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EARLY ADOPTER PROGRAM AGREEMENT
This Early Adopter Program Agreement (the “Agreement”) between Betcade, LLC (“Betcade”) and the Customer identified on the signature page below. Betcade and Customer agree as follows:
Section 1. Definitions
Whenever used in this Agreement with initial letters capitalized, the following terms will have the following specified meanings:
“Betcade Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Betcade and its affiliates.
“Betcade Parties” means Betcade and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents.
“Betcade Services” means Betcade’s app store, together with any Software provided or made available by Betcade.
“Confidential Information” means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser's technology, research, development, products, services, pricing of products and services, customers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). However, Confidential Information does not include any information that: (a) was known to the Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b)is independently developed by the Recipient; (c) is acquired by the Recipient from another source including any end user of the Betcade Services without restriction as to use or disclosure; or (d)is or becomes part of the public domain through no fault or action of the Recipient.
“Discloser” means a Party that discloses any of its Confidential Information to the other Party.
“Documentation” means the user manuals, technical manuals, specifications and other documentation relating to any Betcade Services furnished by Betcade to Customer under this Agreement.
“Evaluation Period” means the period commencing on the date the Betcade Services are made available to Customer and ending December 30, 2016.
“Feedback” means information and feedback (including, without limitation, questions, comments, suggestions, or the like) regarding the performance, features, functionality and your overall experience using the Betcade Services.
“Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
“Materials” means content of any data or information that Customer provides to the Betcade Services.
“Party” means Betcade or Customer.
“Recipient” means a Party that receives any Confidential Information of the other Party.
“Site” means www.betcade.com, and any successor or related site designated by Betcade.
“Software” means any downloadable software made available by Betcade and required for use of the Betcade Services.
“Unauthorized Use” means any use, reproduction, modification, distribution, disposition, possession, examination, inspection, viewing, disclosure or other activity involving the Betcade Services, Documentation or Confidential Information of Betcade that is not expressly authorized under the Agreement or otherwise in writing by Betcade.
Section 2. License
2.1 License to Use Betcade Services. Subject to the terms of this Agreement, Betcade hereby grants to Customer a limited, nonexclusive, nontransferable, nonsublicensable, revocable, royalty free license to use the Betcade Services solely for Customer’s own internal testing and evaluation of the Betcade Services for the Evaluation Period.
2.2 Software. If Customer receives Software from Betcade, including, without limitation Software downloaded separate from this Agreement or from a third party marketplace, its use is governed in one of two ways: if Customer is presented with license terms that it must accept in order to use the Software, those terms apply; if no license is presented, this Agreement applies. Betcade reserves all other rights to the Software. Any Software is licensed, not sold. Unless Betcade notifies Customer otherwise, the Software license ends when Customer’s Betcade Services end. Customer must then promptly uninstall the Software from all of Customer’s computers or devices, or Betcade may disable it. Customer must not work around any technical limitations in the Software.
2.3 Restrictions; Limitations. Customer may not use the Betcade Services in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the license granted under this Section 2 does not include or authorize: (a) publicly performing or publicly displaying any of the Betcade Services; (b) modifying or otherwise making any derivative use of any of the Betcade Services; (c) using any data mining, robots or similar data gathering or extraction methods; (d) reverse engineering or accessing any of the Betcade Services to build a competitive product or service; or (e) using any of the Betcade Services other than for their intended use. During and after the Evaluation Period, Customer will not assert, nor authorize, assist or encourage any third party to assert, against any of the Betcade Parties, any patent infringement or other intellectual property infringement claim regarding any Betcade Services Customer has used. The license granted under this Section 2 is conditioned on Customer's continued compliance this Agreement (including, without limitation, its compliance with the Policies), and will immediately and automatically terminate if Customer does not comply with any material term or condition of this Agreement.
Section 3. Confidential Information
Each Party reserves any and all right, title and interest (including, without limitation, any Intellectual Property Rights) that it may have in or to any Confidential Information that it may disclose to the other Party under this Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This paragraph will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the Recipient's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the Parties; (b) any use or disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (c) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
Section 4. Proprietary Rights
4.1 The Betcade Services. As between Betcade and Customer, Betcade owns all right, title, and interest in and to the Betcade Services. Except as otherwise specified in Sections 2.1 and 2.2 of this Agreement, Customer does not obtain any rights under this Agreement from Betcade to the Betcade Services, including any related Intellectual Property Rights.
4.2 Feedback. Customer will at its risk and expense use reasonable efforts to provide Betcade with reasonable Feedback. Customer will not provide any such Feedback to any third party without Betcade’s prior written consent in each instance. Customer hereby grants to Betcade an exclusive, royalty-free, irrevocable, perpetual worldwide right and license to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute any such Feedback without limitation. Further, Betcade will be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including, without limitation, developing, making, marketing, distributing and selling products and services incorporating such Feedback. Customer should not expect any compensation of any kind from Betcade with respect to Feedback. Betcade will exclusively own any improvements or modifications to the Betcade services based on or derived from any Feedback, including all Intellectual Property Rights therein or thereto.
4.3 Trademarks. As between Betcade and Customer, Betcade owns all right, title and interest in and to the Betcade Marks and any goodwill arising out of the use of the Betcade Marks will remain with and belong to Betcade and its licensors. The Betcade Marks may not be copied, imitated or used without the prior written consent of Betcade or the applicable trademark holder.
4.4 Additional Protection of Proprietary Rights. Customer will not infringe or violate, and will take appropriate steps and precautions for the protection of, the Betcade Services and related Intellectual Property Rights referred to in Section 4.1. Without limiting the generality of the foregoing, Customer will not: (a) make any Betcade Services or Documentation available to any third party without the prior written consent of Betcade; (b) reverse engineer, disassemble or decompile the Betcade Services or otherwise attempt to discover or recreate the source code to the Betcade Services; (c) interfere or attempt to interfere in any manner with the functionality or proper working of the Betcade Services; (d) except as permitted by Betcade, create, build, or otherwise develop a commercial website utilizing the Betcade Services; (e) remove, obscure or alter any notice of copyright or other Intellectual Property Right appearing in or as part of the Betcade Services; or (f) engage in or permit any Unauthorized Use. Customer will immediately notify Betcade of any Unauthorized Use that comes to Customer's attention. In the event of any Unauthorized Use relating to the activities of Customer, or any employees, agents, or representatives of Customer, Customer will take all steps reasonably necessary to terminate such Unauthorized Use. Customer will immediately notify Betcade of any legal proceeding initiated by Customer in connection with any such Unauthorized Use. Betcade may, at its option and expense, assume control of such proceeding. If Betcade assumes such control, Betcade will have exclusive control over the prosecution and settlement of the proceeding, and Customer will provide such assistance related to such proceeding as Betcade may reasonably request. Customer will assist Betcade in enforcing any settlement or order made in connection with such proceeding.
Section 5. Termination.
Either Party may terminate this Agreement at any time by written notice of termination to the other Party. Unless otherwise agreed to by the Parties in writing, upon the expiration of the Evaluation Period or the termination of this Agreement by either Party as provided above, the license granted to Customer in this Agreement will terminate. Sections 1, 2.3, 3, 4, 6, 7 and 8 shall survive the termination or expiration of this Agreement.
Section 6. Limited Warranties and Remedies
6.1 DISCLAIMER. Customer acknowledges that the Betcade Services are a beta test version, are not ready for general commercial release and may contain bugs, errors and defects. Accordingly, the Betcade Services are provided by Betcade and accepted by Customer "AS IS" and "WITH ALL FAULTS, DEFECTS AND ERRORS." BETCADE WILL HAVE NO LIABILITY FOR ANY ERROR, OMISSION OR DEFECT IN THE BETCADE SERVICES, OR ANY INABILITY TO ACCESS OR USE THE BETCADE SERVICES. BETCADE MAKES NO, AND HEREBY DISCLAIMS, ANY AND ALL W ARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, REGARDING THE BETCADE SERVICES, ANY SERVICE PROVIDED IN CONNECTION WITH THE BETCADE SERVICES OR ANY OTHER ITEMS, INFORMA TION, MA TERIALS OR DATA PROVIDED BY BETCADE IN CONNECTION WITH THE EV ALUA TION OF THE BETCADE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
Section 7. Limitations of Liability
7.1 Limitation of Liability. IN NO EVENT SHALL ANY OF THE BETCADE PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE BETCADE SERVICES OR THE BETCADE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY CUSTOMER ON ANY INFORMATION OBTAINED FROM BETCADE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BETCADE'S RECORDS, PROGRAMS, BETCADE SERVICE OR THE BETCADE SITE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ANY OF THE BETCADE PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED $100.
Section 8. Miscellaneous
8.1 Independent Contractors. Each Party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the Parties or as imposing any partnership or agency obligations or liability upon either Party. Further, neither Party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other Party.
8.2 Assignment. Customer may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of Betcade. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
8.3 Dispute Resolution Procedures.
(a) The Parties will attempt to resolve through good faith discussion any dispute that arises under this Agreement. Any such dispute may at any time, at the election of either Party, be referred to a senior executive of each Party for discussion and possible resolution. If the senior executives are unable to resolve the dispute within sixty (60) days after delivery of written notice of the dispute, then either Party may, by notice to the other Party, demand mediation under the mediation rules of JAMS in Los Angeles, California. The Parties give up their right to litigate their disputes and may not proceed to arbitration without first attempting mediation, except that the Parties are NOT required to arbitrate any dispute in which either Party seeks equitable and other relief from the alleged unlawful use any Intellectual Property Rights by the other Party. Whether the dispute is heard in arbitration or in court, the Parties will not commence against the other a class action, class arbitration or other representative action or proceeding.
(b) If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim shall be resolved by arbitration in accordance with the rules of JAMS before a single arbitrator in Los Angeles, California. The language of all proceedings and filings shall be English. The arbitrator shall render a written opinion including findings of fact and law and the award and/or determination of the arbitrator shall be binding upon the Parties, and their respective administrators and assigns, and shall not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration shall be shared equally by the Parties unless the arbitration determines that the expenses shall be otherwise assessed and the prevailing Party may be awarded its attorneys' fees and expenses by the arbitrator. It is the intent of the Parties that, barring extraordinary circumstances, arbitration proceedings shall be concluded within ninety (90) days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the Parties. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
8.4 Severability. If any provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
8.5 Applicable Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware, U.S.A., without reference to its choice of law principles to the contrary. Subject to Section 8.3, Customer hereby consents to the jurisdiction and venue of the state and federal courts located in Los Angeles County, State of California, U.S.A. with respect to any claim arising under or by reason of this Agreement.
8.6 Entire Agreement. This Agreement, together with any agreement, policy or guideline referenced in this Agreement, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
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