Platform Agreement

About this version

Previous versions: Version 3.0 (February 6, 2026). Every published version is listed in the version history.

Customers with an individually negotiated agreement. Where Customer signed an individually negotiated Cover Page or Order Form before the effective date of this version, that document governs Customer’s use of the Product until Customer accepts this Agreement. When Customer accepts this Agreement, it replaces the framework terms of the prior agreement in their entirety, and only the commercial terms stated in the signed Order Form — fees, Subscription Period, discounts, and any agreed go-live arrangements — continue to apply. Add-ons and separately priced services that Provider first makes available after the effective date of this version are offered only under this Agreement.

Overview

This Agreement is between OpenCourt, Inc. (“Provider”) and the company or person accessing the Cloud Service (“Customer”).

Customer accepts this Agreement in one of two ways, and both have the same effect:

1. By Order Form. Customer signs or electronically accepts an Order Form that incorporates this Agreement by version and URL. The Order Form sets the commercial terms for that Customer.
2. By self-serve acceptance. Customer signs up for the Cloud Service and accepts this Agreement on screen. The Order Form terms below then apply, using the plan Customer selects at purchase.

Order of precedence. Where a signed Order Form exists, it controls over the Order Form terms below to the extent of a conflict. Any term the signed Order Form does not address is supplied by the Order Form terms below. Where Customer accepts by self-serve, the Order Form terms below, the plan Customer selects, and Customer’s sign-up record together constitute the Order Form and Key Terms for that Customer.

Authority. The person accepting this Agreement represents that they are authorized to bind the Customer named on the Order Form or in the sign-up record. If that person accepts on behalf of a company, “Customer” means that company.

Electronic acceptance. Customer agrees that clicking to accept, or typing a name in an acceptance field, is a signature under the U.S. E-SIGN Act and the Texas Uniform Electronic Transactions Act (Tex. Bus. & Com. Code ch. 322), and forms a binding agreement. Provider records the version accepted, the date and time, and the identity of the accepting user, and will supply Customer a copy on request.

Order Form

These terms apply in full where there is no signed Order Form, and fill any gap in one.

Framework

This Agreement consists of these Order Form terms (as varied by a signed Order Form, where one exists), the Key Terms below, and Sections 1 through 15.

Cloud Service

The OpenCourt sports club management cloud software platform, including its web-hosted application, application program interfaces, mobile applications, and related documentation made available by Provider. Where Customer’s subscription includes the branded mobile application add-on, the Cloud Service also includes branded iOS and Android applications as described in Section 14.

Order Date

The Effective Date.

Subscription Period

As specified in Customer’s subscription plan at the time of purchase. Monthly subscriptions renew each calendar month. Annual subscriptions renew every twelve (12) months.

Cloud Service Fees

As specified in Customer’s subscription plan at the time of purchase, in accordance with the pricing published at getopencourt.com/pricing. Provider may update pricing by giving at least thirty (30) days’ notice to Customer (including by email or notification within the Product), and the change will apply in the next Subscription Period.

Payment Process

Customer authorizes Provider to bill and charge Customer’s payment method on file through Provider’s Payment Processor for immediate payment or deduction without further approval. For monthly subscriptions, charges are processed monthly. For annual subscriptions, the full annual amount is charged at the start of each Subscription Period.

Non-Renewal Notice Period

For monthly subscriptions, at least fifteen (15) days before the end of the current Subscription Period. For annual subscriptions, at least thirty (30) days. The Non-Renewal Notice Date under Section 5.1 is the last day of the Non-Renewal Notice Period.

Technical Support

Provider will provide support consistent with Customer’s plan tier as described at getopencourt.com/pricing, and will use commercially reasonable efforts to respond to support requests within two (2) business days. Provider may change the support channels offered with a plan on notice to Customer.

Use Limitations

Customer shall use the Cloud Service solely for the management and operation of Customer’s sports club or facility in the ordinary course of business. In addition, Customer shall not:

• (i) sublicense, resell, time-share, or distribute access to the Cloud Service to third parties;
• (ii) use the Cloud Service to develop a competing product or service;
• (iii) reverse engineer, decompile, or disassemble the Cloud Service;
• (iv) use the Cloud Service to store or transmit material that is illegal, defamatory, or infringes third-party rights;
• (v) attempt to gain unauthorized access to any systems or networks connected to the Cloud Service; or
• (vi) exceed any usage limitations associated with Customer’s plan tier.

Key Terms

Customer: The company or person who accesses or uses the Product.

Provider: OpenCourt, Inc.

Effective Date: The date Customer first accepts this Agreement. A new version of this Agreement amends it; it does not create a new agreement and does not change the Effective Date.

Payment Processor: The third-party payment service provider Provider uses to process payments under this Agreement. Provider may change its Payment Processor on notice to Customer.

Governing Law: The laws of the State of Texas.

Chosen Courts: The state or federal courts located in Austin, Texas.

Covered Claims

Provider Covered Claims: Any action, proceeding, or claim that the Cloud Service, as provided by Provider and used by Customer in accordance with the terms of the Agreement, violates, misappropriates, or otherwise infringes upon a third party’s United States intellectual property rights.

Customer Covered Claims: Any action, proceeding, or claim (1) that the Customer Content, when used according to the terms of the Agreement, violates, misappropriates, or otherwise infringes upon a third party’s intellectual property or other proprietary rights; (2) arising from or relating to Customer’s breach or alleged breach of Section 2.1 (Restrictions on Customer); (3) arising from or relating to Customer’s use of the Cloud Service in violation of applicable law or Applicable Data Protection Laws; (4) arising from or relating to any communication Customer sends, or directs Provider to send, through the Cloud Service, to the extent the claim arises from Customer’s content, recipient lists, consent records, or settings, including claims under the Telephone Consumer Protection Act, the CAN-SPAM Act, Canada’s Anti-Spam Legislation, or the UK Privacy and Electronic Communications Regulations, or from Customer’s failure to provide the notices or obtain the consents required by Section 3.3 (Data Roles); (5) arising from Customer’s facilities, goods, services, memberships, waivers, or any dispute between Customer and its members or end users, including refunds and chargebacks; or (6) arising from Customer’s breach of the Payment Processor’s terms or applicable card network rules.

General Cap Amount: The greater of (a) one-twelfth of the total fees paid or payable by Customer to Provider in the twelve (12) month period immediately preceding the event giving rise to the claim, and (b) the fees payable for one month of Customer’s then-current plan.

Increased Cap Amount: The total fees paid or payable by Customer to Provider in the three (3) month period immediately preceding the event giving rise to the claim.

Increased Claims: (1) Provider’s breach of Section 3.4 (Security Safeguards) or of the CCPA service-provider commitments in Section 3.3 (Data Roles); (2) Customer’s breach of Section 3.2 (Prohibited Data) or of Customer’s obligations under Section 3.3 (Data Roles) to provide notices and obtain consents; and (3) Provider’s indemnification obligations under Section 9.

Unlimited Claims: (1) Customer’s obligation to pay fees; (2) Customer’s indemnification obligations under Section 9; and (3) either party’s fraud or willful misconduct.

Notice Address

For Provider: legal@getopencourt.com

For Customer: The primary email address associated with Customer’s account.

1. Access & Use

1.1 Access and Use

During the Subscription Period and subject to the terms of this Agreement, Customer may (a) access and use the Cloud Service; and (b) copy and use the included Software and Documentation only as needed to access and use the Cloud Service, in each case, for its internal business purposes. If a Customer Affiliate enters a separate Order Form with Provider, the Customer’s Affiliate creates a separate agreement between Provider and that Affiliate, where Provider’s responsibility to the Affiliate is individual and separate from Customer and Customer is not responsible for its Affiliates’ agreement.

1.2 Support

During the Subscription Period, Provider will provide Technical Support as described in the Order Form.

1.3 User Accounts

Customer is responsible for all actions on Users’ accounts and for all Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.

1.4 Feedback and Usage Data

Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS”. Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, develop, and analyze the Product and Provider’s other products and services. Provider may disclose Usage Data that identifies Customer only (a) in aggregated or de-identified form, (b) as permitted by Section 15, (c) to Provider’s service providers, professional advisors, investors, and prospective acquirers under obligations of confidentiality, or (d) with Customer’s consent.

1.5 Customer Content

Provider may copy, display, modify, and use Customer Content only as needed to provide and maintain the Product and related offerings. Customer is responsible for the accuracy and content of Customer Content.

1.6 Machine Learning

Usage Data and Customer Content may be used to develop, train, or enhance artificial intelligence or machine learning models used in Provider’s products and services, including third-party components. Using a model to process Club Data in order to provide the Cloud Service to Customer is not training and is within Customer’s instructions. Provider trains such models only on De-identified Data, and aggregates it where reasonably practicable. Provider will not use message content or free-text fields submitted through the Product to train models. Provider will not attempt to re-identify De-identified Data, and will not disclose it with a means of re-identification. Nothing in this section reduces or limits Provider’s obligations regarding Personal Data that may be contained in Usage Data or Customer Content under Applicable Data Protection Laws. Due to the nature of artificial intelligence and machine learning, information generated by these features may be incorrect or inaccurate. Provider’s rights in Usage Data and De-identified Data are perpetual and irrevocable, and survive termination of this Agreement.

2. Restrictions & Obligations

2.1 Restrictions on Customer

1. Except as expressly permitted by this Agreement, Customer will not (and will not allow anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Product; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product; (vi) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization; (vii) use the Product to develop a competing service or product; (viii) use the Product with any High Risk Activities or with any activity prohibited by Applicable Laws; (ix) use the Product to obtain unauthorized access to anyone else’s networks or equipment; or (x) upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights.
2. Use of the Product must comply with all Documentation and Use Limitations.

2.2 Suspension

If Customer (a) has an outstanding, undisputed balance on its account for more than 10 days after the date payment was due, (b) is in breach of Section 2.1 (Restrictions on Customer), Section 3.2 (Prohibited Data), or Section 10 (Confidentiality), or (c) is using the Product in a way that poses a security risk to the Product or any third party, or that may subject Provider or any third party to liability, then Provider may suspend Customer’s access to the Product. Provider will give Customer notice before suspending access for non-payment. Where the ground for suspension is a security risk or a breach of Section 2.1, 3.2, or 10, Provider may suspend access with or without notice. Provider will reinstate Customer’s access to the Product only if Customer resolves the underlying issue.

2.3 Customer’s Members

Customer will maintain its own terms of sale, membership terms, house rules, and waivers with its members and end users, and is responsible for their content, presentation, and enforceability. Customer will not represent that Provider is a party to, or responsible for, those terms, or that Provider provides the goods or services Customer sells. Provider also makes end-user accounts available to individuals under Provider’s own end-user terms and privacy policy; Section 1.3 applies in addition to, and is not limited by, those terms.

2.4 Consumer Protection and Automatic Renewal

Customer is solely responsible for the terms on which it sells memberships, packages, passes, credits, and other goods and services to its members and end users, including pricing, renewal, cancellation, and refund terms, and for compliance with all Applicable Laws governing those sales, including consumer-protection, automatic-renewal, and negative-option laws. Where Customer configures the Cloud Service to sell a membership or subscription that renews automatically, Customer is responsible for making the disclosures, obtaining the consents, and offering the cancellation methods those laws require, and for configuring the Cloud Service accordingly. Provider supplies the tools; Provider does not set Customer’s offers, prices, renewal terms, or disclosures.

2.5 Stored Value

Where Customer issues credits, gift cards, packages, passes, or loyalty balances through the Cloud Service, those balances are obligations of Customer to its members and end users, and not of Provider. Customer is solely responsible for honoring them, for their terms including any expiration, and for compliance with Applicable Laws governing gift cards, stored value, and unclaimed property, including any escheatment obligations. Provider records those balances as a function of the Cloud Service and does not hold, guarantee, or assume liability for them.

3. Privacy & Security

3.1 Personal Data

This Section 3.1 applies only where the GDPR or the UK GDPR governs Personal Data that Customer submits to the Product. In that case, before submitting such Personal Data, Customer must enter into a data processing addendum with Provider, which Provider will make available on request. Where the parties have a DPA, each party will comply with its obligations in the DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of a conflict with this Agreement as to Personal Data. Until the parties enter into a DPA, and for every other Customer, Section 3.3 (Data Roles) sets out the parties’ data processing terms and no separate data processing agreement is required.

3.2 Prohibited Data

Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product unless authorized by the Order Form or Key Terms.

3.3 Data Roles

This section describes each party’s role under Applicable Data Protection Laws, and is the parties’ data processing agreement except where Section 3.1 applies. Role terms — Controller, Processor, Business, Service Provider — have the meanings given in Applicable Data Protection Laws. Customer is the Controller of Club Data and Provider is the Processor; for purposes of the CCPA, Customer is the Business and Provider is the Service Provider. Provider is an independent Controller of Platform Account Data and of Usage and De-identified Data. The parties do not intend to act as joint controllers, and each remains an independent Controller in respect of its own processing. Platform Account Data and Usage and De-identified Data are not Customer Content; where the same information also exists in Customer’s instance of the Cloud Service as Club Data, that copy is Customer Content. Skill ratings, cross-club profile fields, and community data are Platform Account Data even where Customer or its staff first enter them. Where a single reservation or purchase is recorded both in Customer’s instance of the Cloud Service and in an OpenCourt account, each party is the Controller of its own record. An account created through any surface of the Cloud Service, including a branded application published for Customer, is an OpenCourt account and is subject to Provider’s terms of service and privacy policy. Provider is an independent Controller of the Personal Data it processes to carry out its own obligations in respect of payments, fraud prevention, chargebacks, taxes, accounting, and legal compliance. Provider processes Club Data on Customer’s documented instructions, which include this Agreement and Customer’s configuration of the Cloud Service, and those instructions include operating, securing, supporting, and troubleshooting the Cloud Service; producing analytics and reporting for Customer; improving the Cloud Service, including bug diagnosis and support; and de-identifying, pseudonymizing, or aggregating Club Data. Where the GDPR or UK GDPR applies, only anonymized data becomes Usage and De-identified Data, and pseudonymized Club Data remains Club Data. With respect to Club Data subject to the CCPA, Provider (a) will not sell or share it; (b) will not retain, use, or disclose it for any purpose other than the business purposes specified in this Agreement, or outside the direct business relationship between the parties, except as the CCPA and its regulations permit for a service provider; (c) will not combine it with Personal Data received from another business or collected from Provider’s own interactions with consumers, except as the CCPA permits; (d) will comply with its obligations under the CCPA and provide the same level of privacy protection the CCPA requires; (e) will notify Customer if Provider determines it can no longer meet those obligations; (f) grants Customer the right to take reasonable and appropriate steps to stop and remediate unauthorized use of Club Data; and (g) Customer may take reasonable and appropriate steps to help ensure Provider’s use of Club Data is consistent with Customer’s obligations under the CCPA, which Provider may satisfy by providing an annual written self-certification. Customer will provide the notices and obtain the consents required under Applicable Data Protection Laws for the processing described in this Agreement, including by referring its members to Provider’s terms of service and privacy policy; will not prevent or obstruct Provider from presenting its own terms, notices, or consent requests to end users; and will comply with Applicable Data Protection Laws in its own use of the Cloud Service. Provider may also provide notices and request consents directly from end users. Provider may contact end users about their OpenCourt account and about security, service, and transactional matters, and will send marketing communications to end users only where it has the consent or has provided the opt-out required by applicable law. Customer is responsible for obtaining any parental or guardian consent that Applicable Laws require before collecting Personal Data from a member below the age of majority or below any applicable age threshold. After this Agreement ends, Customer’s rights in Club Data are as set out in Section 5.7 (Data Export on Termination) and Section 5.5 (Effect of Termination), and Provider may continue to maintain and use Platform Account Data and Usage and De-identified Data as an independent Controller, including where an individual remains a user of the Cloud Service through another club or through Provider’s own applications. Provider records a sample of user sessions, with text inputs and images masked, to operate, secure, and improve the Cloud Service. Where the GDPR or the UK GDPR applies, session recordings are Club Data until anonymized.

3.4 Security Safeguards

Provider will maintain reasonable administrative, technical, and physical safeguards designed to protect Club Data, and will notify Customer without undue delay after confirming a security incident affecting Club Data.

4. Payment & Taxes

4.1 Fees

Unless the Order Form specifies a different currency, all Fees are in U.S. Dollars and are exclusive of taxes. Except for the prorated refund of prepaid Fees allowed with specific termination rights given in the Agreement, Fees are non-refundable.

4.2 Invoicing

For a Payment Process with invoicing, Provider will send invoices for usage-based Fees in arrears and for all other Fees in advance, in each case according to the Payment Process.

4.3 Automatic Payment

For a Payment Process with automatic payment, Provider will automatically charge the credit card, debit card, or other payment method on file for Fees according to the Payment Process and Customer authorizes all such charges. In this case, Provider will make a copy of Customer’s bills or transaction history available to Customer.

4.4 Taxes

Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, value-added, excise, and withholding taxes, whether or not they are itemized on an invoice, and Provider may invoice those amounts at any time after they are determined to apply. Customer is not responsible for taxes on Provider’s income, revenue, gross receipts, personnel, or real or personal property.

4.5 Payment

Customer will pay Provider Fees and taxes in U.S. Dollars, unless the Order Form specifies a different currency, according to the Payment Process.

4.6 Payment Dispute

If Customer has a good-faith disagreement about the Fees charged or invoiced, Customer must notify Provider about the dispute before payment is due, or within 30 days of an automatic payment, and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days. If no resolution is agreed, each party may pursue any remedies available under the Agreement or Applicable Laws.

4.7 Member Payments

Customer is the merchant of record for every payment a member or other end user makes to Customer through the Cloud Service. Customer is responsible for the goods and services it sells, and for refunds, chargebacks, disputes, and taxes on those payments. Provider may deduct its Fees, and any refund or chargeback amounts, from amounts payable to Customer. Customer will comply with the Payment Processor’s terms and applicable card network rules. Customer authorizes Provider to bill and charge Customer’s payment method on file through Provider’s Payment Processor for immediate payment or deduction without further approval.

4.8 Service Fees

Where Customer’s subscription plan includes a service fee on transactions processed through the Cloud Service, Customer agrees that Provider may deduct those fees from payments processed on Customer’s behalf through Provider’s payment processing integration.

5. Term & Termination

5.1 Order Form and Agreement

For each Order Form, the Agreement will start on the Order Date, continue through the Subscription Period, and automatically renew for additional Subscription Periods unless one party gives notice of non-renewal to the other party before the Non-Renewal Notice Date.

5.2 Framework Terms

These Framework Terms will start on the Effective Date and continue for the longer of one year or until all Order Forms governed by the Framework Terms have ended.

5.3 Termination

Either party may terminate the Framework Terms or an Order Form immediately:

1. if the other party fails to cure a material breach of the Framework Terms or an Order Form following 30 days notice;
2. upon notice if the other party (i) materially breaches the Framework Terms or an Order Form in a manner that cannot be cured; (ii) dissolves or stops conducting business without a successor; (iii) makes an assignment for the benefit of creditors; or (iv) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.

5.4 Force Majeure

Either party may terminate an affected Order Form upon notice if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days. Provider will pay to Customer a prorated refund of any prepaid Fees for the remainder of the Subscription Period. A Force Majeure Event does not excuse Customer’s obligation to pay Fees accrued prior to termination.

5.5 Effect of Termination

Termination of the Framework Terms will automatically terminate all Order Forms governed by the Framework Terms. Upon any expiration or termination:

1. Customer will no longer have any right to use the Product.
2. Upon Customer’s request, Provider will delete Customer Content within 60 days.
3. Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control.
4. Provider will submit a final bill or invoice for all outstanding Fees accrued before termination and Customer will pay the invoice according to Section 4 (Payment & Taxes).

5.6 Survival

The following sections survive expiration or termination of this Agreement: Section 1.4 (Feedback and Usage Data), Section 1.6 (Machine Learning), Section 3.3 (Data Roles), Section 4 (Payment & Taxes) as to amounts owed, Section 5.5 (Effect of Termination), Section 5.7 (Data Export on Termination), Section 7 (Disclaimer of Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Confidentiality), Section 11 (Reservation of Rights), Section 12 (General Terms), Section 13 (Definitions), Section 14.3 through Section 14.5 (Branded Mobile Application), and Section 15.4 (Member relationships), together with any other provision intended by its nature to survive. Each Recipient may retain Discloser’s Confidential Information, and each party may retain Customer Content and Club Data, in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, and Sections 3 and 10 continue to apply to any data so retained.

5.7 Data Export on Termination

For 30 days after this Agreement ends, Customer may export Club Data in a common machine-readable format. After that period, Provider may delete Club Data, and will delete it on Customer’s request in accordance with Section 5.5 (Effect of Termination).

6. Representations & Warranties

6.1 Mutual

Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement; and (d) it will comply with the Additional Warranties.

6.2 From Customer

Customer represents and warrants that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Product and to allow the use of Customer Content as described in the Agreement.

6.3 From Provider

Provider represents and warrants to Customer that it will not materially reduce the general functionality of the Cloud Service during the Subscription Period.

6.4 Provider Warranty Remedy

If Provider breaches the warranty in Section 6.3 (Representations & Warranties from Provider), Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of the Cloud Service. If Provider cannot resolve the issue, Customer may terminate the affected Order Form and Provider will pay to Customer a prorated refund of prepaid Fees for the remainder of the Subscription Period. Provider’s restoration obligation, and Customer’s termination right, are Customer’s only remedies if Provider does not meet the warranty in Section 6.3 (Representations & Warranties from Provider).

7. Disclaimer of Warranties

7.1

Provider makes no guarantees that the Product will always be safe, secure, or error-free, or that it will function without disruptions, delays, or imperfections. The warranties in Section 6 (Representations & Warranties) do not apply to any misuse or unauthorized modification of the Product, nor to any product or service provided by anyone other than Provider. Except for the warranties in Section 6 (Representations & Warranties), Provider and Customer each disclaim all other warranties and conditions, whether express or implied, including the implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Laws.

8. Limitation of Liability

8.1 Liability Caps

1. (a) Except as provided in Section 8.4 (Exceptions), each party’s total cumulative liability for all claims arising out of or relating to this Agreement will not be more than the General Cap Amount.
2. (b) If there are Increased Claims, each party’s total cumulative liability for all Increased Claims arising out of or relating to this Agreement will not be more than the Increased Cap Amount.

8.2 Damages Waiver

Except as provided in Section 8.4 (Exceptions), under no circumstances will either party be liable to the other for lost profits or revenues (whether direct or indirect), or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.

8.3 Applicability

The limitations and waivers contained in Sections 8.1 (Liability Caps) and 8.2 (Damages Waiver) apply to all liability, whether in tort (including negligence), contract, breach of statutory duty, or otherwise.

8.4 Exceptions

The liability cap in Section 8.1(a) does not apply to any Increased Claims. Section 8.1 (Liability Caps) does not apply to any Unlimited Claims. Section 8.2 (Damages Waiver) does not apply to any Increased Claims or a breach of Section 10 (Confidentiality). Nothing in this Agreement will limit, exclude, or restrict a party’s liability to the extent prohibited by Applicable Laws.

9. Indemnification

9.1 Protection by Provider

Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer’s Affiliates, or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Provider Covered Claims.

9.2 Protection by Customer

Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Customer Covered Claims.

9.3 Procedure

The Indemnifying Party’s obligations in this section are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.

9.4 Changes to Product

If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may: (a) obtain the right for Customer to continue using the Product; (b) replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or (c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid Fees for the remainder of the Subscription Period.

9.5 Exclusions

1. Provider’s obligations as an Indemnifying Party will not apply to Provider Covered Claims that result from (i) modifications to the Product that were not authorized by Provider or that were made in compliance with Customer’s instructions; (ii) unauthorized use of the Product, including use in violation of this Agreement; (iii) use of the Product in combination with items not provided by Provider; or (iv) use of an old version of the Product where a newer release would avoid the Provider Covered Claim.
2. Customer’s obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorized use of the Customer Content, including use in violation of this Agreement.

9.6 Exclusive Remedy

This Section 9 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.

10. Confidentiality

10.1 Non-Use and Non-Disclosure

Except as otherwise authorized in the Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not (a) use Discloser’s Confidential Information; nor (b) disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.

10.2 Exclusions

Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.

10.3 Required Disclosures

Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.

10.4 Permitted Disclosures

Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of this Section 10 (Confidentiality).

11. Reservation of Rights

11.1

Except for the limited license to copy and use Software and Documentation in Section 1.1 (Access and Use), Provider retains all right, title, and interest in and to the Product, whether developed before or after the Effective Date. Except for the limited rights in Section 1.5 (Customer Content) and 1.6 (Machine Learning), Customer retains all right, title, and interest in and to the Customer Content.

12. General Terms

12.1 Entire Agreement

This Agreement is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. No terms or conditions in any Customer documentation or online vendor portal will apply to Customer’s use of the Product unless expressly agreed to in a legally binding written agreement signed by an authorized Provider representative, regardless of what such terms may say.

12.2 Modifications, Severability, and Waiver

Provider may update this Agreement by publishing a new version at a version-specific address under getopencourt.com/legal/platform-agreement. Each version remains available at its own address, and the version in force for Customer is the version identified in Customer’s Order Form or acceptance record until a change takes effect under this section. Provider will give Customer at least 30 days’ notice of a material change by email to the Notice Address, and may also notify Customer within the Product. A material change takes effect at the start of Customer’s next Subscription Period that begins after the notice period ends, and never applies to the Subscription Period in progress. A change applies prospectively only, and does not affect any claim, right, obligation, or liability that accrued before the change took effect. If Customer does not agree to a change, Customer may give notice of non-renewal at any time before the change takes effect, and the Non-Renewal Notice Period does not apply to that notice; this Agreement will then end at the end of the current Subscription Period, on the terms in force before the change. Customer’s renewal of a Subscription Period after the notice period ends is Customer’s acceptance of the change, and Provider may also ask Customer to accept a new version on screen and will record that acceptance. Provider may correct typographical errors, update addresses or links, and clarify language at any time, and will identify those changes in the version history; a change that alters any right or obligation of either party is material, however it is labeled. Any other modification to this Agreement must be in writing and signed or electronically accepted by each party. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. A party’s failure or delay in exercising any right or remedy will not waive it, and no waiver is effective unless made in writing and signed by an authorized representative of the waiving party.

12.3 Governing Law and Chosen Courts

The Governing Law will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. The parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts and each party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.

12.4 Injunctive Relief

Despite Section 12.3 (Governing Law and Chosen Courts), a breach of Section 10 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 10 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.

12.5 Non-Exhaustive Remedies

Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.

12.6 Assignment

Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

12.7 Beta Products

If Provider gives Customer access to a Beta Product, the Beta Product is provided “AS IS” and Section 6.3 (Representations & Warranty From Provider) does not apply to any Beta Products. Customer acknowledges that Beta Products are experimental in nature and may be modified or removed at Provider’s discretion with or without notice.

12.8 Publicity

Customer grants Provider a non-exclusive, royalty-free license to use Customer’s name, logo, and marks, and to identify Customer as a customer, in Provider’s marketing and sales materials, website, customer lists, social media, press releases, and public announcements. Provider may also (a) use photographs, video, and screenshots of Customer’s facility and of Customer’s OpenCourt-branded surfaces; (b) reproduce and share content Customer publishes publicly about Provider or the Cloud Service; and (c) notwithstanding Section 10 (Confidentiality) and Section 1.5 (Customer Content), publish case studies and performance results relating to Customer’s use of the Cloud Service. Where Provider identifies an individual by name, likeness, or quotation, Customer will obtain that individual’s consent. Customer may withdraw the rights in this section by written notice to Provider, and Provider will stop the identified use prospectively within a reasonable period, with no obligation to recall or alter materials already printed, distributed, or published.

12.9 Notices

Any notice, request, or approval about the Agreement must be in writing and sent to the Notice Address. Notices will be deemed given (a) when sent by email to the Notice Address, unless the sender receives a delivery-failure message; (b) upon confirmed delivery if by registered or certified mail or personal delivery; or (c) two days after mailing if by overnight commercial delivery.

12.10 Independent Contractors

The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.

12.11 No Third-Party Beneficiary

There are no third-party beneficiaries of this Agreement.

12.12 Force Majeure

Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay Fees.

12.13 Export Controls

Customer may not remove or export from the United States or allow the export or re-export of the Product or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, OFAC, or any other United States or foreign agency or authority. Customer represents and warrants that it is not (a) a resident or national of an Embargoed Country; (b) an entity organized under the laws of an Embargoed Country; (c) designated on any list of prohibited, restricted, or sanctioned parties maintained by the U.S. government or agencies or other applicable governments or agencies, including OFAC’s Specially Designated Nationals and Blocked Persons List and the UN Security Council Consolidated List; nor (d) 50% or more owned by any party designated on any of the above lists. Provider may terminate this Agreement immediately without notice or liability to comply, as determined in Provider’s sole discretion, with applicable export controls and sanctions laws and regulations.

12.14 Government Rights

The Cloud Service and Software are deemed “commercial items” or “commercial computer software” according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is “commercial computer software documentation” according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Product by the U.S. Government will be governed solely by the terms of this Agreement and all other use is prohibited.

12.15 Anti-Bribery

Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.

12.16 Titles and Interpretation

Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.

12.17 Signature

This Agreement may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.

12.18 Not Legal or Financial Advice

Provider is not a law firm, accounting firm, or financial advisor. The Cloud Service provides tools for sports club management and does not constitute legal, tax, or financial advice. Customer is solely responsible for compliance with all laws applicable to Customer’s business.

13. Definitions

13.1 Defining Variables

Variables have the meanings or descriptions given on a Cover Page. However, if the Order Form and the governing Framework Terms omit or do not define a Variable, the default meaning will be “none” or “not applicable” and the correlating clause, sentence, or section does not apply to that Agreement.

13.2

“Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.

13.3

“Agreement” means the Order Form between Provider and Customer as governed by the Framework Terms.

13.4

“Applicable Data Protection Laws” means the Applicable Laws that govern how the Cloud Service may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.

13.5

“Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.

13.6

“Beta Product” means an early or prerelease feature or version of the Product that is identified as beta or similar, or a version of the Product that is not generally available.

13.7

“Cloud Service” means the product described in the Order Form.

13.8

“Confidential Information” means information in any form disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with this Agreement that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the existence of this Agreement and the information on each Cover Page. Customer’s Confidential Information includes non-public Customer Content and Provider’s Confidential Information includes non-public information about the Product.

13.9

“Cover Page” means a document that is signed or electronically accepted by the parties, incorporates these Standard Terms or is governed by the Framework Terms, and identifies Provider and Customer. A Cover Page may include an Order Form, Key Terms, or both.

13.10

“Covered Claim” means either a Provider Covered Claim or Customer Covered Claim.

13.11 “Customer Content”

“Customer Content” means data, information, or materials submitted by or on behalf of Customer or Users to the Product, and excludes Feedback, Usage Data, Platform Account Data, and Usage and De-identified Data.

13.12

“Discloser” means a party to this Agreement when the party is providing or disclosing Confidential Information to the other party.

13.13

“Documentation” means the usage manuals and instructional materials for the Cloud Service or Software that are made available by Provider.

13.14

“Embargoed Country” means any country or region to or from where Applicable Laws generally restrict the export or import of goods, services, or money.

13.15

“Feedback” means suggestions, feedback, or comments about the Product or related offerings.

13.16

“Fees” means the applicable amounts described in an Order Form.

13.17

“Force Majeure Event” means an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disasters like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.

13.18

“Framework Terms” means these Standard Terms, the Key Terms between Provider and Customer, and any policies and documents referenced in or attached to the Key Terms.

13.19

“GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.

13.20

“High Risk Activity” means any situation where the use or failure of the Product could be reasonably expected to lead to death, bodily injury, or environmental damage. Examples include full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.

13.21

“Indemnifying Party” means a party to this Agreement when the party is providing protection for a particular Covered Claim.

13.22

“Key Terms” means a Cover Page that includes the key legal details and Variables for this Agreement. The Key Terms may include details about Covered Claims, set the Governing Law, or contain other details about this Agreement.

13.23

“OFAC” means the United States Department of Treasury’s Office of Foreign Assets Control.

13.24

“Order Form” means a Cover Page that includes the key business details and Variables for this Agreement that are not defined in the Framework Terms. An Order Form includes the policies and documents referenced in or attached to the Order Form. An Order Form may include details about the level of access and use granted to the Cloud Service, length of Subscription Period, or other details about the Product.

13.25

“Personal Data” will have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar term.

13.26

“Product” means the Cloud Service, Software, and Documentation.

13.27

“Prohibited Data” means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the GDPR; and (e) other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.

13.28

“Protected Party” means a party to this Agreement when the party is receiving the benefit of protection for a particular Covered Claim.

13.29

“Recipient” means a party to this Agreement when the party receives Confidential Information from the other party.

13.30

“Software” means the client-side software or applications made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.

13.31 “Standard Terms”

“Standard Terms” means Sections 1 through 15 of this Agreement, which are adapted from the Common Paper Cloud Service Agreement Standard Terms Version 2.1 and used under CC BY 4.0, with modifications made by Provider.

13.32

“Usage Data” means data and information about the provision, use, and performance of the Product and related offerings based on Customer’s or User’s use of the Product.

13.33

“User” means any individual who uses the Product on Customer’s behalf or through Customer’s account.

13.34

“Variable” means a word or phrase that is highlighted and capitalized, such as Subscription Period or Governing Law. Common Paper Cloud Service Agreement (Version 2.1) free to use under CC BY 4.0.

13.35 “Club Data”

means Customer Content and other Personal Data that Customer, Customer’s personnel, or Customer’s members generate through Customer’s own instance of the Cloud Service, including reservations, orders, waivers, membership records, club-issued credit and loyalty balances and their transaction history, and club-scoped records and notes.

13.36 “De-identified Data”

means data that cannot reasonably be used to infer information about, or otherwise be linked to, an identified or identifiable individual, and that Provider maintains in that form, does not attempt to re-identify, does not disclose with a means of re-identification, and contractually requires any recipient to maintain in that form.

13.37 “Payment Processor”

means the third-party payment service provider Provider uses to process payments under this Agreement. Provider may change its Payment Processor on notice to Customer.

13.38 “Platform Account Data”

means Personal Data associated with an OpenCourt end-user account or an OpenCourt administrator account, including identity, authentication, and profile data; devices; support communications; a member’s cross-club profile, skill ratings for any sport (including third-party ratings such as DUPR and World Padel Rating), and community features that are not scoped to a single club, such as chat groups; discovery and marketplace activity; and reservations, purchases, and payment-related information generated through an OpenCourt-branded surface. Platform Account Data does not include club-issued credit or loyalty balances, which are Club Data.

13.39 “Usage and De-identified Data”

means telemetry, logs, diagnostics, analytics, and session-recording data about the operation and use of the Cloud Service, together with any De-identified Data derived from any of the foregoing or from Club Data. Where a session recording contains Club Data, that content remains Club Data.

14. Branded Mobile Application

This section applies only where Customer’s subscription includes the branded mobile application add-on.

14.1 Developer Accounts

Provider will determine whether the branded applications are published from Provider’s Apple and Google developer accounts or from Customer’s own, and may change that election on notice to Customer. Where Customer’s accounts are used, Customer is responsible for enrolling in and maintaining those accounts, for any enrollment fees charged by Apple or Google, and for any identifiers those programs require, and Customer grants Provider the access needed to submit, update, and manage the applications on Customer’s behalf. That access continues until the applications are removed from the stores.

14.2 Trademark License

Customer grants Provider a non-exclusive, royalty-free license to use Customer’s name, logos, and marks solely to build, publish, and maintain the branded applications, until the applications are removed from the stores.

14.3 Store Terms

Publication depends on Apple’s and Google’s review, terms, and policies, which are outside Provider’s control. Provider does not guarantee that any application will be approved, or approved by any particular date.

14.4 Store Disclosures

Customer is responsible for the accuracy of the app-store listing information it supplies, and for the privacy disclosures made under its own developer account where its accounts are used. Provider will supply the information about the Cloud Service that those disclosures require.

14.5 Discontinuation

On termination or non-renewal of the add-on or this Agreement, Provider may remove the branded applications from the stores, and any applications published from Provider’s accounts remain Provider’s to remove.

15. Discovery and Marketplace

15.1 Listing

Customer grants Provider a non-exclusive license to list Customer, and to display Customer’s business information, facilities, availability, services, and prices, in Provider’s discovery, search, and marketplace surfaces and in Provider’s own applications and websites, to help individuals find and book with Customer. Customer may ask Provider to remove its listing at any time.

15.2 Originated Transactions

A reservation or purchase that originates through an OpenCourt-branded surface is a transaction between Customer and the individual, subject to Section 4.7 (Member Payments).

15.3 Fees

Provider may charge fees on transactions it originates, as set out in Customer’s Order Form, or in the published pricing where Customer has no Order Form.

15.4 Member Relationships

An individual’s OpenCourt account belongs to the individual and to Provider’s relationship with that individual. When this Agreement ends, Customer retains Club Data as set out in Section 5.7, and Provider retains Platform Account Data and the individual’s OpenCourt account. Provider will not use Club Data to target Customer’s members with offers from other clubs. An individual’s own use of Provider’s discovery surfaces is not restricted by this Agreement.

Contact

Questions about this Agreement? Contact us at legal@getopencourt.com.

Sections 1 through 15 are adapted from the Common Paper Cloud Service Agreement Standard Terms Version 2.1, used under CC BY 4.0. Modifications have been made by OpenCourt, Inc.