Entity Wagering Account Terms – Associated Individuals
1.1 IMPORTANT NOTICE: THESE ENTITY WAGERING ACCOUNT TERMS – ASSOCIATED INDIVIDUALS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AND JURY TRIAL AS DETAILED IN SECTION 9.8.
1.2 As part of the wagering account application of the respective entity that has submitted or is submitting an entity wagering account application (“Customer”) to CG Technology, L.P. (“CGT”) and for which CGT may open and maintain a wagering account or otherwise transact wagering activities, certain natural persons, companies, partnerships (general or limited), limited liability companies, corporations, trusts, estates, associations, nominees or other entities, fiduciaries or agents must provide information to CGT (each, an “Associated Individual”). These Entity Wagering Account Terms – Associated Individuals (“Terms”) set forth terms and conditions to which Associated Individual is subject. Please read carefully.
2. Expiration and Termination.
2.1 CGT may (at any time, with or without cause or prior notice, and without penalty or liability): (i) require Customer to disassociate itself with any Associated Individual; (ii) suspend Associated Individuals’ association with regard to Customer’s activities; (iii) suspend or close Customer’s wagering account; (iv) terminate these Terms; or (v) terminate the terms and conditions on which CGT may open and maintain a wagering account for Customer and otherwise transact wagering activities for Customer (“Entity Wagering Account Terms”).
2.2 These terms do not grant Associated Individual any license, right or otherwise to the systems, components, services, goods or content, Confidential Information of CGT (as defined below) and CGT IP (as defined below). If and to the extent Associated Individual is authorized by Customer to represent Customer on its wagering account (“Authorized Account Representative”) or to make wagering decisions on Customer’s behalf (“Designated Individual”), upon the closure of Customer’s wagering account or the earlier of the expiration or termination of these Terms, Associated Individual (i) shall have no right to use and shall immediately stop using the systems, components, services, goods or content, any and all Confidential Information of CGT and CGT IP; and (ii) any and all licenses to or rights or benefits of Associated Individual as Customer’s Authorized Account Representative or Designated Individual under these Terms or otherwise will terminate immediately.
2.3 Notwithstanding any suspension or closure of Customer’s wagering account or expiration or termination of these Terms, Associated Individual shall remain liable to CGT with respect to all of Associated Individual’s activities and for all of Associated Individual’s obligations and liabilities under these Terms or otherwise.
2.4 Associated Individual is in default of these Terms if: (i) Associated Individual does not perform any obligation to CGT; (ii) Associated Individual breaches, violates, repudiates or defaults under these Terms, Policies (as defined below) or any other agreement Associated Individual may have with CGT; or (iii) an event, circumstance or condition occurs that, in CGT’s judgment, materially impairs Associated Individual’s ability to perform or otherwise causes CGT to view such event, circumstance or condition as jeopardizing CGT or any of its affiliates’ licenses or ability to be licensed or negatively impacting CGT or any of its affiliates’ businesses (individually and collectively, an “Event of Default”). Associated Individual agrees to immediately send written notification to CGT detailing each Event of Default that Associated Individual knows has occurred or is likely to occur.
2.5 Upon an Event of Default, CGT shall have all of the rights and remedies under Applicable Law (as defined below) and may, among other things, (i) take any of the actions set forth in Section 2.1, (ii) elect to consider Associated Individual in default of any or all agreements Associated Individual may then have with any CGT Parties (as defined below); (iii) withhold payment of winnings; (iv) retain any set-off, net and/or recoup any of Associated Individual’s obligations to CGT against any of CGT’s obligations to Associated Individual, and Associated Individual’s obligations to CGT shall be deemed performed and discharged to the extent CGT has effected a valid and unavoidable set-off, netting or recoupment; and (v) calculate any obligation due to Associated Individual by first deducting any obligation that Associated Individual owes to CGT before determining the final amount of any such obligation.
3. Wagering Account Application and Certain Associated Individual Obligations.
3.1 As part of Customer’s wagering account application process and while CGT maintains a wagering account for Customer, Associated Individual shall provide CGT with the information required by Applicable Law and any other information that CGT may request.
3.2 Associated Individual acknowledges and agrees that CGT may (at any time, with or without cause or prior notice, and without penalty or liability) decline Customer’s wagering account application or changes to its wagering account application or wagering account information, in whole or part. CGT may, in its sole and absolute discretion, decline Associated Individual’s relationship with Customer. CGT has no obligation, and shall have no obligation, to communicate the reasons or bases for which it makes decisions with respect to Associated Individual.
3.3 Associated Individual understands, acknowledges and agrees that (i) as part of Customer’s wagering account application process and while CGT maintains a wagering account for Customer, Associated Individual shall provide CGT with the information required by Applicable Law and any other information that CGT may request and (ii) as part of the wagering account application process, certain Associated Individuals shall provide CGT with valid, government-issued photo identification and/or personally appear before representatives of CGT. Associated Individual agrees that CGT may retain a copy of such identification and warrants that such identification presented will be true, accurate, not false, real, authentic and validly issued. If Associated Individual is a Designated Individual, Associated Individual understands, acknowledges and agrees that Associated Individual shall not place wagers on Customer’s behalf with CGT unless: (i) Customer has submitted a wagering account application; (ii) Customer has authorized Associated Individual in writing to place wagers on its behalf; (iii) CGT has approved Customer’s wagering account application; (iv) CGT has opened Customer’s wagering account; and (v) Associated Individual is located in the state of Nevada.
3.4 Associated Individual shall update CGT with any changes to information provided in accordance with Applicable Law or otherwise requested by CGT within five (5) days after any change in such information. Associated Individual acknowledges that Customer shall not conduct activities on its wagering account if Customer has not received notification from CGT that CGT has verified the updated information within thirty (30) days of CGT’s receipt of the updated information.
3.5 Associated Individual acknowledges that Customer shall (i) maintain a bank account in the state of Nevada with a bank or other financial institution having a principal office, branch or agency located in the state of Nevada (“Customer’s Nevada Bank Account”); (ii) transfer all money that Customer deposits into its wagering account directly from Customer’s Nevada Bank Account to a CGT bank account designated by CGT; (iii) transfer all money that Customer withdraws from its wagering account directly to Customer’s Nevada Bank Account; and (iv) not withdraw or deposit or attempt to withdraw or deposit funds for Customer’s wagering account through impermissible withdrawal or deposit methods.
3.6 Associated Individual acknowledges that by March 1st of each year, Customer shall deliver to CGT an independent third party verification or affirmation, as applicable, setting forth the information required by Commission (as defined below) regulations and such other information as CGT may require from time to time. Associated Individual shall disclose and provide to Customer any information Customer requires for such verification or affirmation.
3.7 Associated Individual agrees that if, in acting on Customer’s behalf, Associated Individual is given or creates any digital certificate(s), user name(s) and/or password(s) that may be required to access or use any Electronic Services (as defined below) (collectively, “User Code(s)”), Associated Individual shall (i) preserve the confidentiality of User Codes; (ii) restrict access to User Codes to Authorized Account Representatives and Designated Individuals; (iii) notify CGT immediately in the event a User Code is lost, stolen or the confidentiality of any User Code has been compromised in any way or Associated Individual’s authority to act on Customer’s behalf has been revoked or limited; and (iv) be responsible for and be bound by all statements made and instructions, agreements, assents and consents communicated under any User Code to the same extent that the same was under a written instrument duly signed by Customer. Associated Individual acknowledges and agrees that if Associated Individual is not an Authorized Account Representative, Associated Individual is not authorized to and shall not change or attempt to change User Codes when acting on Customer’s behalf.
4. Applicable Laws and Policies.
4.1 Associated Individual shall not use any systems, components, services, goods or content provided by CGT for any illegal purpose.
4.3 CGT is committed to complying with U.S. statutory and regulatory requirements designed to combat money laundering and terrorist financing. The Bank Secrecy Act, as amended, requires that all race books and sports pools obtain certain identification documents or other information in order to comply with their customer identification procedures. Associated Individual shall provide information required in furtherance of the Bank Secrecy Act and related laws and understands, acknowledges and agrees that until such information is provided, CGT may take any action it deems necessary, including (without limitation) any actions set forth in these Terms.
4.4 Associated Individual understands, acknowledges and agrees that CGT reserves the right to make management decisions and corrective adjustments to its records in its sole and absolute discretion and that CGT’s records, as so adjusted, from time to time and as applicable, constitute the final authority with respect to Customer’s wagering account application, activities and wagering account.
5. Permitted Disclosures.
5.1 Associated Individual understands, acknowledges and agrees that CGT and its affiliates and each of their successors and assigns are authorized to and may disclose any information regarding Associated Individual or any of Associated Individual’s activities to: (i) CGT’s affiliates; (ii) governmental authorities or agencies and their agents, including (without limitation) law enforcement, the Commission and the Nevada Gaming Control Board (“Board”); (iii) the establishment where the CGT sports book that is associated with Customer’s wagering account is located; (iv) the governing body of a professional or amateur racing authority or sports league, conference or team, or a track, totalizer or operator of an off-track pari-mutuel pool; and (v) any other person CGT reasonably believes is necessary to further CGT’s business or interests (each, a “Permitted Disclosure”).
6. Background Investigation Authorization.
6.1 Associated Individual authorizes CGT to conduct or to have conducted a background investigation of Associated Individual. The background investigation may include (without limitation) inquiry or verification of Associated Individual’s finances, sources of funds, credit standing (including (without limitation) checking credit with credit reporting agencies), probity and business conduct and any other information deemed relevant by CGT. Associated Individual’s authorization shall remain effective through the later of the date the investigation is complete and the date that Customer’s wagering account (if any and as applicable) is closed.
6.2 Associated Individual shall promptly complete and execute, from time to time and as requested by CGT or its designee, any documentation authorizing third parties to release to CGT information regarding such Associated Individual. Associated Individual understands that any failure to promptly complete and return to CGT or its designee any requested authorization for release of information may result in the denial of Customer’s wagering account application or in the suspension or closure of Customer’s wagering account.
6.3 Without limiting the foregoing and in addition thereto, Associated Individual authorizes CGT to request and receive from any credit agency or banking or financial institution with which Associated Individual conducts business and whether located in the state of Nevada or elsewhere, information regarding Associated Individual’s finances, sources of funds, credit standing and business conduct, and Associated Individual further authorizes any such credit agency or banking or financial institution to release such information directly to CGT.
6.4 As required and determined by CGT, Associated Individual shall authorize, on forms prescribed by CGT, the conduct of a background investigation or release of information regarding Associated Individual.
6.5 Associated Individual represents, warrants and agrees that Associated Individual shall not be associated with or otherwise perform hereunder in any way that may associate any CGT Party with any illegal activity or any form of illegal gambling (including (without limitation) illegal sports wagering and money laundering) in any jurisdiction. CGT reserves the right to evaluate Associated Individual and Associated Individual’s business at any time and the right to cease its performance and immediately terminate these Terms and/or any other agreement with Associated Individual without resulting in penalty or liability to any CGT Party. Associated Individual specifically acknowledges that CGT Parties are subject to legal and/or other regulatory requirements of various jurisdictions and are obliged to take reasonable efforts to determine the suitability of their associates. Associated Individual shall cooperate fully with CGT in providing CGT with any information that CGT deems necessary or appropriate in assuring itself that Associated Individual possesses the good character, honesty, integrity and reputation applicable to those engaged in industries in which CGT Parties operate. If CGT or another CGT Party is notified by any applicable authorities that the conduct of business with Associated Individual may jeopardize CGT Parties’ licenses or ability to be licensed or negatively impact CGT Parties’ businesses, or if CGT reasonably concludes that Associated Individual fails to meet the criteria set forth above, CGT may cease its performance and immediately terminate these Terms and/or any other agreement with Associated Individual without resulting in penalty or liability to CGT.
7. Associated Individual Representations and Warranties. Associated Individual represents, warrants and agrees that throughout Customer’s relationship with CGT and, additionally, through the later of the date the investigation is complete and the date that Customer’s wagering account (if any) is closed, the following with respect to such Associated Individual:
7.1 Associated Individual is a sophisticated negotiating party with sufficient experience and access to resources, has consulted with or had an opportunity to consult with an attorney regarding, and has had an opportunity to have an attorney review, these Terms, has read and understands all provisions of these Terms and the risks, intricacies and consequences of agreeing to these Terms and accepts and agrees to be bound by these Terms voluntarily and with full knowledge of their significance.
7.2 Associated Individual has fully disclosed and kept up to date and will continue to disclose and keep up to date all information of Associated Individual provided to CGT in accordance with Applicable Law.
7.3 All information of Associated Individual provided is, and all information of Associated Individual that will be provided, will be, when provided, true, accurate, complete, up to date and not false or misleading.
7.4 Associated Individual has maintained, and will maintain, compliance with and not been established for the purpose of circumventing any Applicable Laws, including (without limitation) laws concerning illegal sports wagering, electronic communications or money laundering.
7.5 All wagering funds provided by Associated Individual to Customer (i) have been sourced and will be sourced from legal activities conducted in compliance with Applicable Law; and (ii) are not, and will not be, subject to legal obligations or other claims, encumbrances or restrictions that would be violated if used by Customer.
7.6 Associated Individual has filed, has caused to be filed or has been included in, and will file, cause to be filed or be included in all federal, state and other tax returns that are required to be filed and has paid, and will pay, all taxes shown thereon to be due, together with applicable interest and penalties, and all other taxes, fees or other charges imposed on Associated Individual or any of Associated Individual’s property by any governmental authority.
7.7 Nothing contained in these Terms, Policies or any other agreement between Associated Individual and CGT shall result in a breach of any license, franchise, permit, indenture, lease, contract, instrument, commitment or other instrument, or arrangement to which Associated Individual is a party or by which Associated Individual is bound or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which Associated Individual is bound.
7.8 CGT and government authorities may and will rely on the information, representations, warranties and agreements provided and made by or on behalf of Associated Individual.
7.9 Associated Individual has an ongoing duty and obligation of disclosure and compliance to CGT with respect to Associated Individual’s information, representations, warranties, agreements and covenants.
8. Wagering Activities.
8.1 Notwithstanding any other provision of these Terms, Policies or any other agreement with any Associated Individual or with Customer, CGT, in its sole and absolute discretion, may (at any time, with or without cause or prior notice): (i) change the nature, composition, access or availability of any service or goods; and (ii) change or impose guidelines, conditions, limits or other restrictions on Customer or any Associated Individual’s activities, including (without limitation) wagering limits, accepting or refusing any wager (in whole or part), restricting, suspending or prohibiting wagering, voiding wagers and prohibiting, holding or delaying transfer of, access to or use of funds.
8.2 Notwithstanding any other provision of these Terms, Policies or any other agreement with any Associated Individual or with Customer, CGT has no obligation to accept or execute all or any part of a wager that any Designated Individual seeks to place with CGT on behalf of Customer.
8.3 CGT may process any wager on the terms actually received by CGT.
8.4 Wager terms reflected in any acknowledgement or confirmation or account history reports available to certain Associated Individuals or to Customer are subject to adjustment for errors. In the event of any conflict between any wager terms reflected in any such acknowledgement, confirmation or report and wager terms reflected in any adjusted acknowledgement, confirmation or report, or any other document or record logically associated with the respective acknowledgement, confirmation or report generated or adopted by CGT, the wager terms reflected in the adjusted acknowledgement, confirmation or report or other document or record control as determined by CGT in its sole and absolute discretion.
8.5 Each wager that CGT accepts is subject to these Terms, the Entity Wagering Account Terms, Policies and such other agreement between Customer and CGT that applies to Customer’s activities and wagering account under the Entity Wagering Account Terms.
9. Governance Terms.
9.1 Confidentiality. Associated Individual shall treat as strictly confidential and not disclose information about or pertaining to the business of any CGT Party that is disclosed to any Associated Individual in the course of or in connection with these Terms, including (without limitation) wagering limits, the form and content of any part of the wagering account application and the processes for applying for, opening and maintaining a wagering account (collectively, the “Confidential Information of CGT”); provided, however, that Associated Individual may disclose Confidential Information of CGT to Associated Individual’s legal counsel or accountants with a need to know and who are bound by confidentiality obligations no less stringent then the confidentiality obligations herein or as required by Applicable Law; provided, further, that, if Associated Individual, or Associated Individual’s legal counsel or accountants are required pursuant to legal process to disclose any Confidential Information of CGT, Associated Individual shall, to the extent permitted by such legal process, promptly notify CGT so as to provide CGT an opportunity to seek a protective order or other confidential treatment. Associated Individual shall not make or participate in the making of any comments or statements, including (without limitation) in any media (print, broadcast, electronic or otherwise), that are disparaging regarding CGT Parties, or are otherwise contrary to the interests of CGT Parties.
9.2 Intellectual Property; Marks. Associated Individual shall not: (i) use in any manner, form or jurisdiction whatsoever any of CGT’s or any of CGT’s affiliates’ name(s), trade name(s), trademark(s), service mark(s), Internet domain name(s), sub-domain name(s), slogans or logos, in each case, whether registered or unregistered, or any variations, translations or transliterations of any of the foregoing, including (without limitation) “CG”, “CGT”, “CG Technology”, or any mark that sounds like either of the foregoing and any and all names (including (without limitation) trademarks and registrations) used to identify any systems, components, services, goods or content (collectively, the “Names and Marks”) without the prior written consent, on a case by case basis, of CGT, which, if given, may be withdrawn at any time in the sole discretion of CGT; or (ii) represent (directly or indirectly) that any of Customer’s or Associated Individual’s activities, services or goods have been approved or endorsed by any CGT Party. Associated Individual hereby understands, acknowledges and agrees that (a) as between CGT, on the one hand, and Customer and Associated Individual, on the other hand, CGT or the relevant affiliate of CGT is the sole and exclusive owner of any CGT IP and, in each case, all Intellectual Property Rights (as defined below) therein and thereto, (b) CGT IP and all Intellectual Property Rights therein and thereto constitute valuable property of CGT and its affiliates and all Intellectual Property Rights in and to the CGT IP are and shall remain with CGT and its affiliates, (c) in the absence of CGT’s express written consent, Associated Individual shall not, for Associated Individual or other Associated Individuals or with or on behalf of any other natural person or entity, develop, market, obtain, use, exploit or implement any Confidential Information of CGT or CGT IP with or from any natural person or entity other than CGT, (d) Associated Individual shall not take any action to challenge the validity or ownership of or oppose or otherwise interfere with any Intellectual Property Rights of CGT or its affiliates, including (without limitation) CGT’s rights in the CGT IP, and (e) Associated Individual shall not apply for or register in any manner, form or jurisdiction whatsoever, any Intellectual Property Rights in or to the CGT IP. Without limiting any remedies CGT or its relevant affiliates may be entitled to at law or in equity, Associated Individual hereby agrees that in the event of any breach of this Section 9.2 , Associated Individual shall promptly disgorge any revenue earned by Associated Individual or any affiliate of Associated Individual arising from the use, development, marketing, sale, implementation or exploitation of any portion of the Confidential Information of CGT or CGT IP. Associated Individual further understands, acknowledges and agrees that except as expressly provided herein, (x) these Terms transfer no right, title or interest in the CGT IP, and (y) no Associated Individual acquires any rights, express or implied, in the CGT IP or the Intellectual Property Rights therein and thereto.
9.2.1 “CGT IP” means, individually and collectively, anything derived from and any and all derivatives, in each case, whether tangible or intangible, of any Confidential Information of CGT (even if it shall cease to be considered confidential), any systems, components, services, goods or content provided by CGT, the Names and Marks and/or any and all Intellectual Property Rights in any of the foregoing.
9.2.2 “Intellectual Property Rights” means, on a worldwide basis, any and all: (i) rights associated with works of authorship, including (without limitation) copyrights, moral rights, database rights and mask-works; (ii) trademarks and service marks; (iii) trade secret rights, including (without limitation) rights with respect to any and all information, whether oral, written, graphic or machine-readable form, including (without limitation) software products, object and source code, application programming interface, algorithms, computer processing systems and techniques, technical data, product plans, product and service developments, comparative analysis of competitive products, technical plans and proposals, research and development plans, progress and reports, business information, business policies, marketing strategies, pricing policies and lists, customer and user lists, procedures, improvements, concepts and ideas, designs, drawings, artwork, equipment, processes, budgets and projections, technical information, trade secrets, and/or any other information, materials, data or documents, in whole or in part, now existing or later acquired or provided by CGT, whether or not such information, data or documents qualify as a “trade secret” under the broadest interpretation of any Applicable Law that is or may become applicable during the term; (iv) patents, designs, utility models, algorithms or inventions; (v) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vi) registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including (without limitation) any rights in any of the foregoing), whether or not any of the foregoing are registered, and whether or not any of the foregoing are owned or licensed.
9.3 Taxes. Associated Individual agrees that CGT has no, and will have no, responsibility for any taxes applicable to Customer’s business, Customer’s performance or any of Associated Individual’s association therewith.
9.4 Nature of Services. CGT will not provide Associated Individual with any legal, tax or accounting advice. CGT’s employees are not authorized to give Associated Individual any such advice, and Associated Individual agrees that Associated Individual shall not solicit or rely upon any such information from CGT’s employees or from CGT whether in connection with transactions in or for any of Customer’s accounts or otherwise. CGT is not, and shall not be, by virtue of providing its services or goods, or any other service or good related to wagering, an advisor or fiduciary for any Customer or Associated Individual.
9.5 Notice. Notices and other communications from any Associated Individual to CGT must be in writing and mailed to CGT at 2575 South Highland Drive, Las Vegas,
Nevada 89109, Attention: General Counsel (or any other address of which Associated Individual is advised in writing). CGT may deliver notices or other communications to Associated Individual electronically, by public or private delivery service and verbally, including (without limitation) voice and text messages. Associated Individual agrees that Associated Individual’s mailing address to which CGT may send written notifications shall be the address maintained by CGT in its records. Notices and other communications sent by CGT to Associated Individual shall be deemed to have been personally delivered to Associated Individual whether actually received or not. Associated Individual hereby authorizes CGT to monitor and/or record any or all telephone and/or electronic communications between Associated Individual and CGT or any of CGT’s employees or agents. Associated Individual agrees that such recordings may be used in connection with a dispute between the parties. Associated Individual understands and acknowledges that CGT may determine not to make or keep such recordings and that such determination shall not in any way affect any party’s rights.
9.6 Assignment; Delegation. Associated Individual shall not (i) voluntarily or involuntarily assign or otherwise transfer any of its rights under or claims for damages arising out of or related to these Terms, whether by merger, consolidation, sale of all or substantially all of the assets, dissolution, operation of law or any other manner; or (ii) delegate any performance under these Terms. Any purported assignment, transfer or delegation by Associated Individual shall be void ab initio. CGT may assign these Terms (in whole or in part) to any party, including (without limitation) to any affiliate or to any entity that succeeds to all or substantially all of CGT’s assets or business, and may delegate or outsource its obligations to one or more other natural persons or entities.
9.7 Amendment; Waiver. CGT may modify these Terms at any time. By continuing to associate with Customer while Customer continues use of services or goods from CGT after any modification of these Terms, Associated Individual acknowledges receipt of and understands, acknowledges and agrees to any such modification. In addition to the foregoing, CGT also may request Associated Individual to execute an agreement in ink reflecting such modified terms and Associated Individual agrees that Associated Individual will agree to such modified terms as set forth in its execution of such agreement. If Associated Individual does not want to agree to such modification, Associated Individual shall provide CGT with written notification. In the event Associated Individual provides CGT with written notification that Associated Individual does not want to agree to such modification, CGT may require Customer to disassociate from Associated Individual, suspend or close Customer’s wagering account and Customer shall remain liable to CGT for all outstanding liabilities and obligations. Otherwise, these Terms may not be modified absent a written instrument, executed in ink by an authorized representative of CGT. No failure or delay in CGT exercising any right, option, election or remedy or in CGT requiring the satisfaction of any condition under these Terms and no course of dealing between Associated Individual and CGT operates as a waiver or estoppel of any right, option, election, remedy or condition of CGT. A written waiver or consent by CGT on one occasion is effective only in that specific instance and only for the purpose that it is given and is not to be construed as a waiver or consent by CGT on any future occasion or against any other party or natural person or entity.
9.8 Binding Arbitration; Jury Trial Waiver. Except as provided in Section 9.8.2, CGT and Associated Individual shall enter into good faith negotiations to mutually resolve any claim arising out of or relating to these Terms, including (without limitation) their arbitrability, applicability, enforceability, interpretation or breach, (each, a “Claim”) as a precondition to arbitration pursuant to this Section 9.8. To initiate good faith negotiations of a Claim, Associated Individual or CGT shall notify the other in writing setting forth the details and nature of the Claim, the relief sought and an estimate of the amount involved. If a Claim is not resolved in the good faith negotiations to the satisfaction of Associated Individual or CGT within forty-five (45) days, CGT and Associated Individual agree that such Claim may be resolved only by further good faith negotiations or by either party’s written request to begin binding arbitration conducted by a panel of three (3) arbitrators (“Panel”) in accordance with this Section 9.8 and, to the extent not in conflict with these Terms, the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules. Subject to these Terms, the Panel shall be empowered to grant whatever relief would be available in a court under law or in equity; provided, that such relief is in accordance with these Terms, including (without limitation) any limitations of liability and indemnifications of any CGT Party. The Panel’s award shall be binding and accompanied by a separate written and reasoned opinion setting forth the issues raised, the Panel’s factual findings and conclusions of law and may be entered as a judgment in any court of competent jurisdiction. Associated Individual and CGT agree that any arbitration shall be initiated in Clark County, Nevada, and to submit to the personal jurisdiction of any federal or state courts in Clark County, Nevada, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the Panel. Associated Individual and CGT agree that arbitration shall be initiated by sending written notice of intent to initiate arbitration by certified mail to the respective party’s mailing address provided for in Section 9.5. Such notice of intent shall include the mailing address, e-mail address and telephone number of the initiating party; the name, mailing address, e-mail address and telephone number of the initiating party’s legal counsel, if any; and a statement setting forth the details and nature of the Claim, the relief sought and an estimate of the amount involved. Upon the appointment of the Chairperson (as defined below) of the Panel in accordance with Section 9.8.3, Associated Individual and CGT shall submit all pleadings in the arbitration proceedings to the Chairperson for dissemination to Associated Individual, CGT and the other arbitrators. Associated Individual and CGT agree that the Chairperson shall be responsible for administrative functions, including (without limitation) providing notice of hearings and disseminating pleadings. Except for disclosures in confidence to their respective attorneys or as required by Applicable Law, CGT and Associated Individual shall not (and shall cause the Panel not to) disclose the existence, content or results of any arbitration under this Section9.8 without the prior written consent of the other party, or, in the case of the Panel, without the prior written consent of both CGT and Associated Individual. ASSOCIATED INDIVIDUAL UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ASSOCIATED INDIVIDUAL IS HEREBY WAIVING ANY AND ALL RIGHTS TO A JURY TRIAL AS TO ANY CLAIM.
9.8.1 Class Action Waiver; Consolidation of Claims. ASSOCIATED INDIVIDUAL HEREBY AGREES AND WAIVES THE RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS AND THAT ANY ARBITRATION SHALL BE CONDUCTED ONLY IN THE INDIVIDUAL CAPACITY OF ASSOCIATED INDIVIDUAL AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. If any court or the Panel determines that the class action waiver set forth in this Section 9.8.1 is void or unenforceable for any reason or that an arbitration may proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims. Associated Individual agrees that the arbitrator shall not have authority to consolidate any Claim brought against CGT with any Claim brought by any other natural person or entity.
9.8.2 Binding Arbitration Exceptions. Notwithstanding anything in these Terms to the contrary, Associated Individual acknowledges and agrees that (i) certain disputes may be subject to the jurisdiction of government authorities; (ii) CGT may bring an action in any federal or state courts to protect Intellectual Property Rights or to seek equitable relief regarding the preservation of Confidential Information of CGT; and (iii) Associated Individual shall not challenge or otherwise dispute any matter subject to the discretion, decisions or determination of CGT, or the results thereof, as provided for in these Terms, Policies or any other agreement between Associated Individual and CGT.
9.8.3 Selection and Compensation of Arbitration Panel. Unless otherwise agreed to in a written agreement, executed in ink by each party’s duly authorized representative, the Panel shall consist of one (1) arbitrator selected by Associated Individual (“Associated Individual Appointee”), one (1) arbitrator selected by CGT (“CGT Appointee”) and one (1) arbitrator with significant experience in the gambling and sports betting industries selected by Associated Individual and CGT (“Chairperson”). If within thirty (30) days of the date Associated Individual Appointee or CGT Appointee was selected, whichever is later, Associated Individual and CGT cannot mutually agree upon the Chairperson then Associated Individual Appointee and CGT Appointee shall jointly select the Chairperson. Neither Associated Individual Appointee nor CGT Appointee may serve as Chairperson. The cost of any arbitration shall be set forth in a written agreement, executed in ink by the Panel and each party’s duly authorized representative.
9.9 Governing Law; Venue. These Terms and the relationship between Associated Individual and CGT shall be governed by and shall be construed in accordance with the laws of the state of Nevada and the federal laws of the United States, as applicable, without giving effect to any conflicts of law principles thereof. For any matter not subject to arbitration, Associated Individual and CGT each (i) agrees to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts sitting in Clark County, Nevada and (ii) consents to service of process by any means authorized by Nevada law (other than by publication). In any matter, whether subject to arbitration or otherwise, Associated Individual and CGT each waives any and all jurisdictional and venue defenses otherwise available, including (without limitation) any claim or defense that such forum is not convenient or proper.
9.10 Release. Associated Individual hereby releases, remises and forever discharges CGT and its affiliates and each of their successors, assigns, officers, directors, members, partners, agents, contractors, representatives and employees in their individual and representative capacities (individually and collectively, the “CGT Parties”) from any and all actions, causes of action, lawsuits, arbitrations, liabilities, charges, damages, debts, judgments, awards, executions, proceedings, settlements, investigations, losses, obligations, fines, deficiencies, penalties, claims, demands, costs, interest and expenses, known or unknown, in law or equity, including (without limitation) court costs and attorneys’ fees and expenses, in each case as incurred (individually and collectively, “Losses”) of any nature, including (without limitation) in contract, tort, defamation, libel or slander, that Associated Individual ever had, now has, may have or may claim to have against any CGT Party arising out of, by reason of or in connection with (i) the submission, processing, investigation and deliberation concerning or other action relating to such Associated Individual, information of Associated Individual submitted to CGT, Customer’s wagering account or wagering account application, including (without limitation) of or relating to any background investigation or release or use of released information; (ii) any Permitted Disclosure; (iii) any activity or wagering account of Customer or any Associated Individual; (iv) any access or use of any wagering account of Customer; (v) any misrepresentation, violation or breach of any representation, warranty or agreement by any Associated Individual; (vi) any failure of any Associated Individual to comply with Applicable Law; and (vii) the provision or disclosure of or failure to provide or disclose, including (without limitation) the failure to timely provide or disclose, any information to CGT and any use of such information by any CGT Party (collectively, the “Released Matters”).
9.11 Indemnification. Associated Individual shall indemnify and hold harmless the CGT Parties from and against any and all Losses arising out of, by reason of or in connection with (i) any claim by any party arising out of or in connection with such Associated Individual; (ii) the access or use of any systems, components, services, goods or content, including (without limitation) any Electronic Service or data or information, by or through Associated Individual; (iii) any funds provided from Associated Individual to Customer; (iv) any claim that Associated Individual failed to comply with Applicable Law; and (v) the Released Matters. Notwithstanding the foregoing, CGT Parties, as the case may be, retain the exclusive right (i) to assume, at their own expense, the exclusive defense and control of any matter otherwise subject to indemnification by Associated Individual, in which event Associated Individual agrees to fully cooperate with CGT Parties, including (without limitation) in asserting any available defense; and (ii) to settle, compromise and pay any and all Losses that are incurred by CGT Parties and in no event shall Associated Individual settle any such Losses without CGT Parties’ prior written approval.
9.12 Assumption of Risk. ASSOCIATED INDIVIDUAL UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THERE IS INHERENT RISK IN WAGERING ACTIVITIES AND UNDERSTANDS, ACKNOWLEDGES AND AGREES TO ACCEPT SUCH RISK. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL WAGERS PLACED ON CUSTOMER’S WAGERING ACCOUNT, FOR ALL LOSSES RESULTING FROM ANY WAGER PLACED ON CUSTOMER’S WAGERING ACCOUNT AND FOR CUSTOMER’S RELIANCE ON ANY DATA OR INFORMATION THAT MAY BE PROVIDED IN CONNECTION WITH THE RELATIONSHIP BETWEEN CUSTOMER AND CGT. CGT IS NOT RESPONSIBLE FOR DETERMINING WHETHER ANY WAGER BY CUSTOMER IS SUITABLE, APPROPRIATE OR ADVISABLE. CGT DOES NOT WARRANT OR REPRESENT THAT ANY SYSTEM, COMPONENTS, SERVICES, GOODS OR CONTENT PROVIDED IN CONNECTION WITH THE RELATIONSHIP BETWEEN CUSTOMER OR ASSOCIATED INDIVIDUAL AND CGT ARE OR WILL BE ERROR-FREE, THAT THE AVAILABILITY THEREOF WILL BE UNINTERRUPTED, THAT THE SYSTEM, COMPONENTS, SERVICES, GOODS OR CONTENT PROVIDED WILL BE FUNCTIONAL, THAT DEFECTS WILL BE CORRECTED OR THAT THE SYSTEM, COMPONENTS, SERVICES, GOODS OR CONTENT PROVIDED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CGT DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED (INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENCY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO ANY SYSTEM, COMPONENTS, SERVICES, GOODS OR CONTENT PROVIDED OR THE CONTINUATION OR SUCCESS THEREOF. UNDER NO CIRCUMSTANCES SHALL ANY CGT PARTY BE LIABLE TO ANY ASSOCIATED INDIVIDUAL OR OTHER NATURAL PERSON OR ENTITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING (WITHOUT LIMITATION) LOST PROFITS, WAGERS OR WAGERING OPPORTUNITIES, LOST TIME OR GOODWILL (EVEN IF ANY SUCH DAMAGES ARE FORESEEABLE OR IF CGT HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM CGT’S PERFORMANCE OR NONPERFORMANCE HEREUNDER. CGT’S SOLE LIABILITY AND ASSOCIATED INDIVIDUAL’S EXCLUSIVE REMEDY FOR ANY DAMAGES CAUSED BY ANY SYSTEM, COMPONENTS, SERVICES, GOODS OR CONTENT PROVIDED OR DEFECT OR FAILURE THEREOF, OR FOR ANY INTERRUPTIONS OR DELAYS IN ANY SYSTEM, COMPONENTS, SERVICES, GOODS OR CONTENT PROVIDED OR UNAVAILABILITY OF ANY SYSTEM, COMPONENTS, SERVICES, GOODS OR CONTENT PROVIDED, NOTWITHSTANDING THE FORM OF SUCH CLAIMS (E.G., CONTRACT, NEGLIGENCE OR OTHERWISE) WILL BE NO MORE THAN AS FOLLOWS: FOR A SYSTEM OR COMPONENTS DEFECT OR ERROR, CGT SHALL USE REASONABLE EFFORTS TO CAUSE THE SYSTEM OR COMPONENTS TO OPERATE; AND FOR ANY INTERRUPTIONS OR DELAYS IN OR UNAVAILABILITY OF THE SYSTEM OR COMPONENTS, CGT SHALL USE REASONABLE EFFORTS TO MAKE THE SYSTEM OR COMPONENTS AVAILABLE AS PROMPTLY AS REASONABLY PRACTICABLE. Without limiting any of the foregoing and in addition thereto, for any access or use of any internet site, mobile application, on-line or other electronic system operated for or by CGT or any account access, wagering or any other systems, components, services, goods or content available through any of the foregoing (each, an “Electronic Service”), Associated Individual understands, acknowledges and agrees that: (i) the Electronic Service is being made available without any warranty whatsoever, express or implied (including (without limitation) any warranties of accuracy, completeness, currency, merchantability or fitness for a particular purpose); (ii) any access or use will be solely at Customer’s or Associated Individual’s own risk; and (iii) CGT will not have any liability whatsoever relating to or arising out of any access or use or any problems with or failures of any Electronic Service.
9.13 Force Majeure Events. CGT shall not be liable for any failure to perform, impracticability in performing or delay in performing, in whole or part, under these Terms or for damages, losses or liabilities arising out of or in connection with any of the following: act of God; act of war; military action, terrorist act, public enemies; government actions; weather and environmental systems (including (without limitation) typhoon, hurricane, tsunami, volcanic eruption, landslide, earthquake, lightning, flood, fire, tornado); perils of the sea, shipwreck; quarantine, epidemic, outbreak, illness, famine or plague; labor or material shortages, strikes, lockouts and labor disputes; civil commotions or riots; seizure or arrest of any vessel; robbers; pirates or thieves; barratry; collision; explosions; satellite reception failures or system outage, delays, failure, loss, inaccuracies or corruption of data or information, delays, failure, loss, inaccuracies or corruption of the Internet, communication lines or utility systems, equipment and systems failures, suspension or delay of wagering activities, acts or omissions of service or information providers or any cause whatsoever beyond the control of CGT whether of the kind hereinabove enumerated or not.
9.14 Remedies. The various rights, options, elections and remedies of CGT hereunder shall be cumulative, and no one of them shall be construed as exclusive of any other, or of any right, option, election, priority or remedy allowed or provided for by law and equity and not expressly waived in these Terms. Neither a single nor partial exercise by CGT of any right, option, election, priority or remedy shall preclude the concurrent or subsequent exercise of any other single or partial right, option, election or remedy, nor shall the failure by CGT to exercise any single or partial right, option, election or remedy limit or prevent the subsequent enforcement by CGT of any contract provision.
9.15 No Third Party Beneficiary. Except as otherwise provided herein, nothing in these Terms is intended to or shall confer any benefits, rights or remedies to, create any claim in favor of or obligate CGT to any natural person or entity other than Associated Individual. There is no third party beneficiary with respect to Associated Individual under these Terms.
9.16 Negotiations. Associated Individual and CGT acknowledge: that (i) these Terms are the product of negotiations between Associated Individual and CGT and their attorneys, (ii) Associated Individual and CGT have reviewed these Terms, and (iii) each of Associated Individual’s and CGT’s attorneys have reviewed these Terms. Any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of these Terms, including (without limitation) any modifications or waivers, and are expressly waived. Associated Individual and CGT agree that these Terms shall be construed as a whole according to their fair meaning and not strictly for or against any party. In resolving any dispute or construing any provision in these Terms, there shall be no presumption made or inference drawn because (a) the attorneys for Associated Individual or CGT drafted these Terms; (b) of the drafting history of these Terms; or (c) of the inclusion of a provision not contained in a prior draft or the deletion of a provision contained in a prior draft.
9.17 Severability. If and to the extent any term or provision herein is or should become invalid or unenforceable, then (i) the validity and enforceability of the remaining terms and provisions herein shall be unimpaired and shall remain in full force and effect and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and enforceable and as similar as possible to the invalid or unenforceable term or provision.
9.18 Survival. Sections 2.3, 2.5, 4, 5 and 9 shall survive in perpetuity the expiration or termination of these Terms or any suspension or closure of Customer’s wagering account.
9.19 Entire Agreement; Binding Effect. These Terms contain the entire agreement between and understanding of Associated Individual and CGT and are the complete and exclusive expression of their agreement on the matters contained in these Terms. These Terms shall be binding upon Associated Individual and Associated Individual’s heirs, executors, administrators, devisees, legal representatives and permitted (if any) successors, assigns or delegates. Associated Individual hereby waives any and all defenses that any instruction, update or modification with respect to any of Customer’s wagering accounts was not in writing as may be required by any Applicable Laws, including (without limitation) the statute of frauds.
9.20 Headings. The headings of the provisions hereof are for ease of reference only and shall not affect the interpretation or application of these Terms or in any way modify or qualify any of the rights or obligations provided for hereunder.
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Effective January 27, 2016
(Rev. 2 (1/26/2016))
SOF-RC033 Entity Wagering Account Terms – Associated Individuals
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