Effective 06/02/2017 2:03pm EDT
This RunSignUp Race Contract (the "Agreement") is entered into between Bickel Advisory Services, LLC a New Jersey limited liability corporation doing business as RunSignUp, BikeSignUp, TriSignUp, SkiSignUp, PaddleSignUp, AdventureSignUp, and SwimSignUp (collectively, "RunSignUp", "we" or "us") at 300 Mill Street, Suite 200, Moorestown, NJ 08057, and the sponsoring organization, individual, or commercial, non-profit or government entity which is described in Section 1 below (collectively, the" Owner", "you" or "your"). RunSignUp agrees to provide registration and related services for your event or membership services for your running club (the "Race"), subject to the following terms and conditions:
Overview and Scope. Our online race management platform enables the provision of various technology-based services for race directors, sponsoring organizations, timers, race participants, running clubs and other individuals and entities managing running and other endurance events and activities. This Agreement is entered into between RunSignUp and the Owner of the Race or club which/who is duly authorized to receive the registration fees, donations, membership fees and any and all other payments which are processed and collected for the Race or your club through the use of our Services (collectively, the "Race Proceeds"). You represent that you are the Owner or its authorized representative and have the requisite authority to enter into this Agreement and receive the Race Proceeds.
Services. Our proprietary, web-based system provides you with the capability to facilitate online registration, collect associated payments and/or donations, post and monitor results, manage promotions and enable other technology and membership services (collectively, the "Services", which includes the software and related technology which we make remotely available for your access and use on a "SaaS" basis via the web) in connection with your Race or club. The Services are made available to you through one of our websites, including runsignup.com, bikesignup.com, trisignup.com, skisignup.com, paddlesignup.com, adventuresignup.com and swimsignup.com, or through a mobile application or other cloud-based platform, which we may make available for your use (collectively, a "Site").
Credit Card Information. In connection with the handling of credit card information in the provision of our Services, we have undergone a rigorous independent data security assessment to earn a designation as a Level 1 "PCI-DSS" ("Payment Card Industry Data Security Standard") Service Provider. To the extent that we handle credit card information for your Race, we agree to maintain Level 1 PCI-DSS compliance during the term of this Agreement and to retain an independent, qualified firm to validate compliance on at least an annual basis. To the extent applicable, RunSignUp agrees to provide you with proof of compliance on written request no more frequently than annually. RunSignUp acknowledges that, when credit card information is used for transactions on our Site, we will employ measures designed to protect cardholder data under the requirements listed in the PCI-DSS once it has been encrypted by our SSL certificate and transmitted to our servers. We do not store any user credit card information on our servers, but pass that directly to a third party payment gateway for processing. For those users who request to have their credit card data stored, we use a secure online credit card "vault" service. We will confirm that any third party payment gateways or third party vault services we use will have also been designated as PCI Level 1 compliant.
License, Restrictions and Intellectual Property Rights.
a. We grant you a limited, non-exclusive, non-transferable, non-sublicensable license to you to use the Services on a time-bounded basis for the subscription period specified in the "Term and Termination" provision below. You may use the Services (and you shall ensure that your Authorized Users use the Services) solely in support of your particular Race and solely for the purposes for which they were designed.
c. You may only grant access to the SaaS Services to your employees and third party contractors who you authorize to use the SaaS Services in support of the operations of your Race and who are bound by the confidentiality, limited use, intellectual property and other applicable conditions and restrictions of this Agreement ("Authorized Users"). You shall be responsible and liable to ensure that each such employee and contractor complies with the terms of this Agreement.
d. We retain all right, title and interest in and to the Services (including, without limitation, the underlying software and technology, along with the features, functions, design, "look and feel", graphics, branding, design and other content) and in and to the associated documentation and materials, and in all related intellectual property and derivative works, including all know-how, methods and processes, as well as all related technology and all content (other than your posted Content), will belong solely and exclusively to RunSignUp. In addition to the other restrictions and limitations set forth herein, you agree that, except as expressly authorized hereunder in connection with your use of the Services and site, you shall treat our intellectual property as confidential information and shall not disclose or distribute it, in whole or in part.
e. Nothing in this Agreement prevents you from using another registration provider or discontinuing use of the Services without penalty during the term of the Agreement.
Information We Collect; Information Security
a. In the course of providing the Services, we will collect certain information as follows:
i. From individuals using the Site and registering for Races and Clubs through the Site, we may collect their name, address, email address, gender, data of birth, phone number and other information, which we will store on our site as a profile (collectively, "Profile Data").
iii. We will not use Profile Data or Race Data to market races or other services directly to participants and we will not share or sell Race Data to other races or advertisers.
iv. We will collect and verify information from you, including your name, address, date of birth, tax identification number and other information that will allow us to identify you. We will also collect and verify information about the entity that will receive the proceeds from the account if an entity will receive the proceeds (collectively, "Owner Data"). The Owner Data is required to satisfy various regulatory, credit card network, underwriting and "know your customer" requirements and guidelines for approving the payment account and to prevent funding terrorism and money laundering.
v. The Profile Data, Race Data and Owner Data may be collectively referred to as "Collected Data".
c. You shall maintain, and shall ensure that your Authorized Users maintain, the confidentiality of your user name, password and other account information (collectively, "Account Information"), which enables access and use of the Services. You shall maintain the confidentiality of your Account Information and be solely responsible for any unauthorized disclosure or use of such Account Information, along with any ensuing liability for any harm or damages caused thereby.
e. You shall be solely responsible and liable for, and shall indemnify, defend and hold us harmless from, any liability or damages or harm of any kind incurred or alleged to have been incurred by any individual or entity which arises out, relates to of or is connected with any actions or omissions of you or any Authorized User which is based upon or results in the unauthorized access to, disclosure of, or breach of security or integrity regarding any information accessed, uploaded, provided, generated processed, utilized, stored or otherwise handled including but not limited to Race Data in connection with this Agreement.
Content You Post.
a. You, may choose to post, upload, publish, submit, display or transmit data, text, images, recordings, materials, logos, marks or other content on or through the Services or the Site "Custom Content"). You may not post any content that infringes the intellectual property rights of another party. For clarity, Collected Data and credit card information (which are addressed in Sections 3 and 6 above) are not considered Custom Content.
b. You (on behalf of your organization, each Authorized User and each member or participant, as applicable) hereby grant to RunSignUp a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable license to use, display, reproduce, distribute, modify and transmit, in digital or printed form, all Custom Content in connection with the implementation and promotion of the Services and the promotion of your Race or Club. However, we may also use your name, logo and/or other marks for the purpose of listing your organization as a user of our Services on our promotional materials (including on our Site). We agree to discontinue such use of your name or marks, which we have inserted or posted in our promotional materials within ten (10) days of your written request. You represent and warrant that, to the extent that any Custom Content is owned by a third party, the owner has granted you the necessary rights to effectuate the license granted to us above.
c. You agree that we may de-personalize (remove any personally identifying information protected under applicable law) and aggregate any data, information or content which we collect, handle, store, process or otherwise access in connection with our provision of Services (including data and content which you provide or post) to perform analytics, improve and market the Services, or for any other business or commercial purpose. We shall have no obligation or liability in connection with the use of any of data, information or content, which we de-personalize, unless and to the extent prohibited by applicable law.
Fees. Each online registrant using our Services will pay the registration fee charged by you plus a fee for processing such registrations (a "Processing Fee"), which is calculated and charged per transaction (not including donations) as follows:
Checkout Total (Registrations) Processing Fee $0 $0 $.01 - $10.00 $2.00 $10.01 - $30.00 $2.50 $30.01 - $50.00 $3.00 $50.01 - $250.00 6% of Checkout Total $250.01 - $1,000.00 5% of Checkout Total $1,000.01+ 4% of Checkout Total
Taxes. You will be solely responsible for and will pay any and all use, excise, sales and privilege taxes, duties, value added taxes, fees, assessments or similar liabilities however denominated and chargeable by a governmental authority as a result of any transactions, registrations or any other service or deliverable provided under this Agreement excluding taxes on RunSignup's net income.
Payments. We offer four payment alternatives – Quick Start Direct Deposit, Quick Start Check Payment, Advanced Direct Deposit and Advanced Check Payment. You will qualify for either a Quick Start or Advanced Payment account based upon the amount of information you provide when you set up your payment account and how you would like to be paid.
Important Information About Procedures for Opening a New Payment Account: All of our account types require us to obtain, verify and record information that identifies each person who opens an account. When a payment account is opened, we will ask for certain Owner Data (as defined in Section 5 above) and you agree to provide such information. We may ask you for additional information now or in the future if your payment processing increases or if we are unable to verify your identity or the identify or tax ID number for the entity that is receiving race proceeds.
i. Quick Start payment accounts - RunSignUp uses Braintree Payment Solutions, a PayPal Company (Braintree) for payment processing for Quick Start accounts. By accepting this Agreement and using the Braintree payment processing services you agree to the Braintree Payment Services agreement available at https://www.braintreepayments.com/legal/payment-services-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/bankagreement-us.
a) If you qualify for a Quick Start Direct Deposit Payment account then RunSignUp will collect Owner Data from you to verify your identity and then sign you up as a submerchant with Braintree Marketplace where your funds will be held in escrow and disbursed to you on the schedule as discussed in Quick Start Payment Schedules below.
b) If you qualify for a Quick Start Check Payment account then RunSignUp is the merchant of record for your account with Braintree. We will collect and keep track of the funds on your behalf and make check payments to you based on a weekly payment schedule. RunSignUp also has the right to replace this service with one of the other payment account types that we offer. This could occur if a credit card company prohibited RunSignUp from this type of payment processing.
c) Quick Start Payment Schedules - We process checks or instruct Braintree to make direct deposits each Monday to any races or clubs. Weekly Check payments are only processed if fees of at least $200 are owed. If the total owed does not reach $200, we will send a check for fees collected within 6 business days of the completion of your race. Payments will be made on this basis with the exception of funds held to establish a refund reserve when required. The refund reserve will be paid to you by check after the conclusion of your race. All registration fees, except for Processing Fees, are your exclusive property.
d) Check Payments (Deferred Setup) we will process up to $3,000 in transactions for your account prior to receiving the information necessary to complete underwriting and approve your payment account. We will not pay out these funds to you if we have not received the information necessary to approve your payment account within 1 week of accepting any transactions on your behalf and we may refund payments to any consumers who have paid to register for your race or Club. Once your account is approved we will write you one check for any funds collected on your behalf and then move your account to the payment method you have set up with us. RunSignUp reserves the right to hold back incremental funds at any time in the future if the merchant bank holds back credit card payments under this method.
ii. Advanced accounts - RunSignUp uses Vantiv for payment processing for Advanced payment accounts.
a) In order for you to use Vantiv’s payment processing services you must be approved as a sub- merchant by RunSignUp and Vantiv by submitting the required Owner Data which may vary based on your processing volume. By accepting this Agreement and using an Advanced Payment Account you also agree to the Vantiv Sub-Merchant contract - (https://runsignup.com/VantivContract).
b) We allow you to choose direct deposit or check payments from the credit card payment gateway to your account on a Weekly, Monthly or daily basis. Weekly is the default option. Payments will be made on this basis with the exception of funds held to establish a refund reserve when required. The refund reserve will be paid to you via your selected payment method after the conclusion of your race. All registration fees, except for Processing Fees are your exclusive property.
iii. Refunds - You shall exclusively and directly handle refunds, other than those necessitated by not receiving the Owner Data under Deferred Setup to approve your account. RunSignUp has a service that helps you process refunds, these refunds come out of your reserve funds and will not be processed if the reserve funds do not meet the refund requests. Additional funds can be added to the refund reserve as needed.
iv. RunSignUp reserves the right to withhold payments from a race if there are complaints from registrants or repeated chargebacks. RunSignUp reserves the right to withhold and deduct payment from a race for chargebacks that are processed against the race.
Payment of Registration Fees. In connection with our collection of fees in the provision of our Services, you agree as follows: (i) we may send registration fees collected by us, minus our Processing Fees, directly to you via the methods identified in Payments above and you warrant that you are an authorized representative of the Owner in this regard and (ii) you shall indemnify us for any claims, loss or expenses (including attorney's fees) brought by the Owner or any other individual, entity or organization that relates to or arises from our payment of funds to you (including a claim that we wrongfully paid such funds to you and should have paid a different individual, entity or organization).
Termination. This Agreement will remain in effect until terminated in accordance with its terms. Either party may terminate this Agreement upon written notice if the other party is in material breach and fails, within thirty (30) days of receipt of written notice of the breach, to correct the breach. In addition, RunSignUp may immediately deactivate, suspend or terminate your use of the Services for your Race or club, or delist any RunSignUp-provided website, if you misuse the Services or a Site in violation of the terms hereof, including Section 4 above. RunSignUp may also terminate this Agreement, and your access to and use of the Services and Site(s), at any time after your Race is completed (or, as applicable, cancelled), with or without cause, upon written notice to you, but, unless you have misused the Services or the Site in a fraudulent or other improper manner, you shall then have the right to retrieve your data in accordance with the terms below. Upon termination, all rights (including rights to access and use the Services and Site) and obligations shall automatically terminate and you shall promptly return all proprietary information and materials of ours to us. You agree that, following termination or expiration hereof, we may maintain your data and content (including Collected Data and Custom Content) in accordance with our then-current backup, retention and data retention policies and for the ongoing purposes authorized herein. Upon request within one (1) year after termination, we will make available to you (via electronic download or such other method pursuant to our then-standard practices) your content and data which remains in our possession. After such one-year period, we may, without obligation to do so, delete any or all of your data and/or content without liability.
You may discontinue use of the Services at any time without penalty and without notice to RunSignUp.
Representations and Warranties and Associated Disclaimers. Each party represents and warrants that it has the necessary and full right, power, authority and capability to enter into this Agreement and to perform its obligations hereunder; that it owns or controls the rights granted or licensed to the other party herein; that the execution and performance of its obligations under this Agreement will not violate any known rights of any third party, any contractual commitments or any applicable federal, state and local law or regulation; and that the marks, logos and intellectual property licensed to the other party herein do not violate the proprietary rights of a third party.
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES AND THE SITES ARE PROVIDED "AS IS" AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, RUNSIGNUP EXPRESSLY DISCLAIMS ANY WARRANTY, REPRESENTATION, COMITTMENT OR LIABILITY: (i) THAT THE USE OF THE SERVICES, THE SITE, THE CONTENT THEREON OR ANY ASSOCIATED INTELLECTUAL PROPERTY WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE OPERATION OR USE THEREOF WILL MEET YOUR REQUIREMENTS; (ii) REGARDING ANY WEBSITES (INCLUDING THIRD PARTY WEBSITE FOR WHICH A LINK IS PROVIDED FROM OUR SERVICE OR SITE), TECHNOLOGY, SOLUTIONS OR OTHER PRODUCTS OR SERVICES (INCLUDING PAYMENT GATEWAYS AND DATA VAULTS) PROVIDED OR MADE AVAILABLE BY THIRD PARTIES; AND (iii). REGARDING THE ACCURACY OF ANY INFORMATION OR CONTENT THAT YOU POST OR ACCESS THROUGH THE SERVICES OR THE SITE. YOU ARE SOLELY RESPONSIBLE FOR ALL ASPECTS OF THE RACE OR CLUB, INCLUDING WITH RESPECT TO ALL DATA AND CONTENT WHICH YOU POST OR SHARE.
Indemnification. We will defend, indemnify and hold you harmless from and against any damages, losses, and costs that directly arise out of a claim brought by a third party (i) which alleges that the Services (in the form which we make them available to you) infringe a third party's copyright, patent, trademark, trade secret or other intellectual property right enforceable in the United States; (ii) seeking damages resulting from the unauthorized disclosure of credit card information or other personal information (where "personal information" means personally identifiable information (PII) which is protected under applicable law) hereunder to the extent such damages are caused by our breach of data security measures which we commit to undertake in this Agreement. As a condition of our indemnity obligation, you must promptly notify us of any such claim; grant us sole control of the defense and settlement of any such claim; and cooperate with us to facilitate our ability to settle or defend the claim. In the event of a covered infringement claim, we will endeavor to obtain for you the right to continue using the Services, or to replace or modify the Services so that they are not infringing and materially similar. If these alternatives are not commercially reasonable, we will notify you and terminate the Services. We shall have no indemnity obligations to you if the infringement claim is caused by your misuse of the Services, or Your use of the Services in combination with unauthorized products or services. THESE ARE OUR EXCLUSIVE OBLIGATIONS WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHT AND UNATHORIZED DISCLOSURE OF CREDIT CARD INFORMATION AND PII.
You shall indemnify, defend and hold harmless RunSignUp and its directors, officers, employees, affiliates, contractors and agents (collectively, the "RunSignUp Indemnities"), against any damages, losses and costs that directly arise out of a claim brought by a third party: (i) which alleges that your data, content or other information or materials infringes a third party's copyright, trademark, trade secret, patent or other intellectual property right enforceable in the United States; (ii) seeking damages for the unauthorized disclosure of Race Data or personally identifiable data by you or an Authorized User as a result of a breach of a warranty, covenant or obligation hereunder; (iii) which arises out of or is caused by a misuse of the Services by you or any of your Authorized Users in violation of the usage or licensing restrictions and/or prohibitions set forth in this Agreement; (iv) which is based on injury, harm or other damage to, or a dispute over payments made or refunds requested by, a participant, volunteer, sponsoring organization, entity or support resource involved in any Race or (as applicable) any of your club's running activities; and (v) which is brought by a timer, event organizer, race director or other organization (other than the Owner which is entering into this Agreement) and is based on or arises out of the Services, the use of the Site or other matters related to your Race or club.
LIMITATION ON LIABILITY. IN NO EVENT SHALL RUNSIGNUP BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL THE LIABILITY OF RUNSIGNUP UNDER THIS AGREEMENT EXCEED THE AMOUNT OF PROCESSING FEES COLLECTED AND RETAINED BY US FOR YOUR RACE FOR THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE INITIAL CLAIM ASSERTED AGAINST US HEREUNDER. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION (INCLUDING NEGLIGENCE) AND SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES. NOTHING SET FORTH ABOVE SHALL LIMIT OUR OBLIGATION TO PAY UNDISPUTED FEES PROPERLY DUE TO YOU UNDER THIS AGREEMENT.
a. Independent Contractor Relationship; No Third-Party Beneficiaries. The parties are independent contractors and nothing contained in this Agreement will be construed to create an association, trust, partnership, agency or joint venture between the parties. Except as expressly set forth herein, this Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the parties hereto.
b. Assignment. You may not assign or transfer any part of this Agreement without the prior written consent of RunSignUp. We may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or a controlling interest in our stock, but will endeavor to provide notice of such assignment as soon as practicable after it occurs.
c. Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations under this Agreement during any period in which performance is delayed by circumstances not within such party's reasonable control, such as a natural disaster, act of war or terrorism, government action, labor disruption, internet outages or interruptions or power outages. Notwithstanding the above, the terms and conditions of Sections 9(iii) and 9(iv) shall continue to remain in full force and effect despite the occurrence of a force majeure event. Additionally, Owners shall remain financially responsible to participants and/or RunSignUp as applicable for any refunds and chargebacks necessitated by a Force Majeure event that causes a cancellation or interruption of a Race for which Services have been provided under this Agreement.
d. Compliance with Laws. Each of us shall abide by all applicable laws and regulations, including those addressing data security and export controls, regarding our exercise of rights and performance of obligations under this Agreement.
e. Entire Agreement; Severability; Waiver. This Agreement is the entire agreement between You and RunSignUp with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between you and us regarding that subject matter. No amendment to or modification of this Agreement will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is found to be void or unenforceable, the provision will be stricken or modified and the remainder of this Agreement will remain in full force and will not be terminated. A waiver of any default is not a waiver of any subsequent default. All waivers must be in writing to be effective.
f. Governing Law and Jurisdiction. The laws of the State of New Jersey shall govern the interpretation and enforcement of this Agreement and any dispute arising out of or related hereto, without regard to its conflict of laws principles. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in New Jersey with respect to any dispute arising out of or relating to this Agreement.
g. Notices. All notices must be in writing and shall be sent by first class U.S. mail or a nationally known express or overnight courier (such as FedEx, UPS or the U.S. Postal Service). Notices to us shall be sent to our main address as listed on our website and, for each notice, a copy shall also be sent to Our CFO. Notice to You may be sent to your address set forth in the Agreement. Notices shall be deemed given upon receipt thereof.