allow End Users who have not agreed to the EULA to use or access the Software and/or Services;
(x) The License granted under this Agreement does not provide Coaching Organization any rights to or use of Third-Party Programs independent of the Software or the Services.

2.3 Assignment. Except as provided in Paragraph 2.2, neither this Agreement nor any rights granted hereunder may be sold, assigned, sublicensed, or otherwise transferred by Coaching Organization. All of the terms and conditions of this Agreement are binding upon and inure to the benefit of the parties and their successors and permitted assigns. Any purported assignment in contravention of this paragraph shall be null and void.

2.4 Copyright of Software. Coaching Organization further acknowledges that the Software, including any copyrights therein, are proprietary to CoachMe, and any use of the Software other than as expressly permitted by this Agreement constitutes copyright infringement.

3. SERVICES:

3.1 Support Services for Software. CoachMe will provide at no cost during the Term and any subsequent renewals:

(i) Updates of the Software to the Coaching Organization as it makes the same available on a general release basis to its other Software licensees. Coaching Organization shall be notified of available, material updates prior to the publishing of said updates. Such Updates may include, without limitation, documentation, including operator and user manuals, training materials, guides and specifications, revised to reflect any enhancements made to the Software. Updates do not include any software released by CoachMe that CoachMe reasonably determines to be a separate product or new module or release distinct from the Software rather than an upgrade to the Software;
(ii) CoachMe will maintain a trained staff capable of rendering the maintenance services set forth in this Agreement.
(iii) CoachMe will respond to service email requests as quickly as possible.
(iv) CoachMe will use all reasonable diligence to correct verifiable and reproducible defects and errors when reported in accordance with standard reporting procedures. Following completion of defect correction, CoachMe shall provide the appropriate corrections and fixes through modifications of the Software, and CoachMe shall include such corrections and fixes in all subsequent releases of the Software.
(v) CoachMe shall not be responsible for correcting defects in any version of the Software other than the most recent release of the Software.

3.2 Ownership of Digital Information. CoachMe acknowledges that it has no right, title or interest in i) any of Coaching Organization’s messaging information or communications among coaches, agents, trainers, and End Users, ii) video or video content that the Coaching Organization or End Users upload to the Software, or iii) any athlete information in which the athlete name, coach/trainer name, or team name is attached to workout or test information, all of which shall be considered “Confidential Information.” You hereby grant to CoachMe a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the foregoing and perform all acts with respect to the foregoing as may be necessary for CoachMe to provide the Software and Services to You and to End Users and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display the foregoing as incorporated within the De-Identified Information (as defined below). All Confidential Information provided or made available to, or existing on CoachMe servers is, at the time it is made available and thereafter shall remain, strictly confidential, and shall not be used (except as strictly necessary to provide the Services), disclosed or disseminated in any way by CoachMe. Notwithstanding the foregoing, Confidential Information that has been de-identified such that all athlete names, team names, coach’s notes commentary or video, and any other information that would allow a reasonable person to identify individuals or Coaching Organizations are removed (“De-Identified Information”) shall not be deemed “Confidential Information”. Such De-Identified Information may be used by CoachMe solely for sports science research, database monetization and data warehousing.

3.3 Ownership of Custom Modifications. To the extent that CoachMe may provide Coaching Organization with any custom modifications to the Software, Coaching Organization may use such custom modifications in connection with the Software in a manner consistent with and subject to the requirements of this Agreement for the purposes of Coaching Organization’s internal business needs only. CoachMe retains all right, title and interest in and to such custom modifications, and Coaching Organization has no right, title or interest in or to any custom modifications and, except as provided in this paragraph, may not use, copy or modify the custom modifications or any portion thereof.

3.4 Coaching Organization Acknowledgement Coaching Organization acknowledges that it is responsible for obtaining and maintaining all internet connection services, computer hardware and other equipment that may be needed for its access to the Software and Services.

4. TERM AND TERMINATION:

4.1 Term. The term (the “Term”) of this Agreement shall begin on the first date of this Agreement and continue until terminated by either party.

4.2 Termination for Cause. This Agreement may be terminated by either party hereto (each a “Party”; collectively, the “Parties”) if the other Party materially breaches any term of this Agreement which is not cured within thirty (30) days of receipt of written notice of such breach.

4.3 Effect of Termination. Termination of this Agreement shall not relieve Coaching Organization’s obligation to pay all fees that have accrued under this Agreement. The Parties’ rights and obligations under Paragraphs 3.2, 3.3, 4.4, 5.1, 5.2(ii), 5.2(iii), 5.5, 6, and 8 shall survive termination of this Agreement.

4.4 Handling of Software upon Termination. Upon termination, Coaching Organization shall immediately cease using the applicable Software and Services, and CoachMe shall disable the Software and the Services to prevent further use by End Users.

5. INDEMNITIES, WARRANTIES AND REMEDIES:

5.1 Indemnities:

(a) Coaching Organization’s Indemnity. Coaching Organization will hold harmless, defend, and indemnify CoachMe, its parent, subsidiaries, and the officers, directors, representatives, employees, affiliates, agents, successors and assigns thereof from and against any and all costs, damages and expenses (including reasonable attorney’s fees) arising out of (i) any claim by an End User for injuries that may have been sustained by participating in exercises or workouts assigned to them by the Coaching Organization; and (ii) any claim by an End User for injuries that may have been sustained by participating in exercises or workouts assigned to them in conjunction with using third party fitness and mobility evaluation methodologies including, but not limited to, Functional Movement Systems (FMS). CoachMe shall: (x) notify Coaching Organization in writing no later than thirty (30) days after CoachMe’s receipt of notification of potential claim; (y) allow Coaching Organization to assume sole control of the defense of such claim and all related settlement negotiations, provided that, Coaching Organization shall not enter into any settlement without CoachMe’s consent unless such settlement is solely for a monetary payment to be paid by Coaching Organization and implies no guilt or wrong doing on the part of CoachMe and/or any other indemnitee; and (z) provide Coaching Organization, at Coaching Organization’s sole cost and expense, with all reasonable assistance, information and authority necessary to perform Coaching Organization’s obligations under this Section, subject to CoachMe’s right to protect information which is privileged and confidential, irrespective of whether such information is associated with this Agreement.

(b) CoachMe’s Indemnity.

(i) CoachMe shall indemnify, defend, and hold Coaching Organization harmless from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses“) incurred by Coaching Organization resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Software or Services, or any use of the Software or Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Coaching Organization promptly notify CoachMe in writing of the claim, cooperates with CoachMe, and allows CoachMe sole authority to control the defense and settlement of such claim.

(ii) If such a claim is made or appears possible, Coaching Organization agrees to permit CoachMe, at CoachMe’s sole discretion, to (A) modify or replace the Software or Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Coaching Organization to continue use. If CoachMe determines that neither alternative is reasonably available, CoachMe may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Coaching Organization.

(iii) This Section will not apply to the extent that the alleged infringement arises from: (A) use of the Software or Services in combination with data, software, hardware, equipment, or technology not provided by CoachMe or authorized by CoachMe in writing; (B) modifications to the CoachMe Services not made by CoachMe; or (C) Coaching Organization Data (as defined below); or (D) third party data.

5.2 Limited Warranties and Exclusions.

(i) Limited Software and Services Warranty. CoachMe warrants that the Software and Services will during the Term (a) perform substantially in accordance with the then current documentation that CoachMe provides to Coaching Organization, (b) perform substantially in accordance with any specifications agreed upon by the Parties as expressly set forth in this Agreement and any SOW, and (c) with respect to the Services, be performed in a professional and workmanlike manner. Upon receipt of written notice from Coaching Organization, CoachMe shall use its commercially reasonable efforts to correct errors within a reasonable time cause by a breach of the warranties in this paragraph. This Paragraph 5.2 states Coaching Organization’s sole and exclusive remedies and CoachMe’s entire liability for breach of this paragraph.

(ii) EXCLUSIONS. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES FROM A COURSE OF DEALING OR USE OF TRADE. COACHING ORGANIZATION ACKNOWLEDGES THAT, EXCEPT AS PROVIDED IN THIS AGREEMENT, NO REPRESENTATIONS HAVE BEEN MADE RESPECTING THE SOFTWARE OR THE SERVICES PROVIDED, AND THAT COACHING ORGANIZATION HAS NOT RELIED ON ANY REPRESENTATION NOT INCLUDED IN THIS AGREEMENT. COACHME CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. COACHME DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR THE SERVICES, THAT THE SOFTWARE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT YOU MAY NOT EXPERIENCE, FROM TIME-TO-TIME, INTERRUPTIONS OR CESSATIONS OF SOFTWARE OR THE SERVICES, AGAINST RECEIPT OF ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE OR THE SERVICES, OR THAT THE SOFTWARE OR THE SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY SOFTWARE, SYSTEM OR OTHER PRODUCT OR SERVICES, OR BE SECURE, ACCURATE, COMPLETE.

5.3 Force Majeure. CoachMe shall not be liable for any delays or non-performance of any of its obligations arising out of causes not within CoachMe’s reasonable control, including, without limitation, 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, epidemics, pandemics, public health emergency, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. Coaching Organization acknowledges that the internet may be subject to unscheduled and unannounced outages, disruptions and breakdowns that may not be rectified promptly. CoachMe shall not be responsible for any such unscheduled and unannounced outages, disruptions and breakdowns and any business losses or damages resulting therefrom.

5.4 Additional Warranties. Each party represents and warrants that it has the full power and authority to enter into this Agreement and perform its obligations hereunder. Coaching Organization acknowledges that it has the full right and authority to upload, display, preview and make available for download via the Internet the digital assets, video, workout guidelines, and workout information which its End Users upload, or direct CoachMe representatives to upload or configure, (collectively, “Coaching Organization Data“) into Coaching Organization’s instance(s) of the Software.

6. LIMITATION OF LIABILITY:

EXCEPT FOR LIABILITY TO THIRD PARTIES BY WAY OF INDEMNITY FOR THIRD PARTY CLAIMS AS PROVIDED IN SECTION 5.1 ABOVE, IN NO EVENT SHALL COACHME BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, INCURRED BY THE COACHING ORGANIZATION AS A RESULT OF ANY BREACH OF THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIMS AGAINST THE OTHER PARTY BY THIRD PARTIES. EXCEPT FOR LIABILITY TO THIRD PARTIES BY WAY OF INDEMNITY AS PROVIDED IN SECTION 5.1, EACH PARTY’S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF ACTUAL FEES PAID BY COACHING ORGANIZATION (EXCLUDING EXPENSE REIMBURSEMENT) UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The Parties agree that where injunctive relief is sought it shall be specific to the claim and not with regards to a Party’s general business activities.

7. PAYMENT PROVISIONS:

You shall pay the fees that the parties hereto have separately agreed to in the Commercial Agreement. Fees that are over 30 days late shall accrue an additional interest charge at 1.5 percent per month, or the highest rate permitted by applicable law, whichever is less. Coaching Organization is responsible for any applicable sales taxes or other use taxes levied by federal, state, or local authorities.

8. GENERAL TERMS:

8.1 Confidentiality. CoachMe, its authorized agents, servants and employees agree to maintain, as confidential, any information on its servers that is provided to CoachMe by Coaching Organization concerning Coaching Organization training, procedures, player personal information and past or future training and training plans.

8.3 Governing Law.This Agreement and all matters arising out of or relating to this Agreement shall be governed by the 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 dispute arising hereunder shall be exclusively venued in the state and federal courts located in Erie County New York and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

8.4 Notices. All notices required to be sent hereunder shall be in writing and shall be delivered to the respective address set forth above to the attention of the signatory of this Agreement or to such other address and individual as a Party may specify by written notice to the other Party.

8.5 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such decision shall not affect the validity or enforceability of the Agreement or any of the remaining provisions and this Agreement shall be construed by adding a valid provision which effectuates the intent of the invalid provision as nearly as lawfully possible.

8.6 Relationship Between the Parties. CoachMe is an independent contractor, nothing in this Agreement shall be construed to create a relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

8.7 Entire Agreement.This Agreement, together with any attached Exhibits, which are incorporated by reference, constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous proposals, agreements or representations, written or oral, concerning the subject matter of this Agreement and such Exhibits. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party.

8.8 Further Assurances. Coaching Organization shall take reasonable steps and cooperate with CoachMe to prevent violation of the restrictions set forth in Paragraph 2.2 by End Users including, without limitation, establishing reasonable internal password and confidentiality protocols and informing and educating End Users about such restrictions and revoking issued user name and password credentials for End Users and Administrative Users who are no longer employed or affiliated with Coaching Organization.