Spry License Terms and Conditions

These Spry License Terms and Conditions (the “Agreement) are by and between Spry Payment Systems, Inc. (“Spry”) and Customer. “Customer” means (i) in the case of an individual accepting this Agreement on his or her own behalf, such individual; or (ii) in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement. Spry and Customer may be referred to collectively as the “Parties” and individually as a “Party”. 

Any individual accepting this Agreement on behalf of a company, university or other legal entity represents and warrants that such individual has the right and authority to sign this Agreement on behalf of the company, university or other legal entity and to bind company, university or other legal entity to the terms of this Agreement. Any individual without such authority should not sign this Agreement. 

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 

• 1. Purpose. This Agreement sets forth the terms and conditions under which Spry provides to Customer the Spry products and services (collectively, the “Services”), as described more fully in the applicable order form (the “Order Form”). Spry can be accessed via Spry’s Software-as-a-Service platform (“Spry Platform”). 
• 2. Right to Use the Spry Platform.
  • a. During the Term, Spry hereby grants to Customer non-exclusive, non-sublicensable, non-assignable, royalty-free license(s) in the amount set forth in the Order Form for Customer’s Authorized Users to access and use the Spry Platform and any early versions of software or applications that may include new features or improvements provided by Spry or a third party as agreed to by the Parties in writing or orally (“Beta Features”). Using Beta Features may subject you to the payment of fees. You understand and agree that your use of the Beta Features is voluntary. The Beta Features are provided on an “as is” basis and you acknowledge and agree that all use of Beta Features is at your risk. Certain Beta Features may be subject to additional terms or an agreement. “Authorized Users” mean any individual that Spry and Customer mutually agree may access and use the Spry Platform, up to the maximum number of licenses set forth in the Order Form. Only Customer’s Authorized Users may access and use the Services, and no Authorized User is permitted to share its proprietary credentials with any other person. No other third party shall be permitted to use the Services. Customer shall be liable to Spry for any breach of the Agreement by its Authorized Users. Customer is responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and Authorized User passwords) and files.
  • b. Except as expressly authorized in this Agreement, Customer shall not and shall ensure that Authorized Users do not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise obtain or attempt to create, derive, or obtain the source code of the Services; (ii) modify, enhance or otherwise change the Services or prepare derivative works based on the Services; (iii) copy or otherwise reproduce the Services or any other materials provided in connection therewith; (iv) remove, obscure, or alter any notice of copyright, trademark or other proprietary right appearing in or on any item included with the Services; (v) circumvent or attempt to circumvent any methods employed by Spry to control access to the components, features or functions of the Services, or to prevent unauthorized use of the Services; (vi) use or otherwise exploit the Services for any purpose, commercial or otherwise, other than in connection with the Services and as otherwise authorized in this Agreement; or (vii) use the Services for purposes of competitive analysis or the development of a competing software product
• 3. Ownership. Except for any Customer Confidential Information (defined below) or Customer Data (defined below) contained therein (which, as between Spry and Customer, shall remain the property of Customer), including but not limited to any personal information related to student-athletes, Spry reserves and retains all right, title, and interest in and to all Intellectual Property (defined below) arising out of or relating to Spry, the Spry Platform and/or the services provided by or related to them, including but not limited to any and all Feedback (defined below), algorithms or processes developed by Spry, and all derivatives, modifications, or improvements to any of the foregoing made by or for Spry. If for some reason Spry cannot own any materials provided by Customer or an Authorized User, Customer, on behalf of itself and any Authorized User, grants Spry the perpetual, irrevocable, royalty-free, worldwide, fully paid up right and license to use any content or materials provided by Customer or an Authorized User to improve, enhance, change, or modify the Spry Platform or Spry and/or to create any future software, technology, product and/or service related to, arising from, or connected in any way to the Spry Platform or Spry. Under no circumstance does Customer have any right to the Spry Platform or related technology or software other than as set forth in this Agreement. “Intellectual Property” shall be defined to include, without limitation, any designs, formulas, materials, products, deliverables, work product, developmental or experimental work, computer software programs (including, without limitation, images, text, source code, object code, html code and scripts), databases and other original works, and any upgrades, modifications or enhancements to the foregoing and any related patents, patent applications, copyrights, copyright applications, or trademarks.
• 4. Feedback. Authorized Users shall provide feedback, comments, and suggestions to Spry (“Feedback”), as reasonably requested by Spry, regarding the Spry Platform. For the avoidance of doubt, any feedback, comments, and suggestions provided to Spry by either Customer or an Authorized User, regardless of whether it was solicited by Spry, shall qualify as “Feedback”.  Customer, on behalf of itself and the Authorized Users, acknowledges and agrees that Spry is the exclusive owner of all Feedback and can use the Feedback in accordance with this Agreement. 
• 5. Term; Termination.
  • a. Term: This Agreement shall have an initial term of twelve (12) months (the “Initial Term”) beginning on the date of signing (the “Effective Date”). This Agreement shall automatically renew for twelve (12) months terms (the “Renewal Term(s)”) (the “Initial Term” and any and all Renewal Term(s) together, the “Term”)unless Spry terminates in accordance with this Agreement or Customer submits a written termination notice at least ninety (90) days before the end of the current term (“Notice of Termination”)  .
  • b. Termination:
    • a. Either party may terminate this Agreement upon written notice to the other party if such other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days following notice thereof.
    • b. Spry may terminate this Agreement for convenience at any time during the Term upon thirty (30) days’ written notice. After this Agreement has been in place for a consecutive twelve (12) months, Customer may terminate this Agreement for convenience upon thirty (30) days’ written notice.
  • c. Effect: Upon any expiration or termination of this Agreement, Spry will disable the Services and Customer will have no additional payment obligations after the date of termination or expiration. Further, in the event of early termination of this Agreement, Spry will refund to Customer any fees that Customer paid in advance that were intended to be used to pay for Services set to occur after the termination date.
• 6. Fees. During the Term of this Agreement and subject to the terms set forth herein, Customer will pay Spry the fees agreed to by Customer in the Order Form (the “Fees”) and in accordance with the payment terms set forth herein and in the Order Form. The Fees for the Initial Term are due upon execution of this Agreement. Thereafter, payment will become due at the start of the Renewal Term(s). If Customer fails to provide Notice of Termination at least ninety (90) days prior to the start of a Renewal Term, Customer shall remit to Spry the Fees for the Renewal Term. Without limiting any of Spry’s rights and remedies, any late payment will be subject to late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
• 7. Taxes. With respect to any taxes that Spry is legally or otherwise obligated charge to the Customer, the appropriate amount shall be invoiced to and paid by the Customer.
• 8. Confidentiality
  • a. Definition. “Confidential Information” means any information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information includes, but is not limited to, all technology, software, capabilities, specifications, drawings, program code, personal information about any individual, Customer Data (defined below), designs, models, documentation, components, software, test and development boards, hardware reference code and platforms, architectures, agreement terms, financial and pricing information, business and marketing plans, actual and potential customers and suppliers, the terms of the Agreement, and any other information that the Parties know or should reasonably know to be confidential. Confidential Information shall not include any information that: (i) was in the Receiving Party’s lawful possession prior to the disclosure, as clearly and convincingly corroborated by written records, and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (ii) is lawfully disclosed to the Receiving Party by a third party without actual, implied or intended restriction on disclosure through the chain of possession, (iii) is independently developed by the Receiving Party without use of or access to the Confidential Information, as clearly and convincingly corroborated by written records; or (iv) is required to be disclosed as a matter of law or by order of a court, provided that the Receiving Party provides the Disclosing Party with prior written notice of such obligation to disclose and reasonably assists in obtaining a protective order. 
  • b. Requirements. The Receiving Party agrees that it shall not disclose or use in any way, other than is permitted under this Agreement, the Disclosing Party’s Confidential Information except to its employees or authorized representatives having a need-to-know for the performance of the Agreement, provided that the (i) Receiving Party shall have entered into confidentiality agreements with any such party receiving the Confidential Information and such agreements shall have obligations of confidentiality at least as strict as those herein prior to the disclosure to such recipients; (iii) the Receiving Party shall cause all such recipients to adhere to said confidentiality obligations; and (iv) the Receiving Party shall be solely responsible for any unauthorized disclosure of the Disclosing Party’s Confidential Information. For the avoidance of doubt, Customer shall be solely responsible for the unauthorized disclosure of Spry’s Confidential Information by an Authorized User. Within thirty (30) days of termination of this Agreement or earlier as requested by the Disclosing Party, the Receiving Party shall deliver to Disclosing Party all Confidential Information, or at the Disclosing Party’s election and in accordance with any instructions from the Disclosing Party, destroy all materials, documents and other media (whether maintained electronically or otherwise) containing Confidential Information, together with all copies thereof in whatever form, and shall certify in writing the completion of such return or destruction, as the case may be.
• 9. Customer Data and Data Security.
  • a. The parties shall comply with all applicable data privacy laws, rules and regulations (the “Applicable Data Privacy Laws”).
  • b. Subject to the terms of this Agreement, Customer grants Spry the right to use, in its provision of the Services, any data, information or material that Customer provides or otherwise makes available in the course of using the Spry Platform or Spry (collectively, “Customer Data”). Customer represents and warrants that Customer has obtained any consents necessary under applicable data protection and privacy laws such that Customer can provide Spry with the Customer Data and Spry can use the Customer Data in connection with the Spry Platform, including but not limited to using the Customer Data to provide and improve the Services. Further, Spry may use and disclose Customer Data in an aggregated and anonymized form pursuant to the terms of this Agreement and in accordance with Spry’s Privacy Policy located at https://spry.so/privacy-policy/. 
  • c. If either Party believes that there has been any unauthorized use of, access to, or disclosure of, Customer Data (“Security Incident”), such party must promptly notify the other Party to the extent permitted by law. Each Party will reasonably assist the other party to mitigate any potential damages if a Security Incident occurs. SPRY SHALL NOT BE RESPONSIBLE FOR ANY COSTS OR EXPENSES RELATED TO A SECURITY INCIDENT THAT IS CAUSED BY THE ACTS OR OMISSIONS, MISCONDUCT, NEGLIGENCE, OR FRAUD BY CUSTOMER OR ANY OF ITS EMPLOYEES, AGENTS, CONTRACTORS, OR AUTHORIZED USERS.
  • d. Customer shall not upload to, or in any way engage through, the platform any content or information deemed to be considered ‘Protected Health Information’ (“PHI”) as defined under the Health Information Portability and Accountability Act (“HIPAA”). By accessing or using any part of the Services, you understand that any information that Customer uploads to the Spry Platform is not considered to be PHI, and will only be subject to our Privacy Policy located at https://spry.so/privacy-policy/ and any applicable state laws that govern the privacy and security of such information. Customer shall defend, indemnify and hold harmless Spry from and against any claim, loss, cost, liability or damage (including reasonable attorney’s fees) arising from or relating to the Customer Data uploaded to the Spry Platform. 
• 10. Representation and Warranties; Disclaimer
  • a. Customer represents and warrants that (i) it has all necessary authority to enter into this Agreement; (ii) it has the authority to bind the Authorized Users to the terms of this Agreement; (iii) it shall be solely responsible for the acts and/or omissions related to Customer’s or an Authorized User’s use or misuse of the Services, including but not limited to the use of any Beta Features; (iv) Spry’s use of any Feedback or materials provided by Customer or an Authorized User will not infringe the rights of any third party or otherwise violate any law, rule, statute or regulation; (v) the provision and use of Customer Data as contemplated by this Agreement does not and shall not violate any agreement to which Customer is a party or any applicable law, statute, rule or regulation; (vi) Customer Data and any other materials provided by Customer or any Authorized User will comply with all applicable laws, rules, regulations, and/or statutes, including but not limited to the Family Educational Rights and Privacy Act; (vii) it has all necessary power and authorization to grant to Spry all rights and licenses granted under this Agreement; and (viii) unless otherwise agreed to by the Parties in writing, Customer Data and any other content or materials entered into or inputted into the Spry Platform by Customer, an Authorized User or any other person acting on behalf of Customer will not include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, protected health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act.
  • b. Spry represents and warrants that it has all necessary authority to grant the rights set forth in this Agreement and to enter into this Agreement.
  • c. No Additional Warranties. THE SPRY PLATFORM, INCLUDING ANY BETA FEATURES, AND SPRY ARE PROVIDED “AS IS”, AND SPRY MAKES NO REPRESENTATIONS THAT THE SERVICES WILL BE ERROR FREE . UNLESS OTHERWISE LISTED IN THIS AGREEMENT, SPRY DOES NOT MAKE ANY WARRANTY REGARDING THE SPRY PLATFORM OR SPRY, AND SPRY DISCLAIMS, TO THE EXTENT AUTHORIZED BY LAW, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
• 11. Indemnification. Each Party will defend, indemnify and hold harmless the other Party from and against any claim, loss, cost, liability or damage (including reasonable attorney’s fees) (each, a “Claim”) arising from or relating to any breach or alleged breach of any representation, warranty or other provision of this Agreement. Each party’s indemnification obligations are conditioned on the indemnified party promptly notifying the indemnifying party in writing of any Claim, giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and, at the indemnifying party’s request and expense, assisting the indemnifying party in such defense or settlement. The indemnifying party shall not enter into any settlement which adversely affects any rights of the indemnified party without the indemnified party’s prior written consent.
• 12. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, PUNITIVE, INDIRECT OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SPRY’S LIABILITY TO CUSTOMER ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ITS INDEMNIFICATION OBLIGATIONS, EXCEED $15,000.
• 13. Force Majeure. Except for Customer’s payment obligations, neither party shall be liable for any failure or delay in performing an obligation under this Agreement or loss resulting from a cause which is beyond a party’s control, including but not limited to an act of war or terrorism, a riot, civil disorder, a rebellion, a fire, a flood, an earthquake or similar act of God, a strike, a pandemic, a lockout or similar labor dispute (each, a “Force Majeure Event”). If a Force Majeure Event persists for more than thirty (30) days, either Party may terminate this Agreement and Customer will owe Fees due up until the date of termination.
• 14. Survival; Waiver; Relationship of the Parties. The obligations of the Parties that by their nature would continue beyond the termination or expiration of this Agreement shall survive beyond any such termination or expiration, including but not limited to the Parties’ indemnification obligations and confidentiality obligations. No term or provision of this Agreement will be considered waived and no breach excused unless such waiver or consent is in writing. The parties acknowledge that their relationship is that of independent contractors and nothing contained in this Agreement will be deemed or construed to create a partnership, joint venture or employment relationship.
• 15. Assignment; Change in Control. Customer may not assign any rights or obligations under this Agreement without the prior written consent of Spry.
• 16. Notice. Any notice required under this Agreement shall be delivered to the following: For Spry: Lyle Adams, 524 Broadway, New York, NY 10012, [email protected]; For Customer: To the contact information provided during the sign-up process. Notice will be deemed given and effective when sent via USPS or another commercial carrier with a tracking number and confirmed as delivered or sent by email (with confirmation of a successful send).
• 17. Choice of Law; Dispute Resolution. This Agreement shall be construed in accordance with the laws of the state of New York, except its conflict of law rules. Should a dispute between Spry and Customer arise in connection with this Agreement, Spry and Customer agree to use their best efforts to resolve the dispute through good faith negotiation. If the dispute cannot be resolved through negotiation, Spry and Customer agree to submit the dispute to non-binding mediation in New York City with a mediator chosen jointly and all costs of the mediation shared equally. If the parties agree mutually to waive mediation or if mediation is unsuccessful, such dispute shall be adjudicated in the state or federal courts of New York, and both parties consent to the exclusive jurisdiction of the state and federal courts, as applicable, located in New York City, New York.
• 18. General. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions will remain in full force and effect. This Agreement, including any exhibits, constitutes a single, integrated written contract expressing the entire understanding between the parties and supersedes all prior and contemporaneous representations, discussions, or understandings on the subject matter of this Agreement. Except as otherwise set forth herein, no amendment or modification of this Agreement shall be effective unless in writing and signed by both parties. This Agreement may be executed in two or more counterparts by facsimile and/or electronic copy, and such signatures shall be binding and deemed original. This Agreement may be signed by facsimile or digital signature in one or more counterparts. The headers in this Agreement are for convenience only and do not limit the scope or intent of any provisions of this Agreement.