PICKEM TERMS AND CONDITIONS

This is a binding agreement between you (“End User” or “You”) and the Licensor  (“Licensor”). This agreement governs your use of Pickem (including all related documentation, the “Application”) on a web browser or mobile device. The Application is licensed, not sold, to you.

BY USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER AND OTHERWISE CAPABLE OF ENTERING A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION OR MAINTAIN IT ON YOUR DEVICE.

  1. License Grant. Subject to the terms of this Agreement, Licensor grants you a limited, non-exclusive, and nontransferable license to use the Application strictly in accordance with the terms of this Agreement.
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  3. License Restrictions. You shall not:

(a)       copy or reproduce the Application, except as expressly permitted by this license;

(b)       modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

(c)        reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;

(d)       remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

(e)       rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;

(f)        remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or

(g)       use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.

  1. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
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  3. Responsibility for Use of the Application. Licensee is responsible and liable for all uses of the Application through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the foregoing, Licensee is responsible and liable for all actions and failures to take required action with respect to the Application that is prohibited by this Agreement by its Authorized Users or by any other person whom Licensee or an Authorized User may provide access to or use of the Application, whether such access or use is permitted by or in violation of this Agreement. Licensee is responsible for all infringing or otherwise unlawful use of the Application or any of Licensee’s intellectual property associated with the Application.
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  5. Collection and Use of Your Information. You acknowledge that Licensor may, directly or indirectly through the services of third parties, collect, store, and use information regarding use of the Application and about equipment through which the Application is used. Licensee agrees that Licensor may use such information for any purpose related to any use of the Application by or on Licensee’s equipment, including but not limited to improving the Application or developing updates thereto and verifying Licensee’s compliance with the terms of this Agreement and enforcing Licensor’s rights, including all intellectual property rights in and to the Application.
  6. Updates. Licensor may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Licensor has no obligation to provide any updates or to continue to provide or enable any particular features or functionality.
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  8. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials“). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
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  10. Term and Termination. The term of this Agreement commences when you download, install, or begin using the Application and will continue in effect until terminated by you or the Company as set forth in this Section 7. You may terminate the agreement by deleting all copies of the Application from all of your devices. Licensor may terminate this Agreement at any time without notice. This Agreement will terminate immediately and automatically without notice if you violate any of the terms and conditions of this Agreement. Upon termination, all rights granted to you under this Agreement will also terminate, and you must cease all use of the Application and delete any copies from all of your devices and accounts. Termination will not limit any of Licensor’s rights or remedies at law or in equity.
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  12. Disclaimer of Warranties.  THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
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SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

  1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
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(a)       PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

(b)       DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

  1. Indemnification. You agree to indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
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  3. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
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  1. Game of Skill. Licensee acknowledges that use of the Application involves or consists a game or games of skill and not of chance. LICENSOR DOES NOT OFFER ANY PRIZES, WINNINGS, OR OTHER VALUE TO LICENSEE IN CONNECTION WITH THE SOFTWARE BEYOND USE OF THE SOFTWARE IN ACCORDANCE WITH THIS AGREEMENT.
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  3. Severability. The invalidity, illegality, or unenforceability of any provision of this Agreement shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision.
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  5. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the state courts of Platte County, Missouri, or federal court in Kansas City, Missouri. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
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  7. Class Action Waiver. You expressly agree that: (a) class action procedures shall not be asserted, and will not apply, in any legal action or proceedings arising out of this Agreement; and (b) any claim You may assert arising out of or related to this Agreement will not be joined, consolidated, or heard together with claims of any other current or former licensee of the Application.
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  9. Entire Agreement. This Agreement is the sole and entire agreement between You and Licensor with respect to the Application. It may not be modified except in writing signed by both Parties.
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  11. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
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