Terms and Conditions - Between The Lines

General Terms

Last Modified: 5/21/2018

Welcome to Between the Lines, a product of Between the Lines, LLC. Between the Lines helps youth athletes improve their performance and technique through live, on-line instruction with professional athletes.

This website is operated by Between the Lines. Throughout the site, the terms “we”, “us” and “our” refer to Between the Lines. Between the Lines offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

All users of products and services provided by Between the Lines, LLC, must be over the age of eighteen (18) or have received permission from a parent or legal guardian and that guardian must agree to the terms and conditions stated in this agreement. The Client must be the participant over the age of 18 or the parent or legal guardian of the participant.

THIS MASTER SOFTWARE LICENSE AGREEMENT is a legally binding contract that you are accepting and agreeing to be bound by as of the date of your signed Proposal, Work Order, License Agreement, or your first use Between the Lines’ services (“Effective Date”). This agreement is made and entered into by and between Between the Lines, LLC., a Missouri corporation, doing business as Between the Lines (“BTL”), located at 911 Washington Avenue, Suite 728, St. Louis, MO 63101 and the YOU, the Client (“Client”) for its benefit and the benefit of its parent, and their respective direct and indirect subsidiaries and affiliates (each individually, a “Party,” and collectively, the “Parties”) and includes the General Terms and all Schedules, Attachments and Exhibits (collectively, the “Agreement”). PLEASE READ THIS MASTER SOFTWARE LICENSE AGREEMENT (“AGREEMENT” OR “TERMS”) CAREFULLY BEFORE USING BTL’S WEBSITE, TAKING A BTL LESSON, OR ATTENDING A BTL EVENT OR SHOWCASE. These Terms are a legally binding contract between Between the Lines, LLC. (“BTL”) and “Client”. Between the Lines, LLC, provides the Services (as defined below) to you subject to and conditioned upon your acceptance of these Terms. BY ACCESSING AND USING THE SERVICES IN ANY WAY YOU ARE “ACCEPTING” AND AGREEING TO BE BOUND BY THESE TERMS, INCLUDING BUT NOT LIMITED TO THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. By signing the applicable Order Form, you have agreed to be bound by all the terms and conditions of this Agreement and any other terms set forth in the Order Form, which is hereby made a part of this Agreement. This Agreement replaces and supersedes any prior terms and conditions or agreements between Client and BTL with respect to Client and Client’s Authorized Users’ use of the Services. BTL may update and change any or all of these Terms, including but not limited to the fees and charges associated with the use of the Services. If BTL updates or changes these Terms, BTL will post the updated Terms at betweenthelines.pro/Terms. The updated Terms will become effective and binding on the fourteenth (14th) day after they are posted. When we change these Terms, we will modify the “Last Modified” date on the web address stated above. We encourage you to review these Terms periodically.

BY USING ANY SERVICE OR SOFTWARE PROVIDED BY BTL, CLIENT AGREES THAT THEY HAVE HAD SUFFICIENT TIME TO READ THIS ENTIRE DOCUMENT. CLIENT HAS READ AND UNDERSTOOD IT, AND CLIENT AGREES TO BE BOUND BY ITS TERMS.

1 SaaS (Software as a Service) Terms

1.1 DEFINITIONS:

“Authorized User” means a representative of the Client that has been given purchased, login credentials to access BTL software.

“Deliverables” means BTL’s proprietary software product, access to BTL trainers, access to BTL Showcases and events, access to BTL’s database of athletes, instructor, and coaches.
“Documentation” means the online instruction manuals that accompany the Software as accessed by the Client.

“Intellectual Property Rights” means any U.S. or foreign patent rights, copyrights, trade secrets, trade names, trademarks, service marks, moral rights, and any other similar property rights, including the Software and Documentation.

“Order Form” means the form, document, or web page, potentially filled out by client to request goods or services from BTL.

“Software” means BTL’s proprietary software product, which is made available solely via the Internet from supported web browser versions. Supported web browser versions may change from time to time.

“BTL Confidential Information” means that information (excluding Client’s data, confidential information and customer information) disclosed by BTL to Client, or otherwise obtained by Client, in connection with the Software or the services to be provided pursuant to this Agreement, which relates to the Software or BTL’s past, present, and future research, development and business activities. Examples of such Confidential Information include, but are not limited to, pricing policies, market analyses or projections, consulting and sales methods and techniques, programs, routines, subroutines, translators, compilers, assemblers, operating software, object or source codes, updates thereto and related items, including but not limited to specifications, layouts, and other like materials and documentation, together with all information, data and know-how, technical or otherwise, included therein manuals, print-outs or masters and duplicates. Confidential Information shall include any information treated or otherwise designated as a trade secret under applicable law, but shall not include any information which is previously known without obligations of confidence, or, without breach of this Agreement, is publicly disclosed in a lawful manner, or that is rightfully received from a third party without obligations of confidence.

“Client Confidential Information” means that information disclosed by Client to BTL or otherwise obtained by BTL, including Client customer information.
“De-identified activity” is the process by which a collection of data is stripped of information which would allow the identification of the source of the data. Common strategies for de-identifying datasets are deleting or masking personal identifiers.

“SaaS” stands for (“Software-As-A-Service”) Software that is rented rather than purchased. Instead of buying software and paying for periodic upgrades, SaaS is subscription based, and all upgrades are provided during the term of the subscription. When the subscription period expires, the access to the software is no longer valid.

1.2 SOFTWARE USAGE:

Subject to the terms in this Agreement, BTL grants to Client a limited, non-exclusive, non-transferable and non-sublicenseable access to use and access the Software for Client’s internal use. For use of the product, Services, Software, Documentation, Service, and platform, Client user pays a fee listed in the Proposal or Order Form. There is no local software installed on Client’s computers. The SaaS user does not possess SaaS intellectual property, but accesses it remotely through a Web browser, it pays for access to, rather than use of, the Intellectual Property (“IP”). Client shall be solely responsible for any authorized or unauthorized access to the Software and/or Deliverables using such usernames and passwords created by Client, assigned to Client by BTL, or adopted by Client, and any actions taken thereunder. Client shall comply with any and all local, state, federal or other laws applicable to the use or disclosure of any data input into or output from the Software and/or Deliverables. Client shall limit use of access to the Software and/or Deliverables solely to those of its employees or representatives whose duties require such use and access and shall undertake best efforts to ensure that BTL’s Confidential Information and the BTL Intellectual Property are kept secure.

1.3 DOCUMENTATION LICENSE GRANT:

Subject to the terms in this Agreement, BTL grants to Client a non-exclusive, non-transferable license to use and make copies of the Documentation for internal use, archival purposes and for training and education, of Client’s employees and representatives.

1.4 PROHIBITIONS:

Under no circumstances may Client modify, decompile, reverse compile, disassemble or reverse engineer the Software or Deliverables, or grant any other person or entity the right or access to do so, without the advance written consent of BTL. Except as expressly authorized by this Agreement, Client shall not sublicense, assign, transfer, display, distribute, rent, lease or unbundle the Software or Deliverables or any portion thereof to any third party. Client may not use any interface other than that contained within the Software or Deliverables to transfer data into the database portions of the Software or Deliverables without BTL’s prior written approval.

1.5 SOFTWARE SUPPORT:

In consideration of and subject to payment of the license fee(s) specified in Schedule A, BTL agrees to provide Client the Software Support Services and to perform certain maintenance and support obligations according to the terms and conditions set forth herein.

1.6 TITLE:

Title and ownership to the Software, source code and Documentation, and all related Intellectual Property Rights contained therein or related thereto, vest solely and exclusively with BTL and are and shall be considered BTL Confidential Information. BTL shall own any corrections, modifications, programs, enhancements, suggestions, updates, upgrades, information and work product conceived, created or developed by any party under this Agreement related to the Software, Documentation or other BTL Property. Client acknowledges that BTL has expended a significant amount of time and energy in the creation of the valuable BTL Property and shall take no actions that may detrimentally affect such BTL Property. Client shall not allow any third party to use or view the Software or Documentation without BTL’s prior written authorization. Except as expressly provided herein, Client acquires no right, title or interest therein or thereto to any BTL Property. Client acknowledges that BTL shall own all copyrights and other intellectual property (whether preexisting or newly developed) in and to the Software and/or Documentation, including without limitation, any deliverables (“Deliverables”), excluding any Client data or Client Confidential Information. BTL grants to Client a limited, non-exclusive, non-transferable and non-sublicenseable license to use the Deliverables for its own internal business purposes as long as this Agreement remains in effect. Client shall not sell, transfer, use, reproduce, edit or amend the Deliverables other than as expressly provided in this Agreement.

1.7 RESTRICTIONS:

Unless otherwise agreed to in this Agreement, Client agrees it will not: (a) sell or lease any or all of the Software, source code, Documentation, BTL Confidential Information or BTL Intellectual Property Rights (collectively, “BTL Property”); (b) provide, transmit, disclose, divulge, or make available to, or permit use of the BTL Property by any third party or entity or machine; or (c) install, provide as a service, bundle, disclose, copy, use, or make the BTL Property available for use, or otherwise utilize any or all of the BTL Property in any manner that is not explicitly authorized in this Agreement; or (d) allow any third party or entity to take BTL lessons, attend showcases, or events.

1.8 CONFIDENTIAL INFORMATION:

During the course of performance of this Agreement, either party may disclose to the other certain confidential information, including BTL Confidential Information and Client Confidential Information (as defined in section 1.1). The receiving party shall maintain the secrecy of all such Confidential Information disclosed to it pursuant to this Agreement. The receiving party shall not use, disclose or otherwise exploit any Confidential Information for any purpose not specifically authorized pursuant to this Agreement. All files, lists, records, documents, drawings, documentation, end-user materials, specifications, equipment and computer programs that incorporate or refer to any Confidential Information shall be returned, deleted or destroyed by the receiving party promptly upon termination or expiration of this Agreement. Confidential Information may be disclosed if produced in compliance with any court or administrative order or other legal process or to a regulator, provided, however, that the receiving party (unless prohibited by law) gives the disclosing party reasonable notice that such Confidential Information is being sought by a third party, so as to afford the disclosing party the opportunity to limit or prevent such disclosure.

1.9 NOTIFICATION:

In the event that Client has knowledge of any misuse or infringement of any BTL Property or BTL Confidential Information, Client shall promptly notify BTL of such determination, discovery or notification. Client shall not take any legal action relating to the protection or defense of any BTL Property or BTL Confidential Information without the prior written approval of BTL.

2 Payment

2.1 GENERAL:

Upon execution of this Agreement and receipt of access to the Software by Client, all license and maintenance fees are due and payable in full as set forth in Schedule A (the “Fees”). Any amounts due under this Agreement shall be paid immediately following the month receipt of an invoice from BTL. If Client does not comply with BTL’s payment terms (approved by Client in Section A), BTL may declare Client in default, suspend further access to the Software and/or Deliverables or provision of any services and/or terminate this Agreement at BTL’s sole option and pursue any or all of the following remedies: (i) collect interest at the lower of the rate of 0.5% per month or the maximum interest rate under applicable law on all invoices past due by more than thirty (30) days; (ii) declare all unpaid balances, including interest, immediately due and/or (iii) any other remedies available at law or in equity. Such Fees do not include any applicable taxes or duties, including without limitation, state and local use, sales and property taxes and duties.

2.2 REIMBURSEMENT OF EXPENSES:

Unless otherwise noted in a SOW, Client shall reimburse BTL for any reasonable out-of-pocket expenses actually incurred by BTL and approved in advance by Client relating to BTL’s performance of its obligations under this Agreement.

2.3 TAXES:

Client shall be responsible for and pay all taxes, duties, levies, tariffs or similar charges of any kind (including withholding or value added taxes) imposed by any authorized federal, state, or other governmental entity for all software or services provided under this Agreement, excluding any taxes or duties on the income of BTL. If BTL is required to pay any amounts or tax on payments made under this Agreement, BTL may increase any fees accordingly. Client shall hold BTL harmless from all claims and liability arising from Client’s failure to support or pay any such taxes, including duties, levies, tariffs or other similar charges, except as provided herein.

3 Alliance Relationship

3.1 MANAGEMENT:

Each Party shall pay its own fees, costs and expenses associated with the management of the Agreement and any related activities.

3.2 ADDITIONAL SERVICES:

Any additional services, not otherwise set forth or referenced herein, shall be provided by BTL under separate signed Client Consulting Agreement and Work Order and mutually agreed to in advance by the parties.

3.3 CONTENT:

During the term, subject to the other Party’s prior written approval, a Party may publish marketing content or links describing the activities described in this Agreement, as well as the other Party’s logo (text and graphics), trademarks, service names or other related graphics (“Marks”). BTL may use the Party’s logo, name, likeness, and video content when displaying existing customer relationships. All uses of Party’s logo (text and graphics), trademarks, service names or other related graphics (“Marks”) are subject to prior written approval by the other Party. Each Party’s Marks shall at all times vest exclusively to such Party. Before a Party can use the other Party’s Marks, they must request and strictly abide by the other Party’s branding requirements, including, but not limited to the location, display, context, size and color of the Mark. Neither Party shall use the other Party’s Marks in any manner reasonably likely to dilute or disparage such Marks.

Client gives BTL, its assigns, licensees, and legal representatives the irrevocable right to use photographs or video in all forms and media and in all manners, including composite, for advertising or marketing for publication or any other lawful purposes, and Client waives any right to inspect or approve the finished product, including written copy, internet, etc., which may be created in connection therewith.

4 Term and Termination

4.1 TERM:

This Agreement shall become effective on the Effective Date and shall continue in full force for the time period stated on the Sales Proposal or the Order Page (“The Initial Term”). At the end of the Initial Term, the Agreement shall automatically renew for additional time period equal to that which was stated on the Sales Proposal or the Order Page (each, a “Renewal Term” and together with Initial Term, the “Term”) unless a Party provides 60-day notice of its intent to terminate the Agreement prior to the end of the applicable Initial Term or any Renewal Term. The term of this Agreement commences on the Effective Date and continues until all Subscription terms expire or are otherwise terminated. Notwithstanding the foregoing Client may terminate the Agreement at any time during the initial period or any renewal period, upon sixty (60) days written notice to BTL.

4.2 TERMINATION FOR CAUSE:

Either Party may terminate this Agreement if any of the following events occur: (a) failure to pay fees that are not under good faith dispute and is not cured within fifteen (15) days following written notice of the Party’s failure to pay fees; (b) a Party is in material breach of a non-monetary term, condition or provision of this Agreement that is not cured within thirty (30) days following written notice of the breach; or (c) a Party (i) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or is in the process of submitting to the direct control of a trustee, receiver or similar authority, or (ii) becomes subject to any bankruptcy or insolvency related proceedings under federal or state statutes which are not rescinded within sixty (60) days. Notwithstanding anything contained herein to the contrary, BTL may terminate this Agreement immediately for Client’s breach or threatened breach or violation of sections 1.2, 1.3, 1.4, 1.6, 1.7, 1.8, and 3.3.

In regards to BTL Strength and Conditioning, Either party will have the right to terminate the contract by giving at least 90 days‘ notice in writing to the other party to expire at the end of the initial period or at any time after that.

4.3 EFFECT OF TERMINATION:

Upon the termination or expiration of this Agreement for any reason, (a) Client’s license(s) and or access to the Software, BTL Confidential Information, Documentation and Deliverables shall immediately and automatically terminate, Client shall cease all access to and use of the Software, Documentation and Deliverables, and Client shall not thereafter use, advertise, or display any BTL Intellectual Property, (b) Client shall immediately return to BTL all BTL Intellectual Property and any other property, equipment and materials provided to Client by BTL (whether modified or unmodified), or immediately destroy such property at BTL’s sole option, (c) each party shall promptly remove from its web site any links or other references to the other party’s site, products or services, and (d) each Party shall certify its compliance with this Section to the other Party in writing. In the event this Agreement is terminated for any reason other than BTL’s breach of the Agreement, BTL shall be entitled to retain all prepaid amounts and Fees.

4.4 SURVIVAL:

Notwithstanding any termination of this Agreement, Sections 1.4, 1.6, 1.7, 1.8, 4.3, 4.4, 5.4, 7.1, 7.2, and all of Section 8, shall survive termination of this Agreement indefinitely. All other rights and licenses granted hereunder will cease upon termination.

5 Warranties and Disclaimer

5.1 WARRANTIES:

For the period of time that this Agreement remains in force, BTL warrants to Client that: (i) the Software and Documentation, as provided to Client, do not infringe upon any United States copyright, patent, trade secret (ii) to the best of BTL’s knowledge, the Software will not contain any Trojan horses, works, viruses or other disabling devices, and (iii) the Software, as designed, will not violate any federal, state, or local law or regulation, (v.) the Software shall have a documented uptime of 99% uptime except for routine maintenance or upgrade outages, and (vi.) BTL will perform Services in a commercially reasonable manner in accordance with industry standards.

5.2 CONFORMITY WITH SPECIFICATIONS:

BTL does not warrant to Client that use of the Software will be uninterrupted, error free or will meet all of Client’s requirements. To the extent the Software fails to substantially conform to the Documentation, BTL shall have one hundred twenty (120) days from Client’s notification to correct any material nonconformities discovered or replace the non-conforming Software. In the event BTL is unable to fix or replace the Software, in Client’s sole discretion, Client shall be entitled to a refund of all prepaid license fees paid to BTL related to the nonconforming Software. At which time the client indicates the malfunction has been resolved or fixed, any future reports of specified malfunction will result in BTL being granted an additional one hundred twenty (120) days from notification to correct the malfunction.

5.3 WARRANTY EXCLUSIONS:

The remedies in Sections 5.1 and 5.2 are available only if: (i) Client promptly notifies BTL in writing of nonconformities within a seven-day period (7) of the occurrence of the non-conformity; (ii) BTL’s examination of the media or Software discloses that such nonconformities exist; and (iii) the Software was only used or modified in accordance with the Documentation and was not subjected to negligence or computer or electrical malfunction.

5.4 DISCLAIMER OF WARRANTY:

WITH THE EXCEPTION OF THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 AND SECTION 5.2, THE SOFTWARE AND DELIVERABLES AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND BTL HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE AND DELIVERABLES OR ANY SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTY, GUARANTEE, OR ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE OF THE SOFTWARE AND DELIVERABLES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE, INCLUDING COMPLIANCE WITH ANY FEDERAL, STATE OR LOCAL LAWS, RULES OR REGULATIONS GOVERNING CLIENT’S BUSINESS. BTL PROVIDES NO GUARANTEE OR WARRANTY WITH REGARD TO THE SOFTWARE’S ABILITY TO ENFORCE, MAINTAIN, OR ADHERE TO REGULATORY GUIDELINES, REGULATIONS, RULES, OR LAWS. BTL DOES NOT WARRANT THAT THE SOFTWARE AND DELIVERABLES WILL BE ERROR-FREE IN ALL CIRCUMSTANCES. CLIENT ACKNOWLEDGES AND AGREES THAT CERTAIN DATA IS PROVIDED BY CLIENT AND OTHER SOURCES, AND BTL DOES NOT VERIFY, ERROR-CHECK OR WARRANT THE ACCURACY OR FITNESS OF ANY SUCH INFORMATION. THE SOFTWARE AND DELIVERABLES IS NOT A BACKUP SERVICE FOR STORING CONTENT OR OTHER DATA, AND BTL SHALL HAVE NO LIABILITY REGARDING ANY LOSS OF DATA. CLIENT SHALL BE SOLELY RESPONSIBLE FOR CREATING BACKUPS OF ANY DATA PROVIDED. BTL MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY OR LIABILITY WITH REGARD TO ANY RELATIONAL DATABASE SOFTWARE OR SERVERS, OR ANY THIRD-PARTY HARDWARE, EQUIPMENT OR SOFTWARE WITH WHICH THE SOFTWARE AND DELIVERABLES MAY BE REQUIRED TO COMMUNICATE OR OPERATE.

5.5 LIQUIDATED DAMAGES:

BTL disclaims warranty and may have other protections from a claim that are not provided in this Agreement. In the event that a valid claim is brought, the maximum that may be recovered from BTL is equivalent to a one-year service credit, or the annual amount of compensation paid to BTL.

6 Indemnification and Limited Liability

6.1 BY CLIENT:

Client will indemnify, defend and hold BTL and its affiliates, subsidiaries, directors, officers, employees, agents, and representatives harmless for all costs, expenses, damages, and liabilities, including, but not limited to, compensatory damages, enhanced damages, reasonable attorneys’ fees, and other losses (“Losses”), and will pay the costs and damages made in settlement or awarded as a result of, any third party action brought against BTL based on an allegation that the Client Confidential Information or Client data infringe on a third-party patent, trademark or copyright or involve misappropriation of any trade secret or other intellectual property, if Client is notified promptly by BTL in writing of any such action or allegation of infringement or misappropriation, and if Client shall have had sole control of the defense of any such action and all negotiations for its settlement or compromise; provided, however that Client shall not enter into any settlement or compromise that imposes any obligations on BTL or any of its affiliates or authorized users without first obtaining BTL’s prior written consent, which shall not be unreasonably withheld. Indemnification required herein shall include reasonable attorneys’ fees unless BTL elects to have any of its counsel participate after Client has assumed defense of BTL as provided herein, for which BTL shall pay its own costs. Client intends, understands and agrees that its sole and exclusive remedy for any intellectual property infringement is contained in this Section 7.2 and BTL intends, understands and agrees that Client’s only liability is defined in this Section 7 for any such intellectual property infringement. The covered Losses include any costs or losses caused by the entry of an injunction, including any costs associated with posting a bond during appeal, replacement costs, or business interruption losses.

CLIENT shall indemnify and hold BTL harmless from and against any and all claims, damages, liabilities, losses and expenses (including reasonable attorneys’ fees, costs and expenses), however caused, and which arise from the commission of a willful or negligent act, or the willful or negligent failure to act, in connection with the performance of its duties hereunder.

6.2 BY BTL:

BTL shall defend, indemnify, and hold harmless Client and its affiliates, subsidiaries, directors, officers, employees, agents, and representatives from and against any and all Losses arising out of or connected with any third-party Infringement Claim based on the authorized use of BTL’s services, products, programs, systems, and/or materials (“BTL’s Product”). “Infringement Claim” means any claim or action asserting that Client infringes, violates, or misappropriates any United States copyright, patent, trademark, or trade secret. The covered Losses include any costs or losses caused by the entry of an injunction, including any costs associated with posting a bond during appeal, replacement costs, or business interruption losses.

BTL shall indemnify and hold Client harmless from and against any and all claims, damages, liabilities, losses and expenses (including reasonable attorneys’ fees, costs and expenses), however caused, and which arise from the commission of a willful or negligent act, or the willful or negligent failure to act, in connection with the performance of its duties hereunder.

6.3 LIMITATION ON LIABILITIES:

EXCLUDING BTL’S INDEMNITY OBLIGATIONS UNDER SECTION 6.2, UNDER NO CIRCUMSTANCES SHALL BTL BE LIABLE TO CLIENT OR TO ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, ANY SERVICES PROVIDED HEREUNDER, THE SOFTWARE AND DELIVERABLES OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, CLIENT’S USE OR INABILITY TO ACCESS AND USE THE SOFTWARE AND DELIVERABLES, ANY LOSSES ARISING OUT OF OR RELATED TO CLIENT’S FAILURE TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, RULES OR REGULATIONS, CLIENT’S WILLFUL OR NEGLIGENT ACT, OR THE WILLFUL OR NEGLIGENT FAILURE TO ACT, IN CONNECTION WITH THE PERFORMANCE OF ITS DUTIES HEREUNDER, ANY CHANGES TO OR INACCESSIBILITY OF THE SOFTWARE AND DELIVERABLES, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR THE ACCURACY OF ANY DATA OR INFORMATION PROVIDED BY OR THROUGH THE SOFTWARE AND DELIVERABLES, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE AND EVEN IF BTL WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT, DESPITE THE LIMITED REMEDY PROVIDED HEREIN, BTL IS FOUND LIABLE FOR DIRECT DAMAGES, IN NO EVENT SHALL BTL’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CLIENT WITHIN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR BTL TO PROVIDE AND FOR CLIENT TO OBTAIN ACCESS TO THE SOFTWARE AND DELIVERABLES FOR THE SPECIFIED FEES.

6.4 ACCESSIBILITY:

NOTWITHSTANDING THE FOREGOING, CLIENT UNDERSTANDS AND AGREES THAT, BY ITS VERY NATURE, A WEBSITE BASED SERVICE CANNOT BE ABSOLUTELY PROTECTED AGAINST INTENTIONAL OR MALICIOUS INTRUSION ATTEMPTS. FURTHERMORE, BTL DOES NOT CONTROL THIRD PARTY OR CLIENT DEVICES, SYSTEMS AND COMPUTERS, OR THE INTERNET OVER WHICH CLIENT MAY CHOOSE TO SEND CONFIDENTIAL INFORMATION AND CANNOT, THEREFORE, ABSOLUTELY PREVENT SUCH INTERCEPTIONS OF COMPROMISES TO SUCH INFORMATION WHILE IN TRANSIT TO AND FROM BTL. THEREFORE, BTL HEREBY MAKES NO ABSOLUTE GUARANTEE AS TO SECURITY, INTEGRITY OR CONFIDENTIALITY OF ANY INFORMATION TRANSMITTED TO BTL. BTL CANNOT AND DOES NOT GUARANTEE THE ABSOLUTE SECURITY OF ELECTRONIC COMMUNICATIONS OR TRANSMISSIONS SINCE ANY TRANSMISSION MADE OVER THE INTERNET BY ANY ORGANIZATION OR ANY INDIVIDUAL RUNS THE RISK OF INTERCEPTION.

6.5 APPLICATION SECURITY:

BTL shall at all times employ all commercially reasonable efforts, consistent with technology, physical protection measures, processes and standards of practice that are in accordance with industry accepted standards used or observed by comparable suppliers of similar services/applications, which standards shall in no event be less than reasonable standards of care in all the circumstances to protect the security and integrity of the Software or SaaS. At a minimum, BTL agrees to the following as it relates to the Application:

6.5.1 BTL shall immediately and fully inform Client of all high or critical security-related issues discovered or brought to BTL’s attention. BTL will track all security issues uncovered during the entire lifecycle, whether a requirements, design, implementation, testing, deployment, or operational issue. The risk associated with each security issue will be evaluated, documented, and reported to Client as soon as possible after discovery. Remediation of security issues will be provided in a timely manner appropriate to the risk. BTL will appropriately protect information relating to security issues and its associated documentation, to help limit the likelihood that vulnerabilities in operational Application are exposed. BTL shall use all commercially reasonable efforts consistent with sound software development practices, taking into account the severity of the risk, to resolve all high or critical security-related issues as quickly as possible. BTL will be responsible for verifying that all members of the development team have been trained in secure programming techniques.

6.5.2 BTL must present Client with a certification package that consists of the security documentation created throughout the development process. The package should establish that the security requirements, design, implementation, and test results were properly completed and all security issues were resolved appropriately. BTL ensures they follow secure development practices which are periodically tested.

6.5.3 BTL ensures that the Application can operate on and is tested against the latest patches for the supporting operating systems required by BTL and stated in the applicable order. BTL guarantees that all critical and high exploit patches, released by supporting operating system vendors will be tested and certified within 30 days of patch notification, and all medium exploit patches will be tested and certified within 45 days of patch notification. BTL also ensures that their application will continue to be certified with future operating system upgrades of the then-current supported operating systems.

6.5.4 BTL shall perform post production security scans to ensure that the Application or code was not modified from what was tested in test. Documentation of this process will be provided to Client upon request.

6.5.5 Any exchange or transmission of Client’s customers’ data, including exchanges or transmissions to and from 3rd parties (which must also be pre-authorized by Client), must use both file and transmission encryption.

6.5.6 BTL shall maintain a security architecture that includes at a minimum, but not limited to, network firewalls, intrusion detection and prevention systems, endpoint security, anti-virus, web application firewalls, content filtering applications, database monitoring, data leak prevention solutions, SIEM technology, and day zero malware detection and prevention.

6.5.7 BTL warrants that the Application shall not contain any code that weakens the security of the Application, including computer viruses, worms, time bombs, back doors, Trojan horses, Easter eggs, and all other forms of malicious code and that the Application does not contain any flaws described in then-current OWASP Top Ten Most Critical Web Application Vulnerabilities and SANS Top 25 software errors, or most common programming errors.

6.6 ACCESS TO DATA:

Information, such as Client data, which is loaded into the Software or ASP Services database by Client, or information concerning Client and Client’s networks or equipment provided by Client or generated by BTL for the purpose of providing the Service to Client, shall be owned by Client. Client hereby grants an unlimited, unrestricted, worldwide, perpetual, royalty-free license to BTL to receive and use all de-identified activity and reference data associated with the Services and Client’s use of the Software for all purposes permitted by law. Except as otherwise provide herein, BTL shall be permitted to use any Client Confidential Information or Client data.

6.7 WAIVER OF LIABILITY

Client acknowledges and agrees that participating in BTL lessons, showcases, events or other deliverables, has inherent risks. In consideration of the services provided by BTL, their agents, officers, instructors, consultants, employees and persons or entities acting in any capacity on their behalf, Client agrees to the following:

6.7.1 Client agrees that all users of products and services provided by Between the Lines, LLC, must be over the age of eighteen (18) or have received permission from a parent or legal guardian and that guardian must agree to the terms and conditions stated in this agreement. The Client or parent/legal guardian of the above listed minor participant, will be engaging in activities that may involve risk of serious injury which might result not only from my own actions, inactions, or negligence, but from the actions, inactions, or negligence of others or the conditions of the premises or of any equipment used. Further, that there may be other risks not known or not reasonably foreseeable at this time. The risks may include, but are not limited to: nature of the activity, latent or apparent defects of conditions in equipment or property supplied by BTL or other entity; acts of other participants in this activity, employees or agents of BTL; my own physical condition, acts of omissions; conditions of BTL or other facilities and surrounding grounds or terrain and accidents connected with their use; first aid emergency treatment or other services.

6.7.2 Client expressly agrees and promises to accept and assume all the risks existing in this activity. Client’s participation in BTL related activities and services is purely voluntary and Client elects, in spite of the risks, to participate. Client assumes all the foregoing risks and accept personal responsibility for the damages following such injury.

6.7.3 On behalf of Client, Client’s children, Client’s parents, Client’s heirs, Client’s assigns, Client’s personal representatives, Client hereby voluntarily releases, waives, forever discharges, and agrees to indemnify and hold harmless BTL and each of their respective commissioners, directors, consultants, agents, and other employees, its parent, subsidiaries, affiliate, employees, distributors and agents, other BTL service participants, and if applicable, operator or lessors of premises used to conduce the

6.7.4 event/activity, from any and all liability for any and all claims, demands of causes of action which are in any way connected with my participation in this activity or Client’s use of BTL services, events, software, equipment or facilities.

6.7.5 Client hereby certifies that Client has adequate insurance to cover any injury or damage I may cause or suffer while participating in these activities or alternatively Client agrees to bear the cost of such injury or damage. Client further certifies that Client has no medical or physical conditions, which could interfere with Client’s safety in performing these BTL related activities, or else Client is willing to assume and bear the costs of all risk that may be created, directly or indirectly, by any such condition.

6.7.6 Client hereby certify that Client or participant is at least 18 years old, or the parent or legal guardian of the participant under 18, and Client will wear any necessary protective equipment at all times while participating in BTL related activities. Client hereby provides BTL permission to administer basic first aid and authorizes BTL or its agents or employees to contact 911 or other emergency personnel as needed.

6.7.7 Client hereby certifies that Client has been given the Terms and Conditions for the use of BTL services and will adhere to them.

6.7.8 Client gives BTL, its assigns, licensees, and legal representatives the irrevocable right to use photographs or video in all forms and media and in all manners, including composite, for advertising or marketing for publication or any other lawful purposes, and Client waives any right to inspect or approve the finished product, including written copy, internet, etc., which may be created in connection therewith.

6.7.9 By signing this document, Client acknowledges that if anyone is hurt, or property is damaged during participation in BTL related activities, a court of law may find Client to have waived the right to maintain a lawsuit against BTL, their agents, officers, instructors, consultants, employees and persons or entities acting in any capacity on their behalf, on the basis of any claim from which Client has released them from herein.

7 General

7.1 NOTICES:

All notices must be in writing to the address set above and must be: (a) delivered in person; or (b) sent by first-class registered mail, or air mail, as appropriate; or (c) sent by overnight air courier. Notices shall be considered to have been given at the time of actual delivery in person, 3 business days after deposit in the mail, or 1 business day after delivery to an overnight air courier service.

7.2 ASSIGNMENT:

Neither Party shall assign this Agreement without the other Party’s written consent, except that each Party may assign this Agreement in its entirety to any successor in interest to substantially all of its business or assets, whether by merger, reorganization, asset sale or otherwise, but only if the successor in interest agrees in writing to be bound by this Agreement.

7.3 GOVERNING LAW:

This Agreement shall be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Missouri, without reference to its conflicts or choice of law principles. The parties agree that the sole and exclusive jurisdiction and venue for any and all disputes arising under this Agreement shall be in any trial court located in or having jurisdiction over St. Louis County, Missouri. Each of the parties hereby irrevocably submits and consents to personal jurisdiction in the State of Missouri. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. To the extent permissible by law, the Uniform Computer Information Transaction Act will not apply to this Agreement.

7.4 NON-SOLICITATION OF PERSONNEL:

The parties hereto acknowledge that each has invested substantial resources to hire and train its personnel. Each party agrees that, while this Agreement is in effect, and for twelve (12) months thereafter, neither party shall solicit nor hire any employee or contractor of the other to work for their organization as an employee, consultant, or in any indirect capacity, except with the other party’s prior written consent. In the event of a breach of this section, the breaching party shall pay the non-breaching party an amount equal to seventy-five percent (75%) of the employee’s first year compensation.

7.5 INDEPENDENT CONTRACTORS:

The relationship of BTL and Client as established in this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed or implied to the contrary.

7.6 SEVERABILITY:

If any part of this Agreement conflicts with governing law, or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, the remaining terms of this Agreement shall remain in full force and effect.

7.7 NO WAIVER:

The failure of either Party to enforce the provisions of this Agreement shall not be deemed to be a waiver of their right to enforce them.

7.8 FORCE MAJEURE:

Except for the obligation to make payments, where a party cannot perform due to strike, fire, war, riot, flood, earthquake, governmental acts or orders or restrictions, failure of suppliers, act of God or any other reason beyond the control of the non-performing Party, will be excused for a commercially reasonable period of time.

7.9 U.S. GOVERNMENT END USERS:

The Software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” pursuant to 48 C.F.R. 12.212 (Sept. 1995). Where Client is acquiring access to the Software via the Internet on behalf of any United States Government, end users are granted access to the Software pursuant to 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) or as updated by the U.S. government.

7.10 EXPORT RESTRICTIONS:

Client shall comply fully with all United States export laws and applicable export laws of foreign countries, including laws regulating the import of Software and any related amendments (“Export Laws”) to assure that the Software is not exported, directly or indirectly, in violation of the Export Laws. Client shall be responsible for all obligations or costs associated with its import or export of the Software, including, but not limited to, import duties and taxes, customs clearance and transportation. BTL may terminate this Agreement immediately, upon breach by Client of this section.

7.11 EXECUTION:

This Agreement may be executed in counterparts, each such counterpart shall be an original and altogether shall constitute but one and the same document.

7.12 ENTIRE AGREEMENT:

This is the full and final Agreement between the Parties as it relates to the subject matter in it. The Agreement is fully integrated and supersedes all previously related agreements or representations, oral or written. The Parties acknowledge they and their authorized representatives read and understand all of the terms and conditions in this Agreement and agree to be bound to them.

7.13 COUNTERPARTS:

This Agreement may be executed in several counterparts, all of which together shall constitute one agreement binding on all Parties hereto, notwithstanding that all the Parties have not signed the same counterpart. The Parties agree that this Agreement may be exchanged by facsimile, PDF or other electronic means, which upon request of a Party shall be followed up with originals.