TopYa! Customer Agreement

This TopYa!® Customer Agreement, together with each Order (whether singular or multiple) (defined below) to which this TopYa! Customer Agreement is attached, form an agreement (the "Agreement") between the organization identified on the Order as the "Customer" and TalentKode Sports LLC, a Colorado limited liability company d/b/a TopYa! ("TopYa!"). Customer and TopYa! are each, individually, a "Party" and collectively, the "Parties." The "Effective Date" of this Agreement is the date set forth on the initial Order. This Agreement governs the use and co-marketing of the TopYa! Platform (defined below). Customer seeks to promote, support and market the Platform to its constituents and TopYa! seeks to make the Platform available to Customer and its constituents through the program outlined on this Agreement, all in accordance with the terms of this Agreement. TopYa! may separately enter into one or more agreements with one or more of Customer’s affiliates (such as a sub-organization of Customer). Each user of the Platform (including Customer) (such as students, players, coaches, administrators, team managers, instructors or similar persons, i.e. "Participants") shall enter into a separate terms of service user license agreement that governs the use of the Platform by such Participants (the "EUA"), which EUA’s are incorporated herein by this reference as if set forth herein.

1. Definitions.
Capitalized terms used herein and not defined in this Agreement shall have the following meanings. Examples used herein are for illustration purposes only and do not affect the definitions themselves.
"Adjusted Revenue" means revenue received by TopYa! from Product sales attributable to Customer’s Members less App Store fees, Google Play fees, credit card payment processing fees and other payment processing fees associated with those Product sales (e.g., a product is purchased by a Customer’s Member on the Platform for $10 and TopYa! is charged $3 by the App Store, Adjusted Revenue would be $7).
"Member" or "Member Participant(s)" means members of a Customer’s organization (e.g., a player in a Customer’s youth sports club) who sign up or subscribe to the TopYa! Platform using the appropriate invite code to the Platform required to associate them to the Customer on the Platform.
"Member Program(s)" or "TopYa! Member Program(s)" means packages of Products sold by TopYa! or its affiliates to Customer or to Member Participants in association with Customer’s organization.
"Order(s)" means the written order forms agreed to by Customer and TopYa! pursuant to which Customer purchases products and services from TopYa!, which forms are incorporated into this Agreement. Each Order shall be confirmed by Customer and TopYa! in writing (whether via email or other form of confirmation in order to be effective). Customer and TopYa! may enter into multiple Orders in connection with this Agreement. To the extent an Order conflicts with this Agreement or another Order, the most current Order shall control.
"Platform" or "TopYa! Platform" means the TopYa! mobile apps and web portals, including, without limitation, the applicable mobile iOS or Android app (i.e. the "App" or "Apps").
"Product(s)" means subscriptions to Paths and Bundles sold on the Platform and other products, subscriptions and services that may be added to the Products definition by TopYa!, in its sole discretion, from time to time.
"Skill Challenge(s)" means a challenge that must be accomplished by a Participant to earn a badge and receive points on the Platform.
"Path(s)" means a series or grouping of Skill Challenges that can be sold. "Bundle(s)" means a grouping or package of "Paths" that can be sold. All Skills, Paths and Bundles are subject to TopYa!’s review procedures. Videos and materials associated with Skill Challenges, Paths and Bundles are individually and collectively considered "Content".
"Third Party Partner" means a party to a TopYa! Customer or Partner Agreement other than the Customer associated with this Agreement.
"Virtual Coaching" means using the TopYa! Platform to review Skill Challenges submitted by Participants while adhering to TopYa!’s virtual coaching processes and procedures.

2. Term.
The "Term" of this Agreement shall begin on the Effective Date and shall continue for a period of twelve (12) months. Thereafter, provided Customer is in compliance with its obligations under this Agreement, the Term shall automatically renew for successive twelve (12) month periods unless either Party gives written notice to the other party of their intention to terminate this Agreement, not less than 30-days prior to the end of the then current Term.

3. TopYa! Member Program Commitments
. TopYa! will offer webinar to Customer staff on best practices for utilizing the Platform and how to use the TopYa! administrative portal. TopYa! will distribute links and invite codes for Participant sign ups. TopYa! will configure branded elements to be displayed in app and landing pages if applicable based on Order(s). TopYa! will provide end user customer support. TopYa! will provide Virtual Coaching guidelines and offer webinars for Customer’s providing Virtual Coaching. TopYa! will provide other support required to implement services purchased by Customer in Order(s). TopYa! will provide Virtual Coaching to applicable Content defined by the Order(s).

4. Customer Member Program Commitments.
Customer will provide logos and imagery to be used for branding purposes in association with services from Order(s) in accordance with guidelines provided by TopYa!. Customer will provide video Content in association with the services from Orders(s) as applicable and in accordance with guidelines provided by TopYa!. If Customer performs Virtual Coaching, Customer will follow processes and procedures provided by TopYa!. Customer will incorporate TopYa! Platform into their player or skill development curriculum when the Customer has purchased skill development programs from TopYa!.

5. TopYa! Marketing Commitments.
TopYa! will provide Customer access to standard marketing plan suggestions, templates, imagery and copy for Customer to utilize to assist the Customer in marketing its TopYa! Platform activities. TopYa! will include Customer logo on applicable topya.com Customer area (for Customers with audience reaches of over 250k). TopYa! will announce Customer on active TopYa! social media channels (for Customers with audience reaches of over 100k).

6. Customer Marketing Commitments.
Customer shall actively promote and market the Platform to its constituents. Customer shall provide the following marketing and outreach to its constituents, participants and/or user base to encourage download and usage of the Platform including highlight on Customer website, mentions in Customer blog posts, mentions across all active Customer social media channels, placements in Customer email campaigns, providing printed materials at Customer in-person events, training to Customer sales team (where applicable), training and promotion to Customer coaches and instructors.

7. Limited License.
Subject to the terms of this Agreement, TopYa! hereby grants Customer a non-exclusive, non-transferable, non-assignable, limited license to access the Platform and Customer agrees to participate in the Platform. The Platform includes video-based applications and games that connect Participants by demonstrating new skills and creating virtual competitions. The Platform allows sharing and uploading of skill and challenge related videos and provides feedback and tips to Participants from Virtual Coaches (i.e. instructors, coaches, trained administrators or teachers associated with Customer that participate in the Platform and provide instruction, feedback, scoring or other facilitations for Participants). The rights granted in this Agreement to Customer are non-exclusive. Customer can only provide the Platform directly to Participants associated with Customer. No additional distribution rights are granted under this Agreement. This Agreement and the limited license granted herein is subject to limitations imposed by third-party affiliates of TopYa! who have specified exclusive distribution and/or license rights in specified categories or territories.

8. Termination.
Either party may terminate this Agreement if there is a breach by the other party that is not cured within thirty (30) days of written notice by the other party of such breach. Either party may immediately terminate this Agreement without notice if the other party becomes: (i) insolvent; (ii) voluntarily or involuntarily enters bankruptcy, reorganization, composition or other similar proceedings under applicable laws; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors. Upon termination of this Agreement, Customer shall immediately stop using all rights granted by this Agreement and all Revenue Share shall terminate.

9. Intellectual Property Rights.
This Agreement grants Customer a non-exclusive, non-transferable, limited royalty free license to any of the TopYa!'s names, word marks, logos, logotypes, trade dress, designs or other trademarks in any manner pre-approved by TopYa! in writing for use in connection with the marketing and promotion of the Platform. By accepting this Agreement, Customer expressly agrees that TopYa! is entitled to publish Customer’s names, trade names, trademarks, and logos in connection with its participation as a Customer for the Platform and for purposes reasonably related to this Agreement. TopYa! may list or refer to Customer as one of TopYa!’s clients on TopYa!’s website and marketing collateral. Conversely, Customer may publicly announce its adoption of Platform on its website and marketing collateral. Customer agrees not to (i) use the Platform except as expressly authorized in this Agreement; (ii) build a product using similar ideas, features, functions or graphics of the Platform; (iii) copy any ideas features, functions or graphics that are part of the Platform; or (iv) take any action that will interfere with or diminish any patent or other intellectual property rights owned by TopYa!. TopYa! owns and/or licenses all worldwide right, title and interest in and to the intellectual property in the Platform, including all worldwide intellectual property rights therein and all derivatives thereof. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Platform. To the extent Customer provides feedback or other comments that result in changes to, additions or upgrades to or derivatives of the Platform or the incorporation of additional functions or uses for the Platform or creates any content, ideas, special features, custom or branded features (collectively referred to herein as the "Modifications"), Customer hereby disclaims any ownership or intellectual property rights in and to such Modifications (or components thereof), including but not limited to any derivative rights in and to such Modifications and to the extent necessary, Customer hereby grants TopYa! a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Platform (or other product offerings) any Modifications. Customer hereby agrees to execute and deliver to TopYa! any and all documents reasonably necessary to transfer, deliver or assign all of Customer’s right, title, and interest, if any, in the Modifications to TopYa!. "Confidential Information" means any oral, written, graphic, electronic, machine-readable, or other information furnished or made available directly or indirectly by one Party (including by its affiliates, agents, and contractors) to the other Party that is designated as confidential or proprietary or which, under the circumstances surrounding disclosure or the nature of such information, ought to reasonably be treated as confidential. Confidential Information includes without limitation business records (including, but not limited to, trade secrets), inventions, formulas, processes, databases, and software (including source and object code) and data. Each Party’s Confidential Information will remain the property of that Party except as expressly provided otherwise by the other provisions of this Agreement. Each Party will each use at least the same degree of care as it employs to avoid unauthorized disclosure, publication, or dissemination of its own information of a similar nature, but in any event not less than a reasonable degree of care, to prevent disclosing to third parties the Confidential Information of the other. Each Party will use Confidential Information of the other Party only as permitted by this Agreement. A Party’s Confidential Information will not include information that: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; or (iv) is independently developed by the other Party. A Party may disclose Confidential Information of the other Party as required by operation of law, regulation, or court order, provided that, to the extent legally able, the receiving Party gives reasonably prompt notice to the disclosing Party prior to the receiving Party making any such disclosure of the disclosing Party’s Confidential Information, and the receiving Party uses commercially reasonable efforts to limit the scope of the disclosure subject to the advice of the receiving Party’s counsel. Upon the expiration or termination of this Agreement for any reason, each Party will promptly return all Confidential Information of the other Party (including copies thereof) provided that each Party may retain copies of Confidential Information of the other Party as may be required by law and/or as reasonably required for internal accounting or audit purposes or in connection with the resolution of any dispute between the Parties. Customer is the sole, exclusive and perpetual owner of all intellectual property rights in the Customer Paths. Customer hereby grants TopYa! (and its successors, affiliates and assigns) a nonexclusive, royalty-free, transferable, sub-licensable, license throughout the Territory to use, store, display, reproduce, modify, create derivative works, perform and distribute Customer Paths in connection with the Platform and TopYa!’s (and its successors’, affiliates’ and assigns’ ) business, including, without limitation, for promoting and redistributing part or all of the Platform (and derivative works thereof) in any media formats and through any medial channels, in perpetuity. TopYa! is the sole, exclusive and perpetual owner of all intellectual property, creative works of art, videos, content, contributions and ideas, other than the Customer Paths, contributed to the Platform by Customer during the term of this Agreement (the "Works"). For clarification, the Works do not include the Customer Paths. All rights and reproductions derived from the Works shall be the property of TopYa! for the territory of the Universe (the "Territory") free from any claims whatsoever by Customer or any person deriving any rights from Customer. TopYa! and its designee(s) shall have the exclusive and unlimited right to all of the results and proceeds of the Works, including, but not limited to, the exclusive, unlimited and perpetual rights throughout the Territory to all right, title and interest in and to the Works, including but not limited to the ownership of all rights of the owner of copyright specified in 17 U.S.C. 101 et seq. Customer acknowledges that each Work embodying the results of his or her services is a work made for hire, or is prepared as part of work which constitutes a work specially ordered for use as a contribution to a collective work and/or an audio-visual work and shall be considered a work made for hire. In the event the Works are not deemed works made for hire, Customer hereby sells, transfers, assigns and grants, exclusively and perpetually, all intellectual property rights in and to the Works to TopYa! and agrees to execute all documents necessary to affect such transfers. Customer hereby represents and warrants that (i) (i) it has full authority to provide the Customer Paths; (ii) that the Customer Paths have not previously been published anywhere in the world; (iii) that all rights conveyed to the TopYa! under this Agreement are free of encumbrances; (iv) that the Customer Paths do not violate any statutory or common law copyright or any other intellectual property rights; and (v) that the Customer Paths contain no materials that are libelous or an invasion of privacy and all necessary releases for parties portrayed therein have been obtained. Customer will hold harmless and defend TopYa! and its licensees against all claims, demands or suits based on alleged violations of these warranties.

10. Miscellaneous.
Governing Law. This Agreement shall be governed by the internal laws of the State of Colorado, without regard to principles of conflicts of law. No Partnership. Despite the use of the name "Customer", nothing contained in or relating to this Agreement shall constitute or be deemed to constitute a Partnership between the parties hereto. Authority. If the person accepting this Agreement is an agent or employee of an entity, such person represents and warrants that (a) he or she is duly authorized to accept this Agreement on Customer’s behalf and to bind Customer; and (b) that Customer has full power, corporate or otherwise, to enter into this Agreement and perform its obligations hereunder. No Agency. Neither TopYa! nor Customer shall have or hold itself out as having any authority or agency to act on behalf of the other except as otherwise expressly provided herein and in the related documents. Waivers. The failure at any time of either TopYa! or Customer to require performance by the other party of any responsibility or obligation provided for in this Agreement shall in no way affect the full right to require such performance at any time thereafter, nor shall the waiver by either such party of a breach of any provision of the Agreement by the other party constitute a waiver of any succeeding breach of the same or any other provisions nor constitute a waiver of the responsibility or obligation itself. Disclaimers; Limits of Liability. TOPYA! MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, THAT MIGHT OTHERWISE ARISE INCLUDING THE IMPLIED WARRANTIES OF (1) MERCHANTABILITY; (2) FITNESS FOR A PARTICULAR PURPOSE; AND (3) THAT PLATFORM IS FREE FROM INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS, OR PROPRIETARY RIGHTS OF THIRD PARTIES. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE TO CUSTOMER AS TO ITS EARNINGS, SUCCESS, REVENUES, PROFITS OR LOSSES PURSUANT TO THIS AGREEMENT AND TOPYA! HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO ANY EARNINGS, SUCCESS, REVENUES, PROFIT, LOSS, OR FAILURE OF CUSTOMER HEREUNDER. IN NO EVENT WILL TOPYA!’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER DURING THE CALENDAR YEAR IN WHICH SUCH DAMAGES WERE INCURRED. IN NO EVENT WILL TOPYA! AND/OR ITS AFFILIATES BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PLATFORM, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PLATFORM, OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE PLATFORM, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF TOPYA! (OR ITS AFFILIATES, EMPLOYEES, SHAREHOLDERS, CONTRACTORS, AND CONSULTANTS) HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Indemnity. Customer shall indemnify, defend and hold TopYa! harmless from and against any and all claims, liabilities or damages flowing from Customer’s breach of this Agreement. Entire Agreement. This Agreement constitutes the entire agreement of TopYa! and Customer with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written, between the parties with respect to the subject matter hereof. Amendments. No amendment to this Agreement shall be effective unless in writing and executed by TopYa! and Customer (which shall generally be accomplished in the form of an Order). Heirs and Assigns. The terms, provisions and covenants contained in this Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and their respective successors and permitted assigns. Severability. If any one or more of the provisions contained in this Agreement or any document executed in connection herewith shall be invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired; provided, however, that in such case the parties oblige themselves to use their best efforts to achieve the purpose of the invalid provision by a new legally valid stipulation. Conflicts. If there is a conflict between this Agreement and an Order, the last Order shall prevail over the provisions of prior Orders or this base Agreement. Interpretation. Should any provision of this Agreement require judicial or arbitral interpretation, it is agreed that the court or arbitrator interpreting or construing the same shall not apply the presumption that the terms of any such provision shall be more strictly construed against one party or the other by reason of the rule of construction that a document is to be construed most strictly against the party who itself or through its agent prepared the same, it being agreed that the agents of all parties have participated in the preparation of this Agreement. Any subsection headings contained in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. Counterparts. This Agreement may be executed in two or more counterparts, each of which, when fully executed, shall be deemed an original, and all said counterparts taken together shall be deemed to constitute one and the same instrument. Further Acts. Each Party agrees to perform any further acts and to execute and deliver any instruments or documents that may be necessary or reasonably deemed advisable to carry out the purposes of this Agreement.

11. Payment Terms
. Each Order shall designate the payments due from Customer (or its Member Participants) to TopYa! for the Member Programs or the Products. All pricing, payments and fees are made and shall be paid in US Dollars. All Product pricing is exclusive of all taxes, levies, and duties imposed by taxing authorities (including any VAT taxes). Billing to Customer will be calculated and invoiced on a monthly basis unless otherwise specified in this Agreement or an Order. Invoicing for Orders or other Products are due within 15 days after receipt unless otherwise specified in an Order. There will be a 0.5% interest fee per month charged for late payments. TopYa! may change its pricing from time to time by giving Customer at least thirty (30) days written notice.

12. Revenue Share for Referrals.
TopYa! will pay Customer five percent (5%) of the Adjusted Revenue received by TopYa! from Customer's Members making purchases of Third-Party Partner or TopYa! developed Content that is available on the Platform when the Adjusted Revenue for these purchases is two-thousand dollars ($2,000) or more per year. Revenue Share for Referrals payments owed to Customer are contingent upon receipt of any payments from Participants or applicable third-party. TopYa! shall not be required to pay Customer any Revenue Share for Referrals or other amounts resulting from any Participant unless such Participant was generated as a direct result of Customer’s efforts and such revenue is documented in accordance with pre-approved procedures and such Participant signs up for the Platform utilizing the Customer’s designated procedures. Any disputes involving payments shall be presented to TopYa! within thirty (30) days of the date of such activity. Unless otherwise noted in this Agreement, Revenue Share for Referrals shall be calculated and paid in accordance with TopYa!’s normal operating procedures, but no less frequently than annually.