Scope. This Agreement governs your relationship with us and is the master agreement setting forth the terms of use under which we agree to provide our services to you, and you agree to receive our services (the “Purpose”). You must abide by this Agreement as it is a binding legal contract and our provision of any and all Services to you is conditioned on your agreement to this Agreement. This Agreement is subject to the construction rules provided in Section XXX.
Role. The Daily Dogfights APP is a software application available for devices on select mobile operating platforms that facilitates golf games between you and other Players, lets you set the rules of your gameplay, helps you keep track of scores, helps you determine who owes who what, and helps facilitate the settling of accounts between Players. THE DAILY DOGFIGHTS APP IS AN ENTERTAINMENT APP THAT FACILITATES FRIENDLY GAMES AND PRIVATE BETS BETWEEN INDIVIDUAL PLAYERS DETERMINED BY THEIR INDIVIDUAL SKILL; IT IS NOT A GAME OF CHANCE, A SPORTS BETTING APP, ANY FORM OF BOOKMAKING OR A LOTTERY, A PUBLIC GAMBLING PLACE, WAGERING, OR PUBLIC GAMBLING.
Eligibility. THE DAILY DOGFIGHTS APP AND THE SERVICES THAT WE PROVIDE ARE NOT INTENDED FOR CHILDREN. YOU MUST BE AT LEAST EIGHTEEN YEARS OF AGE TO ACCESS THE SITE OR USE OUR SERVICES. By further accessing or using the Services, you represent and warrant that: (a) you are at least eighteen (18) years of age; (b) you have the authority and capacity and are legally entitled to enter into binding legal contracts, including this Agreement in your individual capacity; (c) you have read, understand, and agree to the terms and conditions of this Agreement; (d) you agree to comply with all Regulations and Regulatory Authority; and (e) you have not been previously suspended or removed from the App.
Term. This Agreement shall take effect between the Parties upon your access of the Daily Dogfights App or Utilization of any of the Services and shall continue until such time as this Agreement is terminated in accordance with this Agreement.
Our Services
General. Golfing is fun and betting on golf is even more fun. Daily Dogfights provides our services to you to help you further your enjoyment of the game, including providing you access to and Use of the Daily Dogfights App and the Site. The Daily Dogfights App is designed to assist you in having fun by taking care of the more mundane aspects of the game so you can focus on your game. The App lets you set up various games with other players at local golf courses that you can search for by name and/or your location. You have the option to set up different [styles/types] of games between you and other players and set the rules of these games clearly beforehand so that you can reference them as needed. You get to choose the specifics of each game (e.g. your tee and course handicap adjustment), set game options (e.g. your bet type, whether or not your playing low man down, various multipliers, and your bet per hole, etc.), and add other Players via their Accounts or by manually entering them. The App allows Players to track the progress of your game and the individual Players and tabulates the end results via the information you provide to the App, the final results of a match, and the settling of bets made between Players.
Transactions. In order to facilitate the settling of bets between Players, the App allows you to connect Your Account with a digital payment account (e.g. your
Venmo,
Cash App,
Paypal, or
Apple Pay account). You must connect Your Account with a digital payment account in order to pay or receive payment from another Player using an App at which point the App will communicate with the chosen payment platform and facilitate payment between Players. Your use of any digital payment platform is governed by the respective digital payment platform’s legal policies.
Your Account. In order to Utilize the Daily Dogfights App, you will need to create an account (“Your Account”) using the App. Your Account allows you to manage your Services, receive and transmit information to us, connect Your Account with your digital payment platform accounts, adjust Your Account options, engage with other Players, Share IP via the App, and use other services as we make available from time to time from us or from Vendors and Affiliates. When you sign up for Your Account, we will ask for certain personally identifiable information in order to set up Your Account, including your email address, phone number, and your chosen password. Your Account setup will then ask you for additional information in order to customize Your Account and allow you to connect a payment method to Your Account. This personally identifiable information is used by the App to identify you and secure Your Account and our use thereof is governed by the Privacy Policy set forth in Section VIII. Your Account is for your personal use only. You are solely and personally responsible for maintaining the confidentiality and security of Your Account and the password associated with it. You may only authorize others to use Your Account for your personal use and bear all responsibility for such use. You may not rent, sell, lease, sublicense, lend, distribute, or otherwise transfer or assign Your Account to any other person. You agree to immediately notify us of any actual or suspected breach of security or unauthorized use of Your Account.
Acceptable Use Policy.
Your Responsibilities. You represent, warrant, and covenant that: (A) you shall comply with all the terms and conditions of this Agreement; (B) you shall use reasonable efforts to prevent unauthorized Use of our services, and notify us promptly of any such unauthorized Use that comes to your attention; (C) you shall use our services, only in accordance with all Regulations and the terms and conditions of this Agreement; (D) you bear all responsibility and liability Utilizing our services, Your Account, and the App; and (E) all IP that you provide to us is to the extent of your knowledge current, true, accurate, supportable, and complete, and you will use reasonable efforts to continue to keep such information current and correct.
Prohibited Activities. You hereby expressly represent and warrant that you shall not: (A) breach this Agreement willfully or through gross negligence; (B) Use any of our services or Daily Dogfights’ IP: (1) to circumvent or breach or attempt to circumvent or breach any Regulation or give rise to a civil liability; (2) if you are a specially designated national or blocked person listed by OFAC or other Regulatory Authority or a citizen or national of, or located in, a
Sanctioned Area or are otherwise precluded by Regulation or Regulatory Authority from consummating a digital payment; (3) to fund any organization which has been listed as a terrorist organization by any Regulatory Authority; (4) to interfere unreasonably with the Use of our services by other Users; (5) to encourage conduct that would constitute a circumvention or breach of any Regulation or give rise to a civil liability; or (6) in such a manner that is dangerous or could cause damage to Daily Dogfights or our Personnel, Vendors, or Affiliates; (C) take any action that imposes an unreasonable or disproportionately large load on our systems; (D) create Derivatives or Utilize any Daily Dogfights’ IP for any purposes other than those specifically permitted by this Agreement; (E) Use any bot, spider, scraper, data miner, or automated agent to gain Utilization of any IP via our services or any other Daily Dogfights’ IP in an unauthorized manner; (F) facilitate any viruses, bugs, trojan horses, worms, or other software, automated agents, or programming routines that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any IP via our services or any other Daily Dogfights’ IP; (G) perform or attempt to perform any actions that would interfere with the normal operation of our services or any other Daily Dogfights’ IP; (H) attempt to or assist another party to attempt to access, alter or interfere with the communications or information of a User by rearranging, tampering or making an unauthorized connection with any of our services or Daily Dogfights’ IP or to use any scheme, false representation, or false credit device, with the intent to avoid payment for, in whole or in part, our services; (I) manipulate or tamper with our services; (J) access or Utilize any Daily Dogfights’ IP on behalf of a competitor of Daily Dogfights or in a competitive manner with Daily Dogfights; (K) access or Utilize the Site or our services on behalf of someone who has been suspended or removed from the Site; or (L) violate the terms and conditions of this Agreement or the legal terms of your digital payment platform. Any abuse of our services or any other Daily Dogfights’ IP will be deemed a material breach of this Agreement.
Other Players. The App allows you to interact with other Players and invite them to play games and interact with you; it facilitates the games between Players. You are solely responsible for your interactions with other Players via the App, the consequences of Sharing your IP with other Players via the App, and your interaction with any other Player that takes place outside of the Daily Dogfights App whether online or offline.
Golf Courses. The App allows you to locate and set games with other Players at various golf courses via the integration of the App with certain Vendor information. You are solely responsible for your interaction with any golf course, other individuals at such golf courses, and the Personnel of any such golf courses. We are in no way responsible for your interaction with any golf course, other individuals at such golf courses, and the Personnel of any such golf courses. Additionally, we bear no responsibility for the information we provide you via the App regarding any golf course; such information is provided via third-party services outside of our control.
Payments. All fees for our services are stated on the App and are subject to change at any time upon prior Notice to you from us. We accept payment using
Venmo,
Cash App,
Paypal, or
Apple Pay. All fees will be charged to your chosen digital payment platform account. You agree to provide us accurate digital payment platform account information, so that we may facilitate accurate fee and transaction payments as authorized by you using Your Account. You agree to pay all charges at the fee levels indicated to be in effect upon your initiation of the transaction or upon the realization of the fee as set forth by Your Account (i.e. if you set up recurring payments, you agree that we may charge your digital payment platform account in accordance with such recurring payment schedules) until such time as you close out the scheduled recurring payments.
Property. Each Party agrees and represents that this Agreement is not intended to transfer or assign any Property or IP Rights from any Party to another Party other than as expressly stated herein; nothing in this Agreement shall be construed to transfer the ownership of any Property from one Party to the other Party. You understand and represent that other than the limited licenses in Section VII(a), you shall not acquire any right in any Daily Dogfights’ Property unless otherwise noted by written agreement between us and you. We agree and represent that other than the limited licenses in Section VII(b), we shall not acquire any right in any of your Property unless otherwise noted by written agreement between us and you. We represent and warrant that we have the right to authorize you to Use our services as contemplated by this Agreement and indicated herein, and the use of such services as contemplated and authorized by us does not and will not infringe or invalidate any existing IP Rights of any third party. You represent and warrant that you have the right to authorize us and such third parties that Use our services to Use such IP as provided by you to us as contemplated by this Agreement and indicated herein, and the use of IP as authorized does not and will not infringe or invalidate any existing IP Right of any third party.
Licenses from Us to You. We hereby grant to you a limited, non-exclusive, freely and fully revocable license to Use such Daily Dogfights’ IP provided by us to you for the purposes of providing you Use of our services, including a limited, non-exclusive, freely and fully revocable license to access and use our services to receive information about Daily Dogfights and our services, manage your payment methods, contact information, and other services available via Your Account, Share your IP via our services. and contact us and Share your IP with us. Additionally, we hereby grant to you a limited, non-exclusive, freely and fully revocable license to Share such Daily Dogfights’ IP provided by us to you for the purposes of marketing our services to third parties, provided that you do not remove all watermarks, metadata, and Daily Dogfights’ trademarks embedded or attached thereto as Shared with you by Daily Dogfights. You acknowledge and agree that you do not and shall not claim any IP Rights in any Daily Dogfights’ IP other than the limited licenses herein as are solely necessary for the Purpose and with exception to this limited license you have no right to modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance, or in any way Utilize our services or any Daily Dogfights’ Property in any manner unless otherwise noted in writing by us. This license terminates automatically at the end of the Term or, without notice to you, if you breach this Agreement.
Licenses from You to Us. By Sharing your IP via our services, you thereby grant us a paid-in-full, royalty-free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to Utilize your IP in any and every way as we see fit for any and every purpose in our sole discretion, without restriction or limitation of any kind, with the right to sublicense each and every such right through multiple tiers of sublicensees subject to the terms and conditions herein and you represent and warrant that you are solely responsible for your IP and the ramifications and results of your choice to Share your IP via our services. You hereby represent, warrant, and covenant that unless otherwise stated between the Parties in a written agreement executed by both Parties that you have the right to authorize us to Utilize your IP Shared by you via our services and that such Utilization does not and will not infringe any existing IP Rights, violate the right of privacy, violate any contractual right, infringe or violate any right of publicity, or violate any general or personal property right of any third party.
Licenses from You to Other Users. By Sharing your IP via our services, you thereby grant other Players a paid-in-full, royalty-free, worldwide right and license to Access and Use such IP for the purposes of informing such Users about you and facilitating games with other Players.
DMCA Policy for Third-Party Copyright Protection. We take Intellectual Property Rights very seriously and demand the same from Users and follow the required procedures by the DMCA on alleged copyright infringement. The following are the procedures that Daily Dogfights has adopted to comply with the DMCA:
Notice of Infringement. If a party believes that their copyright is being infringed by any IP shared via our services, the party (the “Notifying Party”) should send us notice as specified in this Section VII(d)(i) (a “Notice of Infringement”). When we receive a valid Notice of Infringement, we shall respond by removing the allegedly infringing IP (the “Disputed IP”) and take reasonable steps to contact the party who originated such Disputed IP (the “Originating Party”), so that a counter-notification (“Counter Notice”) may be filed by the Originating Party. When we receive a valid Counter Notice, we will provide notice to the Notifying Party of the Counter Notice in accordance with the contact information provided to us by the Notifying Party and typically restore the Disputed IP, unless we receive Notice from the Notifying Party that a legal action has been filed seeking a court order to restrain the Originating Party from further engaging in the allegedly infringing activity within ten (10) business days of notifying the Notifying Party of the Counter Notice. Under the DMCA, a valid Notice of Infringement must: (A) be in writing; (B) clearly identify either: (1) the Disputed IP or (2) a reference or link to where the Disputed IP is being referred to or linked to; (C) include: (1) the Notifying Party’s current contact information; (2) identification of the copyrighted work that is allegedly being infringed; (3) a statement that the Notifying Party has a good faith belief that the Disputed IP is being used improperly (i.e. without authorization from the valid copyright holder or the copyright holder’s agent, or in some other manner that constitutes copyright infringement); (4) a statement, under penalty of perjury, that the information in the Notice of Infringement is accurate and that the Notifying Party is authorized to act on behalf of the copyright holder; and (D) a physical or electronic signature. This Notice of Infringement must be sent to our designated copyright agent as indicated in Section VII(d)(iii). A Notifying Party that knowingly misrepresents that Disputed IP is infringing a copyright may be held liable for damages, including costs and attorneys' fees, under the DMCA.
Counter Notice. If the Originating Party believes that the Disputed IP has been improperly removed as the result of a Notice of Infringement, the Originating Party may send us a Counter Notice. In accordance with the DMCA, when we receive a valid Counter Notice, we shall promptly notify the Notifying Party of the Counter Notice so that the Notifying Party may file a court order to restrain the Originating Party from further engaging in the allegedly infringing activity. In accordance with the DMCA, we may restore the Disputed IP if the Notifying Party does not file such a court order within ten (10) business days of receiving the Counter Notice. Under the DMCA, a valid Counter Notice must: (1) be in writing; (2) clearly identify either: (01) the Disputed IP or (02) a reference or link to the where the Disputed IP was prior to the removal; (3) include: (01) the Originating Party’s current contact information; (02) a statement under penalty of perjury that the Originating Party has a good faith belief that the Disputed IP was removed or disabled as a result of a mistake or misidentification of the Disputed IP to be removed or disabled; (03) a statement that the Originating Party will consent to the jurisdiction of: (01) the federal district court for the judicial district in which the Originating Party is located or (02) any U.S. judicial district in which the Disputed IP may be found, if the Originating Party is not a U.S. resident; and (4) a statement that the Originating Party will accept service from the Notifying Party. This Counter Notice must be sent to our designated copyright agent as indicated in Section VII(d)(iii). An Originating Party that knowingly misrepresents that Disputed IP was removed or disabled by mistake or misidentification may be held liable for damages, including costs and attorneys' fees, under the DMCA.
Designated Copyright Agent. Notices of Infringement and Counter Notices must be sent to:
legal@dailydogfights.com Subject Line: Designated Copyright Agent
Trademark Infringement Policy. In the event that we receive Notice alleging that any IP infringes upon, dilutes, tarnishes, or otherwise violates a third party’s trademark rights, we may in our sole discretion, remove or disable access to such IP until we receive either: (i) written confirmation from the third party sending such demand that the demand is withdrawn or has been resolved or (ii) the party originating the disputed IP submits sufficient evidence to satisfactorily rebut the allegations contained in such demand, the adequacy of such evidence to be determined by us in our sole discretion and which we may reject for any reason without penalty or liability.
Derivatives. To the extent that you create any Derivatives from any Daily Dogfights’ IP, you represent, warrant, and agree that: (A) any such Derivative shall be deemed to be wrongfully created and as such, such Derivative shall be owned by Daily Dogfights; (B) all right, title, and interest in and to any such Derivative shall automatically vest in Daily Dogfights and be deemed paid-in-full and royalty free; (C) we have no obligation to grant to you any right in any such Derivative; (D) you thereby irrevocably assign to Daily Dogfights any and all joint or individual ownership, rights, titles, and interests in and to such Derivative, including any and all Intellectual Property Rights; (E) in the event that the assignments in this Section VII(f) do not provide Daily Dogfights with full ownership, rights, titles, and interests in and to the Derivative, you hereby grant to Daily Dogfights an unlimited, exclusive, freely and fully transferable, freely and fully assignable, irrevocable, paid-in-full, royalty-free, perpetual, worldwide license to Utilize in any and every way the Derivative as Daily Dogfights sees fit for any and every purpose, without restriction or limitation of any kind, with the right to sublicense each and every such right through multiple tiers of sublicensees; (F) you hereby assign and transfer any and all Intellectual Property Rights in any Derivative to Daily Dogfights; (G) you agree, where any Intellectual Property Rights may not be assigned as a matter of law, to cooperate fully with Daily Dogfights during the lifetime of such Intellectual Property Rights, not to take any interest or action with regard to such rights that is contrary to the will and goals of Daily Dogfights, and not to exercise any such Intellectual Property Rights without the explicit prior written consent of Daily Dogfights; and (H) where any Intellectual Property Rights may not be assigned as a matter of law, but may pass on to your heirs at law, you hereby disclaim any and all such Intellectual Property Rights.
Unsolicited Feedback. We welcome any and all Feedback. By submitting any such Feedback to us, you agree that we may, but shall have no obligation to, Utilize in any and every way such Feedback, as we see fit for any and every purpose, without restriction or limitation of any kind, and you thereby grant to us an unlimited freely and fully transferable, freely and fully assignable, irrevocable, paid-in-full, royalty-free, perpetual, worldwide license to the Feedback, with the right to sublicense each and every such right through multiple tiers of sublicensees. You further agree not to permit or prosecute any Action on the ground that our Utilization or alleged Utilization of such Feedback infringes or violates any of your rights.
Privacy Policy. We respect your privacy and are committed to protecting your personally identifiable information as you Use our services. The following policy (the “Privacy Policy”) governs our Use of your personal information.
The Information That Our Services Collect.
Automatically Collected Information. When you Use our services, we automatically collect certain analytical information. This automatically collected information may include your IP Address, unique device identifier, version of software installed on your accessing device, system type, the content that you Use on our services, and the dates and times that you Use our services.
Personally Identifiable Information. We only collect personally identifiable information that you voluntarily provide to us.
Digital Payment Platform Account Information. In order for you to make payments using our services, we will need you to connect your digital payment platform account to Your Account and your authorization to confirm adequate account funds when you authorize a payment. We only collect information associated with your digital payment platform accounts necessary that you provide to us for the purpose of such payments and we only store your digital payment platform account identification and your provided authorization credentials needed for facilitating such payments.
Use of Information.
Automatically Collected Information. We use automatically collected information to identify prior users of our services, to track usage of our systems, and for analytical purposes to help us improve our services and our business in general. We may on occasion provide this information to an Affiliate to assist us in providing these functions as permitted by Regulation.
Personally Identifiable Information. The personally identifiable information that you voluntarily provide to us may be used by us and our Affiliates: (A) for administrative purposes; (B) authentication purposes; (C) to properly operate, maintain, and provide you with the features and functionality of our services; (D) to customize and personalize features for you and otherwise enrich your experience when using our services; (E) to present you with promotions, advertisement, and opportunities we believes may be of interest to you as permitted by Regulation; (F) to enable us to assist us in operating, maintaining, and providing our services to you; (G) to enable us to carry out our obligations arising from any contracts/subscriptions entered into with you; (H) to notify you about changes to this Agreement, other agreements you have with us, our services, other Daily Dogfights’ IP, and Vendor or Affiliate services; (I) to investigate and help prevent potentially unlawful activity or activities that threaten the integrity of our Services, or any other Daily Dogfights’ IP or Daily Dogfights’ services; (J) to investigate allegations of fraud or violations of this Agreement or other agreements you have with Daily Dogfights; (K) to enforce or apply our rights under this Agreement, any other agreement you have with us, or Regulation and to protect the rights, property, or safety of any of our Players, Personnel, Affiliates, Vendors, or others; and (L) to improve the quality and design the services or Daily Dogfights’ IP.
Digital Payment Platform Account Information. We only use information associated with your digital payment platform accounts provided by you for authorized payment and only store your digital payment platform account identification and your provided authorization credentials needed for conducting such payments.
Security. We maintain our systems in accordance with commercially reasonable industry standards to preserve the integrity and security thereof. We have implemented technical and organizational measures designed to secure such information from accidental loss and from unauthorized Utilization, alteration, or disclosure. We cannot, however, ensure or warrant that third parties will never be able to defeat those measures or gain access to the IP thereon. Perfect information security does not exist and you Utilize our services at your own risk.
Protection of Children. PROTECTING THE PRIVACY OF YOUNG CHILDREN IS ESPECIALLY IMPORTANT. OUR SERVICES ARE NOT INTENDED FOR CHILDREN AND ARE NOT DIRECTED TO CHILDREN. WE DO NOT KNOWINGLY COLLECT OR MAINTAIN PERSONALLY IDENTIFIABLE INFORMATION FROM PERSONS UNDER THIRTEEN (13) YEARS OF AGE. IF WE LEARN THAT PERSONALLY IDENTIFIABLE INFORMATION OF PERSONS LESS THAN THIRTEEN (13) YEARS OF AGE HAS BEEN COLLECTED ON OR THROUGH THE SERVICES UNDER OUR CONTROL, THEN WE WILL TAKE THE APPROPRIATE STEPS TO ATTEMPT TO DELETE THIS INFORMATION. IF YOU ARE THE PARENT OR LEGAL GUARDIAN OF A CHILD UNDER THIRTEEN (13) YEARS OF AGE WHO HAS PROVIDED US WITH PERSONALLY IDENTIFIABLE INFORMATION, THEN PLEASE PROVIDE US NOTICE TO HAVE THAT INFORMATION DELETED IMMEDIATELY.
GDPR Notice for Users from the EU. FOR PLAYERS FROM THE EUROPEAN ECONOMIC AREA OR OTHER NON-U.S. TERRITORIES, PLEASE NOTE THAT ANY IP THAT YOU VOLUNTARILY PROVIDE US WILL BE TRANSFERRED OUTSIDE THE EUROPEAN ECONOMIC AREA OR SUCH OTHER NON-U.S. TERRITORY FOR UTILIZATION AS DESCRIBED HEREIN.
Information Disclosure Requests. We take law enforcement and security matters very seriously and endeavors to fully assist law enforcement personnel in accordance with the Communications Assistance for Law Enforcement Act, 47 USC §§1001-1010 , USA PATRIOT Act, Pub. L. No. 107–56, (2001) , Cybersecurity Information Sharing Act, Pub. L. No. 113–114, (2015) and other related Regulations. However, we must also balance such request with regards to the requirements of applicable privacy related Regulations (the “Privacy Regulations”). In order to effectively assist law enforcement without violation of the relevant Privacy Regulations, we have developed our own compliance and a Systems Security and Integrity (“SSI”) plan in compliance with 47 C.F.R. § 1.20005. If you are a Regulatory Authority or a law enforcement agency deriving jurisdiction from a Regulatory Authority (“Lawful Authority”) seeking information via a subpoena, summons, court order, civil investigative demand, agency order, search warrant, or production order (“Law Enforcement Request”) the following guidelines are necessary for us to facilitate the effective processing of your Law Enforcement Request and observance of these guidelines will avoid delayed processing and receipt by you of the requested information. Absent a valid Law Enforcement Request, in compliance with the Privacy Regulations, we will not release Customer Information upon a third-party request without express permission from the relevant Players or as otherwise permitted by law.
Law Enforcement Requests. Our response to a valid Law Enforcement Request will typically be limited to the provisioning of User Information in our records related to a particular User. Given the fluctuating volume of Law Enforcement Requests, the resources allocated by us to these Law Enforcement Requests, Law Enforcement Requests that are consistent with our submission guidelines hereinbelow will typically be answered in five (5) business days (“the “Compliance Time”).
Submission. All Law Enforcement Requests should be directed to:
Email:
legal@dailydogfights.com Subject Line: Law Enforcement Request
Expediting. If compliance is required in a period shorter than the typical Compliance Time, the submission email should include the following subject line: Law Enforcement Request – Urgent.
Civil Information Requests. If you seek any User Information in connection with a civil legal matter, you must serve us with a valid subpoena for such information in connection with a civil matter as follows and agree in writing to compensate us for our subpoena response services as stated herein (a “Civil Information Request”). We do not consent to service by any civil litigation party by any means other than pursuant to a valid Civil Information Request.
Submission. All Civil Information Requests should be directed to:
Email:
legal@dailydogfights.com Subject Line: Civil Information Request
User Notice. If you submit a valid Civil Information Request, we may be required by Regulation to provide or attempt to provide notice of the Civil Information Request to the User whose User Information that you’ve sought. In order to abide by the processes required by Regulation, the production of the requested User Information typically takes twenty (20) business days from the receipt of a valid Civil Information Request.
User Objection. Users who object to the production of their User Information in response to a valid Civil Information Request should consult with an attorney. Unless we receive documentation from a User showing that such User is seeking a protective order or similar protection filed with an appropriate Regulatory Authority prior to the date that our response to a Civil Information Request is produced, we will disclose the Customer Information requested in compliance with the Civil Information Request.
Fees. In order to offset the costs of our cooperation in civil matters, we charge the following fees in association with civil matters:
Civil Information Request Compliance Fee. We charge a flat fee of TWO HUNDRED AND FIFTY AND NO/00 U.S. DOLLARS ($250.00) for producing records in order to comply with a valid Civil Information Request, which must be submitted prior to the initiation of the production. This fee includes research, courier, copying, and related costs. However, we reserve the right to increase the preceding flat fee at our discretion if we determine in our sole discretion that the Civil Information Request is seeking atypically voluminous records or in the event where retrieval of the necessary records requires atypical effort. In such event, we will notify you of any such increase prior to the production of the requested information.
Testimony Fees. If any of our Personnel are subpoenaed to appear in court to provide testimony, and the witness fee is not set by Regulation in the respective jurisdiction, we charge TWO HUNDRED AND FIFTY AND NO/00 U.S. DOLLARS per hour ($250.00/hr) billed by the quarter of the hour for such witness testimony, including travel time to and from court, plus the reasonable cost of travel, including mileage at the then current Internal Revenue Service rate, tolls, parking, airfare, rental car, train fare, taxi fare, or rideshare fare, food at a per diem rate of SEVENTY-FIVEAND NO/00 U.S. DOLLARS ($75.00) and lodging in accordance with our travel and expenses policies. We reserve the right to request pre-payment of an amount that is one half (50%) of the reasonably estimated witness testimony fee.
Payment. Payment of the aforementioned fees should be submitted to:
Daily Dogfights
Attn: Civil Information Request
[Mailing Address]
Linked Sites. Our services may include links to third-party websites or services (“Linked Sites”). Linked Sites are provided for your convenience and information only. We do not control the availability and content of Linked Sites and are unable to ensure the accessibility of such Linked Sites. Access and Use of Linked Sites, including the information, materials, products, and services on or available through Linked Sites is solely at your own risk. Any concerns regarding Linked Sites, or any information, resources, or services therein, should be directed to that particular Linked Site.
Accessibility (ADA). We have consistently taken steps to make our services accessible to individuals with disabilities. In accordance with the American Disabilities Act (“
ADA”) and the U.S. Department of Justice’s
Guidance on Web Accessibility dated March 18, 2022, we have attempted to make our services available to all individuals seeking to avail themselves of these services. To this end, our digital services are designed to comply with the prevalent industry standards, including the Web Content Accessibility Guidelines (“WCAG”), iOS VoiceOver, and Android TalkBack. If you are unable to access any information or utilize any digital service, please send an email to
legal@dailydogfights.com. Additionally, we do not control the availability and content of Linked Sites and are unable to ensure the accessibility of such Linked Sites. Access and use of Linked Sites, including the information, materials, products, and services on or available through Linked Sites is solely at your own risk. Any concerns regarding Linked Sites, or any information, resources, or services therein, should be directed to that particular Linked Site. Also, our Services may connect you with Vendors. We do not control the accessibility of any Vendor services. Any concerns regarding an individual Vendor’s services should be directed to that particular Vendor.
Consumer Complaints. If you have a complaint regarding any of our Services or have further questions regarding the Services, you can contact us at
info@dailydogfights.com. In accordance with California Civil Code 1789.3, you can also contact the Complaint Assistance Unit of the Division of Consumer Services of the
California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Ste. S-202, Sacramento, California 95834, or via telephone at +1(800)952-5210 or +1(916)445-1254.
Security. We maintain our services and all Daily Dogfights’ IP in accordance with commercially reasonable industry standards to preserve the integrity and security of all related IP from accidental loss and from unauthorized Utilization. We cannot, however, ensure or warrant that third parties will never be able to defeat those measures or gain access to such information. We reserve the right to exercise whatever lawful means we deem necessary in our sole discretion to prevent unauthorized use of any Daily Dogfights’ IP, including any and all technological barriers. Our services utilize Vendor provided services. We and our Personnel, Affiliates, and Vendors shall not be liable for any lack of security which may be experienced by you or third parties with regard to our services not resulting from our gross negligence, malfeasance, or nonfeasance.
Relationship of the Parties. The Parties hereby represent, warrant, and covenant that: (a) both Parties to this Agreement are and at all times shall remain independent contractors for all purposes; (b) this Agreement creates no agency, partnership, joint venture, trusteeship, franchisor-franchisee, or employee-employer relationship between the Parties; and (c) neither Party has the authority to bind the other Party or incur any obligation on the other Party’s behalf or represent, cause, or allow to be represented, encourage, aid, or abet any other third party in the making of representations that such third party possesses any such authority in any capacity, other than as specified in this Agreement.
Cooperation. Each Party agrees to reasonably cooperate with the other Party in exercising their rights and performing their obligations under this Agreement.
Termination. You may delete Your Account and Terminate your relationship with us at any time by deleting Your Account via Your Account or providing us Notice. Such deletion or Notice will terminate your relationship with us under this Agreement. Additionally, we may terminate this Agreement with you at any time via Notice by us to you or suspend Your Account. Any of your obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening. Upon termination of this Agreement all of our limited licenses to you under Section VII terminate automatically and immediately.
Reservation of Rights. Each Party reserves all rights not expressly granted in this Agreement unless otherwise noted in writing.
Representations and Warranties. Each Party represents and warrants that: (a) the Party has the right to enter into and fully perform the mutual covenants contemplated herein, consistent with this Agreement; (b) there is no outstanding contract, commitment, or agreement to which the Party is a party that conflicts with this Agreement; (c) the Party is not subject to any injunctions or settlement agreement with private or public parties that may limit the Party’s ability to comply with the terms of this Agreement; (d) the Party shall comply with all Regulations; and (e) the individual signing on behalf of the Party has the authority to bind the Party to the terms and conditions of this Agreement. EXCEPT FOR THE WARRANTIES SPECIFICALLY AND EXPRESSLY MADE IN THIS AGREEMENT, DAILY DOGFIGHTS MAKES NO WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, SUITABILITY, DURABILITY, FITNESS FOR USE, CONDITION, QUALITY, PERFORMANCE, TITLE, OR NON-INFRINGEMENT, AND ALL SUCH EXPRESS OR IMPLIED WARRANTIES ARE DISCLAIMED. UNLESS OTHERWISE PROHIBITED BY LAW, THE SITE, THE SERVICES, THE APP, ANY VENDOR SERVICES, ANY DAILY DOGFIGHTS’ PROPERTY, AND ANY IP SHARED BY ANY THIRD PARTY IS PROVIDED TO YOU BY DAILY DOGFIGHTS ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS, IMPLIED, OR STATUTORY.
Limitation of Liability.UNDER NO CIRCUMSTANCES WILL WE, OUR PERSONNEL, AFFILIATES, OR VENDORS (THE “DISCLAIMING PARTIES”), TO THE EXTENT PERMITTED BY LAW, BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE USE OF THE SITE, THE SERVICES, THE APP, ANY VENDOR SERVICES, ANY THIRD-PARTY PROPERTY, ANY OTHER USER, THE ACTS OF ANY THIRD PARTY, ANY GOLF COURSE OR SUCH GOLF COURSE’S PATRON’S OR PERSONNEL, OR IP SHARED BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR LOSS OF USE DAMAGES, AND IN NO EVENT SHALL OUR LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE GREATER OF: (a) THE TOTAL AMOUNTS PAID (PLUS PAYABLE) BY YOU TO US UNDER THIS AGREEMENT OVER THE TWELVE (12) MONTH PERIOD PRECEDING AN ACTION OR (b) ONE HUNDRED AND NO/00 U.S. DOLLARS ($100.00). UNLESS OTHERWISE PROHIBITED BY REGULATION OR OTHERWISE AGREED IN WRITING BETWEEN THE PARTIES, THE DISCLAIMING PARTIES BEAR NO RESPONSIBILITY OR LIABILITY FOR YOUR UTILIZATION OF THE SITE, THE SERVICES, THE APP, ANY VENDOR SERVICES, ANY THIRD-PART PROPERTY, THE ACTS OF ANY OTHER USER, THE ACTS OF ANY THIRD PARTY, ANY GOLF COURSE OR SUCH GOLF COURSE’S PATRON’S OR PERSONNEL, OR IP SHARED BY ANY THIRD PARTY. THE DISCLAIMING PARTIES SHALL NOT BE LIABLE FOR ANY LACK OF SECURITY WHICH MAY BE EXPERIENCED RESULTING FROM YOUR NEGLIGENCE, MALFEASANCE, MISFEASANCE, OR NONFEASANCE OF YOU OR YOUR PERSONNEL, THE NEGLIGENCE, MALFEASANCE, MISFEASANCE, OR NONFEASANCE OF ANY VENDORS OR OTHER USERS, OR THE NEGLIGENCE, MALFEASANCE, MISFEASANCE, OR NONFEASANCE OF ANY THIRD PARTIES. TO THE EXTENT PERMITTED BY REGULATION, YOU EXPRESSLY AGREE THAT YOU ASSUME ALL RESPONSIBILITY FOR YOUR USE OF THE SITE, THE SERVICES, THE APP, ANY VENDOR SERVICES, ANY DAILY DOGFIGHTS’ PROPERTY, ANY THIRD-PARTY PROPERTY, ANY GOLF COURSE OR SUCH GOLF COURSE’S SERVICES, OR ANY IP SHARED BY ANY THIRD PARTY OR ANY INTERACTION WITH ANY THIRD PARTY. UNDER NO CIRCUMSTANCES SHALL THE DISCLAIMING PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY UNSUCCESSFUL DISPUTE, LOSS OF BUSINESS, PROFITS, REVENUES, MONEY, DATA, GOODWILL, OR REPUTATION, LOSS OF ANTICIPATED BUSINESS, PROFITS, REVENUES, OR GOODWILL, OR OTHER INTANGIBLE LOSSESS, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS, DAMAGE, OR INJURY OF ANY NATURE WHATSOEVER, ARISING OUT OF, IN CONNECTION WITH, RELATING TO, OR RESULTING FROM THE UTILIZATION YOUR USE OF THE SITE, THE SERVICES, THE APP, ANY VENDOR SERVICES, ANY DAILY DOGFIGHTS’ PROPERTY, ANY THIRD-PARTY PROPERTY, ANY GOLF COURSE OR SUCH GOLF COURSE’S SERVICES, OR ANY IP SHARED BY ANY THIRD PARTY OR ANY INTERACTION WITH ANY THIRD PARTY HOWEVER ARISING. FURTHERMORE, THE DISCLAIMING PARTIES SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER LAW, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING ANY OF THE FOREGOING, OUR FULL CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF ONE HUNDRED AND NO/00 U.S. DOLLARS ($100.00). THE LIMITATION OF LIABILITY IN THIS SECTION XXX APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING CONTRACT OR TORT, INCLUDING, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS; THE FOREGOING LIMITATIONS APPLY EVEN IF THE DISCLAIMING PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES; IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE REGULATIONS OF THE JURISDICTION WHERE YOU ARE LOCATED. IF YOU ARE A CALIFORNIA RESIDENT YOU AGREE TO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." UNDER NO CIRCUMSTANCES, WILL EITHER PARTY TO THE EXTENT PROHIBITED BY LAW, BE LIABLE FOR FAILURE TO PERFORM THE TERMS OF THIS AGREEMENT IF SUCH FAILURE IS DUE TO A FORCE MAJEURE EVENT.
Indemnification.YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD THE DISCLAIMING PARTIES HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, WHICH MAY HEREAFTER ARISE, WHICH THE DISCLAIMING PARTIES MAY SUSTAIN DUE TO OR ARISING OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY MADE HEREIN, YOUR BREACH OF THE AGREEMENT, YOUR NEGLIGENT ACT OR OMISSION, YOUR ACTS IN VIOLATION OF THE AGREEMENT OR ANY REGULATION OR REGULATORY AUTHORITY, OR YOUR IP, OR CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY YOUR ACCESS TO OR UTILIZATION OF OR INABILITY TO ACCESS OR UTILIZE THE SITE, THE SERVICES, THE APP, ANY VENDOR SERVICES, ANY THIRD-PARTY PROPERTY OR SERVICES, ANY INTERACTIONS WITH ANY THIRD PARTY, OR IP SHARED BY ANY THIRD PARTY.
Dispute Resolution.
Law and Venue. The Parties agree that it is their intention and covenant that this Agreement, performance under this Agreement, any Action arising out of or relating to this Agreement, Daily Dogfights, or our services and all suits and special proceedings relating to such, shall be construed in accordance with, under, and pursuant to the laws of the State of Texas, without giving effect to any principles of conflicts of law. The Parties agree and covenant that any Action arising out of or relating to this Agreement, Daily Dogfights, or our services will be filed only in the state or federal courts in and for the Fort Worth Division of the Northern District of Texas or the state courts in and for Fort Worth, Tarrant County, Texas, and each Party hereby consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action and expressly submits to extraterritorial service of process.
Dispute Resolution Process. The Parties agree that in the event that either Party has a Dispute with the other Party arising out of or relating to this Agreement, the Site, our services, the Platform, any Vendor services, any Vendor, any Daily Dogfights’ Property, any Affiliate, any third party, or an IP Shared by any third party, the claiming Party shall first submit such Dispute to non-binding mediation in Fort Worth, Texas with a mediator who is mutually agreed upon by the Parties. Any costs and fees associated with the mediation, excepting attorney costs, shall be shared equally by the Parties; each Party shall bear responsibility for that Party’s own attorney costs. If such non-binding mediation is unsuccessful in reaching a resolution between the Parties and the claiming Party continues to desire to seek legal remedy, the Parties agree that in lieu of any other Action, the Parties shall submit such Dispute to binding arbitration in Fort Worth, Texas by a single arbitrator mutually agreed upon by the Parties and, absent such agreement on an arbitrator, an arbitrator shall be appointed by the AAA. Such arbitration shall be conducted in accordance with the then prevailing Consumer Arbitration Rules of the AAA. Both Parties hereby agree to abide by all decisions and awards rendered in an arbitration between the Parties whether initiated by either Party in accordance with this Section XVIII(b). Any decisions and awards rendered by an arbitrator in an arbitration between the Parties shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its enforcement. In any such arbitration, the arbitrator shall not have the right to award punitive damages or speculative damages to either Party and shall not have the power to amend this Agreement and the arbitrator shall be required to follow applicable law. If for any reason the arbitration clause in this Section XVIII(b) becomes not applicable, then the Parties, to the fullest extent permitted by applicable law, hereby unconditionally and irrevocably waive all right to trial by jury as to any issue relating hereto in any Action arising out of or relating to this Agreement or any other matter involving the Parties hereto. THE PARTIES ACKNOWLEDGE THAT A RIGHT TO A JURY IS A CONSTITUTIONAL RIGHT, THAT THE PARTIES HAVE HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF THEIR CHOOSING, AND THAT THIS JURY WAIVER HAS BEEN ENTERED INTO KNOWINGLY AND VOLUNTARILY. IN THE EVENT OF LITIGATION, THIS SECTION XVIII(b) OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. Notwithstanding the above, either Party may commence an Action for equitable relief as provided for in Section XVIII(b) in any court of competent jurisdiction.
Waiver of Class Actions. THE PARTIES AGREE THAT IN THE EVENT THAT EITHER PARTY HAS A DISPUTE WITH THE OTHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SITE, THE SERVICES, THE PLATFORM, ANY VENDOR SERVICES, ANY VENDOR, ANY DAILY DOGFIGHTS’ PROPERTY, ANY AFFILIATE, ANY THIRD PARTY, OR AN IP SHARED BY ANY THIRD PARTY, THE CLAIMING PARTY SHALL ONLY BRING SUCH DESPITE AGAINST THE OTHER PARTY IN THE CLAIMING PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION, INCLUDING A FEDERAL OR STATE CLASS ACTION LAWSUIT OR CLASS ARBITRATION.
Equitable Relief. Each Party represents, warrants, and covenants that the protection of Daily Dogfights’ IP is directly related to our goodwill and vital business interests and that Daily Dogfights would be significantly, imminently, and irreparably injured by your conduct in violation of the terms of Sections VII(b-g), that the true extent of such harm would be difficult, if not impossible, to fully ascertain or quantify, and that monetary damages will not provide adequate remedy for such conduct. Accordingly, in addition to any other remedy available at law or equity, you hereby acknowledge and agree that we shall be entitled to seek immediate equitable relief to protect our interests therein, including injunctive relief preventing you from taking or continuing any action or conduct in violation of this Agreement or specific relief to require you to take certain action in accordance with this Agreement, to be issued by any court of competent jurisdiction upon a showing of any such conduct on the part of you. Notwithstanding any other provisions of this Agreement, such Action for equitable or specific relief by us shall not require any conditions precedent, including first submitting such Dispute to the Dispute resolution methods for all other forms of Action listed in Section XX(b).
Legal Costs. In the event that either Party institutes or brings an action at law or in equity to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to recover such Party’s costs incurred for the action, including reasonable attorneys’ fees, at trial and on every appeal, writ, petition, and motion.
Notice. All notices, requests, demands, consents, permissions, and other communications hereunder shall be in writing and shall be deemed received when transmitted: (a) to the email address hereinunder, and confirmation of delivery or receipt is received, provided that if the date of receipt is not a business day, the notice, request, or communication shall be deemed not to have been received until the next succeeding business day; or (b) by overnight courier service or registered or certified mail or personal delivery, when sent to the respective Party’s address as listed hereinunder and received by such Party, provided that if the date of receipt is not a business day at the respective Party’s address, the notice, request or communication shall be deemed not to have been received until the next succeeding business day.
If to Daily Dogfights: Daily Dogfights
Attn: Legal Notice
[Address]
Email:
legal@dailydogfights.com Subject Line: Legal Notice
If to You: to the phone number, address, or email address that you provided to us via Your Account, via Your Account,or by posting on the Site or via the App.
Changes,
Change of this Agreement. We may modify, alter, or otherwise update this Agreement at any time with reasonable Notice to you.
Changes to Our Services. We may enhance, replace, modify, alter, change, or otherwise update the features of our services, but it will not materially reduce the core features, functions, or security of our services during the Term with reasonable Notice to you.
Assignment. You may not assign or transfer, whether by operation of law or otherwise, any rights or delegate any duties under this Agreement to any third parties unless we give you explicit prior written consent. Any such attempted assignment by you, will be null and void ab initio absent our explicit prior written consent. We may assign or transfer our rights and duties under this Agreement without restriction.
Benefit of Parties. This Agreement and the representations, warranties, covenants, indemnifications, and benefits herein shall be binding on and inure to the benefit of each Party and each Party’s Affiliates and their respective: (a) predecessors, successors, and assigns, and (b) past and present attorneys, directors, members, managers, officers, representatives, shareholders, agents, employees, partners, and their respective executors, administrators, heirs, and legal and personal representatives.
Severability. To the extent permitted by Regulation, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
Execution. This Agreement must be executed by a natural person. This agreement may not be executed by an automated agent, unless such automated agent is executing this Agreement specifically on behalf of and at the immediate instruction of a real person in a manner as to legally effect the natural person’s will and agreement to execute this Agreement.
Maximum Restrictions Intended. The Parties hereby acknowledge and agree that the time, scope, and geographic area and other provisions of this Agreement have been specifically negotiated by the Parties and are reasonable under these circumstances, and that if, despite the express agreement of the Parties, a court should hold any portion of this Agreement unenforceable for any reason, the maximum restrictions of time, scope, and geographic area reasonable under the circumstances, as determined by the court, will be substituted for the restrictions held unenforceable.
Entire Agreement. This Agreement contains the sole and entire agreement between the Parties regarding the subject matter herein and supersedes any and all other agreements between the Parties regarding the subject matter herein, unless otherwise agreed by the Parties in writing. The Parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of this Agreement or any representations inducing the execution and delivery of this Agreement, except such representations as are specifically set forth in this Agreement, and each of the Parties acknowledges that such Party has relied on such Party’s own judgment in entering into this Agreement. The Parties further acknowledge that any statements or representations that may have previously been made by either of them to the other are void and of no effect and that neither of them has relied thereon in connection with such Party’s dealings with the other.
Survival. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening.
Construction. This Agreement has been negotiated by the Parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party. Each Party acknowledges that it has had the opportunity to discuss this matter with and obtain advice from its private attorney, has had sufficient time to, and has carefully read and fully understands all the provisions of this Agreement, and is knowingly and voluntarily entering into this Agreement. The headings referenced herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions hereof. Any capitalized term in this Agreement shall have the meaning herein defined. Any capitalized term not defined herein shall be given the definition common to such term in the common parlance of the real estate and title technology community. Any term in this Agreement written wholly in small capitalized letter shall be deemed a legal citation to relevant statutory law, reference to another executed document, or a name of a third party. The terms “herein”, “hereof”, “hereunder”, “hereunder”, and “hereby” and other terms of similar import refer to this Agreement as a whole and not to any particular provision. The term “include,” “includes”, and “including” are deemed to be followed by the phrase “, but not limited to,”. Additionally, throughout this Agreement when context requires, capitalized terms, singular nouns, and pronouns include the plural and possessive. The following terms shall have the following definitions for the purposes of this Agreement:
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity;
“Affiliate” means, with respect to a Party, either: (i) any third party that directly or indirectly Controls, is Controlled by, or is under common Control with such Party; (ii) any third party that owns or Controls ten percent (10%) or more of the outstanding voting interests of such Party; (iii) any officer, director, general partner, manager, managing member, or trustee of, or other similar third party serving in a similar capacity with respect to such Party; or (iv) any third party who is an officer, director, general partner, manager, member, trustee, or holder of ten percent (10%) or more of the voting interests of any third party described in Sections XXX(b)(i), XXX(b)(ii), or XXX(b)(iii);
The “App” or the “Daily Dogfights App” means the downloadable software application operated by Daily Dogfights for the provision of our services;
“Control”, “Controlling”, or “under common Control with” means either the direct or indirect possession of the power to direct or cause the direction of the management and policies of a Party, whether through ownership of voting securities or the voting power to elect the directors or managers of such Party, by contract, or otherwise;
Damages” means any and all claims, liabilities, losses, expenses, or damages, including reasonable attorneys’ fees and expenses, and court costs;
“Derivatives” means any and all IP or Materials that is wrongfully Developed by you based on any Daily Dogfights IP;
“Develop” means adapt, translate, modify, revise, condense, expand, compile, edit, reverse engineer, alter, enhance, abridge, create derivative works from, and further develop;
“Distribute” means to Share, reproduce, collect, copy, make copies of, have copies made of, import, export, license, sub-license, sell, lease, rent, otherwise dispose of, and make available to Use;
“DMCA” means the Digital Millennium Copyright Act, 17 U.S.C. §512’
“Feedback” means any and all suggestions, recommendations, comments, complaints, or other unsolicited feedback provided by you to us;
“Force Majeure Event” means any cause or condition beyond a Party’s reasonable control, including any acts of god or the public enemy, acts of any government or Regulatory Authority in sovereign or contractual capacity, fire, casualty, flood, hurricane, earthquake, epidemic, pandemic, quarantine restrictions, natural or environmental disaster, war, civil unrest, terrorism, strike, shortages of labor or materials, freight embargoes, unusually severe weather, breakdowns, operational failures, electrical power failures, communication failures, lockout, riot, change of Regulation, insurrection, unavoidable delays, internet service provider failures or delays, denial of service attacks, the errors or failures of third parties or third-party systems, or other similar causes beyond such Party’s control;
“IP” means any and all information, intellectual property, or data whether in a tangible or intangible form;
“IP Rights” means any and all joint or individual ownership, rights, titles, and interests in and to such certain IP as identified, including any and all related: (i) copyrights, patents, trademarks, trade secrets, neighboring and related rights (droits voisins), database rights, design rights and rights in mask works, domain names, rights to know-how, moral rights (droit moral), publicity rights, rights against unfair competition, and any other intellectual property rights of a similar nature arising under U.S. law, international convention, or any other Regulation anywhere in the known universe implied by law or equity or accruing under common law whether registered or unregistered, including any and all registrations, applications for registration, renewals, continuations, continuations-in-part, divisionals, reissues, recapture rights, and extensions thereof; (ii) all goodwill related to or arising out of the foregoing; and (iii) all benefits, privileges, Actions, and remedies relating to any of the foregoing under U.S. law, international convention, or any other Regulation anywhere in the known universe implied by law or equity, whether before or hereafter accrued, including the exclusive rights to apply for any and all related registrations, renewals, continuations, continuations-in-part, divisionals, reissues and/or extensions, to bring any Action for all past infringements or violations of any the foregoing, and to settle and retain proceeds from any such Actions;
“Market” means to market, demonstrate, publicly display, publicly perform, offer for Distribution, and use for marketing;
“Materials” means any and all equipment, chattel, or tangible materials;
“Personnel” means the managers, officers, directors, employees, agents, and third-party contractors of a Party;
“Property” means collectively IP, Materials, and Real Estate;
“Real Estate” means identified real property and all improvements afixed, immovable, or permanently attached to it;
“Regulation” means any applicable law, statute, regulation, ordinance, rule, order, decree, or ruling as set forth by any Regulatory Authority;
“Regulatory Authority” means any applicable federal, state, provincial, territorial, canton, parish, local, or other legal, governmental, judicial, administrative, or regulatory authority exercising proper jurisdiction over a Party or its Personnel;
“Section” means the respective section of this Agreement as enumerated herein unless otherwise specified herein;
“Share” means to distribute, transmit, or make available to third parties;
Tax” means any tax, levy, duty, or similar governmental assessment of any nature, including value-added, sales, or use, assessable by any Regulatory Authority;
“Use” means to access, use or not use, reuse, install, and copy for use, reuse, and installation;
“User” or “Player” means a person who Uses our services;
“User Information” means all information related to Players, including Player names, addresses, passwords, telephone numbers, fax numbers, email addresses, URLs, IP address numbers, device identifiers and serial numbers, ages, birthdates, social security numbers, biometric identifiers including finger and voice prints, genetic information, full face photographic images and any comparable images, account numbers, demographic information, financial information, transactional information, and any other unique identifying number, characteristic, or code all information relating to medical records, including all medical record numbers, health plan beneficiary numbers, dates of admission, account numbers, and certificate/license numbers, all nonpublic personally identifiable information, and all nonpublic personal information of consumers as defined by the Gramm-Leach-Bliley Act, Pub. L. 106-102, Section 628 of the Fair Credit Reporting Act, Section 216 of the Fair and Accurate Credit Transactions Act, the Health Insurance Portability and Accountability Act (HIPAA), and the Children's Online Privacy Protection Act;
“Utilize” means to Develop, Distribute, Market, and Use; and
“Vendor” means a third-party licensor, supplier, vendor, provider, or subcontractor.