Entity Wagering Account Terms
1.1 IMPORTANT NOTICE: THESE ENTITY WAGERING ACCOUNT TERMS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AND JURY TRIAL AS DETAILED IN SECTION 9.8.
1.2 These Entity Wagering Account Terms (“Terms”) set forth the terms and conditions on which CG Technology, L.P. (“CGT”) may open and maintain a wagering account for the respective entity that has submitted or is submitting a wagering account application (“Customer”) to CGT and otherwise transact wagering activities for Customer. These Terms are binding upon and contain obligations that can be enforced against Customer. Please read carefully.
2. Expiration and Termination.
2.1 Customer may close its wagering account by providing CGT with thirty (30) days’ prior written notice.
2.2 On expiration or termination of these Terms or closure of Customer’s wagering account, it will be Customer’s responsibility to issue instructions in writing with regard to the funds held in Customer’s wagering account. Unless and until CGT receives such instructions, it will be under no obligation to take any action with regard to Customer’s funds. CGT may send Customer’s funds to Customer’s Nevada Bank Account (as defined below) or by check to Customer’s mailing address maintained by CGT in its records. Either of these actions are sufficient discharge of CGT’s obligation to return the funds to Customer. Customer shall be responsible for any transaction costs associated with transferring funds to and from Customer’s Nevada Bank Account, whether upon the expiration or termination of these Terms, closure of Customer’s wagering account or otherwise.
2.3 CGT may (at any time, with or without cause or prior notice, and without penalty or liability): (i) suspend a Customer’s activities; (ii) suspend or close a wagering account; or (iii) terminate these Terms.
2.4 Upon the closure of Customer’s wagering account or the earlier of the expiration or termination of these Terms, (i) Customer 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 (as defined below) and CGT IP (as defined below); and (ii) any and all licenses to or rights or benefits of Customer under these Terms or otherwise will terminate immediately.
2.5 Notwithstanding any suspension or closure of Customer’s wagering account or expiration or termination of these Terms, Customer shall remain liable to CGT with respect to all of Customer’s activities and for all of Customer’s obligations and liabilities under these Terms or otherwise.
2.6 Customer is in default of these Terms if: (i) Customer does not perform any obligation to CGT; (ii) Customer breaches, violates, repudiates or defaults under these Terms, Policies (as defined below) or any other agreement Customer may have with CGT; (iii) Customer commences a proceeding in bankruptcy, receivership or insolvency or one is commenced against Customer; (iv) an attachment or lien is made against Customer’s wagering account or funds; (v) a receiver is appointed with respect to Customer or any of Customer’s assets; (vi) Customer merges, liquidates or dissolves; or (vii) an event, circumstance or condition occurs that, in CGT’s judgment, materially impairs Customer’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”). Customer agrees to immediately send written notification to CGT detailing each Event of Default that Customer knows has occurred or is likely to occur.
2.7 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 2.3, (ii) elect to consider Customer in default of any or all agreements Customer 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 Customer obligations to CGT against any of CGT’s obligations to Customer, and Customer’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 Customer by first deducting any obligation that Customer owes to CGT before determining the final amount of any such obligation.
3. Wagering Account Application and Certain Customer Obligations.
3.1 Customer agrees to complete an application with CGT for the purpose of establishing a wagering account. As part of the wagering account application process and while CGT maintains a wagering account for Customer, Customer shall provide CGT with the information required by Applicable Law and any other information that CGT may request.
3.2 Customer 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 to establish a relationship with any Customer. CGT has no obligation, and shall have no obligation, to communicate the reasons or bases for which it makes decisions with respect to Customer.
3.3 Customer shall not place wagers with CGT unless Customer has submitted a wagering account application and CGT has approved such application and opened the wagering account. Customer understands, acknowledges and agrees that it shall disclose all natural persons and entities and such other information required by Applicable Law, including (without limitation) the Customer Parties, and that as part of the wagering account application process, certain natural persons associated with Customer shall provide CGT with valid, government-issued photo identification and/or personally appear before representatives of CGT. Customer agrees that CGT may retain a copy of each such identification and warrants that each such identification presented will be true, accurate, not false, real, authentic and validly issued.
3.4 Customer 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. 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 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 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.
3.7 Customer agrees that if Customer or any natural person or entity authorized to act on Customer’s behalf 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)”), Customer shall (i) preserve the confidentiality of User Codes; (ii) restrict access to User Codes to those natural persons who are duly authorized to act on its behalf; (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 the authority of any natural person or entity to act on its behalf has been revoked or limited; and (iv) be responsible for and be bound by all statements made, wagers placed 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.
4. Applicable Laws and Policies.
4.1 Customer shall not (and shall cause the Customer Parties (as defined below) not to) 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. Customer shall (and shall cause the Customer Parties to) 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 Customer 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 Customer 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 Customer or any Customer Party or any of their 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 Customer authorizes CGT to conduct or to have conducted a background investigation of Customer and its affiliates and each of their successors, assigns, owners, principals, investors, creditors, officers, directors, members, partners, agents, contractors, representatives, employees, designated individuals, natural persons or entities entitled to payments based on profits or revenues and such other natural persons and entities as may be requested (individually and collectively, the “Customer Parties”). The background investigation may include (without limitation) inquiry or verification of a Customer Party’s organizational existence and structure, 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. Customer’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 Customer shall (and shall cause the Customer Parties to) 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 any Customer Party. Customer 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, Customer authorizes CGT to request and receive from any credit agency or banking or financial institution with which any Customer Party conducts business and whether located in the state of Nevada or elsewhere, information regarding any Customer Party’s finances, sources of funds, credit standing and business conduct, and Customer further authorizes any such credit agency or banking or financial institution to release such information directly to CGT.
6.4 As required, Customer shall cause the Customer Parties, as determined by CGT, to authorize, on forms prescribed by CGT, the conduct of a background investigation or release of information regarding the respective Customer Party.
6.5 Customer represents, warrants and agrees that it shall not be (and shall cause the Customer Parties not to 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 any Customer Party and its business at any time and the right to cease its performance and immediately terminate these Terms and/or any other agreement with any Customer Party without resulting in penalty or liability to any CGT Party. Customer 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. Customer shall (and shall cause the Customer Parties to) cooperate fully with CGT in providing CGT with any information that CGT deems necessary or appropriate in assuring itself that Customer Parties possess 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 any Customer Party may jeopardize CGT Parties’ licenses or ability to be licensed or negatively impact CGT Parties’ businesses, or if CGT reasonably concludes that any Customer Party fails to meet the criteria set forth above, CGT may cease its performance and immediately terminate these Terms and/or any other agreement with Customer without resulting in penalty or liability to CGT.
7. Customer Representations and Warranties. Customer represents, warrants and agrees that throughout its 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:
7.1 Customer 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 Customer has fully disclosed and kept up to date and will continue to disclose and keep up to date all information, including (without limitation) information of each affiliated natural person and entity (including (without limitation) the Customer Parties), provided to CGT in accordance with Applicable Law.
7.3 All information provided is, and all information that will be provided, will be, when provided, true, accurate, complete, up to date and not false or misleading.
7.4 Each Customer Party 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 obtained by or provided to Customer and related natural persons and entities (including (without limitation) each Customer Party) (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 Customer 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 it or any of its property by any governmental authority.
7.7 Customer (i) is duly constituted, organized, validly existing and in good standing under the laws of the state of Nevada; (ii) nothing contained in these Terms, Policies or any other agreement between Customer and CGT shall result in a breach of any provision of Customer’s organizational documents, or of any license, franchise, permit, indenture, lease, contract, instrument, commitment or other instrument, or arrangement to which Customer is a party or by which Customer is bound or result in a breach of any order, judgment or decree of any court, governmental agency or regulatory body to which it is bound; and (iii) is duly authorized and has the full power and authority to accept and agree to be bound by and perform under these Terms, Policies and any other agreement between Customer and CGT.
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 Customer Parties.
7.9 Customer has an ongoing duty and obligation of disclosure and compliance to CGT with respect to its information, representations, warranties, agreements and covenants.
8. Wagering Activities.
8.1 Notwithstanding any other provision of these Terms, Policies or any other agreement 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’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 Customer, CGT has no obligation to accept or execute all or any part of a wager that Customer seeks to place with CGT.
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 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, Policies and such other agreement between Customer and CGT that applies to Customer’s activities and wagering account under these Terms.
9. Governance Terms.
9.1 Confidentiality. Customer shall (and shall cause the Customer Parties to) treat as strictly confidential and not disclose information about or pertaining to the business of any CGT Party that is disclosed to any Customer Parties 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 Customer may disclose Confidential Information of CGT to Customer’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 Customer, its legal counsel or accountants or any Customer Party is required pursuant to legal process to disclose any Confidential Information of CGT, Customer 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. Customer shall not (and shall cause the Customer Parties not to) 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. Customer shall not (and shall cause Customer Parties, in each case, whether present or future, not to): (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 Customer activities, services or goods have been approved or endorsed by any CGT Party. Customer hereby understands, acknowledges and agrees that (a) as between CGT and Customer, 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, Customer shall not (and shall cause the Customer Parties not to), for itself 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) Customer shall not (and shall cause the Customer Parties not to) 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) Customer shall not (and shall cause the Customer Parties not to) 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, Customer hereby agrees that in the event of any breach of this Section 9.2, Customer shall promptly disgorge any revenue earned by it or any of its affiliates arising from the use, development, marketing, sale, implementation or exploitation of any portion of the Confidential Information of CGT or CGT IP. Customer 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) neither Customer nor any other Customer Party 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. Customer shall be responsible for all taxes applicable to its business and performance hereunder.
9.4 Nature of Services. CGT will not provide Customer with any legal, tax or accounting advice. CGT’s employees are not authorized to give Customer any such advice, and Customer agrees that Customer shall not solicit or rely upon any such information from them 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 Party.
9.5 Notice. Notices and other communications from Customer 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 Customer is advised in writing). CGT may deliver notices or other communications to Customer electronically, by public or private delivery service and verbally, including (without limitation) voice and text messages. Customer agrees that its 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 Customer shall be deemed to have been personally delivered to Customer whether actually received or not. Customer hereby authorizes CGT to monitor and/or record any or all telephone and/or electronic communications between Customer and CGT or any of CGT’s employees or agents. Customer agrees that such
recordings may be used in connection with a dispute between the parties. Customer 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. Customer 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 Customer 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 Customer’s use of services or goods from CGT thereafter, Customer acknowledges receipt of and understands, acknowledges and agrees to any such modification. In addition to the foregoing, CGT also may request Customer to execute an agreement in ink reflecting such modified terms and Customer agrees that it will agree to such modified terms as set forth in its execution of such agreement. If Customer does not want to agree to such modification, Customer shall provide CGT with written notification. In the event Customer provides CGT with written notification that Customer does not want to agree to such modification, CGT may 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 Customer 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 Customer 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, Customer 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 Customer or CGT within forty-five (45) days, CGT and Customer 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. Customer 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. Customer 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, Customer and CGT shall submit all pleadings in the arbitration proceedings to the Chairperson for dissemination to Customer, CGT and the other arbitrators. Customer 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 Customer shall not (and shall cause the Panel not to) disclose the existence, content or results of any arbitration under this Section 9.8 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 Customer. CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IT IS HEREBY WAIVING ANY AND ALL RIGHTS TO A JURY TRIAL AS TO ANY CLAIM.
9.8.1 Class Action Waiver; Consolidation of Claims. CUSTOMER HEREBY AGREES AND WAIVES (AND SHALL CAUSE EACH OTHER CUSTOMER PARTY TO AGREE AND WAIVE) 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 THE APPLICABLE CUSTOMER PARTY 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. Customer 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, Customer 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) it shall not (and shall cause the Customer Parties not to) 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 Customer 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 Customer (“Customer 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 Customer and CGT (“Chairperson”). If within thirty (30) days of the date Customer Appointee or CGT Appointee was selected, whichever is later, Customer and CGT cannot mutually agree upon the Chairperson then Customer Appointee and CGT Appointee shall jointly select the Chairperson. Neither Customer 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 Customer 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, Customer 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, Customer 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. Customer does for itself, the Customer Parties and any other natural person or entity that has or may have an interest in Customer and its activities, hereby release, remise and forever discharge 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 any Customer Party 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 a Customer Party, wagering account or a 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 any Customer Party; (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 Customer Party; (vi) any failure of any Customer Party 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. Customer 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 any Customer Party; (ii) any claim by any Customer Parties other than Customer; (iii) 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 any Customer Parties; (iv) the funds used by Customer and Customer’s Nevada Bank Account; (v) any claim that a Customer Party failed to comply with Applicable Law; and (vi) 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 Customer, in which event Customer 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 Customer settle any such Losses without CGT Parties’ prior written approval.
9.12 Assumption of Risk. CUSTOMER 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 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 CUSTOMER OR ANY OTHER CUSTOMER PARTY, 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 CUSTOMER’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”), Customer 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 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 Customer. There is no third party beneficiary with respect to Customer under these Terms.
9.16 Negotiations. Customer and CGT acknowledge that: (i) these Terms are the product of negotiations between Customer and CGT and their attorneys, (ii) Customer and CGT have reviewed these Terms, and (iii) each of Customer’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. Customer 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 Customer 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 2.2, 2.5, 2.7, 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 Customer and CGT and are the complete and exclusive expression of their agreement on the matters contained in these Terms. These Terms, Policies and any other agreement between Customer and CGT that applies to Customer’s activities and wagering account under these Terms are intended to be read and construed in harmony with each other, and in the event any provision conflicts or is inconsistent with any provision of these Terms, then these Terms shall control, unless such Policies or other agreement expressly states that the terms thereof shall supersede these Terms. These Terms shall be binding upon Customer and Customer’s heirs, executors, administrators, devisees, legal representatives and permitted (if any) successors, assigns or delegates. Customer 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 theseTerms or in any way modify or qualify any of the rights or obligations provided for hereunder.
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Effective January 27, 2016
SOF-RC032 Entity Wagering Account Terms
(Rev. 2 (1/27/2016)
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