Customer Terms and Conditions
PLAYBL SERVICES TERMS AND CONDITIONS
These Playbl Services Terms and Conditions incorporate any applicable Order Forms by and between the Customer named therein (“Customer”) and Playbl, Inc. (“Playbl”) (collectively, the “Agreement”). To the extent Customer has chosen particular Services through Playbl’s self-service functionality within the Services, the “Order Form” shall be deemed to include such self-service selections made by Customer using the functionality within the Services and the associated pricing in connection with such self-service selections stated therein.
1. SERVICES AND SUPPORT
1.1 Services Generally. Subject to the terms of this Agreement, Playbl will provide Customer the Services set forth on the Order Form (“Services”) in accordance with the service level terms at https://playbl.com/service-level-terms/ (“Service Level Terms”). Playbl will provide Customer with technical support services in accordance with the Service Level Terms.
1.2 Implementation. Playbl will perform certain implementation services if and only to the extent expressly set forth in the Order Form. Each of Playbl and Customer will fulfill its respective obligations with respect to such services, if applicable, and will cooperate with the other to permit the timely performance of such services. Playbl’s obligations are contingent upon Customer’s timely performance of its obligations, Customer’s reasonable cooperation and any assumptions included in the Order Form or otherwise communicated by Playbl to Customer. All dates and fees for such services are estimates made for project planning purposes only. Any changes to the scope of such services shall become effective only upon the execution of a written amendment of the Order Form by authorized representatives of Playbl and Customer.
1.3 Integration of Non-Playbl Platforms.
(a) Customer may choose to use features within the Services that involve integrations with Third-Party Platforms, and may enable data exchange between the Services and the applicable Third-Party Platform. “Third-Party Platform” means any platform, add-on, service or product provided by any third party that Customer elects to integrate or enable for use with the Services, including Customer’s own systems, software, or infrastructure. Use of Third-Party Platforms is subject to Customer’s agreement with the Third-Party Platform provider and/or compliance with such Third-Party Platform provider’s terms of use, as applicable. Playbl does not make any representations or warranties with respect to any such Third-Party Platforms and does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms use data received from the Services.
(b) The Services may permit Authorized Users (as defined below) to transmit information to and from Third-Party Platforms owned or managed by Customer, including via application programming interface, code snippet or other software, flat file upload, file transfer protocol, or otherwise. Any such Third-Party Platform, or any other Third-Party Platform owned or controlled by Customer that interacts with the Services or any output thereof, is a “Customer System”. Customer acknowledges and agrees that in order to perform the Services, Playbl must be able to, and Customer hereby grants Playbl the right to access, test, and periodically audit any Customer System and its connection to the Services, if applicable. Playbl does not control and has no responsibility or liability whatsoever for Customer Systems, including their security, functionality, operation, availability or interoperability or how Customer Systems, including but not limited to Third-Party Platforms, use or process data received from the Services.
1.4 Hosting and other Providers. In order to provide the Services, Playbl may use third party platform hosting providers and other services providers or affiliates to support the Services in the ordinary course of its business (not specifically for Customer) (“Service Providers”). Playbl reserves the right to engage and change, discontinue or replace a Service Provider from time to time as it deems appropriate, provided there is no material change to, discontinuation or termination of the Services or applicable data protection and IT-security standards related to the Services.
2. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES
2.1 Access. Subject to the terms of this Agreement (including the Order Form) and payment of the Fees, Playbl grants to Customer a limited, revocable, non-transferable, non-exclusive, non-sublicensable right for Customer and its Authorized Users to access and use the Software Subscription Services (as defined in the Order Form) and the associated Documentation only for Customer’s internal business and educational purposes during the Service Term (as defined in the Order Form). The Services may only be accessed by Customer’s students, employees or representatives of Customer authorized by Customer (“Authorized Users”) who (i) have established a valid password and username (“Credentials”), and (ii) have agreed to abide by the terms and conditions of Playbl Acceptable Use Policy at https://playbl.com/acceptable-use-policy/ which is incorporated herein by reference. Customer shall be solely responsible for: (a) all Credentials established by or on behalf of Customer and any Authorized User, (b) verifying the identity of each Authorized User through the use of two-factor authentication and validating use of Credentials by each Authorized User, (c) providing any required parental consents and otherwise complying with all applicable law, including, related to use of the Services by the Authorized Users (including minors), and (d) monitoring Authorized User access to the Service to ensure that only those permitted to access and use the Service do so. Customer shall institute contractual, technological and/or functional procedures and processes as necessary to monitor use of Credentials and to protect and require Authorized Users to protect their Credentials. As between Playbl and Customer, Customer shall assume all responsibility and liability with respect to access and use of the Services by or on behalf of Customer and all Authorized Users, including ensuring compliance with all of the obligations and restrictions set forth in this Agreement and with applicable law. Customer shall promptly inform Playbl of any unauthorized use of the Services or breach of this Agreement or applicable law by Customer or any of its Authorized Users. Playbl shall have the right to access any Customer or Authorized User account in the Services in connection with the provision and support of the Services.
2.2 Use Restrictions. Customer will not, directly or indirectly, and shall not permit any third party, including Authorized Users, to: (i) reverse engineer, decode, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or make any derivative works thereof, (ii) copy, in whole or in part, the Services or any component thereof, (iii) modify, enhance, translate, combine with other programs, or create derivative works based on the Services, (iv) sublicense, sell, rent, lease, transfer, distribute, or use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, (v) use the Services to send spam or otherwise send content in violation of applicable laws, (vi) use the Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material or (vii) remove any proprietary notices or labels. Customer shall not use the Services if and to the extent Customer is legally prohibited to do so. Customer shall not use the Services if Customer is a competitor of Playbl or for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes. In addition, Customer and Authorized Users shall not, directly or indirectly: (a) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services, (b) harvest or collect information about or from other users of the Services, (c) probe, scan or test the vulnerability of the Services, nor breach the security or authentication measures of the Services, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services, or (d) attempt to gain unauthorized access to the Services or its related systems or networks, or (e) create Internet “links” to the Services or “frame” or “mirror” any content therein.
2.3 Usage Limitations. The Order Form may set forth Authorized User limits, data stream limits, and/or other usage limitations, and use of the Services is restricted to such limitations as set forth in the Order Form. Authorized User Credentials may be transferred from one individual person to another but may not be shared or used concurrently by more than one Authorized User at a time. Customer shall permit and hereby permits Playbl to conduct a reasonable audit, upon reasonable notice and during normal business hours, of Customer’s compliance with any usage limits. If Customer’s usage exceeds the limits set forth in the Order Form, Customer will be responsible for paying any additional usage fees applicable to such excessive usage.
2.4 Compliance. Customer represents, covenants and warrants that Customer will use the Services (and will ensure that use of the Services by or on behalf of Customer and Authorized Users is) in compliance with this Agreement, Playbl’s standard published policies then in effect (including the Playbl Acceptable Use Policy) and all applicable laws, rules and regulations, including the Children’s Online Privacy Protection Act, Family Educational Rights and Privacy Act, Pupil Rights Amendment and any other applicable federal, state or local child protection and data privacy laws, guidance, rules and regulations (collectively, “Student Protection Laws”). Customer represents and warrants that Customer is solely responsible for complying with Student Protection Laws and has the authority to provide, and hereby does provide, consent on behalf of all parents or guardians, to the extent applicable, whose children will be accessing the Services for Playbl to collect information from such students for the purpose of providing the Services to Customer. Customer agrees to provide documentation of such consent to Playbl upon request. Additionally, Customer will provide appropriate disclosures to students and parents regarding their use of the Services and collection of student data, and shall provide documentation of such disclosures to Playbl upon request.
2.5 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and related information, and the like (collectively, “Requisites”). Customer shall also be responsible for the Requisites in all respects, including maintaining the security of the Requisites.
2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Playbl may immediately suspend Customer’s and/or any Authorized User’s access to the Services in whole or in part, without liability, if (a) Customer breaches this Agreement, (b) Customer’s and/or its Authorized Users’ actions risk harm to Playbl or other customers or the security, availability or integrity of the Services, (c) Customer, or any Authorized User, is using the Services for fraudulent or illegal activities, (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, (e) Playbl’s provision of the Services to Customer or any Authorized User is prohibited by applicable law, or (f) any third party provider of Playbl has suspended or terminated Playbl’s access to or use of any third-party services or products required to enable Customer to access the Services. Where practicable, Playbl will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, as reasonably determined by Playbl, Playbl will promptly restore Customer’s access to the Services.
3. INFORMATION AND DATA
3.1 Customer Data. As between Customer and Playbl, Customer is solely responsible for the accuracy, completeness, validity, authorization for use (including transmission) and integrity of all Customer Data, regardless of form or format and for maintaining an appropriate backup of such Customer Data. “Customer Data” is the information provided by or on behalf of Customer or any Authorized User to Playbl to enable the provision of the Services, which may include personally identifiable information, student data, and user content. Playbl will only collect Customer Data to the extent necessary to perform the Services and otherwise fulfill its duties and exercise its rights under this Agreement. Customer acknowledges and agrees that (i) Customer will be required to provide certain Customer Data to the Services to enable their operation, and (ii) the Services are designed to act on direction given to it by or on behalf of the Customer, and that Customer is solely responsible for such direction and the results thereof. Customer represents and warrants that Customer has the right to provide all Customer Data to Playbl, including any Customer Data that includes data or information received by Customer from a third party or any Authorized Users (collectively, “Third Party Data”) and has obtained all necessary consent where applicable for the Services to capture and use such Third Party Data pursuant to the terms of Section 3.2 and to perform such actions as the Services may perform. However, “Customer Data” shall not include Playbl’s optional user survey responses, provided that such survey responses are de-identified and do not include personal information.
3.2 License to Customer Data. Customer hereby grants to Playbl and its relevant service providers and subcontractors a limited, nonexclusive, royalty-free, right and license, to access, store, reproduce, display, handle, perform, transmit, test, modify, process, combine with other data, and otherwise use Customer Data (i) for performance of Playbl’s obligations and exercise of Playbl’s rights under this Agreement and (ii) to create derivatives of such data, solely in de-identified and aggregated form (such derivatives, “Aggregated Data”). Playbl shall not use Customer Data to advertise or market to Authorized Users or parents of student Authorized Users. Playbl shall provide Customer copies of all Customer Data currently held by Playbl upon Customer’s reasonable request. Customer agrees that Aggregated Data shall not be considered Customer Data and Playbl shall own all right, title, and interest in all Aggregated Data and in such improvements and derivative works. The Aggregated Data will be deemed Playbl’s Proprietary Information, and Customer acknowledges that Playbl may use the Aggregated Data for any lawful purpose, both during and after the Service Term, including but not limited to (a) for its own internal, statistical analysis, (b) to develop and improve the Services, and (c) to create and distribute reports and other materials regarding use of the Services. Aggregated Data will have all personal identifiers removed and Playbl agrees not to attempt to re-identify any Aggregated Data or transfer any Aggregated Data to another party unless such other party agrees not to attempt to re-identify such Aggregated Data.
4. INTELLECTUAL PROPERTY IN THE SERVICES
4.1 Services. As between Customer and Playbl, Playbl shall own and retain all right, title and interest in and to (a) the Services and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services, implementation services or support, including any of the foregoing developed by Playbl to connect to or receive Customer Data, and (c) all intellectual property rights related to any of the foregoing. Nothing contained herein shall be construed as granting Customer any rights in or to the Services, other than the right to use the Services as expressly stated herein.
4.2 Feedback. The parties acknowledge and agree that Playbl may solicit and Customer may provide to Playbl suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Services (the “Feedback”). Customer hereby assigns to Playbl, all right, title and interest in and to all Feedback and Playbl shall have an unrestricted right to disclose, use and incorporate the Feedback for any lawful purpose without duty or obligation to Customer, and Customer acknowledges that any improvements, modifications and changes arising from or in connection with the its contribution to the Services are the exclusive property of Playbl provided, however, that Playbl will not use Customer’s name in connection with any such use or disclosure. Feedback constitutes Playbl’s Proprietary Information.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS
5.1 Proprietary Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Playbl includes information regarding features, functionality and performance of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information and (iii) to notify the Disclosing Party promptly and in writing of the circumstances surrounding any suspected possession, use or knowledge of any such Proprietary Information or any part thereof at any location or by any person or entity other than those authorized by this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public without a breach by the Receiving Party of the terms of this Agreement, (b) was in its possession or known by Receiving Party prior to receipt from the Disclosing Party, (c) was rightfully disclosed to Receiving Party without restriction by a third party, or (d) was independently developed by Receiving Party without use of or reference to any Proprietary Information of the Disclosing Party.
5.2 Permitted Disclosures. The Receiving Party may disclose the Disclosing Party’s Proprietary Information if required to be disclosed pursuant to administrative or court order, government or regulatory investigation or requirement, applicable laws, or arbitration or litigation arising out of this Agreement; provided, however, that to the extent permissible, the Receiving Party shall, in advance of any such disclosure and unless restricted by applicable laws, promptly notify the Disclosing Party in order to enable the Disclosing Party reasonable time to seek a protective order with respect to the requested information or otherwise challenge or oppose the disclosure requirement.
6. PAYMENT OF FEES
6.1 Fees Generally. Customer will pay Playbl the then applicable fees described in the Order Form for the Services and any implementation services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services requires the payment of additional fees (per the terms of this Agreement or as otherwise set forth within the Services), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Playbl reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer. If Customer believes that Playbl has billed Customer incorrectly, Customer must provide written notice to Playbl specifying the alleged issue no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Prepaid Fees are not refundable. Overdue unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate suspension or termination of the Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Playbl’s net income.
7. TERM AND TERMINATION
7.1 Term. Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form, and shall be renewed as set forth in the Order Form, unless either party provides written notice of non-renewal as set forth in the Order Form.
7.2 Termination for Cause. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party breaches any of the terms or conditions of this Agreement.
7.3 Effect of Termination. Upon termination of this Agreement, Customer will cease using the Services and pay in full for the Services up to and including the last day on which the Services are provided. Playbl has no obligation to maintain, deliver or provide access to Customer Data and Playbl may purge all Customer Data in its possession except to the extent prohibit by applicable law. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification obligations and limitations of liability.
8. WARRANTY AND DISCLAIMER
8.1 Security. Playbl uses industry standard security precautions designed to prevent unauthorized access to the Services and Customer Data. Playbl shall promptly notify Customer of any material unauthorized use of the Services by an unauthorized person or entity that affects the security of the Customer’s Proprietary Information and that is known to Playbl. The parties shall reasonably assist each other in investigating such unauthorized act and take such action as is reasonably necessary to prevent the continuation or recurrence thereof.
8.2 Availability. Playbl shall use commercially reasonable efforts consistent with industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Playbl or by third-party providers, or because of other causes beyond Playbl’s reasonable control. Playbl shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. PLAYBL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DECISIONS MADE BASED ON THE USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND PLAYBL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
9.1 Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE. WITHOUT LIMITING THE FOREGOING, PLAYBL IS NOT LIABLE FOR ANY DAMAGES OR OTHER AMOUNTS IN CONNECTION WITH ANY DISPUTES OR CLAIMS BETWEEN OR AMONG CUSTOMER AND ANY AUTHORIZED USER.
9.2 Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S (AND ITS LICENSORS AND SUPPLIERS’) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO PLAYBL DURING THE TWELVE (12) MONTHS PRIOR TO THE ACT OR OMISSION GIVING RISE TO THE CLAIM.
9.3 Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Sections 2, 3 or 5; or (b) amounts payable under Section 10.
9.4 Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
10. INDEMNITY
10.1 By Playbl. Playbl will defend Customer from and against any third-party claim to the extent alleging that the Services, when used by Customer as authorized in this Agreement, infringes the claimant third party’s registered U.S. patent, copyright or trademark, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Playbl resulting from the claim. In response to an actual or potential infringement claim, if required by settlement or injunction or as Playbl determines necessary to avoid material liability, Playbl may at its option: (a) procure rights for Customer’s continued use of the Services, (b) replace or modify the allegedly infringing portion of the Services to avoid infringement without reducing the Services’ overall functionality or (c) terminate the affected Order Form and refund to Customer any pre-paid, unused Fees for the terminated portion of the applicable Service Term. Playbl’s obligations in this Section 10.1 do not apply (i) to infringement resulting from Customer’s modification of the Services or use of the Services in combination with items not provided by Playbl, (ii) to unauthorized use of the Services, (iii) to infringement arising from a breach by Customer of any provision of this Agreement, (iv) if Customer settles or makes any admissions about a claim without Playbl’s prior consent or (v) claims indemnifiable under Section 10.2. This Section 10.1 sets out Customer’s exclusive remedy and Playbl’s entire liability regarding infringement of third-party intellectual property rights.
10.2 By Customer. Customer will defend Playbl from and against any third-party claim to the extent arising in connection with (a) any Customer Data, including Third Party Data, provided by or on behalf of Customer, (b) Customer’s use of the Services, (c) any failure to secure any required consents from third parties related to Customer Data, including Third Party Data, and (d) any breach by Customer of any provision in this Agreement, and will indemnify and hold harmless Playbl against any damages or costs awarded against Playbl (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from such claims.
10.3 Requirements. The indemnified party shall provide to the indemnifying party: (a) prompt notice of the claim (except to the extent a failure to receive notice does not materially prejudice the defense of the claim), (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services). The indemnified party may participate in a claim with its own counsel at its own expense.
11. MISCELLANEOUS
11.1 Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by applicable law. However, Playbl may include Customer and its trademarks in Playbl’s customer lists and promotional materials but will cease this use at Customer’s written request.
11.2 Export Control Laws. Each party shall comply with the export control laws of the United States which are applicable to the Services, and which may prohibit use of the Services in certain sanctioned or embargoed countries.
11.3 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.4 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Playbl’s prior written consent. Playbl may transfer and assign any of its rights and obligations under this Agreement without consent.
11.5 Entire Agreement. This Agreement together is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. The parties negotiated this Agreement in good faith and at arms-length. Any ambiguities in the language of this Agreement are not to be construed or resolved against either party based on the fact that such party was principally responsible for drafting this Agreement.
11.6 Amendments. Any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Playbl. Nonetheless, with notice to Customer, Playbl may modify any policies referenced herein to reflect new features or changing practices, but the modifications will not materially decrease Playbl’s overall obligations during a Service Term. The terms in any Customer purchase order or business form will not enhance, amend or modify this Agreement and are expressly rejected by Playbl; any of these Customer documents are for administrative purposes only and have no legal effect.
11.7 Waiver. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
11.8 Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Playbl in any respect whatsoever.
11.9 Attorneys’ Fees. Should any dispute arise regarding this Agreement, the prevailing party shall be entitled to receive its reasonable legal fees and costs as awarded by a court of competent jurisdiction.
11.10 Third Party Beneficiaries. This Agreement is for the sole benefit of the parties and their respective permitted successors and assignees.
11.11 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
11.12 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.
11.13 Subcontractors. Playbl may use subcontractors in connection with the provision of the Services. Playbl shall notify Customer of any subcontractor that has access to Customer Data in connection with this Agreement. Playbl remains responsible for such subcontractors’ compliance with this Agreement and for Playbl’s overall performance under this Agreement.
11.14 Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws provisions. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Boston, MA and both parties submit to the personal jurisdiction of those courts. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.