These terms and conditions (“Ts&Cs”) together with your Campaign Order Form constitute the agreement (“Agreement”) between you (“Customer”) and Genius Sports Media, Inc. (“Genius Sports”) in respect of the provision of the GSM Service. Capitalised terms used in these Ts&Cs but not defined herein shall have the meanings given in the Campaign Order Form. In the event of any conflict between the contents of the Campaign Order Form and these Ts&Cs, these Ts&Cs shall take precedence, with the exception of the ‘Special Terms’ in the Campaign Order Form, which shall, in the event of any conflict, take precedence over both these Ts&Cs and the Campaign Order Form. Clause headings are inserted for convenience of reference only and shall not affect the interpretation of these Ts&Cs. All advertisements accepted for publication by Genius Sports through the provisions of its Programmatic Marketing Service are accepted subject to these Ts&Cs. Any other terms and/or conditions proposed by the Customer shall be void unless accepted by Genius Sports in writing.
DEFINITIONS
1.1
“Ad Serving Service” is the delivery of Ads via Genius Sports software on third party and/or Associate’s Sites;
“Ads” means advertising communicated to end users by electronic distribution systems which may include Banners, videos, and other forms of advertising;
“Affiliate Marketing Service” means the affiliate marketing services as more fully described in clause 8 of these Ts&Cs;
“Affiliate Web Link Pages” means the web pages of any Affiliate Website that provide a hyperlink directly to one or more Landing Pages or other pages of the Customer’s website;
“Affiliate Website” means any website forming part of the GSM Network (which may include one or more websites owned or operated by Genius Sports or any of its Associates);
“Aggregated Customer Data” means data collected by Genius Sports for the purpose of providing the GSM Service for the Customer that can no longer be linked to the Customer (for example, Customer Data that does not identify or permit identification of a client);
“Approved Social Media Platforms” means Facebook, Instagram, Twitter and such other social media platforms as may be specified in the Campaign Order Form or otherwise agreed by the Parties;
“Associate” means in respect of any person to whom the term Associate refers a company, corporation or partnership or other business entity (“entity”) which is directly or indirectly controlled by or under substantially common control with or controls (as the case may be) the person so referred to and for this purpose “control” means the power of an entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership, agreement or other document regulating the entity in question) that the entity’s affairs are conducted in accordance with its wishes;
“Banner” means any visual form of advertising that is traditionally embedded in a webpage promoting the products and/or services of the Customer;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England;
“Campaign” means a coordinated series of linked advertisements with a single idea or theme;
“Campaign Order Form” means a campaign order form specifying: (i) the details of the GSM Service; and (ii) the terms on which Genius Sports will provide the GSM Service to the Customer;
“Creative Concept” is a format of dynamic images and/or video used for digital advertisements, each format shall be specified in the Campaign Order Form or otherwise agreed between the Parties;
“Creative Services” means the creative services, provided by Genius Sports to the Customer, using ad serving technology to inject live data and/or other content (including Customer Content) into an Ad;
“Customer Content” means logos, trademarks, object and/or source code, images, graphics, text, data, links or other creative elements supplied by the Customer to Genius Sports (by data feed or otherwise) for inclusion in and/or use in connection with the Ads;
“Customer Data” means: (i) data that is provided to Genius Sports by or on behalf of Customer in connection with any Campaign Order Form (including, but not limited to, customer lists, data management platform (“DMP”) transfers, matching data used for audience guarantees), including the Relevant Customer Data as defined in Schedule 1, or Cloud Service Data as defined in Schedule 2; or (ii) data Genius Sports collects through Genius Sports tags on the Customer’s properties which includes any information that can be attributed to a user via cookies or other technologies that record events related to users’ activity on the Customer’s properties (such as the number of pages viewed, the products the user viewed and user searches);
“Customer User” means a user who has clicked through to the Customer’s website from the Affiliate Web Link Pages;
“Data Protection Laws” means any international, national, state, and/or local law, statute, declaration, decree, directive, legislative enactment, order, ordinance, guideline, code, regulation, rule or other binding restriction as updated and amended from time to time which relates to the privacy and data protection of individuals with regards to the processing of personal data to which a Party is subject, including the California Consumer Privacy Act (“CCPA”), the UK Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the GDPR, and any other laws or regulations that are similar, equivalent to, successors to, or that are intended to implement the laws or regulations that are identified herein;
“Distribution Channels” means Facebook, Instagram, Twitter and such other social media platforms as may be specified in the Campaign Order Form or otherwise agreed by the Parties;
“DSP” means any company which provides integrated media buying solutions based on cookie data intelligence and operates a demand side platform;
“Event(s)” means any sporting contest (including matches, competitions, races and other sporting fixtures);
“F2P Services” the development and delivery of a F2P Product (defined in Schedule 3) in accordance with Schedule 3 and the support, maintenance and hosting services for the F2P Product as set out in the Specification (defined in Schedule 3);
“Fees” means all sums due to Genius Sports from the Customer under this Agreement, as set out in the Campaign Order Form;
“Forbidden Jurisdiction” means a jurisdiction in which it is illegal or otherwise unlawful for the Customer to provide Gambling Services (whether to residents, citizens or otherwise);
“Gambling Service(s)” means the provision of a sports or event wagering service or game of skill and chance combined (including casino banker’s games), peer to peer game or random number generator game service (including but not limited to via remote communications such as online or via telephone);
“GSM Data” means data related to the Genius Sports ad serving activity such as the number of ads displayed to users and aggregated client data that does not identify or permit identification of a client;
“GSM Network” means a network of publishers on supported interactive properties, used for the display of Ads, where the displaying publisher is automatically chosen in accordance with a specification selected by the Customer in a Campaign Order Form;
“GSM Service” means the service(s) chosen by the Customer and set out in the Campaign Order Form (and which may include the Creative Services, Programmatic Marketing Service, Ad Serving Service, CTV Advertising (to the extent that this is not included as part of Programmatic Marketing Services) the Push Notification Service, the Search Marketing Service, the SEO Service, the Paid Social Marketing Service and/or the Affiliate Marketing Service);
“GSM Sourced Data” means aggregated data provided by third parties independently of the provision of the GSM Service to the Customer and may include publisher data;
“GSM Technology” means the technology used by Genius Sports to provide the GSM Service;
“Intellectual Property Rights” means all patents, rights to inventions, business names and domain names copyright, moral rights, registered designs, registered and unregistered trademarks, trade secrets, know-how and confidential information and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Landing Pages” means the web pages (including the Welcome Page) of the Customer Website that the Customer is to develop and maintain and that will include the branding of the Customer;
“Markets” means the geographical locations where the Creative Concepts will be delivered, as specified in the Campaign Order Form or as otherwise agreed between the Parties;
“OL Products and Services” means the Push Notification Service and the OL Professional Services;
“OL Professional Services” means any technical set-up, integration, support, marketing, strategy or other services which are specified in the Campaign Order Form and relate to the Push Notification Service;
“Paid Social Marketing Service” means the paid social marketing services as more fully described in clause 7 of these Ts&Cs;
“Parties” means Genius Sports and the Customer (each being a “Party”);
“Personal Data” means information relating to identified or identifiable natural persons; that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked to, directly or indirectly, a particular individual, consumer, data subject, or household; or that is defined as “personally identifiable information,” “personal information,” “personal data,” or similar term under Data Protection Law (as defined above).
“Policies” means Genius Sports’ policies from time to time including without limitation its privacy policy, standards regarding obscenity or indecency and other advertising policies that Genius Sports may have from time to time;
“Platform” has the meaning given to it in clause 10.4 of these Ts&Cs;
“Pre-Contract Questionnaire” means the pre-contract questionnaire completed by the Customer prior to entering into this Agreement;
“Programmatic Marketing Service” means the programmatic marketing service as more fully described in clause 3 of these Ts&Cs, which shall include CTV Advertising where such ads are bought programmatically;
“Push Notification Service” means the push notification service as more fully described in clause 4 of these Ts&Cs;
“Relevant Regulatory Authority” means any government, government department or governmental, quasi-governmental, supranational, statutory, regulatory, administrative or investigative body or other competent authority (including any national anti-trust or competition authorities or similar authorities) having relevant jurisdiction over any relevant person and/or the subject matter of this Agreement.
“Sanctioned Person” means at any time any person: (a) listed on any Sanctions-related list of designated or blocked persons; (b) resident in or organised under the laws of a country or territory that is the subject of comprehensive restrictive Sanctions from time to time (which includes, as of the date of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions); or (c) majority-owned or controlled by any of the foregoing;
“Sanctions” means those trade, economic and financial sanctions laws, regulations, embargoes, and restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by (a) the United States (including without limitation the Department of Treasury, Office of Foreign Assets Control), (b) the European Union and enforced by its member states, (c) the United Nations, (d) Her Majesty’s Treasury, or (e) other similar governmental authority have jurisdiction over any party to this Agreement from time to time;
“Search Engine Marketing Service” means the search engine marketing service as more fully described in clause 5 of these Ts&Cs;
“SEO Service” means the SEO service as more fully described in clause 6 of these Ts&Cs;
“SEO” means search engine optimization, being the process of modifying a website with a view to trying to ensure that it appears near the top of a search engine’s natural or organic results;
“Site(s)” means those websites, apps or other digital properties on which Ads are displayed;
“Term” means the period of time starting on the date set out in the Campaign Order Form and expiring on the date set out in the Campaign Order Form, or if later, on the date that the Fees have been spent by Genius Sports on behalf of Customer;
“Transaction” means a payment in respect of any products or services offered on the Customer’s website by a Customer User who has clicked through directly to the Customer’s website from any of the Affiliate Web Link Pages; and
“Welcome Page” means the first of the Landing Pages that a Customer User lands on when clicking through to the Customer’s website from the Affiliate Web Link Pages.
1.2 A person includes a natural person, company, general partnership, limited partnership, proprietorship, other business organisation, trust, union, association, and/or government authority (including public international organisations).
1.3 References to any clause or Schedule is a clause in or Schedule to these Ts&Cs;
1.4 The Schedules form part of these Ts&Cs and shall have effect as if set out in full in the body of the Ts&Cs. Any reference to these Ts&Cs includes the Schedules. In the event of any conflict between any provision in the body of these Ts&Cs and any provision in one of the Schedules, the provision in the Schedules shall govern as relates to the services addressed in the applicable Schedule(s).
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 This Agreement shall be binding on, and enure to the benefit of, the Parties and their respective personal representatives, successors and permitted assigns, and references to any Party shall include that Party’s personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.11 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
1.12 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
SETTING UP THE GENIUS SPORTS SERVICE
The Customer will comply with the technical requirements and specifications of the GSM Service together with any other requirements and specifications that Genius Sports may specify in writing from time to time, for example in respect of providing and improving other Genius Sports products and services which the Customer may be interested in receiving. These technical specifications may include the following operations: (i) including software code, tags and cookies supplied by Genius Sports on the Customer’s properties (including on its websites and, if applicable, e-mail newsletters); (ii) supplying Genius Sports with catalogue files of the Customer’s products and/or services to be included in Ads; and (iii) supplying Genius Sports with the Customer’s logos and other Customer Content to be displayed in the Ads.
MEDIA BUYING AND AD SERVING
3.1 The provisions of this clause 3 shall apply if the GSM Service to be provided to the Customer under this Agreement includes the Ad Serving Service, Programmatic Marketing Service, and/or CTV Advertising.
3.2 Genius Sports shall use reasonable endeavours to display and transmit the Ads during the Term in accordance with the terms of the Campaign Order Form.
3.3 If the Ads are not transmitted or displayed in accordance with the agreed terms set out in the Campaign Order Form during the Term for reasons other than the default of the Customer, Genius Sports shall use reasonable endeavours to transmit or display the Ads as soon as reasonably possible following the end of the Term.
3.4 In the event that Ads are not transmitted/displayed in accordance with the agreed terms set out in the Campaign Order Form during the Term as a result of the default of the Customer, Genius Sports reserves the right to make additional charges in respect of the period of delay.
3.5 In respect of the Programmatic Marketing Services, the Customer acknowledges and accepts that the Ads are displayed on the GSM Network and that Genius Sports has absolute discretion as to which publishers will form part of the GSM Network, how often the Ads will be displayed and how priority is to be governed between different clients. The Customer acknowledges that Ads may be displayed next to advertisements of its competitors. Genius Sports uses reasonable endeavours not to display Ads on websites or other media that are of pornographic, defamatory, obscene or illegal nature, but the Customer acknowledges that, should Ads appear on such media, the Customer’s sole and exclusive remedy is set forth in the following sentence. In the event that the Customer notifies Genius Sports in writing that Ads are being displayed on such media, Genius Sports will promptly remove the Ads (or promptly notify the relevant publisher to remove) and/or provide makegoods.
3.6 The Customer shall submit Customer Content at least five (5) Business Days before the commencement of the relevant Campaign in accordance with Genius Sports’ criteria and specifications from time to time (including content limitations, agreed technical specifications, Policies, and material due dates).
3.7 If Customer Content is submitted later than 12 noon on the day before the relevant Campaign is due to begin, Genius Sports reserves the right to make reasonable charges in addition to those specified in the relevant Campaign Order Form.
3.8 Genius Sports reserves the right within its discretion to reject or remove from the Site(s) any Ads where the Customer Content or the site to which the Ad is linked do not comply with its Policies, or that in Genius Sports’ sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, Genius Sports reserves the right within its discretion to reject or remove from the Site(s) any Ads where the Customer Content or the site to which the Ad is linked are or may bring disparagement, ridicule, or scorn upon Genius Sports or any of its Associates.
3.9 If Customer Content is either damaged, not to Genius Sports’ specifications or otherwise unacceptable in Genius Sports’ reasonable opinion, Genius Sports shall use reasonable endeavours to notify the Customer within five (5) Business Days of its receipt of such Customer Content and the Customer shall make the necessary changes as soon as is practically possible and in any event within five (5) Business Days of receipt of such notice.
3.10 Genius Sports has no liability to the Customer in respect of any claim whatsoever, whether it relates to Intellectual Property Rights or not, to the extent that it relates to: (i) the use of the Ads and/or Customer Content in combination with programs or data not supplied by Genius Sports; (ii) the use of anything other than the latest unaltered release of the GSM Service (or any part thereof) provided by Genius Sports to the Customer; or (iii) where the Ad(s) and/or Customer Content have been subject to any alteration or modifications not authorised by Genius Sports in accordance with the terms of this Agreement.
THE PUSH NOTIFICATION SERVICE
4.1 The provisions of this clause 4 shall apply if the GSM Service to be provided to the Customer under this Agreement includes the Push Notification Service.
4.2 The Push Notification Service includes:
(a) segmentation, event attribution, optimization, marketing automation, smart delivery, event engine triggered messages and data extracts;
(b) messaging across web and app, including push, interstitials and rich inbox, as well as transactional and marketing email and SMS; and
(c) re. SMS, messages are passed by a third party, currently ‘OtherLevels’, to one aggregator for delivery. The Customer will be required to contract directly with aggregator for text fees. Additional aggregators may be added for $5,000 per aggregator.
4.3 The Fees relating to the Push Notification Service relate to a single brand. A brand is understood as an identified product, service, site or single app with common branding, naming, positioning, product offering and marketing messaging.
4.4 If the Campaign Order Form references any message bundles, any unused messages may not be carried forward.
4.5 Any support services which are specified in the Campaign Order Form and relate to the Push Notification Service are more fully described in the Support Services Guide.
4.6 Any Fees relating to the provision of OL Professional Services exclude travel and expenses.
4.7 If the Customer is being granted access to the OtherLevels digital marketing platform (the “OL Platform”) on a self-serve basis, the Customer acknowledges and agrees that: (i) the OL Products and Services shall be made available to the Customer by OtherLevels; (ii) Genius Sports shall have no liability whatsoever in respect of the OL Products and Services; (iii) all obligations in respect of the OL Products and Services, including terms regarding use and supply of the OL Products and Services, are governed entirely by the End Customer Licence Agreement made between OtherLevels and the Customer (the “ECLA”); and (iv) the Customer’s right to use the OL Products and Services is subject to the terms as set out in ECLA.
4.8 If the Customer is not being granted access to the OL Platform, but is to receive the Push Notification Service as a managed service from Genius Sports, the provisions of Schedule 1 shall apply.
THE SEARCH ENGINE MARKETING SERVICE
The Search Engine Marketing Service shall (subject to it forming part of the GSM Service to be provided to the Customer under this Agreement) comprise of Genius Sports using the relevant Fees to pay for the Customer to have its details presented at the top of a search results page or prominently featured elsewhere on that page.
THE SEO SERVICE
6.1 The provisions of this clause 6 shall apply if the GSM Service to be provided to the Customer under this Agreement includes the SEO Service.
6.2 By entering into this Agreement, the Customer confirms that neither it nor any agent acting on its behalf has at any time created on any website which is the subject of this Agreement any duplicate sites, duplicate pages or content, hidden links, doorway pages or redirects, nor has the Customer nor its agents undertaken any spamming techniques or purchased or otherwise acquired links which may harm the website’s ranking within, or risk the imposition of penalty by, any internet search engine.
6.3 The Customer must inform Genius Sports immediately on becoming aware of any circumstances and/or information which is inconsistent with the confirmation contained in clause 6.2. The Customer acknowledges that non-disclosure of such information may affect the performance of the Campaign for which Genius Sports shall not be held responsible. In the event of such non-disclosure, Genius Sports may (but shall not be obliged to) offer to provide additional rectification services, which may incur additional fees.
6.4 The Customer accepts that if, at any time during the Term, it engages a third party for search engine optimisation, such engagement may have a significant detrimental effect on the performance of the Customer’s SEO Campaign under this Agreement.
THE PAID SOCIAL MARKETING SERVICENOT USED
7.1 The provisions of this clause 7 and Schedule 2 shall apply if the GSM Service to be provided to the Customer under this Agreement includes the Paid Social Marketing Service.
7.2 The Paid Social Marketing Service comprises Genius Sports’ use of a cloud platform (the “Cloud Platform”) to create dynamic images/videos, which Genius Sports then serves to Approved Social Media Platforms in accordance with a specification selected by the Customer in a Campaign Order Form.
THE AFFILIATE MARKETING SERVICE
8.1 The provisions of this clause 8 shall apply if the GSM Service to be provided to the Customer under this Agreement includes the Affiliate Marketing Service.
8.2 The Customer shall create, operate and maintain the Landing Pages.
8.3 The Customer shall provide Genius Sports with one or more uniform resource locators (URLs) to link from the Affiliate Web Link Pages to the Welcome Page or other Landing Page.
8.4 The Customer shall be responsible for developing, operating and maintaining the Customer’s website.
8.5 The Customer shall provide to Customer Users clicking through directly from the Affiliate Web Link Pages access to and use of the Customer’s website in accordance with the Customer’s standard terms of use.
8.6 Within 14 days after the end of each calendar month, the Customer will provide Genius Sports with a report in the Customer’s standard form setting out for the month concerned the total number of:
(a) occasions when a Customer User has clicked directly through to the Customer’s website from any of the Affiliate Web Link Pages;
(b) Customer Users who have registered on the Customer’s website after clicking directly through to it from any of the Affiliate Web Link Pages; and
(c) Transactions, together with a statement setting out the amounts due from the Customer to Genius Sports for Transactions in the month to which the report relates. Except in the case of error, the Customer shall pay Genius Sports the amount thereby shown to be due within 30 days after the date of the report.
8.7 Genius Sports shall submit to the Customer for prior approval: (i) the selection of Affiliate Websites which are comprised within the GSM Network; and (ii) any proposed use of any Customer trade mark, domain name, logo, and other elements of branding that Genius Sports may wish to make. The Customer shall review the selection of Affiliate Websites and/or proposed use within a reasonable time (being ordinarily not longer than five (5) Business Days) and shall not unreasonably refuse or delay approval.
8.8 The Customer shall request prior approval for any use of any Genius Sports trade mark, domain name, logo or branding that the Customer may wish to make. Genius Sports shall review the proposed use within a reasonable time (being ordinarily not longer than five (5) Business Days) and shall not unreasonably refuse or delay approval.
8.9 Genius Sports acknowledges and agrees that it has no authority to legally bind the Customer in relation to Customer Users or anyone else and that it has not been appointed and is not the agent of the Customer for any purpose. Genius Sports agrees that it shall not make to any third party any representation or commitment about the Customer, the Customer’s website or any of the products or services available on the Customer’s Website.
THE F2P SERVICE
9.1 The provisions of Schedule 3 shall apply if the GSM Service to be provided to the Customer under this Agreement includes the F2P Service.
CREATIVE SERVICES AND SPIRABLE PLATFORM
10.1 The provisions of this clause 10 shall apply if the GSM Service to be provided to the Customer under this Agreement includes Creative Services.
10.2 Genius Sports shall provide Customer with Creative Services during the Term. Customer agrees to submit all relevant Customer Content to Genius Sports at least 15 days before the commencement of any relevant Campaign in accordance with Genius Sports’ criteria and specifications from time to time (including content limitations, agreed technical specifications, policies, and material due dates). Genius Sports shall have no obligation nor liability to deliver the Creative Services to Customer if: (i) Customer fails to deliver the Customer Content (or its instructions) at least 15 days prior to the start of the Campaign, or (ii) the Creative Services cannot be agreed between the Parties.
10.3 If Genius Sports is serving the Ads on behalf of the Customer, the Fees charged for the Creative Services shall be calculated by the monthly impressions generated on a CPM basis (cost per thousand), as set out in the Campaign Order Form, and payable monthly in arrear.
10.3 Any Intellectual Property Rights in new material created by Genius Sports which is derived solely and directly from the Customer’s Intellectual Property and which is solely and directly developed by Genius Sports: (a) as a result of the provision of the Creative Services to the Customer; and (b) on behalf of the Customer, shall immediately vest in the Customer, or where it is not possible for this to immediately vest in the Customer, it shall be held by Genius Sports until such time as the transfer can be satisfied and Genius Sports shall do all this necessary to satisfy this requirement.
10.4 Creative Services may comprise Genius Sports’ use of a cloud platform (the “Platform”) to create the Creative Concepts, which Genius Sports then serves to Distribution Channels in the Markets (the “Platform Services”). If the Campaign Order Form specifies use of the Platform, then the provisions of Schedule 2 shall also apply.
FEES AND PAYMENT TERMS
11.1 Unless alternative payment terms are specified in the Campaign Order Form (or otherwise in these Ts&Cs), Genius Sports shall issue invoices to the Customer on the 15th of each month in respect of actual spend incurred during the previous calendar month (1st up to 31st) and the Customer is required to pay the Fees in full monthly in arrear to Genius Sports before Genius Sports commences the provision of the GSM Service. The Customer shall be fully responsible for payment of VAT and/or any other applicable sales tax. Genius Sports retains the right, in its sole discretion, to request prepayment from a Customer, as specified in the Campaign Order Form.
11.2 Genius Sports shall allocate the Customer marketing spend as set out in the Campaign Order Form (and, in respect of the Programmatic Marketing Service, such allocation shall be through a DSP, or direct purchases from publishers’ sites), with the intention of meeting the agreed target for the Customer as set out in the Campaign Order Form after fees, costs, and Genius Sports margins (as determined by Genius Sports on a Campaign by Campaign basis taking into account factors including the success of the relevant Campaign) have been deducted. Genius Sports does not guarantee to meet the target marketing spend.
11.3 If Genius Sports is providing Ad Serving Services, the Fees charged for the Ad-Serving Services shall be calculated by the monthly impressions generated on a CPM basis (cost per thousand), as set out in the Campaign Order Form, and payable monthly in arrear.
11.4 If Genius Sports is providing the Platform Services, the Fees charged for the Platform Services (excluding the Platform) shall be calculated using the rate card attached to the Campaign Order Form using the following formula: Creative Concept + Distribution Channel x Market(s) and payable monthly in arrear. Fees for the Platform are charged as a fixed fee during the Term and payable quarterly in advance.
11.211.5 The Customer shall settle all invoices in full within 10 Business Days14 days of the invoice date (the “Due Date”). If the Customer fails to make the payment by the Due Date, Genius Sports shall without prejudice to its other rights, be entitled to suspend or refuse to provide (as applicable) the GSM Service and Genius Sports’ obligations shall be reduced on a pro-rata basis to the delay in payment and in doing so, Genius Sports shall not be in breach of this Agreement.
11.311.6 For the avoidance of doubt, the existence of a valid query on any individual item in an invoice will only affect the Due Date of that individual item. The Customer shall notify Genius Sports of any such query within seven (7) days from the date of the invoice after which Genius Sports shall not be under any obligation to agree to amend the terms of the relevant invoice.
11.41.1 Genius Sports shall allocate the Customer marketing spend as set out in the Campaign Order Form (and, in respect of the Programmatic Marketing Service, such allocation shall be through a DSP, or direct purchases from publishers’ sites), with the intention of meeting the agreed target for the Customer as set out in the Campaign Order Form after fees, costs, and Genius Sports margins (as determined by Genius Sports on a Campaign by Campaign basis taking into account factors including the success of the relevant Campaign) have been deducted.
11.511.7 The Customer may not set off any payment due in an invoice against any payment Genius Sports owes to the Customer.
11.611.8 All late payments shall be subject to interest on the overdue amount at the rate of 3% over the base rate from time to time of Barclays Bank plc.
11.711.9 The Customer shall make all payments under this Agreement without withholding or deduction of, or in respect of, any tax unless required by law. If any such withholding or deduction is required, the Customer shall, when making the payment to which the withholding or deduction relates, pay to Genius Sports such additional amount as will ensure that Genius Sports receives the same total amount that it would have received if no such withholding or deduction had been required.
INTELLECTUAL PROPERTY
12.1 Each Party remains sole owner of the Intellectual Property Rights it owned prior to the execution of this Agreement. As between the Parties, Genius Sports is the sole owner of all Intellectual Property Rights in and to the GSM Technology and GSM Data. The Customer is the sole owner of all Intellectual Property Rights in and to the Customer Data and the Customer Content.
12.2 For the duration of this Agreement, the Customer grants Genius Sports and its Associates a worldwide, royalty-free, non-transferable licence to use, reproduce and represent the Customer trademarks and logos, and to display, reproduce, represent the Customer Content (if applicable): (a) on Sites forming part of the GSM Network; (b) for use in the Creative Services; and (c) on all documentation promoting the GSM Service.
12.3 The Customer authorizes Genius Sports: (i) to collect, use, analyse and process the Customer Data, to combine the Customer Data with GSM Data and GSM Sourced Data and to perform the GSM Service for the Customer; (ii) to improve the GSM Technology, the GSM Service and other Genius Sports products, programs and/or services with Aggregated Customer Data; and (iii) to disclose Customer Data if required by law.
12.4 The Customer shall not modify or attempt to modify the code or otherwise reverse engineer or create derivative works of any aspect of the GSM Technology.
POSTPONEMENT
13.1 If the Customer wishes to postpone or extend the Term, Genius Sports shall consider such a request in good faith but shall have no obligation to consent to such postponement or extension. Any acceptance of such postponement or extension shall require immediate pre-payment of the Fees (if not already done so) and/or immediate pre-payment of any additional fees.
CANCELLATION AND REVISION
14.1 Either Party may cancel the Campaign Order Form with thirty (30) days’ prior written notice during the Term, unless the Campaign or any element thereof is designated as non-cancellable on the applicable Campaign Order Form. If either Party cancels the Campaign Order Form with thirty (30) days’ notice in accordance with this clause, the Customer shall only be liable to pay for the GSM Service provided from commencement of the Term up until the date of termination.
14.2 In the event that the Customer seeks to revise a Campaign Order Form the Customer must provide a written request thirty (30) days’ prior to the intended date of the requested revision. In the event that Genius Sports accepts such request (which it may accept or reject in its absolute discretion), any billable rates shall automatically revert to the current published rate which Genius Sports shall advise the Customer of from time to time.
14.3 If the Customer cancels the Campaign Order Form prior to a campaign going live, Genius Sports shall be entitled to recover a reasonable sum for time spent developing the Campaign on the Customer’s behalf, and such sum shall be calculated in accordance with the Genius Sports’ rates set-out in the Campaign Order Form.
TERMINATION
15.1 Either Party shall be entitled to terminate this Agreement (without prejudice to its other rights and remedies) immediately on written notice if the other Party:
(a) ceases to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or any equivalent process in any other jurisdiction; and/or
(b) commits a material breach of this Agreement (being a single event or a series of events which are together a material breach) which:
(i) is incapable of remedy; or
(ii) is capable of remedy but has not been remedied within thirty (30) days of receipt of written notice specifying the breach and the Party’s intention to terminate if the same is not remedied.
15.2 Genius Sports shall be entitled to terminate this Agreement (without prejudice to its other rights and remedies) immediately on written notice to the Customer if:
(a) any amount payable by the Customer to Genius Sports pursuant to this Agreement is overdue and such amount has not been paid by the Customer within five (5) Business Days of written reminder from Genius Sports;
(b) Customer violates clause 19.2(m) in any material respect;
(c) Customer commits any act or omission which may in the reasonable opinion of Genius Sports:
(i) cause damage to the reputation of Genius Sports and/or its Associates;
(ii) create legal or regulatory liability for Genius Sports and/or Associates,
(d) Customer is or becomes a Sanctioned Person;
(e) Customer otherwise becomes a person with whom it is unlawful for Genius Sports to transact business under Sanctions applicable to Genius Sports from time to time, without giving effect to choice of law provisions of this Agreement or any Genius Sports laws applicable to Customer; and/or
(f) Genius Sports deems that the Customer’s use of cryptocurrency, cryptoassets and/or skins via the provision and/or advertisement of its products and/or services directly or indirectly causes, or may cause, any detriment to Genius Sports (including its Associates’) reputation, brand and/or goodwill.
15.3 The expiry or termination of the Agreement for any reason shall not affect any rights and/or obligations accrued before the date of termination or expiry, or expressed or intended to continue in force after and despite expiry or termination.
MEASUREMENT AND PERFORMANCE REPORT
Genius Sports measures, through its servers, the number of impressions and/or clicks and/or other metrics necessary for calculating the Fees. The Customer accepts that Genius Sports’ measurements are final and shall prevail over any other measurements.
PRIVACY
17.1 Each Party shall be independently responsible for compliance with its obligations under Data Protection Laws. The Customer and Genius Sports acknowledge that under Data Protection Laws, where Genius Sports processes Personal Data in connection with this Agreement on behalf of the Customer, the Customer is the data controller and Genius Sports is the data processor and, for the purposes of this Agreement:
(a) the types of Personal Data so processed are: internet connection data, browsing data, online identifiers, device/technical data and/or betting activity and the categories of data subjects are the Customer’s customers or the Customer’s prospective customers; and
(b) the nature/purpose of the processing is to enable Genius Sports to carry out the GSM Services (which form the subject matter of the processing) and the duration of the processing shall be no more than thirteen (13) months after collection.
17.2 The Customer acknowledges that it is the Customer’s sole responsibility to provide any required notifications to, and obtain any necessary approval, authorization, or consent from its customers for Genius Sports to process customer Personal Data for the purposes of targeting those customers with online advertising. The Customer shall ensure that all such notification, and approval, authorization, or consent is valid under Data Protection Laws and shall notify Genius Sports as soon as possible when any such approval, authorization, or consent is withdrawn. Genius Sports hereby puts the Customer on notice that a failure by the Customer to obtain sufficient approval, authorization, or consent for Genius Sports to process the Customer’s customers’ Personal Data and target the Customer’s customers with online advertising will infringe the Data Protection Laws and will be an infringement for which the Customer is solely responsible.
17.3 Genius Sports shall, in relation to any Personal Data processed on behalf of the Customer in connection with this Agreement:
(a) process that Personal Data only on written instructions of the Customer;
(b) keep the Personal Data confidential;
(c) comply with the Customer’s data protection policy and any data retention guidelines in force from time to time;
(d) comply with the Customer’s reasonable instructions with respect to processing the Personal Data;
(e) not transfer any Personal Data that originated inside the UK and/or European Economic Area (“EEA”) to a jurisdiction outside of the EEA without the Customer’s prior written consent, other than as permitted under clause 17.5;
(f) assist the Customer in responding to any data subject access request and to ensure compliance with its obligations under Data Protection Laws with respect to security, breach notifications, privacy impact assessments and consultations with supervisor authorities or regulators;
(g) notify the Customer without undue delay on becoming aware of a Personal Data breach or communication which relates to Genius Sports or Customer’s compliance with Data Protection Laws;
(h) at the written request of the Customer, delete the Personal Data on termination of this Agreement unless required by Data Protection Laws or legal obligation to store the Personal Data;
(i) maintain complete and accurate records and information to demonstrate compliance with this clause and allow for audits by the Customer or the Customer designated auditor; and
(j) only engage third parties to process Personal Data on behalf of the Customer (“Subprocessors”) appointed in accordance with clause 17.9.
17.4 Genius Sports shall ensure that it has in place appropriate technical or organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. Such measures may include, where appropriate:
(a) pseudonymising and encrypting Personal Data;
(b) ensuring confidentiality, integrity, availability and resilience of its systems and services;
(c) ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident; and
(d) regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it.
17.5 In accordance with clause 17.3(e) above, the Customer consents to Genius Sports transferring the Personal Data outside of the UK and/or EEA to (i) our employees in Colombia under approved contractual clauses between Genius Sports and Genius Sports Services Colombia S.A.S; and (ii) Genius Sports third party service providers based in the United States of America under standard contractual clauses.
Cookies
17.6 In order for Genius Sports to deliver the relevant Campaign, the Customer acknowledges and accepts that it will include and use cookies or similar technologies on its digital properties (the “Cookies”). Genius Sports shall collect data (including Personal Data) using the Cookies from individuals who visit the Customer’s website or otherwise engage with the Ad(s).
17.7 The Customer acknowledges that, in order to comply with Data Protection Laws, the Customer needs to take certain steps to ensure that users of its website know that the Cookies exist, and to ensure that users accept Cookies where required by Data Protection Laws. Therefore, the Customer undertakes that its website:
(a) includes: (i) a clear and comprehensive explanation as to what the Cookies are doing and why; and (ii) a consent management platform, that allows its users to freely give or withdraw consent to store the Cookie on the user’s device; and
(b) contains a privacy policy that: (i) discloses the use of third party technology and includes appropriate notice of Genius Sports as a recipient or a class of recipient that would contain Genius Sports; (ii) discloses the data collected from the Cookies and use of that data and discloses the use of a real time bidding platform for serving advertisements to users of its website; (iii) contains a conspicuous live hyperlink to an opt-out website that provides its website users the ability to opt out of interest-based advertising through Genius Sports; and (iv) complies with all Data Protection Laws.
17.8 Where a Party is deemed to be acting as a service provider as defined by the CCPA with respect to the processing of Personal Data pursuant to this Agreement, such Party will not sell, retain, use, or disclose such Personal Data for any purpose other than as specifically authorized under this Agreement or as otherwise permitted by law. To the extent that disclosure of Personal Data between Customer and Genius Sports is deemed to be a “sale” under the CCPA, each Party shall be independently responsible for compliance with its obligations and provide assistance to the other Party as necessary for that Party to address its obligations under the CCPA. Where Genius Sports receives a “Do Not Sell” or similar request from a consumer (either directly or as communicated by Customer), Genius Sports shall only process the Personal Data associated with such consumer as permitted by the CCPA. The Parties agree to cooperate to effectuate such consumer requests. The Parties agree to negotiate in good faith any additional or modified contract terms necessary to address any modifications, amendments, or updates to the CCPA.
Subprocessors
17.9 Customer hereby consents to Genius Sports appointing its Associates and the Cloud Platform as Subprocessors for the purposes of clause 15.3(j). In the event that Genius Sports wishes to appoint a new Subprocessor it will notify the Customer of such Subprocessor and the Customer will have 3 days to object to such appointment and any objection must be accompanied by evidence to support the unsuitability of the Subprocessor. Where the Customer validly objects to the appointment of a Subprocessor, Genius Sports will use reasonable endeavours to source an alternative or to conduct the relevant processing without the use of such Subprocessor. If Genius Sports is unable to source an alternative Subprocessor and cannot conduct the relevant processing without a Subprocessor, it will have the right to terminate this Agreement immediately and without liability upon written notice. Genius Sports will ensure that all Subprocessors are bound by terms equivalent (as appropriate) to this clause 15 and will remain responsible for any breach thereof.
GAMBLING COMPLIANCE
18.1 The provisions of this clause 18 shall apply if, at any time during the Term, the Customer or any of its Associates provides Gambling Services.
18.2 The Customer acknowledges and agrees that: (i), as a provider of Gambling Services, it is required to comply with all applicable betting, gambling and advertising laws and regulations; and (ii) it has taken and will take all necessary steps to ensure that the display of Ads on the Sites is not illegal or actionable for any reason in any territory and shall comply with all applicable legislation, rules and regulations including, for the avoidance of doubt, any applicable advertising and/or financial services standards and codes.
18.3 The Customer hereby warrants, represents and undertakes to Genius Sports that:
(a) the Customer (and/or each relevant Associate (as applicable)) is, and will continue throughout the Term to be, regulated as a bookmaker and that it has, and will continue throughout the Term to have, all necessary rights: (i) to operate in all territories in which it conducts business; and (ii) for Ads to be displayed in all territories in which it requests Genius Sports to display such Ads in accordance with this Agreement, and the Customer will promptly inform Genius Sports if any such licence, consent, permission, or approval is withdrawn, revoked, suspended, or of any matter of which is likely to lead to the withdrawal, revocation, or suspension of any such licence, consent, permission, or approval;
(b) neither the Customer nor any of its Associates will provide anyone located in a Forbidden Jurisdiction with access to a Gambling Service;
(c) neither the Customer nor any of its Associates will knowingly accept from anyone located in a Forbidden Jurisdiction (whether a resident, citizen or otherwise) in consideration of the provision of a Gambling Service: (i) credit or the proceeds of credit (including credit cards); (ii) an electronic fund transfer, or funds transmitted by or through a money transmitting business (or the proceeds of either of these); (iii) a cheque, draft or similar instrument payable through a financial institution; and/or (iv) any other form of financial transaction as determined by Genius Sports acting reasonably;
(d) neither the Customer nor any of its Associates is funded or owned in part or in whole by a person or entity that provides a Gambling Service to anyone located (whether a resident, citizen or otherwise) in a Forbidden Jurisdiction; and
(e) neither Customer nor any of its Associates shall accept virtual goods and/or virtual currency (including, but not limited to, the use of cryptocurrency, cryptoassets and/or skins).
18.4 Genius Sports strictly prohibits any Customer Content and/or Ads promoting or endorsing, or in any way relating to use of cryptocurrencies (or any other virtual assets), which shall include any Customer Content or Ads that induce end-users to engage with gambling activities by staking bets using virtual goods and/or virtual currency. In the event of a breach of this provision, Genius Sports shall be entitled to take down the Customer Content and/or terminate this Agreement in accordance with clause 16.5.
18.5 Without prejudice to any other right that Genius Sports may have (under this Agreement or pursuant to applicable law), Genius Sports may terminate this Agreement with immediate effect, by serving notice, if it has a reason to believe that the Customer is in breach of: (i) any of the representations, warranties or undertakings given in clause 18.3; or (ii) clause 16.4
18.6 The Customer shall for the duration of this Agreement provide Genius Sports with a live API feed of all Events offered by the Customer. The Customer acknowledges and agrees that Genius Sports shall be permitted to: (i) monitor the Events, markets and odds offered by the Customer for the purposes of managing and/or improving Genius Sports’ services; and (ii) collect such data for such purposes from the Customer’s website(s) and publicly available sources.
18.7 Genius Sports maintains a ‘whitelist’ of websites which Genius Sports deems suitable for the display of gambling-related ads (the “GSM Whitelist”), and such whitelist may be amended from time to time in Genius Sports’ absolute discretion. Genius Sports shall only display Ads on websites included in the GSM Whitelist (“Approved Sites”) unless the Customer requests that Genius Sports displays an Ad (or Ads) on other websites or apps not included in the GSM Whitelist (“Unapproved Sites”) and Genius Sports agrees to such request. The Customer acknowledges and agrees that, as between the Parties, the Customer shall be solely responsible for, and bear any adverse consequences arising from or relating to, the display of the Ads on any Unapproved Sites (and that Genius Sports shall have no liability whatsoever in connection therewith).
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
19.1 Each Party represents and warrants to the other that it has, and will retain throughout the Term all rights, title and authority:
(a) to enter into this Agreement;
(b) to grant to the other Party the rights and licences granted in this Agreement; and
(c) to perform all of its obligations under this Agreement.
19.2 The Customer hereby warrants, represents and undertakes to Genius Sports that:
(a) the Customer has the right to provide the Customer Content to Genius Sports for publication, without infringing any rights of any third party including, without limitation, Intellectual Property Rights;
(b) the Customer Content complies at all times with all applicable laws, statutes, statutory instruments, contracts, regulations, advertising and marketing codes of practice in any of the jurisdictions where Ads are displayed;
(c) the Customer Content does not contain any material that is obscene, defamatory or contrary to any applicable law or regulation and does not give access via hyperlinks to any property containing material that is obscene, defamatory or contrary to any applicable law or regulation;
(d) the Customer has obtained and paid in full for all necessary consents, licences, and permissions to advertise on the Site(s);
(e) the Customer will and has complied with all necessary requirements, including obtaining all necessary consents, in order to comply with the Data Protection Laws, and its provision of Customer Data, and Genius Sports’ use thereof pursuant to the terms hereof, does not violate any third party right. For the avoidance of doubt, Genius Sports will not check or verify these consent records but assume that the Customer is managing their consents in accordance with the Data Protection Laws;
(f) if the Customer Content contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or copy by which any living person is or can be readily identified, the Customer warrants that the Customer has obtained full consent in writing from such living person to make use of such name, representation and/or copy;
(g) the Customer Content contains no viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
(h) the Customer is and shall be solely responsible for fulfilling and dealing with any orders or enquiries relating to the goods, services or promotion to which the Ads and/or Customer Content relates;
(i) the Customer will not sub-license, transfer, encumber, sell, rent or otherwise provide access to the GSM Service (or any part thereof) and/or the GSM Technology (or any part thereof) to any third party;
(j) the Customer will not reproduce, disclose, decompile, disassemble, reverse engineer, modify or create derivative works from the GSM Service (or any part thereof) or use the GSM Service (or any part thereof) for any purpose other than as set forth in this Agreement;
(k) the information provided by the Customer in the Pre-Contract Questionnaire is true and accurate and the Customer shall promptly inform Genius Sports if any of such information ceases to be true and accurate;
(l) the Customer will not (and will not attempt to) in any way access, use or copy any part of the GSM Service and/or GSM Technology (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the GSM Service (or any part thereof) or otherwise permit access to the GSM Service (or any part thereof) by a competitor of Genius Sports;
(m) neither the Customer nor any of its Associates, nor any of their respective beneficial owners, directors, or officers, nor to the Customer’s knowledge any agent or employee thereof:
(i) is nor in the past five (5) years has been a Sanctioned Person;
(ii) has transacted any business directly or knowingly indirectly with any Sanctioned Person;
(iii) has otherwise violated Sanctions; nor
(iv) will, directly or indirectly, use the proceeds of this Agreement or lend, contribute or otherwise make available such proceeds to or for the benefit of any Sanctioned Person or in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity, including any party to this Agreement.
19.3 Genius Sports undertakes to use reasonable endeavours to use reasonable skill and care in carrying out all its obligations under this Agreement as well as maintaining the availability of the GSM Service during the Term, but does not represent, warrant or undertake that the GSM Service is entirely error-free or that it will be available (in whole or in part) at all times. Genius Sports expressly disclaims all statutory and/or implied warranties.
19.4 The Customer will fully indemnify and keep Genius Sports and its directors, officers and employees fully indemnified against all actions, proceedings, costs (including legal fees), damages, expenses, fines, losses (including loss of profits) penalties, claims (including any relating to Data Protection Laws), demands and liabilities directly or indirectly suffered or incurred by Genius Sports (or its directors, officers or employees) howsoever arising from: (i) any alleged or actual breach by the Customer of clauses 17,18 and/or 19.2(a); (ii) the display of any Ad(s) on any Unapproved Sites (provided that such display was requested by the Customer); (iii) the Customer’s alleged failure to pay any fees for rights, including public performance, guild fees, or other fees associated with Ads or Customer Content; and (iv) the use of any content or technology, other than an Ad or Customer Content, provided by the Customer, or anyone acting on its behalf in the performance of the Campaign Order Form (“Customer Representatives”). Further, the Customer shall be responsible for compliance with the terms of this Agreement by its Customer Representatives in connection with this Agreement, and the Customer’s indemnification obligation above shall extend to any acts, omissions, services and deliverables of its Customer Representatives.
19.5 The Customer will provide Genius Sports with full co-operation in defending any claim or complaint concerning the Customer Content including providing evidence in support of advertising claims and copies of documentation evidencing the clearance of relevant underlying third party proprietary rights.
LIMITATION OF LIABILITY
20.1 To the maximum extent permitted by applicable law, neither Party shall be liable for any special, indirect, incidental, consequential, punitive or exemplary damages in connection with the Agreement, even if said Party has been advised of the possibility of such damages. Subject to clause 20.6, each Party’ liability under this Agreement, for whatever cause, whether in contract or in tort, or otherwise, will be limited to general/direct money damages and shall not exceed an amount equal to the Fees set out in the relevant Campaign Order Form.
20.2 Neither Party shall have any liability for any failure or delay in performing its obligations under this Agreement resulting from any event beyond the reasonable control of that Party including fire, flood, insurrection, war, terrorism, earthquake, power failure, civil unrest, explosion, embargo and strike.
20.3 The Customer acknowledges that the provision of the GSM Service is not subject to any performance guarantees or promises including ranking positions on internet search engines or the number of searches, visitors or click-throughs.
20.4 Genius Sports is unable to ensure or guarantee the security of information transmitted over the Internet. Any information or data transmitted across networks not owned and/or operated by or on behalf of Genius Sports (including the Internet and the Customer’s network(s)) through the use of or in connection with the GSM Service is at the Customer’s risk.
20.5 The Customer acknowledges and accepts the risk that third parties may generate impressions, clicks or other actions affecting the charges under the Agreement for fraudulent or improper purposes. Genius Sports shall have no responsibility or liability to the Customer in connection with any third party click fraud or other improper actions that may occur.
20.6 Any limitations of liability in this Agreement shall not apply to:
(a) payment of the Fees to Genius Sports (any payments of which shall not be taken into account when assessing the Customer’s liability to Genius Sports under clause 20.1);
(b) wilful default;
(c) fraud;
(d) death and/or personal injury;
(e) indemnities provided under this Agreement; or
(f) any other liability which cannot legally be limited.
CONFIDENTIALITY AND ANNOUNCEMENTS
21.1 Subject to clauses 21.2 and 21.3, each Party undertakes that it will not at any time disclose to any person not explicitly mentioned in this Agreement, except its professional representatives or advisors or as may be required by law or any legal or regulatory authority, the terms and conditions of this Agreement or any confidential information concerning the business or affairs of the other Party (including the other Party’s Associates) which is disclosed to it by the other Party. If such disclosure is required by law or any legal or regulatory authority, the Party required by the authority shall give the other Party written notice of such disclosure as soon as possible prior to making the disclosure and upon request, shall assist the other Party in obtaining a protective order or other relief.
21.2 The Customer acknowledges Genius Sports’ right to publicise this Agreement. The Customer agrees to support Genius Sports in publicising this Agreement for marketing and investor relations purposes through the issue of joint press releases, and any other marketing activity reasonably requested by Genius Sports.
21.3 Without limitation to clause 21.2, either Party may, after consultation with the other Party (to the extent that such consultation is practicable), make an announcement concerning this Agreement if required by: (i) law; or (ii) any securities exchange or regulatory or governmental body to which that Party is subject, wherever situated, whether or not the requirement has the force of law.
NOTICES
22.1 Any notice or other communication given to a Party under or in connection with this Agreement shall be in writing and shall be: (i) delivered by commercial courier to the address of the other Party set out in the Campaign Order Form; or (ii) sent by e-mail to the e-mail address of the Party set out in the Campaign Order Form.
22.2 Any notice or other communication given or made under this Agreement shall, in the absence of earlier receipt, be deemed to have been received as follows: (i) if delivered by commercial courier, at the time at the time the notice is left at the proper address; or (ii) if sent by email, at the time of transmission, provided that a notice deemed to have been received on a day which is not a Business Day, or after 18:00 hours in the place of receipt, shall instead be deemed to have been received on the next Business Day at the commencement of normal business hours in the place of receipt.
ASSIGNMENT AND DELEGATION
23.1 A Party shall only be entitled to assign its rights under this Agreement with the prior written consent of the other Party, except that Genius Sports shall be entitled to assign its rights under this Agreement without consent to an Associate or a purchaser of all or a substantial part of its assets, business or undertaking.
23.2 Genius Sports may delegate the performance of any of its obligations hereunder to third parties without the Customer’s consent, provided however that Genius Sports shall remain liable in contract for the performance of the GSM Service notwithstanding such delegation.
GENERAL
24.1 Genius Sports reserves the right to amend these Ts&Cs from time to time.
24.2 Genius Sports shall notify Customer of any significant changes to these Ts&Cs. The Customer’s failure to communicate any objection to the amended Ts&Cs within thirty (30) days of the notice shall constitute agreement to the new Ts&Cs.
24.3 Genius Sports (and/or its Associates) shall have the right to place cookies (or other tracking technology) on the Customer’s digital properties for marketing (and associated analytics) purposes to track and collect information for the purposes of identifying individual visits to the Customer’s digital properties (“Visitor Data”). The Parties agree Visitor Data shall include without limitation device information (including identifiers and operating system information), browser information, cookie ID, email address, new/return visit, IP location, referring page and section/page URL viewed. Customer agrees to provide facilities (including a consent management platform) and take all necessary steps (including without limitation providing users with all required information, collecting all necessary consent, and providing the opportunity to withdraw consent) to allow Genius Sports to collect Visitor Data and place cookies (or other tracking technology) on Customer’s digital properties for use pursuant to this clause in full compliance with Data Protection Laws. Customer undertakes to cooperate with Genius Sports, and to make any changes as may be required from time to time, in order to ensure that the Visitor Data is and continues to be collected in full compliance with Data Protection Laws.
24.4 This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
24.5 No delay or failure of either Party in enforcing against the other Party any term or condition of this Agreement, and no partial exercise by either Party of any right hereunder, shall be deemed to be a waiver of any right of that Party under this Agreement.
24.6 This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, shall give or be construed to give any person other than the Parties any legal or equitable rights hereunder.
24.7 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the State of New York, without reference to conflicts of laws principles. Each Party irrevocably agrees that the courts of Manhattan, New York shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
24.8 No variation of this Agreement or of any of the documents referred to herein shall be valid unless it is in writing and signed by or on behalf of each of the Parties.
24.9 If any provision of these Ts&Cs is held by a court of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect.
24.10 Clauses 11, 12, 19.4, 19.5, 20, 21, 23.1 and 24.5 – 24.10 (inclusive) and any other clause that by implication is intended to survive, shall survive termination or expiry of this Agreement.
SCHEDULE 1
Additional Push Notification Service Terms
Third Party Platform Provider Messaging Requirements. The Customer shall comply with all messaging and related requirements imposed by third party handset platform providers (e.g. Apple, Google). Genius Sports will not be in breach of these Ts&Cs or otherwise liable or responsible in any way if any third party platform provider rejects any message submitted to the Push Notification Service by the Customer for failure to conform to such provider’s requirements.
Relevant Customer Data.
“Relevant Customer Data” means all data that the Customer uploads to the Push Notification Service or otherwise makes available via the Push Notification Service, which may include message content, device token information used for authentication and/or lists of Customer apps and related certificates. In each case, Genius Sports acknowledges and agrees that the Customer owns and retains all right, title and interest in and to all Relevant Customer Data uploaded to or generated by the Push Notification Service. The Customer hereby covenants that it is solely responsible for all Relevant Customer Data, regardless of whether such data is uploaded directly by Customer or by Genius Sports at the direction of Customer and acknowledges and agrees that Genius Sports has no control over the content of Relevant Customer Data and will not monitor such content.
The Customer will establish the scope of access by any end user or third party to Relevant Customer Data; provided that such terms conform to and/or do not conflict with these Ts&Cs (in no event will any end user have any rights in, or have access to, the Push Notification Service that are greater than the rights granted to, or the access to the Service permitted to, the Customer). Further, the Customer must obtain any and all necessary end user and other third party consents to its collection, processing and use of Relevant Customer Data via the Push Notification Service.
Customer’s Warranties. The Customer represents and warrants as follows with respect to Relevant Customer Data and its use of the Push Notification Service:
(a) the Customer has all rights necessary to provide, access and modify the Relevant Customer Data, including all rights to enable Genius Sports to provide the Push Notification Service and fulfil its obligations under this Agreement and for the Customer’s end users and other third parties to access and use the Relevant Customer Data in accordance with these Ts&Cs;
(b) none of the Relevant Customer Data violates any applicable laws or regulations, including laws or regulations regarding the transmission of technical data, protection of data privacy or prohibition of harassment, defamation or other torts; and
(c) the Customer will not, and will not permit any other end user or other third party to upload, post, email, transmit or otherwise make available via the Push Notification Service any material containing a software virus or other malicious code designed to interrupt, destroy or limit the functionality of any software, hardware or telecommunications equipment.
Availability and Use of Service; Ongoing Support and Maintenance.
Notwithstanding anything to the contrary in these Ts&Cs, the Customer’s sole remedy and Genius Sports’ sole liability for any unavailability of the Push Notification Service, whether due to maintenance downtime or for any other reason, will be for Genius Sports to use reasonable endeavours to restore availability of the Push Notification Service as soon as reasonably practicable. Genius Sports does not guarantee availability of the Push Notification Service.
Genius Sports’ Licence to Use Customer Data to Provide the Service.
5.1 Licence Grant. Except as otherwise set forth in this clause 5, as between Customer and Genius Sports, the Customer will have sole control over any and all Relevant Customer Data that the Customer uploads to, or otherwise makes available via, the Push Notification Service. The Customer hereby grants to Genius Sports a non-exclusive, non-transferable, fully paid and royalty-free, worldwide licence to access, use, reproduce and distribute the Relevant Customer Data solely on or in conjunction with the Push Notification Service to enable Genius Sports to provide the Push Notification Service. The Customer acknowledges that the Push Notification Service, including the processing and transmission of any Relevant Customer Data, may involve transmissions over various networks and devices and changes by Genius Sports to conform and adapt to the technical requirements of any such connecting networks or devices and the Customer hereby consents to such transmissions and changes.
5.2 Removal of Relevant Customer Data. The Customer warrants that Relevant Customer Data or other information provided by the Customer and available via the Push Notification Service does not violate these Ts&Cs, or applicable laws or regulations and/or does not consist of or contain inappropriate content or content otherwise in breach of Genius Sports’ commercial standards and agrees any such Relevant Customer Data or other information should be removed by Genius Sports without undue delay. By way of example only, inappropriate content may include activities harmful to Genius Sports or its other customers, employees, consultants, vendors and/or business relationships.
5.3 Relevant Aggregated Data. Genius Sports may use, reproduce, modify and create derivative works from and distribute or otherwise exploit anonymous usage data derived in the aggregate from Relevant Customer Data provided by or generated on behalf of all Genius Sports’ customers, including the Customer (collectively, “Relevant Aggregated Data”) for the purpose of insights into messaging usage. Genius Sports will ensure that any identifying features of the Customer, or any of its end users, are deleted from the Relevant Aggregated Data before Genius Sports utilizes such Data for any purpose.
5.4 Customer’s Backup of Relevant Customer Data. The Customer acknowledges and agrees that Genius Sports has no obligation to store or maintain Relevant Customer Data on the Push Notification Service. Further, the Customer is solely responsible for the backup of any and all Relevant Customer Data provided to Genius Sports or generated via the Push Notification Service and any related information and other materials. Genius Sports will not be liable for any loss or corruption of Relevant Customer Data or any consequential loss suffered by the Customer as a result.
Warranty Disclaimer. The Customer acknowledges that: (i) Relevant Customer Data will involve transmission over the Internet and over various networks, only part of which may be owned and/or operated by Genius Sports; and (ii) Relevant Customer Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Genius Sports is not responsible for any Relevant Customer Data that is delayed, lost, altered, intercepted or stored during the transmission of any data across networks not owned and/or operated by or on behalf of Genius Sports, including the Internet and the Customer’s network(s).
SCHEDULE 2
Additional Paid Social Media MarketingPlatform Terms
Definitions.
“Cloud ServicePlatform Data” means audio, text, photos, pictures, graphics, comments, and other content, data (including personal data/sensitive personal data) or information that Customer uploads, stores, transmits, submits, exchanges and/or makes available to or via the Cloud Service; and
“Cloud Service” means the Paid Social Marketing Service and the Cloud Platform.
Cloud Service. The Platform
2.1 Customer shall not (or attempt to): (i) access and/or use the Cloud Service the Platform (or any part thereof) for the purposes of building a competitive product and/or service; (ii) copy the features and/or UI/UX of the Platform Cloud Service (or any part thereof); or (iii) use the Platform the Cloud Service (or any part thereof), or permit the Platform Cloud Service (or any part thereof) to be used, for the purposes of product evaluation, benchmarking and/or other comparative analysis intended for publication without Genius Sports’ prior written consent.
2.2 Genius Sports does not represent, warrant or undertake, nor provide any assurances that: (i) the use of the Platform Cloud Service (or any part thereof) will be uninterrupted, bug-free, fault-free and/or error-free; or (ii) any result and/or operation (in each case, expected and/or intended) can be achieved. The Platform Cloud Service is provided on an ‘as-is’ basis and ‘as available’.
Platform Cloud Service Data.
3.1 The Customer warrants that the Platform Cloud Service Data does not, shall not and will not include content that is unlawful, hateful, abusive, obscene, harmful, threatening, defamatory, obscene, infringing, harassing, offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or age or in a way that is otherwise illegal and/or causes damage or injury to any person and/or property, and/or infringes a person’s rights (including Intellectual Property Rights and/or privacy rights).
3.2 Without affecting any other right or remedy available to Genius Sports, if the Customer breaches paragraph 3.1 above, Genius Sports has the right to: (i) remove the relevant Platform Cloud Service Data from the PlatformCloud Service; and/or (ii) immediately suspend the Customer’s access and/or use of the Platform Cloud Service without giving notice to the Customer.
SCHEDULE 3
F2P Services
In the case of any conflict between this Schedule 3 and the Ts&Cs, this Schedule 3 shall prevail.
Interpretation and Definitions
1.1 Where any capitalised term used in this Schedule 3 is not defined in this Schedule 3, the definition set out in the Ts&Cs shall apply.
1.2 The definitions in this clause apply in this Schedule.
Acceptance: the acceptance or deemed acceptance of a F2P Product by the Customer pursuant to clause 5.
Acceptance Tests: the tests to be carried out on a F2P Product as set out in clause 5 and as described in the F2P Product’s Specification.
Ad: programmatic advertising communicated to Users by electronic distribution systems embedded within the F2P Products (in accordance with the Specification) which may include banners, videos, and other forms of advertising.
Additional Charges: any additional charges that Genius Sports may charge if the Customer requests any Bespoke Services or a variation to the Services.
Additional F2P Services: services to be provided in addition to the Integration Services set out in the Specification, and/or the provision of the F2P Services set out in the Specification as may be agreed between the Parties from time to time and which may include Bespoke Services.
Bespoke Services: any non-standard services which Genius Sports agrees to provide to the Customer in a separate document which will be dated and signed by each of the authorised representatives of the Parties.
Betting Purposes: any form of betting or gambling activity (involving a bet or a stake) (including by means of pool betting, pari mutual betting, lotteries, spread betting, betting exchanges and other direct wagering) where anything of value is staked and any ancillary services including without limitation risk, trading and pricing services. For the avoidance of doubt, “Betting Purposes” does not include F2P Games.
Data: any data or information, in any form or format, including interim, processed, compiled, summarized, or derivative versions of such data or information that may exist in any system, database, or record collected pursuant to the performance of the Total Services provided herein.
F2P Game: a game or product where a User does not have to provide any fiat or commodity to participate or play.
F2P Product: each product described in the Specification to be provided by Genius Sports for the Customer in accordance with this Schedule.
Integration F2P Services: services to be provided in addition to the F2P Services and/or the provision of the Additional F2P Services, as detailed in the Specification.
Materials: the content provided to Genius Sports by the Customer from time to time for incorporation in a F2P Product, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips, data feeds, statistics, trademarks and text.
Specification: the detailed specifications for the F2P Product as set out in Attachment 1 to the Campaign Order Form.
Sponsorship: (i) brand sponsor display placements (which may include, without limitation, “Presented By:/Brought to you by” placements in the header and footer on all pages, placements in the court view hoardings in team view, name sponsorship within the site name and metadata, display placements in social sharing assets); and/or (ii) custom brand activations (which may include, without limitation, custom splash modals, sponsored game functionality (e.g., re-naming the Captain functionality), special sponsored offers for Users, contextual betting odds widgets, hardcoding of sponsor placements in ad slots) each of which may be included in the F2P Products (in accordance with the Specification).
Third Party F2P Products: those third party software products incorporated into an F2P Product by Genius Sports (if any), as set out in the Specification.
Total Services: collectively, the F2P Services, Integration Services and/or the Additional Services as applicable.
User: a user of a F2P Product and/or a user of an application facilitated by a F2P Product.
Scope of the Services
2.1 In consideration for payment of the Fees, Genius Sports shall provide the Customer with the:
(a) F2P Services in accordance with the Specification;
(b) Integration F2P Services in accordance with the Specification; and
(c) Additional F2P Services (if any).
2.2 If the Customer requests any Bespoke Services or a variation to the F2P Services, Genius Sports shall consider such request and, if such request is acceptable to Genius Sports, notify the Customer in writing of its agreement and any Additional Charges payable by the Customer.
Grant of Licence by Genius Sports
3.1 Genius Sports hereby grants to the Customer an irrevocable, world-wide, non-exclusive licence for the duration of the Term to use the F2P Product and any Genius Sports Intellectual Property Rights associated therewith for the purpose of the operation of the F2P Services in accordance with this Schedule and according to the Specification.
3.2 All Intellectual Property Rights in the Total Services, each Specification, and F2P Product, excluding the Materials, arising in connection with this Agreement shall be owned by Genius Sports.
Supply of Materials
4.1 The Customer shall deliver the Materials to Genius Sports in the electronic file format specified in the Specification or such other format as is otherwise mutually agreed upon by the Parties in good faith, in writing (email being sufficient).
4.2 Any effort required to convert or input the Material not provided in accordance with clause 4.1 shall be charged as Additional F2P Services on a time and materials basis as agreed between the Parties.
Implementation and Acceptance of F2P Product
5.1 Genius Sports will use all reasonable endeavors to deliver the F2P Product in accordance with the timeline or any dates for delivery indicated within the Specification.
5.2 Each Party shall appoint a project manager who shall: (a) provide professional and prompt liaison with the other Party; and (b) have the necessary expertise and authority to commit the relevant Party.
5.3 The Customer acknowledge that due to the nature of the Total Services, any dates for delivery in this Agreement (including any Attachments to the Campaign Order Form) are estimates only, and are not deadlines, of the essence or required delivery dates.
5.4 The following terms apply if Acceptance Testing is part of the Specification:
(a) Once Genius Sports have completed the implementation and Integration Services of a F2P Product in accordance with the Specification, if applicable, Genius Sports shall run the Acceptance Tests. The procedure set out in this clause 5 shall be repeated in respect of any further Additional F2P Services agreed by the Parties from time to time.
(b) The Acceptance Tests shall test compliance of a F2P Product with its Specification. If required, the form and detail of such tests is set out in the Specification.
(c) Acceptance of a F2P Product shall be deemed to have taken place upon the occurrence of any of the following events:
(i) the F2P Product has passed the Acceptance Tests; or
(ii) Customer unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven (7) Business Days from the date on which Genius Sports is ready to commence running such Acceptance Tests or retests.
(d) If applicable, Genius Sports shall notify Customer when the tests have been passed and provide the results of the Acceptance Tests to Customer in writing.
(e) If any failure to pass the Acceptance Tests results from a defect which is caused by the Customer act or omission, or by one of the Customer sub-contractors or agents for whom Genius Sports have no responsibility (“Non-Supplier Defect”), the F2P Product shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. Genius Sports shall provide all assistance reasonably requested by the Customer to remedy the Non-Supplier Defect by supplying Additional F2P Services or products. Genius Sports will notify the Customer in advance of the Fees payable in respect of such Additional F2P Services and obtain Customer consent to such Fees prior to providing the Additional F2P Services.
Advertising and Sponsorship
6.1 If the Specification states that the F2P Products include Ads and/or Sponsorships, the following terms and conditions of this clause 7 apply. If there is a conflict between the terms of this clause 7 and the terms of the Specification, the Specification shall prevail.
6.2 Genius Sports shall own, control, and retain all revenue from the sale of any Ads and/or Sponsorships in the F2P Products. At any time throughout the Term, Genius Sports (in its sole discretion) may grant to (or revoke such grant to) Customer a license to the Ads and/or Sponsorships and/or the revenue associated therewith (as applicable).
6.3 Customer (acting reasonably) may request the removal of any specific Ads and/or Sponsors and/or any of the advertisers and/or sponsors associated therewith (as applicable) (“Blacklisted Material”), and Genius Sports shall remove such Blacklisted Material from the F2P Products.
Third Party F2P Products
The Third Party F2P Products shall be supplied in accordance with the relevant licensor’s standard terms. Any licence fees payable in relation to such Third Party F2P Products are included in the Fees set out in the Campaign Order Form.
Customer Warranties and Obligations
8.1 The Customer represent, warrant, and undertake that:
(a) the Material does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and that the Customer own the Materials or otherwise have the right to include the Materials in the F2P Products and the Total Services; and
(b) the Customer has obtained any authorizations necessary for integration of the F2P Products with other third party applications.
8.2 The Customer represent, warrant and undertake to Genius Sports that the Customer and/or the Customer Associates will not utilize the F2P Products and/or Total Services:
(a) in or provide (or otherwise make available) the F2P Products and/or Total Services to anyone in a jurisdiction where it is illegal or otherwise unlawful for Genius Sports to provide, or for the Customer to utilize (or otherwise make available), the F2P Products and/or Total Services (whether to residents, citizens or otherwise); and/or
(b) for Betting Purposes.
8.3 Without prejudice to any other right that Genius Sports may have (under this Agreement or pursuant to applicable law), Genius Sports may terminate this Agreement with immediate effect, by serving notice, if Genius Sports have a reason to believe that the Customer is in breach of clause 7.1 above. The Customer agrees to indemnify, defend and hold harmless Genius Sports, Genius Sports Associates and either’s respective shareholders, employees, directors and officers from and against all loss, damage and expense (including reasonable legal and other professional costs) incurred or suffered by any of them based upon, relating to or arising from, any and all claims in connection with a breach by the Customer of clause 7.1 above.
8.4 The Customer must inform Genius Sports in advance and in writing of any licensing or other regulatory obligations that apply and that may change in any territory that applies to this Schedule. The Customer will be responsible for any changes or additional Fees in relation to those obligations. Genius Sports shall be entitled to terminate this Agreement (without prejudice to its other rights and remedies) immediately on written notice if the Customer materially violate this clause 7.4.
8.5 Without prejudice to any territorial restrictions contained in this Agreement, no Total Services shall be provided by Genius Sports and/or Genius Sports Associates to the Customer in any jurisdiction with a supplier licensing regime (including but not limited to the United States and Canada) applicable to the Total Services unless Genius Sports and/or Genius Sports Associates and the Customer have obtained the necessary licences required by the Relevant Regulatory Authority to operate in the relevant jurisdiction. Should any term of this Agreement be considered illegal or inconsistent with applicable law or any licensing obligations imposed by the Relevant Regulatory Authority, then such term(s) shall be severed or amended in such manner as to render the remainder of this Agreement valid and enforceable.
Genius Sports Warranties
9.1 Genius Sports represent and warrant that Genius Sports shall perform the Services with all commercially reasonable care and skill.
9.2 Genius Sports represent and warrant that each F2P Product will perform in accordance with its Specification for the duration of the Term set out in the Specification. If an F2P Product does not perform in accordance with its Specification, Genius Sports shall, for no additional charge, carry out any reasonable work necessary in order to ensure that the F2P Product complies with its Specification.
9.3 The representations and warranty set out in clauses 8.1 and 8.2 shall not apply to the extent that any failure of a Product to perform in accordance with its Specification is caused by any Materials.
9.4 If applicable, and unless otherwise agreed between the Parties or in the Specification, Genius Sports will provide support to browsers and devices that represent more than 5% of the general market in the territory, provided they are no more than 5 years old.
9.5 Genius Sports warrant that to the best of its knowledge, the F2P Products do not and will not infringe, or be misappropriations of, the Intellectual Property Rights of third parties, provided, however, that Genius Sports shall not be deemed to have breached such warranty to the extent that: (i) the Customer or the Customer’s agents have modified the F2P Product in any manner; (ii) a Product incorporates unauthorized third party materials provided by the Customer, through framing or otherwise; or (iii) the Materials breach third party Intellectual Property Rights in any manner whatsoever.
9.6 To the extent that they cannot be excluded, this Schedule sets out the full extent of each Party’s obligations and liabilities in respect of this Schedule. All conditions, warranties or other terms concerning this Schedule, including, without limitation, warranties of merchantability and fitness for a particular purpose, which might otherwise be implied into this Schedule or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
Materials and User Content
10.1 Genius Sports shall update each F2P Product with Materials as required by the Customer from time to time and as agreed in the Specification. The Customer shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (“Inappropriate Content”).
10.2 Genius Sports shall grant the Customer access to the server that hosts the F2P Product in order to update information held on or in a F2P Product.
10.3 Genius Sports shall only include Materials in or on a F2P Product. The Customer acknowledge that Genius Sports have no control over any utilization of a F2P Product by Users and do not purport to monitor the User content utilized by a F2P Product. Genius Sports reserve the right to remove content from any F2P Product where Genius Sports reasonably suspect such content is Inappropriate Content. Genius Sports shall notify the Customer promptly if Genius Sports become aware of any allegation that any content on an application utilizing the F2P Product may be Inappropriate Content.
10.4 With respect to any third party action or claim brought against Genius Sports, the Customer shall indemnify Genius Sports against all damages, losses and expenses arising as a direct result of any action or claim that any User content utilized by any F2P Product constitutes Inappropriate Content.
User Data
11.1 So that Genius Sports may provide Customer with marketing and services and to enhance its sponsorship opportunities, Customer agrees that Genius Sports shall use tracking technology to collect and use Data that can be directly or indirectly attributed to a User or a User’s computer or device (the “User Data”). For purposes of the Data Protection Laws, the Parties acknowledge that each is a separate and independent controller (as defined in the Data Protection Laws) of the User Data. Customer shall obtain all User consents and allow Users to withdraw such consents, and both Parties shall cooperate to ensure that each Party complies with Data Protection Laws regarding such Party’s collection and processing of User Data.
Change Control Procedures
12.1 The Parties shall discuss in good faith any material change to this Schedule or the Specification (“Change”) proposed by either party and such discussion shall result in either:
(a) a written request for a Change by the Customer;
(b) a written recommendation for a Change by Genius Sports; or
(c) if neither party wishes to submit a request or recommendation, the proposal for the Change will not proceed.
12.2 Where a written request for a Change is received from the Customer, Genius Sports shall, unless otherwise agreed, submit a Change control note (“CCN”) to the Customer within five (5) Business Days from the date of receipt of such request for a Change (or such other period as agreed), or inform the Customer that Genius Sports are not able to facilitate such Change.
12.3 A written recommendation for a Change by Genius Sports shall be submitted as a CCN direct to the Customer at the time of such recommendation.
12.4 Each CCN shall contain:
(a) the title of the Change;
(b) the originator and the date of the request or recommendation for the Change;
(c) the reason for the Change;
(d) the full details of the Change, including any specifications and user facilities;
(e) the additional Fees, if any, payable in respect of the Change;
(f) a timetable for implementation, together with any proposals for acceptance of the Change;
(g) the impact, if any, of the Change on other aspects of this Agreement, including:
(i) the Charges;
(ii) the contractual documentation; and
(iii) staff resources;
(h) the date of expiry of validity of the CCN (which shall not be less than five (5) Business Days); and
(i) provision for signature of the CCN by the Customer and Genius Sports.
12.5 For each CCN submitted, the Customer shall, within the period of validity of the CCN as set out in paragraph (iii):
(a) evaluate the CCN, and as appropriate either:
(iv) request further information; or
(v) approve the CCN; or
(vi) notify Genius Sports of the rejection of the CCN; and
(b) if approved, arrange for two copies of the approved CCN to be signed for and on behalf of the Customer and Genius Sports. The signing of the CCN shall signify acceptance of a Change by both the Customer and Genius Sports.
12.6 Once signed by the Customer and Genius Sports in accordance with paragraph 10.4(i) above, the Change shall be immediately effective and will be incorporated into this Agreement.