USER AGREEMENT FOR SBR MARKETING, LTD.
Effective Date: October 13, 2006
Last Modified: October 13, 2006
I. PRELIMINARY PROVISIONS
A. DISCLAIMERS:
1. THIS SITE INCLUDES INFORMATION ABOUT ONLINE GAMING – WE
ARE JOURNALISTS WHO WRITE ABOUT GAMING, AND OFFER OTHERS AN OPPORTUNITY
TO EXPRESS THEIR VIEWS AND OPINIONS. This website does not
recommend or encourage gambling, whether it is illegal or legal. This
website is a journalistic enterprise that acts as a watchdog over the
online wagering industry. If you are seeking anything other than
neutral reportage on this industry, you are visiting the wrong website
and you should exit this website immediately.
2. PROTECT YOURSELF:
a. IF YOU THINK YOU HAVE A GAMBLING ADDICTION -- Do
not access the information contained in Sportsbook Review if you feel
that you may have a gambling problem. If you suspect that you have a
gambling problem, exit this site immediately and seek help for your
addiction.
b. ONLINE GAMING IS NOT LEGAL IN CERTAIN AREAS.
Consult your local authorities before participating in online wagering
of any kind. Nothing contained on this site should be construed as
legal advice on any activity relating to gambling.
c. GAMBLING IS FOR AMUSEMENT, NOT FOR INCOME: Statistics conclusively prove that nearly all gamblers will lose money over the long term.
d. DO NOT USE THIS SITE IF YOUR ARE UNDER 18.
This site is not designed for minors. You must be 18 or older to access
this website.
B. Party Definitions and Introductory Terms
1. The operative parties referred to in this Agreement are as follows:
a. Us, the Publisher
–SBR Marketing, Ltd., is the publisher of the website(s) located at
http://www.sportsbookreview.com; http://odds.sbrforum.com; and
http://www.sbrforum.com. Hereinafter, when first-person pronouns are
used in this Policy, (us, we, our, ours, etc.) they are referring to
this entity and publisher of the applicable website. This entity may
also be referred to as “Publisher” from this point forward.
Additionally, when the terms “The Site” or “Site” are used, these terms
refer to the aforementioned website.
b. You, the User – As the user of
this Site, this User Agreement will refer to the user as “You” or
through any second-person pronouns, such as “Yours,” etc. Hereinafter,
the user of the Site shall be referred to in applicable second-person
pronouns.
2. Consideration
a. Consideration for Your acquiescence to all
of the provisions in this Agreement has been provided to You in the
form of allowing You to access our online publication free of charge.
b. You agree that such Consideration is both adequate, and that it is received upon your viewing any portion of our website.
C. What this Agreement is – This Agreement is a
legal contract between You and the Publisher. You should treat it as
any other legal contract by reading its provisions carefully, as they
will affect Your legal rights. By accessing the Site in any manner, You
are affirmatively agreeing to be bound by all of the
terms contained in this Agreement. You may not pick and choose which
terms apply to You. If You do not agree with all of the terms in this
Agreement, You must cease all access and use of the Site and any other
services provided by the Publisher.
D. Electronic Signatures / Assent Required – Nobody
is authorized to access this Site unless they have signed this
Agreement. Such signature does not need to be a physical signature,
since this Agreement is intended to be governed by the Electronic
Signatures in Global and National Commerce Act (E-Sign Act). You
manifest Your agreement to this User Agreement by taking any act
demonstrating Your assent thereto. Most likely, You have clicked a
button containing the words “I agree” or some similar syntax. You
should understand that this has the same legal effect as You placing
Your physical signature on any other legal contract. If You have not
yet done so, You must immediately click here to electronically sign
this Agreement.
If You fail to sign this Agreement, You understand that You are an
unauthorized user of the Site, despite any payments made or
subscriptions sold to You. No act or omission by the Publisher should
be interpreted as a waiver of the requirement that You assent to this
User Agreement. If You fail to do so, You are still bound by the terms
of this Agreement by virtue of Your viewing the Site or using any
portion of the Site or Publisher’s services. However, if You fail to
electronically sign this Agreement, You stipulate to and agree to pay
the Publisher $250 each time You access the Site as liquidated damages
for unauthorized access and use, and You agree to pay all of our costs
and expenses, including Attorney’s fees and costs, incurred in
collecting this unauthorized access fee from You.
E. Revisions to this User Agreement:
1. From time to time, We may revise this Agreement.
You agree that We have this unilateral right. You agree that all
modifications or changes to this Agreement are in force and enforceable
immediately upon posting. The updated or edited version supersedes any
prior versions immediately upon posting, and the prior version is of no
continuing legal effect unless the revised version specifically refers
to the prior version and keeps the prior version or portions thereof in
effect.
2. We agree that if we change anything in this
Agreement, we will change the “last modified date” at the top of this
Agreement. You agree to periodically re-visit this web page, and to use
the “refresh” button on Your browser when doing so. You agree to note
the date of the last revision to this Agreement. If the “last modified”
date remains unchanged from the last time You reviewed this Agreement,
then You may presume that nothing in the Agreement has been changed
since the last time You read it. If the “last modified” date has
changed, then You can be certain that something in the Agreement has
been changed.
3. Waiver – if You fail to periodically review this
Agreement to determine if any of the terms have changed, You assume all
responsibility for such omission and You agree that such failure
amounts to Your affirmative waiver of Your right to review the amended
terms. We are not responsible for Your neglect of Your legal rights.
II. ACCESS AND LIMITED LICENSE – All Users may
access certain public areas of the Site. This User Agreement covers all
public and non-public areas of the Site. The Publisher grants You a
limited, nonexclusive, nontransferable personal license to access and
use the Site and the Materials contained therein. Any unauthorized use
of the Site or any of the Materials contained therein terminates this
limited license effective immediately. You will not copy or
redistribute any of the content appearing on this Site. Publisher
reserves the right to terminate this license at any time if You breach
or violate any provision of this Agreement, in which case You will be
obligated to immediately destroy any information or materials You have
downloaded, printed, or otherwise copied from this Site. Violators of
this limited license may be prosecuted to the fullest extent under the
applicable law.
III. SPECIAL CONSIDERATIONS REGARDING MINORS
A. Age of Majority. In order to use the Site or any
services provided by the Publisher, you must have attained the age of
majority in your jurisdiction. You represent and warrant you are at
least 18 or 21 years of age, depending on the age of majority in your
jurisdiction, and that You have the legal capacity to enter into this
Agreement. If You are not at least 18 or 21 years of age, depending on
the age of majority in Your jurisdiction, you must exit the Site
immediately and may not use or access the Site or print or download any
Materials from the Site whatsoever.
IV. CONTENT
A. The text, software, images, graphics, data,
messages, or other information, and any other World Wide Website owned,
operated, licensed, or controlled by the Publisher is all collectively
referred to as “the Materials.”
B. The Materials include links and informational
content reporting on the subject of online wagering and gambling.
Internet gambling is not legal in certain areas. You agree that you
will consult your local authorities or your personal attorney prior to
registering with any online wagering service. In any event, by
accessing this site, and agreeing to these terms and conditions, You
are now, and forever, giving up your right to bring any claims against
us for any cause of action related to Your use of any site linked to on
our Sites.
C. You have no right to blame the Publisher or to
seek any compensation of any kind from the Publisher if you ignore the
law or if you are ignorant of the law surrounding online gambling. You
agree that if you play on or sign up for any online gambling links that
you may find on our site, that you assume full responsibility for your
actions, and you will not hold the Publisher responsible for any
losses, damages, or any other negative impact that may come from your
decision to gamble.
D. You acknowledge and stipulate that all of the
Materials found on our site are fully protected by the First Amendment
to the United States Constitution.
E. The Publisher does not permit sportsbook ads,
special promotions, enticements, or call-to-action banners that may
encourage Users, readers, or viewers to join any sportsbook wagering
service.
F. If You are seeking information regarding any
illegal activities, please leave this Site immediately. You acknowledge
that you are aware of the community standards, restrictions and
requirements in your local community, and You will only access the
content on the Site if you believe that the content on the Site does
not offend such standards, restrictions and requirements prevalent in
Your community.
G. You agree not to use or access the Site if doing so would violate the laws of Your state, province, or country.
H. Under no circumstances; under no cause of action
or legal theory, shall the owners, creators, associates or employees of
this website be liable to You or any other person or entity for any
direct, indirect, special, incidental, or consequential damages of any
kind whatsoever.
I. You acknowledge that with respect to any content
posted to our site by third parties, we act solely as an ‘access
provider’ within the meaning of Section 230 of the Communications
Decency Act of 1996 (“CDA”), and are therefore protected from claims
arising out of such content by the immunities granted by this Act.
V. RESTRICTIONS ON USE OF SITE:
A. You agree that You will only use the Site for
purposes expressly permitted and contemplated by this User Agreement.
You may not use the Site for any other purposes without Our express
prior written consent.
B. Without Our express prior written authorization, You may not:
1. Duplicate any part of the Site or the Materials contained therein (except as expressly provided elsewhere in this Agreement);
2. Create any derivative works based on the Site or
any of the Materials contained therein, and You agree and stipulate
that any and all derivative works are NOT “fair use”;
3. Use the Site or any of the Materials contained
therein for any public display, public performance, sale or rental, and
You hereby agree and stipulate that any and all such uses are NOT “fair
use”;
4. Re-distribute the Site or any of the Materials
contained therein, and You hereby agree and stipulate that any and all
such uses are NOT “fair use”;
5. Remove any copyright or other proprietary notices from the Site or any of the Materials contained therein;
6. Frame or utilize any framing techniques in connection with the Site or any of the Materials contained therein;
7. Use any meta-tags or any other “hidden text”
using the Site’s name or marks, and You hereby stipulate that any use
of the Site’s name or marks, or any other marks owned by the Publisher
is an infringement upon the Publisher’s trademark rights, and You
stipulate to liquidated damages of $5000 per such infringement, plus
You agree to pay any and all fees incurred in the recovery of this
amount, including attorney’s fees and all associated costs.
8. “Deep-link” to any page of the Site (including
the homepage), or avoid agreement to the Site’s Terms & Conditions;
you may only link to the main entry page;
9. Circumvent any encryption or other security
tools used anywhere on the Site (including the theft of user names and
passwords or using another person’s user name and password in order to
gain access to a restricted area of the Site);
10. Use any data mining, bots, or similar data gathering and extraction tools on the Site;
11. Decompile, reverse engineer, modify or
disassemble any of the software aspect of the Materials except and only
to the extent permitted by applicable law;
12. Sell, rent, lease, license, sublicense,
transfer, distribute, re-transmit, time-share, use as a service bureau
or otherwise assign to any third party the Materials or any of Your
rights to access and use the Materials as granted specifically by this
Agreement; or
13. Bookmark any page of the Site beyond the registration log-in screen.
C. You agree to cooperate with the Publisher in
causing any unauthorized use to cease immediately. With respect to any
areas of the site which enable users to share information or
communicate with other users, You agree not to publish, disseminate, or
submit any defamatory, or illegal material while using the Site or
other services included on the Site. You are solely responsible for
submitting any material that violates any United States or
International laws even if a claim arises after your service is
terminated, and by doing so, Your actions shall constitute a material
breach of this Agreement and the Site shall terminate all of Your
rights under this Agreement.
D. Interference. Except where expressly permitted
by law, You may not translate, reverse-engineer, decompile,
disassemble, or make derivative works from any of the Publisher’s
Materials or any other Materials from Our Site. User hereby agrees not
to use any automatic device or manual process to monitor or reproduce
the Site or Materials, and will not use any device, software, computer
code, or virus to interfere or attempt to disrupt or damage the Site or
any communications on it. If You do not adhere to this provision of
this Agreement, You hereby stipulate to and agree to pay liquidated
damages of $5000 plus any and all fees associated with recovery of
these damages, including attorney’s fees and costs.
E. Special Provisions regarding odds.sbrforum.com: sbrodds.com is a data service that provides information in a real-time format.
1. The Theory of "collective wisdom" provides that the aggregation
of information provided by groups results in decisions that are often
better than those that can be made by any single member of the group.
2. It has been suggested that this theory can predict economic
events, political events, and even the likelihood of acts of terrorism.
3. This theory, on average, has a tendency to suggest the outcome of sporting events as well.
4. SBRlines.com is the result of our journalists' attempts to gather
together as much collective wisdom as possible about upcoming sporting
events. Users are invited to view this site to track the success of the
collective wisdom theory, for entertainment, or to track data to
disprove our theories and the accuracy of our mathematical and
statistical models, as well as the accuracy of the mathematical and
statistical models of our sources.
5. We take no position on the usefulness of the information on sbrlines.com for any other purpose.
F. Special Provisions Regarding sbrforum.com:
SBRforum is provided as a means for users to communicate with each
other. We do not publish information on the forums, nor do we exercise
editorial control over the forums. We reserve the right to remove any
information posted on the forums that we consider to be harmful,
violative of the rights of others, pornographic, or offensive.
Nevertheless, this policy does not create an obligation for us to
police the content of communications occurring in our forums.
We take the position that Section 230 of the Communications Decency
Act of 1996 (“Section 230”) provides immunity from any and all claims
arising from any statements posted by others on our forums, including
defamatory, harassing, offensive, solicitous, harmful or obscene
statements made by others. You hereby agree not to challenge or oppose
to this interpretation of Section 230, irrespective of whether a court
agrees with it or not, and as a function of this Agreement.
You agree that you will not hold Us responsible for other users'
actions or inactions, including things they post on the forums for any
reason whatsoever.
You also release, acquit, and otherwise discharge us from any and
all claims and demands of every kind and nature, known and unknown,
arising out of or in any way connected with anything posted by another
user.
VI. DISCLAIMER OF WARRANTY:
A. You expressly agree that use of the Site or any of the
Materials contained therein is at Your own and sole risk. You also
understand and agree that any material and/or data downloaded or
otherwise obtained through the use of the Site or any of the materials
or links contained therein is done at Your own discretion and risk and
that You will be solely responsible for any losses that may occur as a
result.
B. The Site and all materials contained therein are provided
“as is” without warranty of any kind, either express or implied,
including but not limited to, any implied warranties of
merchantability, fitness for a particular purpose, title, or
non-infringement. Information on this site is collected from outside
sources and/or is opinion and is offered "as is" without warranties of
accuracy of any kind.
C. Publisher makes no representations or warranties that the
Site or any materials contained therein will be uninterrupted, timely,
secure, or error free; nor does Publisher make any representations or
warranties as to the quality, suitability, truth, usefulness, accuracy,
or completeness of the Site or any of the materials contained therein.
D. You understand that Publisher cannot and does not
guarantee or warrant that files available for downloading from the
internet will be free of viruses, worms, Trojan horses, or other code
that may manifest contaminating or destructive properties. Publisher
does not assume any responsibility or risk for Your use of the
internet.
E. Publisher makes no warranty regarding any goods or
services purchased or obtained through the Site or any transaction
entered into through the Site and is not responsible for any use of
confidential or private information by sellers or third parties.
F. Publisher may change any of the information found on this
Site at any time without notice including this User Agreement without
notice. Site owner makes no commitment to update the information found
at this Site. Site makes no commitment to update the materials.
G. The warranties and representations set forth in this
Agreement are the only warranties and representations with respect to
this Agreement, and are in lieu of any and all other warranties,
written or oral, express or implied, that may arise either by agreement
between the parties or by operation of law, including warranties of
merchantability and fitness for a particular purpose. None of these
warranties and representations will extend to any third person.
VII. ADDITIONAL DISCLAIMERS AND INDEMNIFICATION
A. The provision of any services which is in
violation of any laws is strictly prohibited. If We determine that You
or any user has provided or intends to purchase or provide any services
in violation of any law, your ability to use the Site will be
terminated immediately. We do hereby disclaim any liability for damages
that may arise from any user providing any services for any purpose
that violates any law. You do hereby agree to defend, indemnify and
hold Us harmless from any liability that may arise for us should You
violate any law.
B. You also agree to defend and indemnify Us should
any third party be harmed by Your illegal actions or should We be
obligated to defend any claims including, without limitation, any
criminal action brought by any party.
C. You agree to defend, indemnify, and hold
harmless the Publisher, its officers, directors, shareholders,
employees, independent contractors, telecommunication providers, and
agents, from and against any and all claims, actions, loss,
liabilities, expenses, costs, or demands, including without limitation
legal and accounting fees, for all damages directly, indirectly, and/or
consequentially resulting or allegedly resulting from Your, or You
under another person’s authority including without limitation to
governmental agencies, use, misuse, or inability to use the Site or any
of the Materials contained therein, or Your breach of any of this User
Agreement. Publisher shall promptly notify You by electronic mail of
any such claim or suit, and cooperate fully (at Your expense) in the
defense of such claim or suit. We reserve the right to participate in
the defense of such claim or defense at its own expense, and choose its
own legal counsel, but are not obligated to do so.
VIII. LIMITATION OF LIABILITY:
A. In no event shall Publisher (or its licensors, agents,
suppliers, resellers, service providers, or any other subscribers or
suppliers) be liable to You, or any other third party for any direct,
special, indirect, incidental, consequential, exemplary, or punitive
damages, including without limitation, damages for loss of profits,
loss of information, business interruption, revenue, or goodwill, which
may arise from any person’s use, misuse, or inability to use the Site
or any of the materials contained therein, even if Publisher has been
advised of the probability of such damages. This is for any matter
arising out of or relating to this Agreement, whether such liability is
asserted on the basis of contract, tort or otherwise, even if Publisher
has been advised of the possibility of such damages.
B. In no event shall Publisher’s maximum total aggregate
liability hereunder for direct damages exceed the total fees actually
paid by You for use of a Site or Site for a period of no more than one
(1) month from the accrual of the applicable cause or causes of action.
Because some jurisdictions prohibit the exclusion or limitation of
liability for consequential or incidental damages, the above limitation
may not apply to You.
IX. LINKS AND LINKING:
A. Some websites which are linked to the Site are
owned and operated by third parties. Because the Publisher has no
control over such websites and resources, You acknowledge and agree
that Publisher is not responsible or liable for the availability of
such external websites or resources, and does not screen or endorse
them, and is not responsible or liable for any content, advertising,
services, products, or other materials on or available from such
websites or resources.
B. You further acknowledge and agree that Publisher
shall not be responsible or liable, directly or indirectly, for any
damage or loss caused or alleged to be caused by or in connection with
use of or reliance on any such third-party content, goods or services
available on or through any such website or resource. If You decide to
access any such third party website, you do so entirely at Your own
risk and subject to any terms and conditions and privacy policies
posted therein.
C. Users further acknowledge that use of any
website controlled, owned or operated by third parties is governed by
the terms and conditions of use for those websites, and not by this
Site’s User Agreement, Spam Policy, Webmaster Agreement, or Privacy
Policy, which are incorporated into this Agreement by reference.
D. Links to external websites (including external
websites that are framed by the Site) or inclusions of advertisements
do not constitute an endorsement by the Publisher of such websites or
the content, products, advertising, or other materials presented on
such Site, but are for user's convenience.
E. All users do hereby agree to hold the Publisher harmless from any
and all damages and liability that may result from the use of links
that may appear on the Site. The Publisher reserves the right to
terminate any link or linking program at anytime.
X. TRADEMARK INFORMATION:
A.
Publisher and the aforementioned name of the Site is a service mark
and/or trademark of the Site. The name of the Site and the name of the
Publisher are considered trademarks owned by the Publisher. We
aggressively defend our intellectual property rights.
B.
Other manufacturers’ product and service names referenced herein may be
trademarks and service marks of their respective companies and are the
exclusive property of such respective owners, and may not be used
publicly without the express written consent of the owners and/or
holders of such trademarks and service marks.
C.
All of the marks, logos, domains, and trademarks that You find on the
Site may not be used publicly except with express written permission
from Publisher, and may not be used in any manner that is likely to
cause confusion among consumers, or in any manner that disparages or
discredits Publisher.
XI. COPYRIGHT INFORMATION:
A. The Materials accessible from the Site, and any
other World Wide Website owned, operated, licensed, or controlled by
Publisher, is the Publisher’s proprietary information and valuable
intellectual property and We retain all right, title, and interest in
the Materials. The Site and its software are registered with the U.S. Copyright Office.
B. The Materials may not be copied, distributed,
republished, modified, uploaded, posted, or transmitted in any way
without the prior written consent of Publisher, except that you may
print out a copy of the Materials solely for Your personal use. In
doing so, you may not remove or alter, or cause to be removed or
altered, any copyright, trademark, trade name, service mark, or any
other proprietary notice or legend appearing on any of the Materials.
C. Modification or use of the Content except as
expressly provided in this User Agreement violates the Publisher’s
intellectual property rights.
D. Neither title nor intellectual property rights are transferred to You by access to the Site.
E. All Materials included on the Site, such as
text, graphics, photographs, video and audio clips, music, soundtracks,
button icons, streaming data, animation, images, downloadable
materials, data compilations and software is the property of the
Publisher or its content suppliers and is protected by United States
and international copyright laws. The compilation of all Materials on
the Site is the exclusive property of the Publisher or its content
suppliers and protected by United States and international copyright
laws, as well as other laws and regulations. © SBR Marketing, Ltd.,
(2005-2006), all rights reserved.
XII. NOTICE OF CLAIMED INFRINGEMENT
The Publisher respects the intellectual property of others, and we
ask our users to do the same. We voluntarily observe and comply with
the United States’ Digital Millennium Copyright Act. If You believe
that Your work has been copied in a way that constitutes copyright
infringement, or your intellectual property rights have been otherwise
violated, please provide Publisher’s Designated Copyright Agent the
following information:
A. An electronic or physical signature of the
person authorized to act on behalf of the owner of the copyright or
other intellectual property interest;
B. Description of the copyrighted work or other intellectual property that you claim has been infringed;
C. A description of where the material that you claim is infringing is located on a Site;
D. Your address, telephone number, and email address;
E. A statement by You that you have a good faith
belief that the disputed use is not authorized by the copyright owner,
its agent, or the law; and
F. A statement by You, made under penalty of
perjury, that the above information in your Notice is accurate and that
You are the copyright or intellectual property owner or authorized to
act on the copyright or intellectual property owner’s behalf.
G. You may send your Notice of Claimed Infringement to:
Lawrence G. Walters, Esquire
Weston, Garrou, DeWitt & Walters
781 Douglas Avenue
Altamonte Springs, FL 32714
Phone: (407) 975-9150
Fax: (407) 774-6151
Notice@DMCANotice.com
Please do not sent other inquires or information to our Designated Agent.
XIII. NOTICE AND TAKEDOWN PROCEDURES:
The Publisher implements the following “notice and takedown”
procedure upon receipt of any notification of claimed copyright
infringement:
A. The Publisher reserves the right at any time to
disable access to, or remove any material or activity accessible on or
from the Site or any Materials claimed to be infringing or based on
facts or circumstances from which infringing activity is apparent.
B. It is the firm policy of the Publisher to
terminate the account of repeat copyright infringers, when appropriate,
and the Publisher will act expeditiously to remove access to all
material that infringes on another’s copyright, according to the
procedure set forth in 17 U.S.C. §512 of the Digital Millennium
Copyright Act (“DMCA”). The Publisher’s DMCA Notice Procedures are set
forth in the preceding paragraph. If the notice does not comply with
Paragraph 19 and §512 of the DMCA, but does comply with three
requirements for identifying Site that is infringing according to §512
of the DMCA, the Publisher shall attempt to contact or take other
reasonable steps to contact the complaining party to help that party
comply with the notice requirements.
C. When the Designated Agent receives a valid
notice, the Publisher will expeditiously remove and/or disable access
to the infringing material and shall notify the affected user. Then,
the affected user may submit a counter-notification to the Designated
Agent containing a statement made under penalty of perjury that the
user has a good faith belief that the material was removed because of
misidentification of the material. After the Designated Agent receives
the counter-notification, it will replace the material at issue within
10-14 days after receipt of the counter-notification unless the
Designated Agent receives notice that a court action has been filed by
the complaining party seeking an injunction against the infringing
activity.
XV. NO AGENCY RELATIONSHIP:
Nothing in this Agreement shall be deemed to constitute, create,
imply, give effect to, or otherwise recognize a partnership,
employment, joint venture, or formal business entity of any kind; and
the rights and obligations of the parties shall be limited to those
expressly set forth herein.
XVI. NOTICE:
A. Notice. Any notice required to be given under
this Agreement may be provided by email to a functioning email address
of the party to be noticed, by a general posting on the Site, or
personal delivery by commercial carrier such as Federal Express or
Airborne. Notices by customers to Publisher shall be given by
electronic messages unless otherwise specified in the Agreement.
B. Change of Address. Either party may change the
address to which notice is to be sent by written notice to the other
party pursuant to this provision of the Agreement.
C. When Notice is Effective. Notices shall be
deemed effective upon delivery. Notices delivered by overnight carrier
(e.g., United States Express Mail or Federal Express) shall be deemed
delivered on the business day following mailing. Notices mailed by
United States Mail, postage prepaid, registered or certified with
return receipt requested, shall be deemed delivered five (5) days after
mailing. Notices delivered by any other method shall be deemed given
upon receipt. Notices by email and facsimile transmission, with
confirmation from the transmitting machine that the transmission was
completed, are acceptable under this Agreement provided that they are
delivered one (1) hour after transmission if sent during the
recipient's business hours, or 9:00 a.m. (recipient's time) the next
business day. Either Party may, by giving the other Party appropriate
written notice, change the designated address, fax number and/or
recipient for any notice or courtesy copy, hereunder.
D. Refused, Unclaimed, or Undeliverable Notice. Any
correctly addressed notice that is refused, unclaimed, or
undeliverable, because of an act or omission of the Party to be
notified shall be deemed effective as of the first date that said
notice was refused or deemed undeliverable by the postal authorities,
messenger, facsimile machine, email server, or overnight delivery
service.
XVII. COMMUNICATIONS NOT PRIVATE:
Publisher does not provide any facility for sending or receiving
private or confidential electronic communications. All messages
transmitted to Publisher shall be deemed to be readily accessible to
the general public. Visitors should not use this Site to transmit any
communication for which the sender intends only the sender and the
intended recipient(s) to read. Notice is hereby given that all messages
entered into this Site can and may be read by the agents and operators
of this service, regardless of whether they are the intended recipients
of such messages.
XVIII. FORCE MAJEURE:
Publisher shall not be responsible for any failure to perform due to
unforeseen circumstances or to causes beyond our reasonable control,
including but not limited to: acts of God, such as fire, flood,
earthquakes, hurricanes, tropical storms or other natural disasters;
war, riot, arson, embargoes, acts of civil or military authority, or
terrorism; fiber cuts; strikes, or shortages in transportation,
facilities, fuel, energy, labor or materials; failure of the
telecommunications or information services infrastructure; hacking,
SPAM, or any failure of a computer, server or software, including Y2K
errors or omissions, for so long as such event continues to delay the
Site’s performance.
XIX. GENERAL PROVISIONS:
A. Governing Law, Jurisdiction, Forum, and Venue.
This User Agreement and all matters arising out of, or otherwise
relating to, this User Agreement shall be governed by the laws of
Florida, excluding its conflict of law provisions. The sum of this
paragraph is that any and all disputes must be, without exception,
brought to court and litigated in Orange County, Florida.
1. All parties to this Agreement agree that all
actions or proceedings arising in connection with this Agreement or any
services or business interactions between the parties that may be
subject to this Agreement shall be tried and/or litigated exclusively
in the state and federal courts located in Orange County, Florida.
2. The parties agree to exclusive jurisdiction in, and only in, Orange County, Florida.
3. The parties agree to exclusive venue in, and only in, Orange County, Florida.
4. The parties additionally agree that this choice
of venue and forum is mandatory and not permissive in nature, thereby
precluding any possibility of litigation between the parties with
respect to, or arising out of, this Agreement in a jurisdiction other
than that specified in this paragraph.
5. All parties hereby waive any right to assert the
doctrine of forum non-conveniens or similar doctrines, or to object to
venue with respect to any proceeding brought in accordance with this
paragraph or with respect to any dispute under this Agreement
whatsoever.
6. All parties stipulate that the state and federal
courts located in Orange County, Florida shall have personal
jurisdiction over them for the purpose of litigating any dispute,
controversy, or proceeding arising out of (or related to) this
Agreement and/or the relationship between the parties contemplated
thereby.
7. Each party hereby authorizes and accepts service
of process sufficient for personal jurisdiction in any action against
it, as contemplated by this paragraph by registered or certified mail,
Federal Express, proof of delivery or return receipt requested, to the
parties address for the giving of notices as set forth in this
Agreement.
8. Any final judgment rendered against a party in
any action or proceeding shall be conclusive as to the subject of such
final judgment and may be enforced in other jurisdictions in any manner
provided by law if such enforcement becomes necessary.
B. Rights to Injunctive Relief. Both parties
acknowledge that remedies at law may be inadequate to provide an
aggrieved party with full compensation in the event of the other
party’s breach, and that an aggrieved party shall therefore be entitled
to seek injunctive relief in the event of any such breach, in addition
to seeking all other remedies available at law or in equity.
C. Binding Arbitration. If there is a dispute
between the Parties arising out of or otherwise relating to this
Agreement, the Parties shall meet and negotiate in good faith to
attempt to resolve the dispute. If the Parties are unable to resolve
the dispute through direct negotiations, then, except as otherwise
provided herein, either Party may submit the issue to binding
arbitration in accordance with the then-existing Commercial Arbitration
Rules of the American Arbitration Association. Arbitral Claims shall
include, but are not limited to, contract and tort claims of all kinds,
and all claims based on any federal, state or local law, statute, or
regulation, excepting only claims under applicable worker’s
compensation law, unemployment insurance claims, actions for
injunctions, attachment, garnishment, and other equitable relief. The
arbitration shall be conducted in Seminole County, Florida, and
conducted by a single arbitrator, knowledgeable in Internet and
e-Commerce disputes. The arbitrator shall have no authority to award
any punitive or exemplary damages; certify a class action; add any
parties; vary or ignore the provisions of these Terms and Conditions;
and shall be bound by governing and applicable law. The arbitrator
shall render a written opinion setting forth all material facts and the
basis of his or her decision within thirty (30) days of the conclusion
of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY
MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
D. The Arbitrator shall have no authority to award
any punitive or exemplary damages; certify a class action; add any
parties; vary or ignore the provisions of this User Agreement; and
shall be bound by governing and applicable law. The arbitrator shall
render a written opinion setting forth all material facts and the basis
of his or her decision within thirty (30) days of the conclusion of the
arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY
HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
E. No waiver of right to arbitration -- There shall
be no waiver of the right to arbitration unless such waiver is provided
affirmatively and in writing by the waiving party to the other party.
There shall be no implied waiver of this right to arbitration. No acts,
including the filing of litigation, shall be construed as a waiver or a
repudiation of the right to arbitrate.
F. The First Amendment applies to arbitration proceedings
-- Any arbitration tribunal shall consider the First Amendment to the
United States Constitution to be in force and effect between the
parties. Both parties stipulate to the applicability of the First
Amendment’s protection of free speech, expression, and association, and
both parties stipulate that case law interpreting the First Amendment
shall be admissible and considered to be binding authority upon the
Arbitrator.
G. Assignment. The rights and liabilities of the
parties hereto will bind and inure to the benefit of their respective
assignees, successors, executors, and administrators, as the case may
be.
H. Severability. If for any reason a court of
competent jurisdiction or an arbitrator finds any provision of this
User Agreement, or any portion thereof, to be unenforceable, that
provision will be enforced to the maximum extent permissible and the
remainder of this User Agreement will continue in full force and
effect.
I. Attorney’s Fees. In the event any Party shall
commence any claims, actions, formal legal action, or arbitration to
interpret and/or enforce any of the terms and conditions of this
Agreement, or relating in any way to this Agreement, including without
limitation asserted breaches of representations and warranties, the
prevailing party in any such action or proceeding shall be entitled to
recover, in addition to all other available relief, its reasonable
attorney’s fees and costs incurred in connection therewith, including
attorney’s fees incurred on appeal.
J. Complaints – California Residents.
The Complaint Assistance Unit of the Division of Consumer Services of
the Department of Consumer Affairs may be contacted in writing at 1020
N. Street, #501, Sacramento, CA 95814, or by telephone at
1-916-445-1254.
K. No Waiver. No
waiver or action made by the Publisher shall be deemed a waiver of any
subsequent default of the same provision of this User Agreement. If any
term, clause or provision hereof is held invalid or unenforceable by a
court of competent jurisdiction, such invalidity shall not affect the
validity or operation of any other term, clause or provision and such
invalid term, clause or provision shall be deemed to be severed from
this User Agreement.
L. Headings. All headings are solely for the
convenience of reference and shall not affect the meaning, construction
or effect of this User Agreement.
M. Complete Agreement. This User Agreement
constitutes the entire agreement between the parties with respect to
Your access and use of the Site and the Materials contained therein,
and your Membership with the Site, and supersede and replace all prior
understandings or agreements, written or oral, regarding such subject
matter.
N. Other Jurisdictions. Publisher makes no
representation that the Site or any of the Materials contained therein
are appropriate or available for use in other locations, and access to
them from territories where their content may be illegal or is
otherwise prohibited. Those who choose to access the Site from such
locations do on their own initiative and are solely responsible for
determining compliance with all applicable local laws.
O. Stipulated Liquidated Damages –
1. In various provisions in this Agreement, we have
outlined liquidated damages amounts to be applied as penalties against
You if You violate these specific provisions. You specifically agree to
pay these amounts. In agreeing to pay liquidated damages, you
acknowledge that this amount is not a penalty, that the actual damages
are uncertain and difficult to ascertain, but that this amount
represents the parties’ good faith attempt to calculate an appropriate
compensation based on anticipated actual damages.
2. For any breach of a portion of this Agreement
that does not specifically state another liquidated damages amount, You
hereby agree that any breach of this Agreement shall result in
liquidated damages of $100 per occurrence. You specifically agree to
pay this $100 in liquidated damages.
3. If We are required to enlist the assistance of
an Attorney or other person to collect any liquidated damages or any
other amount of money from You, or if We are required to seek the
assistance of an Attorney to pursue injunctive relief against You, then
You additionally agree that You will reimburse Us for all fees incurred
in order to collect these liquidated damages or in order to seek
injunctive relief from You. You understand that even a nominal amount
of damages may require the expenditure of extensive legal fees, travel
expenses, costs, and other amounts that may dwarf the liquidated
damages themselves. You agree that You will pay all of these fees and
costs.
This document was prepared by Weston, Garrou, DeWitt & Walters (legal@sportsbookreview.com).
Nothing more follows.