PLATFORM SUBSCRIPTION TERMS AND CONDITIONS
These Terms and Conditions, including the attached schedules, are hereby incorporated into the invoice to which they
are attached (collectively, this “Agreement”). This Agreement is entered into on the Effective Date (as defined below)
by and between Pear Sports LLC. (“Pear Sports”) and the subscriber set forth on the invoice (“Subscriber”). Pear
Sports and Subscriber may each be referred to individually as a “Party” and collectively as the “Parties.” The Parties
hereby agree as follows:
The definitions for some of the defined terms used in this Agreement are set forth below.
The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1 “Affiliate” means any Person that, directly or indirectly, Controls, is Controlled by, or is under
common Control with, a specified Person.
1.2 “Applicable Law” means any applicable federal, state, county, and local law, ordinance, regulation,
rule, code, and order.
1.3 “Authorized Users” mean Subscriber’s customers, employees, and Contractors (including any
coaches and personal trainers) whom Subscriber authorizes to access and use the Platform; provided, however, that
any Authorized User’s access to and use of the Platform will be limited to their provision or receipt of services to or
1.4 “Confidential Information” means each Party’s business and technical information in any form,
including without limitation, Subscriber Data, business and marketing plans, strategies, sales, product and financial
data and projections, processes, techniques, trade secrets, know how, inventions, processes (business, technical, or
other), designs, algorithms, source code, customer lists, and the terms of this Agreement. Confidential Information
does not include information or data which is: (i) known to the Party receiving the Confidential Information (the
“Receiving Party”) prior to its receipt from the other Party (the “Disclosing Party”) without a limitation or obligation
of confidentiality under another agreement; (ii) independently developed by the Receiving Party without use of any
Confidential Information; (iii) generally known to the public at the time of disclosure other than as a result of
disclosure by the Receiving Party; or (iv) received from a third party with a legal or contractual right to disclose such
information or data.
1.5 “Contractor” means any third party that is under contract to provide services to Subscriber.
1.6 “Control” or “controls” and the formatives “controlling” and “controlled” mean the possession,
directly or indirectly, of fifty percent (50%) or more of the equity interests of another Person or the power otherwise
to direct or cause the direction of the management and policies of such other Person, whether through ownership of
voting securities, by contract, or otherwise.
1.7 “Documentation” means all documentation (whether in hard copy, electronic, or digital form)
designed to provide guidance and instruction regarding the operation, maintenance, and use of the Platform.
1.8 “Effective Date” means the date Subscriber accepts this Agreement or begins using the Platform,
whichever occurs first.
1.9 “Fees” mean the Subscription Fees and the Professional Services Fees, collectively.
1.10 “Intellectual Property Rights” mean all intellectual and industrial property rights, whether now
existing or existing in the future, including without limitation, (i) all patent rights, including any rights in pending
patent applications and any related rights; (ii) all copyrights and other related rights throughout the world in works of
authorship, including all registrations and applications therefor; (iii) all trademarks, service marks, trade dress, or other
proprietary trade designations, including all registrations and applications therefor; (iv) all rights throughout the world
to proprietary know-how, trade secrets, and other Confidential Information, whether arising by law or pursuant to any
contractual obligation of non-disclosure; and (v) all other rights covering industrial or intellectual property recognized
in any jurisdiction.
1.11 “Malicious Code” means any computer virus, Trojan horse, worm, time bomb, or other similar code
or hardware component designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase,
destroy, or modify any software, hardware, network, or other technology.
1.12 “Person” means an individual, partnership, corporation, limited liability company, trust, joint
venture, association, unincorporated organization, government agency, or political subdivision thereof or other entity.
1.13 “Personal Information” means any information that identifies, or is capable of identifying, an
Authorized User, including, without limitation (i) an individual’s name, date of birth, or driver’s license or other
government-issued identification number; (ii) an individual’s contact information, such as an address or telephone
number; and (iii) any other information about an individual whose disclosure is protected or otherwise regulated by
any Applicable Law.
1.14 “Professional Services” mean development, migration, integration, testing, conversion, consulting,
or other services and deliverables, related to the SaaS Services but not otherwise provided as part of the SaaS Services,
as further described in the applicable Statement of Work.
1.15 “Professional Services Fees” mean the fees due to Pear Sports for the Professional Services, as set
forth in the applicable Statement of Work.
1.16 “SaaS Services” mean Pear Sports’ provision of access to, and usage of, the Platform as set forth
herein and all related hosting, maintenance, and support services made available by Pear Sports.
1.17 “Services” mean the SaaS Services and the Professional Services, collectively.
1.18 “Statement of Work” means a statement of work executed by the Parties in connection with Pear
Sports’s provision of Professional Services.
1.19 “Subscriber Content” means Subscriber’s identifying marks, training videos, logos, trade dress,
trademarks, trade names, service marks, and other audio or audio-visual content uploaded to the Platform or otherwise
provided, directly or indirectly, to Pear Sports.
1.20 “Subscriber Data” means any and all information about Authorized Users provided by Subscriber
to Pear Sports or to which Pear Sports otherwise has access by virtue of this Agreement.
1.21 “Subscriber Personal Information” means the Personal Information of, or with respect to, Subscriber
and its current, former, and prospective Authorized Users.
1.22 “Subscription Fees” mean the fees due to Pear Sports for the SaaS Services.
1.23 “Updates” mean any error correction, bug fix, patch, enhancement, update, upgrade, new version,
release, revision, or other modification to the SaaS Services provided or made available by Pear Sports pursuant to
2. SUBSCRIPTION TERMS.
2.1 Subscription. Subject to the terms and conditions of this Agreement, Pear Sports hereby grants
Subscriber during the Term (as defined below) a limited, non-exclusive, non-transferable (except as permitted under
Section 10.3 below) right and license to: (i) authorize Authorized Users to access and use the Platform; and (ii)
authorize its employees and Contractors to access and use the Platform via a dashboard, in object code only, to onboard
Subscriber Content. Subscriber is responsible for the acts and omissions of its Authorized Users and any other Person
who accesses and uses the Platform using any of Subscriber’s or its Authorized Users’ access credentials.
2.2 Provision of Services. Subject to the terms and conditions of this Agreement, Pear Sports shall
host, maintain, service, and support the Platform. The support shall be provided pursuant to and in accordance with
Schedule A. Subscriber and Authorized Users shall be responsible for obtaining Internet connections and other thirdparty hardware, software, and services necessary to access the Platform. From time to time, Pear Sports may develop
new products, services, and premium features that have an additional cost. These capabilities may be presented to
Subscriber as options available for inclusion in an addendum to this Agreement. In the event Subscriber desires to
have Pear Sports provide integration, custom development, or other Professional Services outside the scope of this
Section, such services will be governed by Section 3.
2.3 Access to Documentation. Pear Sports shall provide Subscriber via the Platform access to the
Documentation, as may be updated from time to time in order to reflect any Updates. Subscriber may print copies of,
use, and permit its Authorized Users to use, the Documentation solely in connection with the use of the Platform.
2.4 Restrictions on Use. Subscriber will not (and will not authorize or knowingly permit any third
party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the Platform;
(ii) copy, modify, adapt, or translate the Platform, or, except as expressly provided herein, make any use, resell,
distribute, or sublicense them; (iii) make the Platform available on a “service bureau” basis; (iv) remove or modify
any proprietary markings or restrictive legends placed on the Platform; (v) use the Platform in violation of any
Applicable Law; (vi) use, upload, or make available content (including content claimed as Personal Information or
Subscriber Content), which (1) such Person does not own or have legal permission to upload or make available; (2)
are defamatory or libelous; (3) are obscene or promote, solicit or comprise inappropriate, harassing, abusive, profane,
threatening, indecent, vulgar, or otherwise objectionable or unlawful content or activity; (4) are harmful to minors; or
(5) contain Malicious Code; (vii) use the Platform for purposes of the analysis or development of a competing software
product or service, or any other purpose that is to Pear Sports’ commercial disadvantage; (viii) use the Platform in any
other manner or for any other purpose or application not expressly permitted by this Agreement; (ix) knowingly
damage, disable, overburden, or impair any Pear Sports or its hosting provider’s server, or the networks connected to
any of Pear Sports’ or its hosting prover’s servers, or interfere with any other Person’s use and enjoyment of the
Platform; or (x) attempt to gain unauthorized access to the Platform or other accounts, computer systems, or networks
connected to any servers of Pear Sports or its hosting prover, through hacking, password mining, or any other means.
2.5 Title. As between Pear Sports and Subscriber: (i) Pear Sports retains all right, title, and interest,
including, without limitation, all Intellectual Property Rights, in and to Platform, the Documentation, and any other
materials provided by Pear Sports hereunder, and Subscriber shall have no rights with respect to the same other than
those license rights expressly granted under this Agreement; and (ii) Subscriber retains all right, title, and interest,
including, without limitation, all Intellectual Property Rights, in and to the Subscriber Data and the Subscriber Content,
and Pear Sports shall have no rights with respect to the same other than those license rights expressly granted under
2.6 Modifications; No Contingency for Future Commitments. Pear Sports may, in its sole
discretion, modify the Platform from time to time by adding, deleting, or modifying features to improve the user
experience; provided, however, that during the Term, such additions, deletions, or modifications to features: (i) will
not materially decrease the overall functionality of the SaaS Services; and (ii) will be described by Pear Sports through
updates to the Documentation. Unless otherwise expressly agreed by the Parties in writing, Subscriber agrees that
payment of the Fees under this Agreement is not contingent on the delivery of any future Platform functionalities or
features or any other future commitments, except as expressly set forth in this Agreement.
2.7 Audit. During the Term of this Agreement and for a period of two (2) years thereafter, Pear Sports
shall have the right, at its expense and upon reasonable notice, to examine (or have examined by an independent
auditor), Subscriber’s books and records that are relevant to this Agreement. Pear Sports agrees that any such audit
shall occur during normal business hours and no more than once annually.
3. PROFESSIONAL SERVICES.
3.1 Statements of Work. Subscriber may elect to have Pear Sports provide Professional Services. All
such Professional Services will be covered by one or more Statements of Work agreed on by the Parties. The work
covered by a particular Statement of Work will be referred to in this Agreement as a “Project.” Each Statement of
Work will be in writing, signed by an authorized representative of each Party, will reference this Agreement, and will
specify for the Project covered by that Statement of Work: (i) a Project contact for each Party; (ii) a description of
the Project, including any applicable specifications, milestones, and deliverables to be developed (“Deliverables”);
and (iii) the Professional Services Fees. For the avoidance of doubt and as set forth in Section 2.2, any Subscriber
requests for services that are outside the scope of services described in Section 2.2, are subject to Pear Sports’s
approval and execution of a Statement of Work.
3.2 Ownership of Deliverables and Work Product. Unless otherwise set forth in a Statement of
Work, Pear Sports shall own all right, title, and interest, including, without limitation, all Intellectual Property Rights,
in and to all Deliverables and other work product created by Pear Sports in the performance of the Professional
Services; provided, however, that upon the full payment of the applicable Professional Services Fees, any Deliverables
shall be considered part of the Platform hereunder.
4. FINANCIAL TERMS.
4.1 Fees. The Subscription Fees are set forth in the invoice. The Professional Services Fees are set
forth in the applicable Statement of Work.
(a) All amounts payable under this Agreement are exclusive of sales and use taxes, value added
taxes, and all other taxes and duties (except for any taxes on Pear Sports net income, which shall be paid by Pear
Sports), the costs of which such taxes and duties shall be invoiced by Pear Sports and paid by Subscriber in accordance
with Section 4.3.
(b) If the Subscriber is required by or under any laws or regulations to make any withholding
or deduction, Pear Sports agrees to take commercially reasonable steps to avoid the withholding or deduction, provide
exemption certificates if applicable, and otherwise act to mitigate the withholding or deduction. If any withholding
or deduction is required notwithstanding such efforts, Subscriber shall gross up its payment to Pear Sports as is
necessary to ensure that Pear Sports receives the full amount payable under this Agreement as if no such withholding
or deduction had been made, subject to the tax savings provision of this Section.
4.3 Payments. Unless otherwise set forth in the invoice or the applicable Statement of Work,
Subscriber shall pay all invoices within thirty (30) days of receipt thereof. Except as otherwise expressly provided in
this Agreement, Subscriber shall not be entitled by reason of any set-off, counter-claim, or other similar deduction to
withhold payment of any amount due to Pear Sports.
4.4 Late Payments. In the event that any invoiced amount is not received by Pear Sports by the due
date as set forth in this Section 4, then without limiting its rights and remedies, Pear Sports may: (i) condition future
Services on payment terms shorter than those specified in this Section 4; (ii) suspend its Services hereunder and
Subscriber’s and its Authorized Users’ access to, and usage of, the Platform; and/or (iii) terminate this Agreement in
accordance with, and pursuant to, Section 5.2. Pear Sports will not suspend its Services or access to, or usage of, the
Platform while Subscriber is disputing any invoiced amount reasonably and in good faith and is cooperating diligently
to resolve the dispute. In the case of any suspension for non-payment, Pear Sports may charge a re-activation fee to
reinstate access to the Platform.
5. TERM AND TERMINATION.
5.1 Term. The initial term of this Agreement begins on the Effective Date and shall remain in effect
for one (1) year (the “Initial Term”). Upon expiration of the Initial Term and each Renewal Term (as defined below),
the term of this Agreement will automatically renew for successive one (1) year renewal terms (each, a “Renewal
Term” and collectively with the Initial Term, the “Term”), unless either Party provides written notice to the other
Party of non-renewal at least sixty (60) days prior to the expiration of the then-current Term.
(a) Failure by either Party to substantially comply with any term or condition of this
Agreement shall constitute default and shall entitle the other Party to give the defaulting Party written notice requiring
it to cure the default. The notice shall include a detailed description of the act or omission that constitutes the default.
If the defaulting Party has not cured the default within thirty (30) days after receipt of the notice, the other Party may
terminate this Agreement by giving written notice to the defaulting Party effective upon receipt. The right to terminate
this Agreement is in addition to any other rights and remedies provided under this Agreement or otherwise under law.
(b) If either Party ceases to carry on the business contemplated by this Agreement, makes an
assignment for the benefit of creditors, or is adjudged bankrupt or insolvent, then the other Party may terminate this
Agreement upon thirty (30) days’ prior written notice to the Party so acting or acted upon.
(c) Pear Sports may terminate this Agreement upon written notice to Subscriber under the
limited circumstances set forth in Section 8.3 and Section 10.3 below.
5.3 Effect of Termination or Expiration. In the event of any termination or expiration of this
Agreement: (i) Subscriber shall pay Pear Sports for all amounts payable hereunder as of the effective date of
termination or expiration; (ii) all rights and licenses granted hereunder to Subscriber shall immediately cease, and
Subscriber and its Authorized Users shall immediately cease all access to and usage of the Platform; and (iii) each
Receiving Party shall either return to the Disclosing Party, or, at the Disclosing Party’s direction, destroy and provide
the Disclosing Party with written certification of the destruction of, all documents, computer files, and other materials
containing any Confidential Information of the Disclosing Party that are in the Receiving Party’s possession, custody,
or control; provided, however, that each Receiving Party may keep a copy of such Confidential Information for legal
and/or regulatory purposes and/or as part of any electronic archival back-up system.
5.4 Transition Assistance. Upon any expiration or termination of this Agreement (other than a
termination by Pear Sports pursuant to Section 5.2(a) or Section 5.2(b)), Pear Sports will provide such information,
cooperation, and assistance to Subscriber for a period not to exceed sixty (60) days from the effective date of
termination, at Pear Sports’s then-current Professional Services rates, as Subscriber may reasonably request, to assure
an orderly transition to Subscriber or a new service provider. For the avoidance of doubt, nothing in this Section shall
be construed as granting Subscriber or any third party any license or right to the Platform, the Documentation, or any
other materials provided by Pear Sports hereunder.
5.5 Survival. The following provisions shall survive any termination or expiration of this Agreement:
Section 1 (“Recitals and Definitions”), Section 2.5 (“Title”), Section 2.8 (“Audit”), Section 3.2 (“Ownership of
Deliverables and Work Product”), Section 4 (“Financial Terms”) until all monies due have been paid in full, Section
5.3 (“Effect of Termination or Expiration”), Section 5.4 (“Transition Assistance”), Section 6 (“Confidentiality and
Data”), Section 7.3 (“Disclaimer”), Section 8 (“Indemnification”), Section 9 (“Limitation of Liability”), Section 10
(“General Provisions”), and this Section 5.5 (“Survival”).
6. CONFIDENTIALITY AND DATA.
6.1 Use and Disclosure of Confidential Information. The Receiving Party shall, with respect to any
Confidential Information of the Disclosing Party: (i) use such Confidential Information only in connection with the
Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; (ii) subject to Section
6.3 below, restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those
employees and consultants of the Receiving Party who have a need to know such Confidential Information in
connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement;
and (iii) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information
to any third party unless authorized in writing by the Disclosing Party to do so.
6.2 Protection of Confidential Information. The Receiving Party shall protect the confidentiality of
any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect
its own confidential information (but no less than a reasonable degree of care).
6.3 Compliance by Personnel. The Receiving Party shall, prior to providing any employee or
consultant access to any Confidential Information of the Disclosing Party, inform such employee or consultant of the
confidential nature of such Confidential Information and require such employee or consultant to comply with the
Receiving Party’s obligations hereunder with respect to such Confidential Information. The Receiving Party shall be
responsible to the Disclosing Party for any violation of this Section 6 by any such employee or consultant.
6.4 Required Disclosures. In the event the Receiving Party becomes or may become legally compelled
to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil
investigative demand or other process or otherwise), the Receiving Party shall provide to the Disclosing Party prompt
prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate
remedy and/or waive compliance with the terms of this Section. In the event that such protective order or other remedy
is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall
furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be
disclosed, and shall use commercially reasonable efforts to insure that confidential treatment shall be afforded such
disclosed portion of the Confidential Information.
6.5 Data Issues. Notwithstanding anything to the contrary contained in this Agreement, Pear Sports
may, during the Term, use any data it receives from Subscriber and/or Authorized Users, including, without limitation,
all Subscriber Data, to perform its obligations hereunder and operate, maintain, and improve the Services in
collects data in connection therewith (the “Usage Data”). Pear Sports may combine this Usage Data with other data
(including anonymized elements of the Subscriber Data), and use such combined data, or a subset thereof, in an
aggregate and anonymous manner (the “Aggregate Data”). Subscriber hereby agrees that Pear Sports may, both during
and after the Term, use, reproduce, publish, and vend such Aggregate Data; provided, however, that such usage shall
not identify Subscriber or its Authorized Users.
6.6 Irreparable Injury. Each Party acknowledges that the other Party may be irreparably harmed by
any breach of this Section, and agrees that such other Party may seek, in any court of appropriate jurisdiction, an
injunction and/or any other equitable relief necessary to prevent or cure any such actual or threatened breach thereof,
without the necessity of proving monetary damages or posting a bond or other security. The preceding sentence shall
in no way limit any other legal or equitable remedy, including monetary damages, the non-breaching Party would
otherwise have under or with regard to this Agreement.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) this
Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of
this Agreement; and (ii) the execution and delivery of this Agreement by it and the performance of its obligations and
exercise of its rights hereunder: (a) will not conflict with or violate any Applicable Law; or (b) are not in violation or
breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding
upon it, including, without limitation, any non-disclosure, confidentiality, non-competition, or other similar
7.2 Platform Warranty; Exclusive Remedies. Pear Sports represents and warrants to Subscriber that
the Platform will substantially conform to the functionality described in the Documentation. This warranty does not
apply if the error or malfunction is caused by (i) Subscriber or Authorized User machine malfunction; (ii) non-Pear
Sports software malfunction; (iii) modifications or combinations not made by Pear Sports; or (iv) incorrect data or
procedures used by Subscriber or Authorized Users. SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDIES
UNDER THE WARRANTY SET FORTH IN THIS SECTION 7.2 ARE, AT PEAR SPORTS’S OPTION, EITHER:
(A) THE CORRECTION OF THE PLATFORM SO THAT IT PERFORMS AS WARRANTED; OR (B) IF, AFTER
REPEATED EFFORTS, PEAR SPORTS DETERMINES THAT IT IS UNABLE TO MAKE THE PLATFORM
PERFORM AS WARRANTED, SUBSCRIBER SHALL BE ENTITLED TO RECOVER ACTUAL DAMAGES
SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 9.
7.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, THE
SERVICES, THE PLATFORM, ITS COMPONENTS, ANY UPDATES, THE DOCUMENTATION, THE
DELIVERABLES, AND ANY OTHER MATERIALS PROVIDED HEREUNDER, ARE PROVIDED “AS IS” AND
“AS AVAILABLE,” AND PEAR SPORTS MAKE NO WARRANTIES IN CONNECTION WITH THIS
AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS
FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY
WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF
TRADE. To the extent that Pear Sports may not as a matter of Applicable Law disclaim any warranty, the scope and
duration of such warranty shall be the minimum permitted under such law.
8.1 Indemnification by Pear Sports. Subject to Section 8.2, Pear Sports shall defend, indemnify, and
hold harmless Subscriber and its officers, directors, managers, and employees from any and all liabilities, losses, fines,
penalties, costs, and expenses, including reasonable attorneys’ fees (collectively, “Losses”) incurred by them in
connection with any third-party claim, action, or proceeding (each, a “Claim”): (i) arising from Pear Sports’s gross
negligence or willful misconduct; and/or (ii) alleging that the use of the Platform (excluding any Subscriber Content)
in accordance with this Agreement infringes, violates, or misappropriates any third-party copyrights, patents, or
trademarks registered in the United States.
8.2 Exceptions to Pear Sports Indemnification Obligations. Pear Sports shall not be obligated to
indemnify, defend, or hold harmless the parties set forth in Section 8.1 to the extent that the Claim arises from: (i) use
of the Platform in combination with modules, apparatus, hardware, software, or services not provided by Pear Sports;
(ii) use of the Platform that violates this Agreement or any Applicable Law; or (iii) the alteration or modification of
the Platform by a party other than Pear Sports.
8.3 Infringement Claims. In the event that Pear Sports reasonably determines that the Platform is
likely to be the subject of a Claim of infringement, violation, or misappropriation of third-party rights, Pear Sports
shall have the right (but not the obligation), at its own expense and option, to: (i) procure for Subscriber the right to
continue to use the Platform as set forth hereunder; (ii) replace the infringing components of the Platform with other
components with the same or similar functionality that are reasonably acceptable to Subscriber; or (iii) suitably modify
the Platform so that it is non-infringing and reasonably acceptable to Subscriber. If none of the foregoing options is
available to Pear Sports on commercially reasonable terms, Pear Sports may terminate this Agreement without further
liability to Subscriber, in which case Pear Sports shall promptly refund to Subscriber a pro-rated portion of any prepaid, but unused, Subscription Fees. This Section 8.3, together with the indemnity provided under Section 8.1, states
Subscriber’s sole and exclusive remedy, and Pear Sports’s sole and exclusive liability, regarding infringement,
violation, or misappropriation of any Intellectual Property Rights of a third party.
8.4 Indemnification by Subscriber. Subscriber shall defend, indemnify, and hold harmless Pear
Sports and its officers, directors, managers, and employees from any and all Losses incurred by them in connection
with any Claim: (i) arising from Subscriber’s gross negligence or willful misconduct; (ii) arising from Subscriber’s
breach of its representations and warranties hereunder; (iii) alleging that the use of the Subscriber Content in
accordance with this Agreement infringes, violates, or misappropriates any third-party copyrights, patents, or
trademarks registered in the United States; and/or (iv) arising from any Authorized User’s access to, and use of, the
8.5 Procedure for Handling Indemnification Claims. In the event of any Claim for which
indemnification is available, the indemnified Party shall give prompt written notice of any such Claim to the
indemnifying Party; provided, however, that the failure of the Party seeking indemnification to give timely notice
hereunder will not affect rights to indemnification hereunder, except to the extent that the indemnifying Party
demonstrates actual damage caused by such failure. The indemnifying Party shall have the right to control and direct
the investigation, defense, and settlement of each such Claim. The indemnified Party shall reasonably cooperate with
the indemnifying Party (at the indemnifying Party’s sole cost and expense) in connection with the foregoing. The
indemnified Party may participate in the defense of the Claim with counsel of its own choosing, at its own cost and
expense, on a strictly monitoring basis. The indemnifying Party shall not enter into any settlement or resolution of
any Claim that would constitute an admission of guilt or liability on the part of the indemnified Party, without the
indemnified Party’s express prior written consent.
9. LIMITATION OF LIABILITY.
9.1 Liability Exclusion. SUBJECT TO SECTION 9.3, NEITHER PARTY WILL BE LIABLE TO
THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S
RIGHTS) FOR CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING,
WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF USE, OR LOSS OF GOODWILL OR
REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, OR OTHERWISE
(INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF THIS AGREEMENT,
REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD
OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
9.2 Limitation of Damages. SUBJECT TO SECTION 9.3, EACH PARTY’S MAXIMUM
LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF
ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT
EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO PEAR SPORTS BY
SUBSCRIBER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE
9.3 Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND
LIMITATIONS OF LIABILITY SET FORTH IN SECTION 9.1 AND SECTION 9.2 SHALL NOT APPLY TO: (i)
A PARTY’S INDEMNIFICATION OBLIGATIONS; (ii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT; OR (iii) SUBSCRIBER’S FAILURE TO PAY ANY UNDISPUTED SUMS DUE HEREUNDER
OR BREACH OF SECTION 2.4.
10. GENERAL PROVISIONS.
10.1 Notices. Unless otherwise specified herein, all notices and other communications between the
Parties (other than routine operational communications) required or permitted by this Agreement or by Applicable
Law, will be deemed properly given, if given by: (i) personal service; (ii) registered or certified mail, postage prepaid,
return receipt requested; or (iii) nationally or internationally recognized private courier service to the respective
addresses of the Parties set forth in the invoice or such other address as the respective Parties may designate by like
notice from time to time. Notices so given shall be effective upon: (a) receipt by the Party to which notice is given;
or (b) on the fifth (5th) business day following mailing, whichever occurs first.
10.2 Relationship of the Parties. Each Party is an independent contractor of the other Party. Nothing
herein shall constitute a partnership between or joint venture by the Parties, or constitute either Party the agent of the
10.3 Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under
this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written
notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to
an Affiliate; or (ii) in connection with a change of Control transaction (whether by merger, consolidation, sale of
equity interests, sale of all or substantially all assets, or otherwise), provided that in the case of Subscriber, the Affiliate
or acquiring company is not a competitor of Pear Sports. Any assignment or other transfer in violation of this Section
will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the
Parties hereto and their permitted successors and assigns.
10.4 Publicity. During the Term, Pear Sports shall have the right, but not the obligation, to: (i) publicly
announce in any and all media now known or hereafter devised that Subscriber is a customer of Pear Sports and a user
of the Services; and (ii) use Subscriber’s trademarks, service marks, and trade names, in any and all media now known
or hereafter devised, in accordance with any guidelines provided by Subscriber, to promote Pear Sports and/or the
10.5 Force Majeure. Neither Party shall be liable for any failure or delay in the performance of its
obligations under this Agreement to the extent such failure or delay or both is caused, directly or indirectly, without
fault by such Party, by any reason beyond its reasonable control, including but not limited to, fire, flood, earthquake,
elements of nature or acts of God, acts of state, acts of war, terrorism, riots, civil disorders, rebellions, revolutions,
quarantines, embargoes, and other similar governmental action (each a “Force Majeure Event”). Any Party so delayed
in its performance will promptly notify the other by telephone or by the most timely means otherwise available (to be
confirmed in writing within two (2) business days of the inception of such delay) and describe in reasonable detail the
circumstances causing such delay. In such event, the performance times shall be extended for a period of time
equivalent to the time lost because of the excusable delay; provided, however, if the delay or failure continues for
more than thirty (30) days, the Party not relying on the excusable delay may terminate this Agreement upon written
notice to the other Party. In order to avail itself of the relief provided in this Section, a Party must act with due
diligence to remedy the cause of, or to mitigate or overcome, such delay or failure.
10.6 Governing Law and Forum. This Agreement, and any and all disputes directly or indirectly arising
out of or relating to this Agreement, shall be governed by and construed in accordance with the laws of the State of
Virginia, without reference to the choice of law rules thereof. Each of the Parties hereby irrevocably consents and
submits to the exclusive jurisdiction of the state and federal courts located in the State of Virginia for any such disputes,
and hereby irrevocably waives any objections to the laying of venue in such courts.
10.7 Amendments. This Agreement may not be amended except by a writing which specifically
references this Agreement and is signed by authorized representatives of Pear Sports and Subscriber.
10.8 No Waiver. The failure of either Party to act upon any right, remedy, or breach of this Agreement
shall not constitute a waiver of that or any other right, remedy, or breach. No waiver shall be effective unless made
in writing and signed by an authorized representative of the waiving Party.
10.9 Severability. If any provision of this Agreement is held unenforceable by a court of competent
jurisdiction, the other provisions will remain in full force and effect. If legally permitted, the unenforceable provision
will be replaced with an enforceable provision that as nearly as possible gives effect to the Parties’ intent.
10.10 Entire Agreement. This Agreement and any executed Statements of Work contain the entire
understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements and
commitments with respect thereto. There are no other oral or written understandings, terms, or conditions, and neither
Party has relied upon any representation, express or implied, not contained in this Agreement. In the event of any
conflict between these Terms and Conditions, the invoice, or any Statement of Work, the following agreements and
documents shall control in the following order of descending precedence: (i) these Terms and Conditions; (ii) the
invoice; and (iii) the applicable Statement of Work. Notwithstanding the foregoing, provisions of these Terms and
Conditions may be modified in the invoice or in a Statement of Work, solely for the purposes of the invoice or such
Statement of Work, only by an express statement specifically identifying the Section(s) of these Terms and Conditions
to be modified.
SCHEDULE A – SERVICE LEVEL AGREEMENT
1. Uptime Guarantee.
(a) Service Level Guarantee. Pear Sports shall use commercially reasonably efforts designed to
ensure that the Platform will be available 99.5% of the time (“Uptime Guarantee”). The Platform is considered “not
available” if Authorized Users cannot access the Subscriber Content from the Platform in the normal course of
operation. In the event the actual percentage of time the Platform is available for a calendar month (the “Availability
Percentage,” as calculated below) is less than the Uptime Guarantee, Subscriber shall be entitled to receive from Pear
Sports the applicable service level discount set forth below off the monthly base Subscription Fee in the month in
which the downtime occurred (“Downtime Discount”) as described below.
Availability Percentage will be measured over a calendar month and calculated using the following formula:
Availability Percentage =
Base Time – Downtime
Base Time X 100
“Base Time” shall mean the total number of minutes in a given calendar month, excluding time for Pear Sports’s
performance of scheduled maintenance.
“Downtime” shall mean the total number of minutes the Platform is not available in a given calendar month.
Downtime does not include: (i) periods of scheduled or emergency maintenance activities by Pear Sports or its service
providers; (ii) Subscriber-requested service interruptions; (iii) Force Majeure Events; or (iv) outages caused by the
acts or omissions of Subscriber or Authorized Users. Downtime will be measured in minutes and commence when
Subscriber reports the issue to Pear Sports. Downtime concludes once the Subscriber Content is available.
(b) Downtime Discount. Pear Sports shall apply the following Downtime Discount in the next invoicing
cycle following the month that gave rise to the Downtime Discount:
Availability (monthly) Downtime Discount
99.5% and above 0%
Below 90% 25%
2. Scheduled Maintenance. In the event scheduled maintenance is necessary, Pear Sports shall use
commercially reasonable efforts to schedule such maintenance on Saturday or Sunday between the hours of 12:00
midnight and 5:00 a.m. (Eastern Time). For scheduled maintenance, Pear Sports shall provide Subscriber with
reasonable advance notice of such maintenance and shall provide conspicuous advance notice of such scheduled
3. Backups and Disaster Recovery. Pear Sports shall perform daily backups of the Personal Information and
maintain such backups. Pear Sports shall maintain backup servers and telecommunications connections, and shall
have failover procedures so that when one server fails, a backup server can promptly provide access to Subscriber.
Pear Sports’ disaster recovery and contingency planning, equipment, software and telecommunications connections
shall enable Pear Sports to provide access to Subscriber promptly from such backup servers upon any disruption.
4. Hosting Provider. Pear Sports currently utilizes Amazon Web Services to host the Platform. If Pear Sports
desires to utilize a different hosting provider, it shall provide at least thirty (30) days’ notice to Subscriber.