Last Revised: July 10, 2023
THIS IS AN AGREEMENT MADE BY AND BETWEEN YOU AND PENN SPORTS INTERACTIVE, LLC AND ITS PARENT, SUBSIDIARIES, AND AFFILIATES (COLLECTIVELY “PENN”) CONCERNING YOUR ACCESS TO AND USE OF THIS APPLICATION (THE “SOFTWARE”). PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE, YOU MAY NOT ACCESS OR USE THE SOFTWARE, AND YOU MUST UNINSTALL THE SOFTWARE FROM ANY DEVICE OWNED OR CONTROLLED BY YOU.
PENN may, at its discretion, update this Agreement from time to time. You can access and review the most current version of this Agreement within the “About” section within the Software or by visiting https://barstoolsportsbook.com/legal/eula. IF YOU CONTINUE TO USE THE SOFTWARE AFTER THE UPDATE OF THIS AGREEMENT, THEN YOU SHALL BE DEEMED TO HAVE ACCEPTED THOSE CHANGES. IF YOU DO NOT AGREE, YOU MAY NOT CONTINUE TO ACCESS OR USE THE SOFTWARE, AND YOU MUST UNINSTALL THE SOFTWARE FROM ANY DEVICE OWNED OR CONTROLLED BY YOU.
2. License. Subject to your compliance in all material respects with the terms and conditions of the Governing Documents and the Apple Media Services Terms and Conditions, PENN grants you a restricted, non-exclusive, non-transferable, revocable license to install and use the Software on an iOS personal mobile device that you own and control, in machine executable object code form only and solely for personal, non-commercial purposes.
3. Restrictions. You may not: (a) use, copy, print, modify, adapt, create derivative works from, market, deliver, rent, lease, sublicense, make, have made, assign, pledge, transfer, sell, offer to sell, import, reproduce, distribute, publicly perform, publicly display or otherwise grant rights to the Software, or any copy thereof, in whole or in part, except as expressly permitted under this Agreement; (b) reverse engineer, disassemble, decompile or translate the Software, or otherwise attempt to derive the source code, architectural framework or the data records of the Software, or authorize any third party to do any of the foregoing; (c) access the Software for purposes of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Software; (d) loan, resell or distribute the Software, or any part thereof, in any way; or (e) use the Software in any way that does not comply with all applicable laws and regulations.
4. Ownership. PENN and/or its licensors and suppliers own all rights, title and interest in the Software (including, but not limited, to all copyrights, patents, patent applications, trade secrets, trademarks, source code, text and any images, photographs, icons, graphics, animations, video, audio, music, and all other materials incorporated within the Software), and the Software is protected by U.S. and international copyright and other intellectual property laws and treaties. The Software is licensed, not sold, to you for use only under the terms and conditions of this Agreement. PENN reserves all rights not expressly granted to you.
5. Open Source Software. The Software may include open source software components. For information about such components, please visit https://support.barstoolsportsbook.com/hc/en-us/sections/15250250305549.
7. Beta Software. If the Software, or any service accessed through the Software, is identified as pre-commercial, evaluation, “alpha” or “beta” software (“Beta Software”), the license rights set out above with respect to your use of such Beta Software shall apply only for the time period authorized by PENN (“Beta Period”) and solely to the extent necessary to enable you to test and provide Feedback to PENN regarding the Beta Software. Such license will automatically terminate upon the expiration of the Beta Period, which period may be extended or terminated by PENN at any time, in its sole discretion, but, unless you are in breach of this Agreement, PENN will, if feasible, use commercially reasonable efforts to provide you with prior notice of any change to the duration of the Beta Period. Notwithstanding the Beta Period, you acknowledge and agree that PENN may include technical measures in the Beta Products that render them inoperable after a specified period of time and you agree that you will not circumvent such technical measures, nor attempt to do so. In consideration of the grant of license to the Beta Software, you agree that you will provide PENN with Feedback on Beta Software as PENN reasonably requests, including ongoing feedback regarding bugs and faults experienced during the Beta Period, without any compensation or reimbursement to you of any kind from PENN, and that the section below entitled “Feedback” will apply to such Feedback you provide to PENN with regards to the Beta Software. PENN may specifically request that you complete a survey related to a specific Beta Software and you agree to complete any such surveys.
8. Feedback. You may provide feedback to PENN about your use and experience while using the Software. You hereby agree that PENN shall own all feedback, comments, suggestions, ideas, concepts and changes that you provide to PENN regarding your use and experience while using the Software and all associated intellectual property rights (collectively the “Feedback”) and you hereby acknowledge and agree that PENN shall be free to use, disclose, reproduce, have made, modify, license, transfer and otherwise utilize and distribute the Feedback in any manner, without credit or compensation to you. You will not knowingly provide PENN any Feedback that is subject to third party intellectual property rights.
9. NO WARRANTY. YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PENN AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, MANDATARIES, PARTNERS, LICENSORS AND CONTRACTORS (COLLECTIVELY “PENN PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PENN PARTIES MAKE NO WARRANTY AND PROVIDE NO CONDITIONS THAT: (i) THE SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE.
10. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT PENN PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF PENN PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL PENN’S TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF THE SOFTWARE EXCEED THE AMOUNT YOU PAID TO PENN FOR THE SERVICE YOU ACCESS VIA THE SOFTWARE. CERTAIN STATE AND PROVINCIAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
11. Indemnification. You agree to indemnify and hold PENN Parties harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, resulting from or arising out of your: (a) access to or use of the Software; (b) violation of this Agreement or any law or regulation; or (c) violation of any rights of another party.
12. Termination. This Agreement is effective until terminated by you or PENN. Your rights under this Agreement shall terminate automatically without notice from PENN if you violate any of the terms of this Agreement. Upon termination of this Agreement, all rights granted to you under this Agreement shall immediately terminate, but all other provisions shall survive termination.
13. Changes to Software. PENN reserves the right to modify, suspend or discontinue, temporarily or permanently, the Software or any product or service to which it connects, with or without notice and without liability to you. PENN may at its sole discretion from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software or related services (“Updates”). PENN may develop Updates that require installation by you before you continue to access or use the Software or related services. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system. Any Updates provided to you by PENN shall be considered the Software and licensed to you under the terms of this Agreement.
14. Legal Compliance. You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo, listed in the Area Control List under Canada’s Export and Import Permits Act, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. or Canadian Government list of prohibited or restricted parties, including, but not limited to, the Specially Designated Nationals List.
15. U.S. Government Entities. This section applies to access to or use of the Software by a branch or agency of the United States Government. The Software consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. The Software is provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this Agreement with respect to the Software, and any access to or use of the Software by the United States Government constitutes: (i) agreement by the United States Government that that the Software is “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
16. Governing Law.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, as it is applied to agreements entered into and to be performed entirely within such state, without regard to conflict of laws principles.
The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
17. Agreement to Arbitrate Disputes. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE VALIDITY, APPLICABILITY AND/OR INTERPRETATION OF THIS AGREEMENT, SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by binding arbitration administered by the American Arbitration Association (“AAA”), 120 Broadway, Floor 21, New York, NY 10271, in accordance with the provisions of its commercial arbitration rules and/or its consumer arbitration rules, excluding any rules or procedures permitting class arbitration. If for any reason the AAA cannot administer the arbitration and the parties cannot agree on a replacement, a court with jurisdiction shall select the arbitration organization or arbitrator. “Claim” has the broadest possible meaning. It includes initial claims, counterclaims, cross-claims, third-party claims, and federal, state, local, and administrative claims, and claims which arose before the effective date of this arbitration provision. It also includes disputes based upon contract, tort, consumer rights, fraud, and other intentional torts, constitution, statute, regulation, ordinance, common law and equity, and claims for money damages and injunctive or declaratory relief. This arbitration provision may also be enforced by any party named as a co-defendant with PENN in a claim asserted by you. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. The arbitration hearing will take place in the federal judicial district where you reside, or at another place mutually agreeable to the parties.
The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF THE SOFTWARE WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, OR, IF FEDERAL SUBJECT MATTER JURISDICTION IS LACKING, THEN IN THE STATE COURTS LOCATED IN BERKS COUNTY, PENNSYLVANIA.
YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH PROCEEDING.
Notwithstanding anything to the contrary, you and PENN may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth above.
18. General. This Agreement constitutes the entire agreement between you and PENN concerning your access to and use of the Software. It supersedes any prior or contemporaneous oral or written negotiations and agreements between you and PENN with respect to such subject matter. You may not assign any of your rights or obligations under this agreement to another party without the express written consent of PENN. The failure of PENN to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. The parties acknowledge that this Agreement is concluded between you and PENN only, and not with Apple, and Apple is not responsible for the Software and the contents thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software. PENN, not Apple, is responsible for addressing any claims from you or any third party relating to the Software or your possession and/or use of the Software, including, but not limited to, product liability claims, any claim that the Software fails to conform to any applicable legal or regulatory requirement and claims arising under consumer protection or similar legislation. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and Apple shall have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third-party beneficiary hereof. PENN, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim attributable to the Software.