Homestretch Golf
Golf pari-mutuels reimagined

Terms of Use: Software As A Service Agreement


HOMESTRETCH GOLF

SOFTWARE AS A SERVICE AGREEMENT

This SOFTWARE AS A SERVICE AGREEMENT (the “Agreement”) is by and between STRONG AS A KNOX, LLC d/b/a Homestretch Golf (“Software Provider”) and YOU (“Administrator” or “you”). Software Provider and Administrator may herein be referred to collectively as the “Parties” or individually as a “Party”. 

This Agreement constitutes a binding legal agreement between Administrator and Software Provider as it relates to Administrator’s use of the Services, including, without limitation, in relation to Administrator’s operation of any Event. This Agreements governs your use and access to the Services, commencing on the date of your acceptance and acknowledgment of these terms (“Effective Date”) and continuing in effect (as amended in accordance with the terms set forth herein) until termination of Administrator’s use and/or access to the Services and/or the completion of the Services (“Term”). 

Please read this Agreement carefully. By clicking the box confirming your acceptance and acknowledgment of the terms contained in this Agreement during the registration/onboarding process, or by otherwise accessing the Services, you confirm that you have read and agreed to be bound to this Agreement. If you do not agree with any terms or provisions contained within this Agreement, you must not access or use the Services.

In consideration of the mutual covenants, terms, and conditions set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Software Provider and Administrator agree as follows:

Definitions

1.1. “Admin Account” means the account created by the Administrator to access and/or otherwise utilize the Services. 

1.2. “Aggregated Statistics” means data and information related to Administrator’s use of the Services that are used by Software Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision of the Services.

1.3. “Authorized User” means Administrator’s employees, consultants, contractors, Participants, and/or agents who meet all of the following criteria: (a) who are authorized by Administrator to access and use the Services under the rights granted to Administrator pursuant to this Agreement; and (b) for whom access to the Services has been agreed to hereunder.

1.4. “Administrator Data” means, other than Aggregated Statistics, information, data, and/or other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Administrator or an Authorized User through the Services.

1.5. “Documentation” means Software Provider’s user manuals, handbooks, and guides relating to the Services provided by Software Provider to Administrator either electronically or in hard copy form.

1.6. “Event” means any sporting tournament, competition, contest, or other event hosted and/or operated by the Administrator.

1.7. “Participants” means any individual, group, or entity participating in any Event hosted and/or operated by the Administrator. 

1.8. “Software Provider IP” means the Services, the Documentation, and any and all other intellectual property provided to Administrator or any Authorized User in connection with the foregoing. For the avoidance of doubt, Software Provider IP includes Aggregated Statistics and any and all other information, data, or other content derived and/or compiled as a result of Software Provider’s monitoring of Administrator’s access to or use of the Services, but does not include Administrator Data.

1.9. “Services” means the web application/software as a service described in Section 2.1.

1.10. “Third-Party Services” means any third-party services provided with or incorporated into the Services. Software Provider uses Third-Party Services to do each of the following: (1) display golf course locations; and (2) communicate SMS notifications to end users. Software Provider reserves the right to add additional Third-Party Services. 

Services

2.1. Description of Services: Software Provider’s web application exists to service administrators in offering an enhanced sporting tournament experience to raise funds for charity. https://homestretchgolf.com/ and https://homestretch.golf/ (collectively, the “Websites”) are the domains for Software Provider, and the Services can be accessed from either of these web addresses. To access the Services, you must first register an Admin Account. You agree that you will not register more than one Admin Account. You further agree and acknowledge that if you register more than one Admin Account, Software Provider may temporarily suspend or permanently terminate your access to the Services, including, but not limited, any or all of your Admin Accounts. You are responsible for: (i) maintaining the confidentiality of all information provided and/or created by you for the purpose of registering an Admin Account, and (ii) all actions taken through your Admin Account, regardless of whether such action was undertaken by you, an Authorized User, or any other third party accessing your Admin Account. 

2.2. Terms of Use: By registering an Admin Account to access the Services, you acknowledge that: (i) Software Provider is providing you a non-exclusive, non-transferable license to utilize the Services for the purpose of hosting and/or operating Events, subject to the terms and conditions set forth in this Agreement, (ii) the Services are not being provided as a form of online gambling, and (iii) Participants cannot make payments on or using the web application. Administrator must have access to the internet and both Administrator and Participants must be online to utilize the Services. You agree and acknowledge that Software Provider shall not and cannot be held responsible or liable for any damages incurred or suffered by Administrator or any Participant in the event internet access is interrupted before, during, or after any Event, and which negatively affects the web application experience and/or the provision of the Services. 

2.2. Software Provider uses the following definitions in providing the Services:

2.2.1. Minimum Entry Fee Amount: the web application automatically sets the minimum entry fee amount for an Event at $1.00. Administrator has the option to raise this amount in increments of $1.00, but this setting cannot be set lower than $1.00;

2.2.2. Field: For any Event conducted, the field is defined as the total number of teams or available options that are participating in the Event;

2.2.3. Charity Percentage: Administrator is able to reserve up to 20 percent of entry fees and/or other monies received from any Participant(s) to donate to the Event’s charity (if applicable);

2.2.4. Administrative Percentage: Administrator is able to reserve up to 10 percent of entry fees and/or other monies received from any Participant(s) to use at Administrator’s discretion;

2.2.5. Sales Tax: In the event an Event is conducted in a U.S. state that requires sales tax collection for software as a service businesses, Administrator may see a separate sales tax charge upon check out;  

2.2.6. Tiebreaking: Administrator must define the tie breaking process for Participants prior to the start of an Event. Software Provider does not break ties, so Administrator must break any ties through a defined process prior to inputting the winning team(s); and

2.2.7. Fees: Administrator agrees to make payment to Software Provider based on the volume of entry fees collected for any one Event. The web application does not collect any fees or other funds from Participants. Software Provider’s fee in exchange for its provision of Services is 8 percent of the entry fees taken by Administrator, with lower fees available for various tiers of annual subscriptions. Unless otherwise stated by the Software Provider, all fees are payable prior to the conclusion of the applicable Event. Software Provider reserves the right to modify its fee and optional subscription offerings. 

Access and Use

3.1. Provision of Access: Subject to the terms and conditions of this Agreement, during the Term, Software Provider hereby grants Administrator a non-exclusive, non-transferable, non-sublicensable (except to the extent necessary to enable Participants to access the Services as it relates to their participation in a Event) license to access and use the Services solely for the purpose of organizing, hosting, and/or operating Event(s). 

3.2. Documentation License: Subject to the terms and conditions contained in this Agreement, during the Term, Software Provider hereby grants to Administrator a non-exclusive, non-sublicensable, non-transferable license to use the Documentation solely for Administrator’s use in connection with its use of the Services.

3.3. Use Restrictions: Administrator shall not use the Services for any purposes beyond the scope of the license granted in this Agreement. Administrator shall not at any time, directly or indirectly (including, without limitation, by directing or permitting any Authorized Users): (a) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (d) remove any proprietary notices from the Services or Documentation; or (e) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

3.4. Reservation of Rights: Software Provider reserves all rights not expressly granted to Administrator in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Administrator or any third party any intellectual property rights or other right, title, or interest in or to the Software Provider IP.

3.5. Suspension or Termination: Notwithstanding anything to the contrary in this Agreement, Software Provider may temporarily suspend or permanently terminate Administrator and any Authorized User’s access to any portion or all of the Services if any of the following occur:

3.5.1. Software Provider reasonably determines that: (a) there is a threat or attack on any of the Software Provider IP; (b) Administrator or any Authorized User’s use of the Software Provider IP disrupts or poses a security risk to the Software Provider IP or to any other administrator or vendor of Software Provider; (c) Administrator, or any Authorized User, is using the Services for fraudulent or illegal activities; (d) Software Provider’s provision of the Services to Administrator or any Authorized User is prohibited by applicable law; (e) the Administrator only partially utilizes Software Provider’s Services, does not submit results for the Event and pay the required Software Provider’s fees upon completing the checkout process; or (f) the Administrator has asked all Participants to fees to a lesser amount than accurate, which is a breach of Section 3.1 of the Terms of Use relating to the Participant’s use of the Services, and reduces the charitable contribution donated from the Software Provider; or

3.5.2. Any vendor of Software Provider has suspended or terminated Software Provider’s access to or use of any Third-Party Services or products required to enable Administrator to access the Services.

3.6. Aggregated Statistics: Notwithstanding anything to the contrary in this Agreement, Software Provider may monitor Administrator’s use of the Services and collect and compile Aggregated Statistics. As between Software Provider and Administrator, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Software Provider. Administrator acknowledges that Software Provider may compile Aggregated Statistics based on Administrator Data input into the Services. Administrator agrees that Software Provider may do any of the following: (a) make Aggregated Statistics publicly available in compliance with applicable law; and (b) use Aggregated Statistics for any other purpose described in Software Provider’s Privacy Policy, to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Administrator or Administrator’s Confidential Information.

Administrator Responsibilities

4.1. General Responsibilities: Administrator is responsible and liable for all uses of the Services and Documentation resulting from access provided  to and/or by Administrator, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. For the avoidance of doubt, Administrator acknowledges that Administrator shall be solely responsible for all actions resulting from: (i) Administrator’s Admin Account, and (ii) Participant’s activities, including, without limitation, in relation to participation in any Event. Without limiting the generality of the foregoing, Administrator is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Administrator will be deemed a breach of this Agreement by Administrator. Administrator shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.

4.2. Third-Party Services: Software Provider may from time to time make Third-Party Services available to Administrator solely for the purpose of utilizing the Services. Administrator acknowledges that Administrator’s use of and access to Third-Party Services shall be limited to: (i) the terms and conditions set forth in this Agreement, and (ii) such Third-Party Services’ own terms and conditions and the applicable flow through provisions referred to in Section 10.3. If Administrator does not agree to abide by the applicable terms for any such Third-Party Services, then Administrator should not use or access the Services.

4.3. Gambling Regulation: Administrator hereby represents and warrants that: (i) Administrator shall utilize the Services solely in accordance with applicable laws; (ii) Administrator shall be solely responsible for ensuring that its use of the Services is not in violation of any applicable laws; and (iii) Administrator will comply with all international, federal, state, local or other gambling laws, rules, and regulations in their jurisdiction, whether contained in statutes, ordinances, or other forms, with regards to this Agreement. In furtherance of the foregoing, Administrator acknowledges that: (i) Software Provider does not provide gambling services; (ii) Software Provider does not take or place illegal bets or wagers, and the Services are not intended or provided for the purpose of advancing or aiding or abetting in any taking or placement of illegal bets or wagers; and (iii) Software Provider does not encourage illegal gambling. In the event the Services are used for any gambling purpose or activity, Administrator represents and warrants that Administrator has: (i) the proper license(s) and/or registration(s) needed for the purpose of offering and/or hosting such gambling activity, and/or (ii) obtained written confirmation from a legal professional, regulator, governing body, or other third party that Administrator’s offering and/or hosting of such gambling activity is exempt from gambling laws, rules, and regulations in Administrator’s jurisdiction, whether contained in statutes, ordinances, or other forms. Nothing published in the Services and/or Documentation or by Software Provider shall be construed as legal advice on any issue. Administrator assumes all risk and responsibility for Administrator’s and/or any Authorized User’s use of the Services. Administrator acknowledges that: (i) Software Provider bears no responsibility for Administrator’s or any Authorized User’s use of the Services in connection with illegal gambling activities, and (ii) Software Provider makes no guarantees that use of the Services for any gambling activity or purpose is legal in Administrator’s jurisdiction.

4.3.1 In the event Administrator utilizes the Services with in relation to any gambling purpose or activity (including, without limitation, pari-mutuel wagering for any Event), Administrator represents and warrants to Software Provider that Administrator has obtained all necessary permits, licenses, registrations, and/or opinions authorizing Administrator’s promotion, operation, and/or hosting of such activity. As it relates to any such activity, in addition to any other definitions, Software Provider uses the following definitions in providing the Services:

4.3.1.1 Minimum Wager Amount: The minimum wager amount for an Event shall be set at $1.00. Administrator has the option to raise this amount in increments of $1.00, but this setting cannot be set lower than $1.00;

4.3.1.2 Live Odds or Tote Odds: Once wagers are confirmed by Administrator, live probable odds are based on the proportion of wagers on that Participant compared to the Field in that Event, per wager type. The odds are displayed on the web application as a number with two decimal places signifying the estimated amount paid out per $1.00 wager on the relevant team. Live Odds or Tote Odds will not display next to a Participant until at least one wager has been placed and confirmed on that Participant. Live probable odds update in real time and therefore show at any given moment how confirmed wagers are distributed across the Field. Live probable odds display as an estimated payout per $1 for the Participant to WIN (1st Place Finish), PLACE (Top 2 Finish) and/or SHOW (Top 3 Finish). These probable odds continuously change while wagers are being accepted and confirmed by the Administrator. If zero wagers have been confirmed for a Participant, no odds will be generated. The higher the odds amount, the higher the estimated payout for a wager on that Participant (i.e. the Participant is a long shot and receiving a lower volume of wagers compared to the Field). The lower the odds amount, the lower the estimated payout for a wager on that Participant (i.e. the Participant is a favorite and receiving a higher volume of wagers compared to the Field). Payouts in pari-mutuels are funded by the volume of all losing wagers in that pool. Therefore, payouts may slightly differ from the closing probable odds if the ratio of wagers on a winning Participant within that pool is significantly high or low, as that scenario affects the actual volume of losing wagers;

4.3.1.3 Minimum Payout Per Dollar: The minimum payout per dollar is a one-to-one ratio, meaning any winning wager at a minimum receives a one-to-one ratio of getting a payout amount equal to the wager amount;

4.3.1.4 Negative Pool: Scenarios can exist in which the net pool of available funds is less than a one-to-one ratio to the needed payout amounts. This scenario is defined as a “Negative Pool”. In the event of a Negative Pool, the predefined percentage take amounts shall be reduced to ensure the Minimum Payout Per Dollar ratio of one-to-one is met to fund all winning wagers. Adjustments will automatically be made to correct a Negative Pool by reducing funds collected in the following sequential order until the Minimum Payout Per Dollar ratio is met: House Percentage, then Charity Percentage, and then Fee.

4.3.1.5 Breakage: Due to rounding down to ensure sufficient funds are available for all payout calculations, a remainder of funds may be left over following all payouts. This remainder is defined as “Breakage”. If Breakage exists, it is to be handled at the discretion of Administrator, provided, Administrator acknowledges that Breakage shall be used to fund Sales Tax charges and/or processing fees beyond the base service Fee;

4.3.1.6 Refunds: End users can receive refunds only when wagers were placed on a Participant that was subsequently scratched from the Field and did not participate in the Event. Refunds may be paid out by the admin alongside the pari-mutuel payouts after winning Participants are determined and posted;

4.3.1.7 Tiebreaking: Administrator shall be solely responsible for defining the tiebreaking process for Participants prior to the start of the Event. Administrator acknowledges that Service Provider is not responsible for the operation or hosting of any aspect of the Event and does not break ties, so Administrator must break any ties through a defined process prior to inputting the winning Participants (win, place, show);

4.3.1.8 Across the Board: End users have the option to check the “Across the Board” check box when placing a wager on a Participant, which copies the wager amount denomination into all win, place and show fields. 

4.3.1.9 Fees: Cash must be tendered on-site for the purpose of collecting funds from end users. The Services does not collect any funds from end users. In the event Administrator operates an Event providing pari-mutuel wagering activity in accordance with this Agreement, in addition to Software Provider’s other fees set forth herein, Software Provider’s fee in exchange for its provision of Services relating thereto is 8 percent of the funds wagered, with lower fees available for various tiers of annual subscriptions, and shall be payable prior to seeing the calculated payouts after the winning Participants are defined by Administrator. Software Provider reserves the right to modify its fee and optional subscription offerings.

4.3.1.10 No Consolation Payouts: Portions of win, place and/or show pots/pools that are not calculated in the payouts due to a scenario in which there were zero correct wagers on the actual winning Participant(s) shall be collected and donated to charity. Software Provider will collect the amount wagered from the appropriate pool(s) on the Event checkout screen, in addition to the platform service fee, and donate 100% of those losing wagers to charity. There is not a ‘consolation payout’ feature on the platform in which an Administrator can purposely payout non-winning/false wagers in the event no one correctly wagered on the actual winning Participant(s).

Fees and Payment

5.1. Fees: Administrator shall pay Software Provider the fees as set forth in Section 2.2.7 and/or 4.3.1.9 (which are herein referred to as the “Fees”) without offset or deduction. Administrator shall make all payments hereunder on or before the due date set forth in Section 2. If Administrator fails to make any payment when due, without limiting Software Provider’s other rights and remedies available under applicable law or equity: (a) Software Provider may charge interest on the past due amount at the rate of 10 percent annual simple interest or, if lower, the highest rate permitted under applicable law; (b) Administrator shall reimburse Software Provider for all costs incurred by Software Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for 30 days or more, Software Provider may suspend Administrator’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full or permanently terminate Administrator’s Admin Account.

5.2. Taxes: All Fees and other amounts payable by Administrator under this Agreement are exclusive of taxes and similar assessments. Administrator is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Administrator hereunder, other than any taxes imposed on Software Provider’s income.

5.3. Auditing Rights and Required Records: Administrator agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the expiration or termination of Administrator’s business relationship with Software Provider with respect to matters necessary for accurately determining amounts due hereunder. Software Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Administrator’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Administrator has underpaid Software Provider with respect to any amounts due and payable during the Term, Administrator shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5.1. Administrator shall pay for the costs of the audit if the audit determines that Administrator’s underpayment equals or exceeds 10 percent. Such inspection and auditing rights will extend throughout the duration of this Agreement and for a period of two years after the termination or expiration of this Agreement.

Confidential Information

6.1. Protection of Confidential Information: From time to time during the Term of this Agreement, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and/or other sensitive or proprietary information, whether orally or in written or electronic form, whether or not marked, designated, or otherwise identified as “confidential” (which is herein referred to collectively as “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure, as evidenced by the documents in the receiving Party’s possession at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by or for the receiving Party, without use of or access to the disclosing Party’s Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (a) in order to comply with the order of a court or other governmental body of competent jurisdiction, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will survive the termination or expiration of this Agreement.

Intellectual Property Ownership

7.1. Software Provider IP: Administrator acknowledges that, as between Administrator and Software Provider, Software Provider owns all right, title, and interest, including all intellectual property rights, in and to the Services, including, but not limited to, Software Provider IP and, with respect to Third-Party Services, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Services.

7.2. Administrator Data: Software Provider acknowledges that, as between Software Provider and Administrator, Administrator owns all right, title, and interest, including all intellectual property rights, in and to the Administrator Data. Administrator hereby grants to Software Provider a non-exclusive, irrevocable, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Administrator Data and perform all acts with respect to the Administrator Data as may be necessary for Software Provider to provide the Services to Administrator, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Administrator Data incorporated within the Aggregated Statistics.

7.3. Feedback: If Administrator or any Authorized User sends or transmits any communications or materials to Software Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (which is herein referred to collectively as “Feedback”), Software Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Administrator hereby assigns to Software Provider on Administrator’s behalf, and on behalf of its Authorized Users, all right, title, and interest in, and Software Provider is free to use, without any attribution or compensation, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Software Provider is not required to use any Feedback.

Warranty Disclaimer

8.1. Limited Warranty: Software Provider warrants that the Services will conform in all material respects to the Services set forth in Section 2 when accessed and used in accordance with the Documentation. Software Provider does not make any representations or guarantees regarding uptime or availability of the Services. The foregoing warranty does not apply, and Software Provider strictly disclaims all warranties, with respect to any Third-Party Services.

8.2. Warranty Disclaimer: Except for the limited warranty set forth in Section 8.1, the Services are provided “as is” and Software Provider hereby disclaims all warranties, whether express, implied, statutory, or otherwise. Software Provider specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Software Provider makes no warranty of any kind that the Services, or any products or results of the use thereof, will meet Administrator’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error free.

Indemnification

9.1. Software Provider Indemnification:

9.1.1. Software Provider shall indemnify, defend, and hold harmless Administrator from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (which are herein referred to as “Losses”) incurred by Administrator resulting from any third-party claim, suit, action, or proceeding (which are herein referred to as “Third-Party Claims”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or trade secrets, provided that Administrator promptly notifies Software Provider in writing of the claim, cooperates with Software Provider, and allows Software Provider sole authority to control the defense and settlement of such claim.

9.1.2. If such a claim is made or appears possible, Administrator agrees to permit Software Provider, at Software Provider’s sole discretion, to: (a) modify or replace the Services, or component or part thereof, to make it non-infringing; (b) discontinue the right for Administrator to continue use of the alleged infringing component or part thereof;  or (c) obtain the right for Administrator to continue use. If the Software Provider determines that neither alternative is reasonably available, the Software Provider may terminate this Agreement effective immediately on written notice to the Administrator.

9.1.3. This Section will not apply to the extent that the alleged infringement arises from: (a) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Software Provider or authorized by Software Provider in writing; (b) modifications to the Services not made by Software Provider; (c) Administrator Data; or (d) Third-Party Services.

9.2. Administrator Indemnification: Administrator shall indemnify, hold harmless, and, at Software Provider’s option, defend Software Provider from and against any Losses resulting from any Third-Party Claim that the Administrator Data, or any use of the Administrator Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Administrator’s or any Authorized User’s: (a) negligence or willful misconduct, including, but not limited to, relating to the hosting, operation, and/or participation in any Event; (b) use of the Services in a manner not authorized by this Agreement; (c) use of the Services in violation of applicable law (including, but not limited to, applicable gambling regulations and/or statutes); (d) breach of any representation and/or warranty of Administrator set forth in this Agreement); (e) use of the Services in combination with data, software, hardware, equipment or technology not provided by Software Provider or authorized by Software Provider in writing; or (f) modifications to the Services not made by Software Provider. Administrator may not settle any Third-Party Claim against Software Provider unless Software Provider consents to such settlement, and further provided that Software Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

9.3. Sole Remedy: This section sets forth Administrator’s sole remedies and Software Provider’s sole liability and obligation for any actual, threatened, or alleged claims that the Services infringe, misappropriate, or otherwise violate any section property rights of any third party. In no event will Software Provider’s liability under this Article exceed the amount of Fees paid by Administrator to Software Provider under this Agreement.

Liability

10.1. Limitations of Liability: In no event will Software Provider be liable under or in connection with this Agreement under any legal or equitable theory, including breach of contract, tort, strict liability, and otherwise, for any: (a) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (b) increased costs, diminution in value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or (e) cost of replacement goods or services, in each case regardless of whether Software Provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will Software Provider’s aggregate liability arising out of or related to this Agreement under any legal or equitable theory, including breach of contract, tort, strict liability, and otherwise exceed the amount of Fees paid by Administrator to Software Provider under this Agreement.

10.2. Indemnity for Violation of Gambling Laws: Without limiting Section 10.1 in any way, Administrator specifically indemnifies Software Provider and holds Software Provider harmless for any violation of and/or for any liability or other types of loss Administrator may suffer for violation of any international, federal, state, local or other gambling statutes, regulations, ordinances, of other laws related to this Agreement.

10.3. Third-Party Services: Software Provider makes no assertions regarding and assumes no liability whatsoever for the performance of Third-Party Software.

Term and Termination

11.1. Termination: In addition to any other express termination right set forth in this Agreement:

11.1.1. Software Provider may terminate this Agreement, effective on written notice to Administrator, if Administrator: (a) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Software Provider’s delivery of written notice thereof; or (b) breaches any of its obligations under Section 3.3 or Section 6.1;

11.1.2. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or

11.1.3. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court or other governmental body of competent jurisdiction to take charge of or sell any material portion of its property or business.

11.2. Effect of Expiration or Termination: Upon expiration or earlier termination of this Agreement, Administrator shall immediately discontinue use of the Services and, without limiting Administrator’s obligations under Section 6.1, Administrator shall delete, destroy, or return all copies of the Software Provider IP and/or Documentation and certify in writing to the Software Provider that the Software Provider IP and/or Documentation has been deleted or destroyed.

11.3. Survival: This Section and Articles 1, 5, 6, 7, 8, 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

General Provisions

12.1. Notices: All notices, requests, or demands to a Party hereunder shall be in writing and shall be given or served upon the other Party by: (1) personal service; (2) certified mail with return receipt requested; (3) registered mail, with postage prepaid; (4) email; or (5) Federal Express or another nationally-recognized commercial courier, with charges prepaid. Any such notice, demand, request,  or other communication shall be deemed to have been given upon the earlier of: (1) personal delivery thereof; (2) three business days after having been mailed as provided above; or (3) one business day after delivery via email or through a commercial courier. Notwithstanding the foregoing, Administrator consents and hereby authorizes Software Provider to communicate with Administrator via email using the account information provided by Administrator at the time of registering Administrator’s Admin Account. 

12.2. Force Majeure: In no event shall Software Provider be liable to Administrator, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Software Provider’s reasonable control, including but not limited to technological or electronic failure, unplanned downtime, lack of Internet access, pandemic, epidemic, bugs or virus, defective Third-Party Services, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

12.3. Governing Law and Forum: This Agreement is governed by and construed in accordance with the internal laws of the state of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the state of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the state of California in each case located in the city of Sacramento and County of Sacramento, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

12.4. Equitable Relief: Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6.1 or, in the case of Administrator, Section 3.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court or other governmental body of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

12.5. Assignment: Administrator may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the Software Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder.

12.6. Modifications to Agreement:  Software Provider reserves the right to modify the terms of this Agreement and any document referred to herein, or any part thereof at any time, as determined in Software Provider’s sole discretion. You agree that we have this unilateral right, and that all modifications or changes made to this Agreement are in full force and effect immediately upon posting. An updated or revised version of this Agreement shall immediately and retroactively supersede any prior versions immediately upon posting, and you acknowledge that the prior version shall be of no continuing legal effect. In the event the Software provider makes any modification to this Agreement, such changes will be reflected via the “Last Updated” date at the bottom of this Agreement. You agree that the Software Provider may notify you of any updated or new terms to this Agreement by posting notice on the Websites or by providing you notice at the email address associated with your Admin Account. All such changes are effective immediately. Your continued use of the Services after such notice confirms your acceptance of such changes. If you object to any such changes, your sole recourse is to cease accessing and/or using the Services.

12.7. Modifications to Services: Software Provider reserves the right to modify, change, withdraw, or terminate any Services or Third-Party Services at any time, as determined in Software Provider’s sole discretion. Software Provider shall not be liable for any reason in the event all or any part of the Services or any Third-Party Services are restricted or made unavailable at any time or for any period.

12.8. Severability: If any provision of this Agreement is declared invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

12.9. Written Waiver Only: No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the waiving Party. The failure of either Party to require the performance of any term or obligation of this Agreement, or the waiver by either Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.

12.10. Inurement: This Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors-in-interest, personal representatives, estates, heirs, and legatees of the Parties.

12.11. No Third-Party Beneficiaries: Nothing in this Agreement, either express or implied, is intended to or shall confer upon any person other than the Parties and their respective successors and permitted assigns, any rights, benefits, or remedies of any nature whatsoever under or by reason of this Agreement.

12.12. Necessary Acts: The Parties shall perform any acts, including executing any documents, that may be reasonably necessary to fully carry out the provisions and intent of this Agreement.

12.13. Litigation Costs and Attorneys’ Fees: In the event of any controversy, claim, or dispute between the Parties arising out of or relating to this Agreement or the breach of this Agreement, the prevailing Party shall be entitled to recover from the losing Party costs of litigation and reasonable attorneys’ fees.

12.14. Integration: This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

Last Updated: April 17, 2024