SOFTWARE AS A SERVICE AGREEMENT
This SOFTWARE AS A SERVICE AGREEMENT (which is herein referred to as the “AGREEMENT”) is by and between STRONG AS A KNOX, LLC (which is herein referred to as “PROVIDER”) and YOU (who is herein referred to as “BUSINESS ASSOCIATE”). PROVIDER and BUSINESS ASSOCIATE may herein be referred to collectively as the “PARTIES” or individually as a “PARTY”. The PARTIES enter into this AGREEMENT with reference to the following facts:
A. PROVIDER’S web application, Homestretch Golf, offers on-site pari-mutuel wagering as an enhancement to golf tournament experiences to raise funds for charity;
B. The pari-mutuel calculations are based on PROVIDER’S proprietary calculations, which include optional opportunities for tournament administrators to reserve portions of the funds raised for a charitable cause;
C. End users of Homestretch Golf cannot make payments within the mobile application;
D. Homestretch Golf requires the involvement of a golf professional, who may agree to make payment to PROVIDER based on the volume of wagers collected for any one golf tournament in exchange for access to Homestretch Golf’s pari-mutuel calculations;
E. BUSINESS ASSOCIATE desires to access the PROVIDER’S software as a services, and PROVIDER desires to provide BUSINESS ASSOCIATE access to those services, subject to the terms and conditions of this AGREEMENT.
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, and also in consideration of the foregoing facts, which are incorporated herein by this reference, the PARTIES agree as follows:
1.1. “Aggregated Statistics” means data and information related to BUSINESS ASSOCIATE’S use of the Services that is used by PROVIDER in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.2. “Authorized User” means BUSINESS ASSOCIATE’S employees, consultants, contractors, and agents who meet all of the following criteria: (a) who are authorized by BUSINESS ASSOCIATE to access and use the Services under the rights granted to BUSINESS ASSOCIATE pursuant to this AGREEMENT; and (b) for whom access to the Services has been agreed to hereunder.
1.3. “BUSINESS ASSOCIATE Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of BUSINESS ASSOCIATE or an Authorized User through the Services.
1.4. “Documentation” means PROVIDER’S user manuals, handbooks, and guides relating to the Services provided by PROVIDER to BUSINESS ASSOCIATE either electronically or in hard copy form.
1.5. “PROVIDER IP” means the Services, the Documentation, and any and all intellectual property provided to BUSINESS ASSOCIATE or any Authorized User in connection with the foregoing. For the avoidance of doubt, PROVIDER IP includes Aggregated Statistics and any information, data, or other content derived from PROVIDER’S monitoring of BUSINESS ASSOCIATE’S access to or use of the Services but does not include BUSINESS ASSOCIATE Data.
1.6. “Services” means the software as a service offering described in Section 2.
1.7. “Third-Party Products” means any third-party products provided with or incorporated into the Services. PROVIDER uses third-party services to do each of the following: (1) display golf course locations; (2) communicate SMS notifications to end users; (3) where applicable, calculate sales tax based on golf tournament location; and (4) process credit card transactions during the checkout process. PROVIDER reserves the right to add additional Third-Party Services.
2.1. Description of Services: PROVIDER’S web application exists to service golf professionals in offering on-site pari-mutuel wagering as an enhanced golf tournament experience to raise funds for charity. HomeStretchgolf.com and Homestretch.golf are the domains for PROVIDER, and the web application can be accessed from these web addresses. The web application is not a form of online gambling. End users cannot make payments on the web application. BUSINESS ASSOCIATE agrees to make one payment to PROVIDER based on the volume of wagers collected for any one golf tournament. BUSINESS ASSOCIATE must have access to the internet and both BUSINESS ASSOCIATE and end users must be online to utilize the web application. PROVIDER does not assume responsibility in the event internet access is interrupted before, during, or after the golf tournament, and which negatively affects the web application experience. Pari-mutuel calculations are based on PROVIDER’S proprietary calculations, which include optional opportunities for BUSINESS ASSOCIATE to reserve portions of the funds raised for a charitable cause. PROVIDER is committed to donating 10 percent of its net proceeds to the American Cancer Society. PROVIDER reserves the right to modify its donation.
2.2. Homestretch Golf Pari-Mutuel Definitions: PROVIDER uses the following definitions to calculate its pari-mutuels:
2.2.1. Minimum Wager Amount: PROVIDER sets the minimum wager amount for a tournament at $1.00. BUSINESS ASSOCIATE 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 golf tournament conducted, the field is defined as the total number of golf teams available that are participating in the golf tournament;
2.2.3. Charity Percentage: BUSINESS ASSOCIATE is able to reserve up to 20 percent of wagers to donate to the golf tournament charity. PROVIDER caps this percentage at 20 percent to keep the scenarios of Negative Pools to a minimum;
2.2.4. House Percentage: BUSINESS ASSOCIATE is able to reserve up to 10 percent of wagers to use at their discretion. PROVIDER caps this percentage at 10 percent to keep the scenarios of Negative Pools to a minimum;
2.2.5. Live Odds or Tote Odds: Once wagers are confirmed by BUSINESS ASSOCIATE, live probable odds are based on the proportion of wagers on that team compared to the field in that flight, per wager type. PROVIDER displays these odds 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 team until at least one wager has been placed and confirmed on that team. Participants learn about how odds are displayed on Homestretch Golf by using the (?) located at the top-right of the screen, and that pertinent section is worded as follows:
Live probable odds update on Homestretch Golf in real time and therefore show at any given moment how confirmed wagers are distributed across the field, which gives participants helpful insights to strategize and make predictions. Live probable odds display in Homestretch Golf as an estimated payout per $1 for the team 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 tournament admin. Odds are displayed in decimal odds format, which means the estimated payout includes the original wager/stake, and all odds are displayed per $1 stake. If zero wagers have been confirmed for a team, no odds will be generated. The higher the odds amount, the higher the estimated payout for a wager on that team (i.e. The team 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 team (i.e. The team 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 team within that pool is significantly high or low, as that scenario affects the actual volume of losing wagers.
2.2.6. Minimum Payout Per Dollar: PROVIDER defines the minimum payout per dollar to be a one-to-one ratio, meaning any winning wager on the web application at a minimum receives a one-to-one ratio of getting a payout amount equal to the wager amount. If BUSINESS ASSOCIATE chooses to raise funds for a charity through the use of PROVIDER’S platform, the net pool of funds available for payouts is reduced, which requires PROVIDER to define the Minimum Payout Per Dollar;
2.2.7. 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, PROVIDER is required to reduce the predefined percentage take amounts 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 PROVIDER’S Fee;
2.2.8. Breakage: Due to rounding down to ensure sufficient funds are available for all payout calculations, a remainder of funds can be left over following all payouts. This remainder is defined as “Breakage”. If Breakage exists, it is to be handled at the discretion of BUSINESS ASSOCIATE;
2.2.9. Sales Tax: In the event the tournament is being conducted in a U.S. state that requires sales tax collection for software as a service businesses, BUSINESS ASSOCIATE may see a separate sales tax charge upon check out. This additional sales tax charge and the associated processing fees beyond the base service fee are funded from the tournament Breakage;
2.2.10. Refunds: End users can receive refunds on the web application only when wagers were placed on a team that was subsequently scratched from the field and did not participate in the tournament. Refunds will be paid out alongside the pari-mutuel payouts after winning teams are determined and posted;
2.2.11. Tiebreaking: BUSINESS ASSOCIATE must define the tiebreaking process for participants prior to the start of the tournament. PROVIDER does not break ties, so BUSINESS ASSOCIATE must break any ties through a defined process prior to inputting the winning teams (win, place, show);
2.2.12. Across the Board: End users have the option to check the “Across the Board” check box when placing a wager on a team which copies the wager amount denomination into all win, place and show fields. The “Across the Board” check box option is simply for ease of use and is not required to successfully save wagers; and
2.2.13. Fees: Cash must be tendered on-site for the purpose of collecting funds from end users. The web application does not collect any funds from end users. PROVIDER’S fees for its software as a service are 8 percent of the funds wagered and are payable prior to seeing the calculated payouts after the winning teams are defined by BUSINESS ASSOCIATE. PROVIDER reserves the right to modify its fee.
3.1. Provision of Access: Subject to the terms and conditions of this AGREEMENT, PROVIDER hereby grants BUSINESS ASSOCIATE a non-exclusive, non-transferable right to access and use the Services. PROVIDER shall provide to BUSINESS ASSOCIATE the necessary passwords and network links or connections to allow BUSINESS ASSOCIATE to access the Services.
3.2. Documentation License: Subject to the terms and conditions contained in this AGREEMENT, PROVIDER hereby grants to BUSINESS ASSOCIATE a non-exclusive, non-sublicenseable, non-transferable license to use the Documentation solely for BUSINESS ASSOCIATE’S use in connection with its use of the Services.
3.3. Use Restrictions: BUSINESS ASSOCIATE shall not use the Services for any purposes beyond the scope of the access granted in this AGREEMENT. BUSINESS ASSOCIATE shall not at any time, directly or indirectly, permit any Authorized Users to: (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: PROVIDER reserves all rights not expressly granted to BUSINESS ASSOCIATE 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 BUSINESS ASSOCIATE or any third party any intellectual property rights or other right, title, or interest in or to the PROVIDER IP.
3.5. Suspension: Notwithstanding anything to the contrary in this AGREEMENT, PROVIDER may temporarily suspend BUSINESS ASSOCIATE and any Authorized User’s access to any portion or all of the Services if any of the following occur:
3.5.1. PROVIDER reasonably determines that: (a) there is a threat or attack on any of the PROVIDER IP; (b) BUSINESS ASSOCIATE or any Authorized User’s use of the PROVIDER IP disrupts or poses a security risk to the PROVIDER IP or to any other BUSINESS ASSOCIATE or vendor of PROVIDER; (c) BUSINESS ASSOCIATE, or any Authorized User, is using the PROVIDER IP for fraudulent or illegal activities; or (d) PROVIDER’S provision of the Services to BUSINESS ASSOCIATE or any Authorized User is prohibited by applicable law; or (e) BUSINESS ASSOCIATE only partially utilizes PROVIDER’s services, does not submit results for the tournament and pay the required PROVIDER’s fees by completing the checkout process which are required to view payouts, trigger winner notifications and fulfill the charitable donation pledge from the PROVIDER; or
3.5.2. Any vendor of PROVIDER has suspended or terminated PROVIDER’S access to or use of any third-party services or products required to enable BUSINESS ASSOCIATE to access the Services.
3.6. Aggregated Statistics: Notwithstanding anything to the contrary in this AGREEMENT, PROVIDER may monitor BUSINESS ASSOCIATE’S use of the Services and collect and compile Aggregated Statistics. As between PROVIDER and BUSINESS ASSOCIATE, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by PROVIDER. BUSINESS ASSOCIATE acknowledges that PROVIDER may compile Aggregated Statistics based on BUSINESS ASSOCIATE Data input into the Services. BUSINESS ASSOCIATE agrees that PROVIDER may do any of the following: (a) make Aggregated Statistics publicly available in compliance with applicable law; and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify BUSINESS ASSOCIATE or BUSINESS ASSOCIATE’S Confidential Information.
4.1. General Responsibilities: BUSINESS ASSOCIATE is responsible and liable for all uses of the Services and Documentation resulting from access provided by BUSINESS ASSOCIATE, directly or indirectly, whether such access or use is permitted by or in violation of this AGREEMENT. Without limiting the generality of the foregoing, BUSINESS ASSOCIATE 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 BUSINESS ASSOCIATE will be deemed a breach of this AGREEMENT by BUSINESS ASSOCIATE. BUSINESS ASSOCIATE 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 Products: PROVIDER may from time to time make Third-Party Products available to BUSINESS ASSOCIATE. For purposes of this AGREEMENT, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions referred to in Section 10.3. If BUSINESS ASSOCIATE does not agree to abide by the applicable terms for any such Third-Party Products, then BUSINESS ASSOCIATE should not install or use such Third-Party Products.
4.3. Gambling Age Limits: BUSINESS ASSOCIATE hereby represents and warrants that BUSINESS ASSOCIATE will comply will all international, federal, state, local or other gambling age limit laws, whether contained in statutes, regulations, ordinances, of other forms, with regards to this AGREEMENT.
5.1. Fees: BUSINESS ASSOCIATE shall pay PROVIDER the fees as set forth in Section 2.2.13 (which are herein referred to as the “Fees”) without offset or deduction. BUSINESS ASSOCIATE shall make all payments hereunder in US dollars on or before the due date set forth in Section 2. If BUSINESS ASSOCIATE fails to make any payment when due, without limiting PROVIDER’S other rights and remedies: (a) 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) BUSINESS ASSOCIATE shall reimburse PROVIDER for all costs incurred by 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, PROVIDER may suspend BUSINESS ASSOCIATE’S and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
5.2. Taxes: All Fees and other amounts payable by BUSINESS ASSOCIATE under this AGREEMENT are exclusive of taxes and similar assessments. BUSINESS ASSOCIATE 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 BUSINESS ASSOCIATE hereunder, other than any taxes imposed on PROVIDER’S income.
5.3. Auditing Rights and Required Records: BUSINESS ASSOCIATE agrees to maintain complete and accurate records in accordance with generally accepted accounting principles while this AGREEMENT is in effect and for a period of two years after the termination of BUSINESS ASSOCIATE’S business relationship with PROVIDER with respect to matters necessary for accurately determining amounts due hereunder. PROVIDER may, at its own expense, on reasonable prior notice, periodically inspect and audit BUSINESS ASSOCIATE’S records with respect to matters covered by this AGREEMENT, provided that if such inspection and audit reveals that BUSINESS ASSOCIATE has underpaid PROVIDER with respect to any amounts due and payable during the Term, BUSINESS ASSOCIATE shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5.1. BUSINESS ASSOCIATE shall pay for the costs of the audit if the audit determines that BUSINESS ASSOCIATE’S underpayment equals or exceeds 10 percent for any quarter. 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.
6.1. Protection of Confidential Information: From time to time during the duration 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 other sensitive or proprietary information, whether orally or in written, electronic, 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; (c) rightfully obtained by the receiving PARTY on a non-confidential basis from a third party; or (d) independently developed by the receiving PARTY. 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 expire five years from the date first disclosed to the receiving PARTY, provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this AGREEMENT for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7.1. PROVIDER IP: BUSINESS ASSOCIATE acknowledges that, as between BUSINESS ASSOCIATE and PROVIDER, PROVIDER owns all right, title, and interest, including all intellectual property rights, in and to the PROVIDER IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
7.2. BUSINESS ASSOCIATE Data: PROVIDER acknowledges that, as between PROVIDER and BUSINESS ASSOCIATE, BUSINESS ASSOCIATE owns all right, title, and interest, including all intellectual property rights, in and to the BUSINESS ASSOCIATE Data. BUSINESS ASSOCIATE hereby grants to PROVIDER a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the BUSINESS ASSOCIATE Data and perform all acts with respect to the BUSINESS ASSOCIATE Data as may be necessary for PROVIDER to provide the Services to BUSINESS ASSOCIATE, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display BUSINESS ASSOCIATE Data incorporated within the Aggregated Statistics.
7.3. Feedback: If BUSINESS ASSOCIATE or any of its employees or contractors sends or transmits any communications or materials to PROVIDER by mail, email, telephone, or otherwise, suggesting or recommending changes to the 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”), PROVIDER is free to use such Feedback irrespective of any other obligation or limitation between the PARTIES governing such Feedback. BUSINESS ASSOCIATE hereby assigns to PROVIDER on BUSINESS ASSOCIATE’S behalf, and on behalf of its employees, contractors and agents, all right, title, and interest in, and 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 PROVIDER is not required to use any Feedback.
8.1. Limited Warranty: 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. PROVIDER does not make any representations or guarantees regarding uptime or availability of the Services. The foregoing warranty does not apply, and PROVIDER strictly disclaims all warranties, with respect to any Third-Party Products.
8.2. Warranty Disclaimer: Except for the limited warranty set forth in Section 8.1, the PROVIDER IP is provided “as is” and PROVIDER hereby disclaims all warranties, whether express, implied, statutory, or otherwise. 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. PROVIDER makes no warranty of any kind that the Services, or any products or results of the use thereof, will meet BUSINESS ASSOCIATE’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.
9.1. PROVIDER Indemnification:
9.1.1. PROVIDER shall indemnify, defend, and hold harmless BUSINESS ASSOCIATE from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (which are herein referred to as “Losses”) incurred by BUSINESS ASSOCIATE 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 BUSINESS ASSOCIATE promptly notifies PROVIDER in writing of the claim, cooperates with PROVIDER, and allows PROVIDER sole authority to control the defense and settlement of such claim.
9.1.2. If such a claim is made or appears possible, BUSINESS ASSOCIATE agrees to permit PROVIDER, at PROVIDER’S sole discretion, to: (a) modify or replace the Services, or component or part thereof, to make it non-infringing; or (b) obtain the right for BUSINESS ASSOCIATE to continue use. If PROVIDER determines that neither alternative is reasonably available, PROVIDER may terminate this AGREEMENT, in its entirety or with respect to the affected component or part, effective immediately on written notice to BUSINESS ASSOCIATE.
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 PROVIDER or authorized by PROVIDER in writing; (b) modifications to the Services not made by PROVIDER; or (c) BUSINESS ASSOCIATE Data; or (D) Third-Party Products.
9.2. BUSINESS ASSOCIATE Indemnification: BUSINESS ASSOCIATE shall indemnify, hold harmless, and, at PROVIDER’S option, defend PROVIDER from and against any Losses resulting from any Third-Party Claim that the BUSINESS ASSOCIATE Data, or any use of the BUSINESS ASSOCIATE Data in accordance with this AGREEMENT, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on BUSINESS ASSOCIATE’S or any Authorized User’s: (a) negligence or willful misconduct; (b) use of the Services in a manner not authorized by this AGREEMENT; (c) use of the Services in combination with data, software, hardware, equipment or technology not provided by PROVIDER or authorized by PROVIDER in writing; or (d) modifications to the Services not made by PROVIDER. BUSINESS ASSOCIATE may not settle any Third-Party Claim against PROVIDER unless PROVIDER consents to such settlement, and further provided that 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 Article sets forth BUSINESS ASSOCIATE’S sole remedies and PROVIDER’S sole liability and obligation for any actual, threatened, or alleged claims that the Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. In no event will PROVIDER’S liability under this Article exceed the amount BUSINESS ASSOCIATE pays to PROVIDER under this AGREEMENT.
10.1. Limitations of Liability: In no event will 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 provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will 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 BUSINESS ASSOCIATE pays to PROVIDER under this AGREEMENT.
10.2. Indemnity for Violation of Gambling Laws: Without limiting Section 10.1 in any way, BUSINESS ASSOCIATE specifically indemnifies PROVIDER and holds PROVIDER harmless for any violation of for any liability or other types of loss BUSINESS ASSOCIATE 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 Products: PROVIDER makes no assertions regarding and assumes no liability whatsoever for the performance of third-party software.
11.1. Effective Date: The effective date of this AGREEMENT shall be the date it is executed by all the PARTIES (which is herein referred to as the “Effective Date”).
11.2. Termination: In addition to any other express termination right set forth in this AGREEMENT:
11.2.1. PROVIDER may terminate this AGREEMENT, effective on written notice to BUSINESS ASSOCIATE, if BUSINESS ASSOCIATE: (a) fails to pay any amount when due hereunder, and such failure continues more than 30 days after PROVIDER’S delivery of written notice thereof; or (b) breaches any of its obligations under Section 3.3 or Section 6.1;
11.2.2. 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
11.2.3. 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.
11.3. Effect of Expiration or Termination: Upon expiration or earlier termination of this AGREEMENT, BUSINESS ASSOCIATE shall immediately discontinue use of the PROVIDER IP and, without limiting BUSINESS ASSOCIATE’S obligations under Section 6.1, BUSINESS ASSOCIATE shall delete, destroy, or return all copies of the PROVIDER IP and certify in writing to the PROVIDER that the PROVIDER IP has been deleted or destroyed.
11.4. 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.
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; or (4) Federal Express or another nationally-recognized commercial courier, with charges prepaid. All such notices must be addressed as set forth below and marked for next day delivery. 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 through a commercial courier.
12.2. Force Majeure: In no event shall either PARTY be liable to the other PARTY, 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 that PARTY’S reasonable control, including but not limited to 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 BUSINESS ASSOCIATE, 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: BUSINESS ASSOCIATE 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 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. Amendment: Amendments to this AGREEMENT may be made only with the written consent of all the PARTIES.
12.7. Severability: If any provision of this AGREEMENT is invalid, illegal, or unenforceable in any 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.
12.8. 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.
12.9. 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.
12.10. 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.
12.11. 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.
12.12. 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.
12.13. 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.