THIS SERVICES AGREEMENT (this “Agreement”), is by and between RealJZ LLC, d/b/a Bet-Tenders (“Bet-Tenders” or the “Company”), and various sports bars or hospitality groups that have been signed up (“Sports Bar”). (Bet-Tenders and Sports Bar are each a “Party” and, collectively, the “Parties”).
WHEREAS, Bet-Tenders is a licensed affiliate with gambling commissions across the country and an accredited partner of the biggest sportsbooks in the world;
WHEREAS, Bet-Tenders has created partnerships with sports-bar owners whereby they are paid for helping sign-up customers for the sportsbooks via the “Services” (as set forth in Section 2); and
WHEREAS, Sports Bar has partnered with Bet-Tenders for use of its services in its sports bar establishments (the “Establishment”) and in accordance with the terms and conditions of this Agreement and the corresponding short form Sports Bar Establishment Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
- Definitions. Capitalized terms set out in the preamble shall have the definitions set out therein. The following terms shall have the meanings attributable to them below:
- “Confidential Information” means non-public information of a Party that is identified as or would be reasonably understood to be confidential and proprietary, including, without limitation, information regarding a Party’s business plans, business models, business methodologies, business strategies, marketing plans, information system architecture, information system design, information systems integration methodologies, management consulting methodologies, financial information, customer information, supplier information, product offerings, service offerings, product concepts, pricing policies, personnel information, source code and other intellectual property (and all tangible and intangible embodiments thereof).
- “Discloser” means a Party disclosing Confidential Information to the other Party.
- “Losses” means losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- “Recipient” means a Party receiving Confidential Information from the other Party.
- “Term” means the initial term and any renewal terms as set out in Section 6.1.
- Scope. The scope of the Services is to host events at a sports bar, promote the sportsbooks, and generate user signups at the Establishment or an Event. The Services are primarily performed through Special Events services (as described in Section 2.2) and Digital Sign-Ups services (as described in Section 2.3). The Services utilizes a brand, Bet-Tenders®, and the events are usually around a big sporting event.
- Special Events.
- Special Events. In connection with a major sporting event (e.g. Super Sundays, Pay-Per View Fights, March Madness), Bet-Tenders sends in a team of professionals to run the a sports betting event at an Establishment, including, without limitation, create specialty prop bets, bonuses and promos geared towards the special event, and help create a party atmosphere.
- Invite-Only Parties. The Sports Bar can host a special, invite-only party for their customers (as determined by the Sports Bar and, for example, for customers from its database, social media or already in the Establishment). If there are a minimum of eight (8) new users signed up at the Invite-Only Party, then Bet-Tenders will cover the cost of the food and drink at the party.
- Digital Sign-Ups.
- Bet-Tenders can create signage with unique QR codes for the Establishment (e.g. posters, fliers and table placards) to be placed inside of the Establishment. These QR codes send customers to offers from Bet-Tenders sports betting partners that offers them bonuses for betting and gift certificates/vouchers (which are paid for by Bet-Tenders) for the Establishment.
- Bet-Tenders can create digital assets for email and social media that enables Sports Bar to tap into its database and social following and incentivize them to sign-up remotely, which will create revenue both on the sign-up and (potentially) when they come to the Establishment to redeem their gift certificates/vouchers.
- Approval of Marketing and Advertising Materials. Bet-Tenders shall send to Sports Bar for its prior approval the text and layout of all proposed advertisements and marketing and promotional material relating to an Event at its Establishment. Sports Bar reserves the right to reject any material in its reasonable discretion. In the event that Sports Bar approves of such material, it shall give notice of such approval to Bet-Tenders within 2 days of receipt by Sports Bar of the material. In the absence of a notice of approval within 2 days of receipt of such materials, the materials shall be deemed to have been approved by Sports Bar.
- Conformance with Law. Sports Bar shall ensure that any and all use of the Establishment shall comply with all applicable laws and regulations and shall obtain all appropriate governmental approvals pertaining to the Establishment.
- Bet-Tenders shall prominently disclose that any contractual or other relationships are solely between the customers and Bet-Tenders and/or the sportsbooks.
- Quality Standards. Sports Bar agrees that the nature and quality of all services rendered at the Establishment shall, at a minimum, conform to those traditionally maintained by the Sports Bar.
- Sports Bar shall use its reasonable best efforts to promote customer sign-ups at the sportsbooks, which may include in restaurant, social media, and/or digital marketing (e.g. emails to its database), and, onsite promotional activities.
- Ownership Rights.
- Ownership of the Marks. Sports Bar acknowledges and agrees that it will do nothing inconsistent with Bet-Tenders’ ownership of its intellectual property, and, it shall not challenge the title or any rights of Bet-Tenders in its intellectual property and their associated goodwill.
- Flat Fee. Bet-Tenders shall pay Sports Bar a fee as set forth in the short form Sports Bar Establishment Agreement. This agreement provides specific sports bar names and addresses and outlines the payments to the Sports Bar. This fee is in exchange for its performance of the obligations under this Agreement, including the usage of the Establishment and promotional efforts to patrons.
- The Fee shall be payable in United States dollars and paid to a single bank account designated in writing by Sports Bar, which bank account can be changed upon notice pursuant to the Agreement.
- Taxes. The Fee is exclusive of sales tax and any other applicable taxes.
- Term and Termination.
- Term. Except as otherwise provided in this Agreement, this Agreement will be in effect from the Effective Date on the short form Sports Bar Establishment Agreement. The term will end with written notice of termination by either Party, unless the Parties agree to a cure of a breach in the Agreement within a defined time period.
- Return of Confidential Information. Each Party shall return to the other all Confidential Information within thirty (30) days after the termination of the Agreement. In addition, each Party will assist the other in the orderly termination of this Agreement, and the transfer of all aspects hereof, tangible and intangible, as may be necessary for the orderly, non-disrupted business continuation of each Party. Deletion of a file from all active databases with copies retained only on archived or back-up media that are not readily accessible and that are queued for permanent deletion in accordance with standard business practice (such period not to exceed one year) shall be considered destruction within the meaning of this provision, provided that those copies are actually destroyed in accordance with that practice and are not accessed for any purpose.
- Each Party, in its sole discretion, may disclose or otherwise make available certain Confidential Information to the other Party and the Recipient shall only use Confidential Information as strictly necessary to perform its obligations under this Agreement.
- During the term of this Agreement and for a period of five (5) years following the expiration or earlier termination hereof, Recipient shall (i) maintain in confidence and prevent the unauthorized use and disclosure of Confidential Information of Discloser, and (ii) exercise the same degree of care as it uses for its own confidential information, but no less than reasonable care. Recipient shall disclose Confidential Information only to those of its employees, agents, advisors and contractors as reasonably necessary to facilitate the purposes of this Agreement, provided that such persons are required to maintain in confidence and not use Confidential Information except as permitted by this Agreement.
- Notwithstanding the foregoing, Confidential Information shall not include information that is: (i) public knowledge at the time of such disclosure by Discloser to Recipient, or that subsequently becomes public knowledge, not as a result of wrongful acts attributable to Recipient; (ii) rightfully known by Recipient prior to the date of disclosure by Discloser; (iii) disclosed to Recipient on an unrestricted basis from a third party not under a duty of confidentiality to Discloser; or (iv) independently developed by employees, contractors or agents of Recipient without reference to or use of Confidential Information of Discloser.
- Recipient may disclose Confidential Information to the extent required by applicable law or regulation, provided that Recipient shall give Discloser prompt written notice (if lawful) and sufficient opportunity to seek a protective order or other appropriate remedy such disclosure. If a protective order or other remedy is not obtained, Recipient shall furnish only that portion of the Confidential Information which is legally required and shall cooperate in any action reasonably taken, at Discloser’s expense, to seek reliable assurance that confidential treatment shall be accorded such Confidential Information. Notwithstanding the above, Recipient is permitted to disclose Confidential Information of Discloser to its auditors, to law enforcement and regulatory authorities without notice to or consent by Discloser.
- Promptly upon obtaining knowledge thereof, Recipient shall disclose to Discloser any attempt by any person improperly to use or disclose any Confidential Information of Discloser.
- Representations and Warranties of Sports Bar.
- Organization. Sports Bar represents and warrants that it is duly organized, validly existing and in good standing pursuant to applicable laws under which it is organized and is qualified to do business as may be required for the conduct of its business activities hereunder.
- Power and Authority. Sports Bar represents and warrants that it has full power and lawful authority (i) to own and operate its assets, properties and business; (ii) to carry on its business as presently conducted; and (iii) to enter into and perform their Agreement and its obligations hereunder, including the short form Sports Bar Establishment Agreement. The persons executing their Agreement, through the short form Sports Bar Establishment Agreement, have full authority to bind such Party to the terms and conditions hereof.
- Authorizations; No Violations. Sports Bar represents and warrants that its execution and delivery of their Agreement, and performance hereof: (i) are within its organizational powers; (ii) have been duly authorized by all necessary organizational action, if required by its governing organizational documents; (iii) do not and will not conflict with or constitute a breach or violation of its governing organizational documents, and (iv) do not and will not conflict with or constitute a breach or violation of any material agreement, indenture, deed of trust, lease, mortgage, loan agreement or any other material instrument or undertaking to which such Party is a party.
- Representations and Warranties of Bet-Tenders.
- Organization. Bet-Tenders represents and warrants that it is duly organized, validly existing and in good standing pursuant to applicable laws under which it is organized and is qualified to do business in all jurisdictions as may be required for the conduct of its business activities hereunder.
- Power and Authority. Bet-Tenders represents and warrants that it has full power and lawful authority (i) to own and operate its assets, properties and business; (ii) to carry on its business as presently conducted; and (iii) to enter into and perform their Agreement and its obligations hereunder, including the short form Sports Bar Establishment Agreement. The persons executing their Agreement, through the short form Sports Bar Establishment Agreement, have full authority to bind such Party to the terms and conditions hereof.
- Authorizations; No Violations. Bet-Tenders represents and warrants that its execution and delivery of their Agreement, and performance hereof: (i) are within its organizational powers; (ii) have been duly authorized by all necessary organizational action, if required by its governing organizational documents; (iii) do not and will not conflict with or constitute a breach or violation of its governing organizational documents, and (iv) do not and will not conflict with or constitute a breach or violation of any material agreement, indenture, deed of trust, lease, mortgage, loan agreement or any other material instrument or undertaking to which such Party is a party.
- Sports Bar covenants and agrees to defend, indemnify and hold harmless Bet-Tenders, all End-Users and their respective officers, directors, employees, agents and permitted assigns (each, an “Bet-Tenders Indemnified Party”) from and against any and all Losses to the extent such Losses arise from (i) a breach of a representation or warranty of Sports Bar contained in this Agreement; (ii) a breach of Section 7 of this Agreement; or (iii) gross negligence, fraud or willful misconduct by Sports Bar, its officers, directors, employees or agents. Sports Bar further covenants and agrees to indemnify Bet-Tenders from all Losses arising from activities at its Establishment.
- Bet-Tenders covenants and agrees to defend, indemnify and hold harmless Sports Bar and its officers, directors, employees, agents and permitted assigns (each, a “Sports Bar Indemnified Party”) from and against any and all Losses to the extent such Losses arise from (i) a breach of a representation or warranty of Bet-Tenders contained in this Agreement; (ii) a breach of Section 7 of this Agreement; or (iii) gross negligence, fraud or willful misconduct by Bet-Tenders, its officers, directors, employees or agents.
- If any claim or demand is asserted against any Indemnified Party for which indemnification will be sought pursuant to this Section 10, written notice of such claim or demand shall promptly be given to the Party that is alleged to have the obligation to indemnify (“the Indemnifying Party”), except that delay in providing such notice shall not constitute a ground for the Indemnifying Party to avoid an otherwise valid indemnification obligation except to the extent such delay caused it prejudice. The Indemnified Party shall have the right (but not the obligation), by notifying the Indemnifying Party within fourteen (14) days of its receipt of the notice of the claim or demand, to assume the entire control (subject to the right of the Indemnifying Party to participate at the Indemnifying Party’s expense and with counsel of the Indemnifying Party’s choice) of the defense, compromise or settlement of the matter, including, at the Indemnifying Party’s expense, employment of counsel of the Indemnified Party’s choice. Any damages to the assets or business of the Indemnified Party caused by a failure of the Indemnifying Party to defend shall be included in the damages for which the Indemnifying Party shall be obligated to indemnify the Indemnified Party. The Indemnifying Party shall not compromise or settle a claim against the Indemnified Party without the Indemnified Party’s consent, which shall not be unreasonably withheld or delayed.
- Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET OUT IN SECTION 10, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY (OR ANY THIRD PARTY), WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE WRONGFUL DEATH OR INJURY OF ANY PERSON.
NEITHER PARTY SHALL BE LIABLE FOR ANY GAMBLING LOSSES OR TECHNOLOGY ISSUES AT ANY SPORTSBOOK. ANY AND ALL ACTIVITIES AND WAGERS AT A SPORTSBOOK SHALL SOLELY BE BETWEEN THE INDIVIDUAL USER AND THE SPORTSBOOK.
- Notices. All notices, demands or other communications required or permitted to be given hereunder shall be in writing, and any and all such items shall be deemed to have been duly delivered upon personal delivery; or as of the immediately following business day after deposit with a commercially recognized overnight courier service by which receipt may be confirmed, charges prepaid, addressed as set forth in the short form Sports Bar Establishment Agreement.
Any Party may change its notice information by written notice given to the other Party in accordance with this Section.
- Assignment; Binding Effect. The rights and obligations of a Party that is acquired by, merged into, or sells substantially all of its assets to any entity shall continue in full force and effect, and, such successor entity shall assume (as applicable) all the rights and obligations hereunder. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
- Governing Law. This Agreement and any disputes arising hereunder, shall be governed by, interpreted, construed and enforced in all respects in accordance with the laws of State of New York without regard to that state’s choice or conflict of law principles.
- Dispute Resolution. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in New York City, New York and shall be decided by one arbitrator, who may be randomly assigned by the American Arbitration Association.
- Survival. All provisions of this Agreement which by their nature extend beyond the termination of this Agreement, including without limitation Sections 1 (Definitions), 4 (Ownership), 6.6 (Termination), 7 (Confidential Information), 10 (Indemnification), 11 (Limitation of Liability), and 12 (Miscellaneous), shall survive the termination of this Agreement.
- Severability. The provisions of this Agreement shall be deemed severable, and if any provision of this Agreement shall be held illegal, void or invalid by an arbitrator or court of competent jurisdiction (i) such provision shall be deemed to be restated to reflect as nearly as possible to the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
- Waiver. No course of dealing and no failure by a Party to enforce any provision of or to exercise any right under this Agreement shall be construed as a waiver of such provision or right or affect the validity of this Agreement or limit, prevent or impair the right of any Party subsequently to enforce such provision or exercise such right. The waiver by a Party of any breach or default of this Agreement by the other Party shall be in writing and will not operate or be construed as a waiver of any subsequent or other breach or default.
- Relationship of the Parties. The Parties to this Agreement are independent contractors. The Parties expressly acknowledge and agree that it is not their intention or purpose hereunder to create, nor shall this Agreement be construed as creating, any type of partnership, joint venture, employer/employee relationship, franchise or agency between the Parties.
- No Third Party Beneficiaries. This Agreement is made for the benefit of Sports Bar and Bet-Tenders and not for the benefit of any third parties.
- Construction. The language of all parts of this Agreement will in all cases be construed as a whole, according to its fair meaning and not strictly for or against any of the Parties. The headings, captions, headers, footers and version numbers contained in this Agreement have been inserted solely for convenience of reference and shall neither constitute a part of this Agreement nor affect its meaning, interpretation or effect.
- Counterparts. The short form Sports Bar Establishment Agreement may be executed and then delivered via the sending of PDF or other copies thereof via email and in one or more counterparts, each of which shall be an original but all of which taken together shall constitute one and the same, with reference to this Agreement.
- Entire Agreement. This Agreement is intended as the complete, final and exclusive statement of the terms and conditions of the agreement between the Parties regarding the subject matter hereof and supersedes any and all other prior or contemporaneous agreements or understandings, whether written or oral, between them relating to the subject matter hereof. This Agreement may be amended only through a separate writing executed by duly authorized representatives of each Party.