Terms of Use

Effective Date: June 7, 2018

Acclaim Sports & Entertainment, Inc. (“ASE,” “We,” or “Us”) provides an online service that gives bars and restaurants, as well as similar commercial establishments (“User,” “Users,” or “You”) the opportunity to select from various offerings of on-demand and live sports-related programming, (collectively, “Content”). Our provision of Content, and any other products, features, tools, materials, or other services offered from time to time by ASE through the www.sportsontapbar.com website (“ASE Site”), applications, and any other places where Content is made available, are referred to collectively as, the “Service.”

These Terms of Use, applicable third-party terms, and any other terms expressly incorporated herein (“Terms”) apply to any access to, or use of, our Service. By accessing or using any part of the Service through any means, You accept and agree to these Terms. You understand that these Terms constitute a binding legal agreement between You and ASE. Please read them carefully.

We may change these Terms from time to time. You should look at these Terms regularly. If We make material changes, We will notify You in accordance with applicable law.

License

ASE grants You a non-exclusive limited license to use the Service, including accessing and viewing the Content on a streaming-only basis for commercial purposes as set forth in these Terms.

Limitations

You may not directly, indirectly, or by using any device, software, Internet site, web-based service, or other means, remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices, including through the use of geo-filtering mechanisms. You may not directly, indirectly, or by using any device, software, Internet site, web-based service, or other means, copy, record, download, stream capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, or transmit or retransmit the Content unless expressly permitted by ASE in writing. You may not incorporate the Content into, or stream or retransmit the Content via, any hardware or software application or make it available via frames or in-line links unless expressly permitted by ASE in writing. Furthermore, You may not create, recreate, distribute or advertise an index of any portion of the Content unless permitted by ASE in writing. You may not build a for-profit, not-for-profit or non-profit business utilizing the Content. The Content covered by these restrictions includes, without limitation, any text, graphics, layout, interface, logos, photographs, and audio and video materials. In addition, You are strictly prohibited from creating derivative works or materials that otherwise are derived from or based in any way on the Content, including as part of montages, mash-ups, and videos, wallpaper, desktop themes, greeting cards, and merchandise, unless expressly permitted by ASE in writing. This prohibition applies even if You intend to give away the derivative materials free of charge.

No Warranty as to Content

You acknowledge that You may see Content that may be offensive to You. ASE does not pre-screen content or the nature of the content. ASE only determines that the Content will be sports programming. ASE does not control or guarantee the accuracy, relevance, timeliness or completeness of the Content. The views and opinions of the authors of Content published through our Service does not necessarily state or reflect the opinion of ASE or its staff, and ASE does not endorse, recommend, or approve of any views and opinions expressed in the Content.

ASE does not warrant the availability or quality of the Service. You acknowledge and understand that the quality of the Service, including resolution, may be affected by the format of the Content, Your location, the speed and bandwidth of Your Internet service, and the devices used, among other factors. The time it takes You to begin playing Content will vary based on numerous factors, including Your location, Internet bandwidth, the number of devices simultaneously connected to the same network, Content You have selected, and the configuration of the device You are using.

Live Streaming

Content may include access to live sports, pay-per-view programming and other sports-related offerings that may be subject to certain limitations. Please be aware that:

  • Your access to regional sports networks, if any, will be determined by Your designated home location, even if You access the Service from outside that location. Your access to live Content from local affiliates, if any, will depend on the location of Your device at the time You access the Service. For this reason, among others, You will need to share Your device’s precise location data with Us for Us to provide You with the Service on Your device.
  • Certain live sporting events may be unavailable due to Your location, blackouts, pay-per-view restrictions, or device-specific restrictions set by sports leagues and other parties that control Content rights.

Compatible Devices

To access the Service, You will need to use a computer, mobile device, streaming media player, or other device that meets the system and compatibility requirements that We establish from time to time (each, a “Compatible Device”). You must abide by the terms and conditions applicable to Your Compatible Device, even if provided to You by ASE or its affiliate. ASE is not responsible or liable for the Compatible Device or for Your use thereof. Service may be affected by the particular Compatible Device You use.

Service and Data Usage

You must have a high-speed broadband, wireless or similar Internet connection from an Internet service provider that meets certain technical specifications to access the Service. You are solely responsible for obtaining Internet service and for any costs associated with Your Internet service used to access the Service. Your use of the Service may count toward Your data usage, depending on the terms of Your agreement with Your Internet service provider. ASE is not responsible or liable for Your Internet service or for Your use thereof. Service may be affected by the particular Internet service You use.

Ownership

You agree that ASE owns and retains all rights to the Service and any improvement therein or feedback You provide in relation to the Service. You further agree that Content You access and view as part of the Service is owned by ASE or its Content providers. The Service and Content are protected by copyright, trademark, and other intellectual property laws.

User Responsibilities

You must only use the Service for lawful and appropriate purposes. You agree that You will not use the Service in a way that:

  • violates the rights of others, including intellectual property, privacy, publicity, or other proprietary rights;
  • uses technology or other means to access, index, frame or link to the Service, including Content, that is not authorized by ASE;
  • involves accessing the Service, including Content, through any means other than through a Compatible Device, such as “robots,” “spiders,” or “offline readers;”
  • introduces viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
  • damages, disables, overburdens, impairs, or gains unauthorized access to the Service, including ASE’s servers, computer network, or User accounts;
  • removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Service, including Content;
  • uses the Service to advertise or promote services that are not expressly approved in advance in writing by ASE;
  • collects information contrary to ASE’s Privacy Statement;
  • encourages conduct that would constitute a criminal offense or give rise to civil liability;
  • violates these Terms or any guidelines or policies posted by ASE;
  • interferes with any other party’s use and enjoyment of the Service; or
  • attempts to do any of the foregoing.

If ASE determines, in its sole discretion, that You are violating any of the Terms, We may terminate your account and use technical measures to block or restrict Your access or use of the Service without notice.

Software Downloads

To use certain Services or access certain Content, You may be notified that it is necessary to download software or other materials and agree to additional terms and conditions. When downloaded, You will be subject to those additional terms and conditions in addition to these Terms.

Modification, Suspension, and Discontinuance

We regularly make changes to the Service. The availability of Content, as well as Compatible Devices or applications through which the Service is available, will change from time to time. ASE reserves the right to replace or remove any Content or applications available to You through the Service and to otherwise make changes in how We operate the Service. We may change, suspend, or discontinue - temporarily or permanently - some or all of the Service (including Content and the Compatible Devices through which the Service is accessed), with respect to any or all Users, at any time, without notice. In our continued assessment of the Service, We may from time to time, with respect to any or all of our Users, experiment with or otherwise offer certain features or other elements of the Service, including promotional features, user interfaces, plans, pricing, and advertisements. You acknowledge that ASE may do so in ASE’s sole discretion at any time without notice. You also agree that ASE will not be liable to You for any modification, suspension, or discontinuance of the Service.

Accounts and Registration

You acknowledge and agree that You are solely responsible for all use of Your account, including by third parties, regardless of whether you have authorized another party’s use.

All registration information You submit must be accurate and updated. You must be very careful to guard the security of Your password.

We reserve the right to immediately terminate or restrict Your account or Your use of the Service or access to Content at any time, without notice or liability, if ASE determines, in its sole discretion, that You have

Linked Destinations and Advertising

breached these Terms, violated any law, rule, or regulation, engaged in other inappropriate conduct, or for any other reason.

Links to Third Party Destinations

If We provide links or pointers to other websites or destinations, You should not infer or assume that ASE operates, controls, or is otherwise connected with these other websites or destinations. When You click on a link within the Service, We will not warn You that You have left the Service and are subject to the terms and conditions (including privacy policies) of another website or destination. In some cases, it may be less obvious than others that You have left the Service and reached another website or destination. These Terms do not govern Your use of another website or destination. Furthermore, ASE is not liable for content or practices of any other website or destination, even if it links to the ASE Site and even if the website or destination is operated by a company affiliated or otherwise connected with ASE. By using the Service, You acknowledge and agree that ASE is not responsible or liable to You for any content or other materials hosted and served from any such website or destination.

Third-Party Advertisements and Services

ASE has no liability for and does not endorse any third-party advertisements or any third-party material posted on any location where the Service is available. Nor do We have any liability for the products or services provided by advertisers. Any dealings You have with advertisers while using the Service, including through engaging with interactive advertisements, are between You and the advertiser, and You agree that ASE is not liable for any loss or claim that You may have against an advertiser. If You provide any confidential or personal information or engage in any transaction through an advertisement, you, and not ASE, is responsible for such information or transaction.

Billing

By providing a credit card or other payment method accepted by ASE (“Payment Method”), You agree that the Payment Method You provide
to ASE will be billed through our third-party payment service provider for each streaming event You purchase. You agree to be bound by the Terms of our third-party payment service provider. As used in these Terms, “billed” means either a charge or debit, as applicable, against Your Payment Method. Content Purchases on the Service must be made on the ASE Site through Your Internet browser. No purchases may be made on Compatible Devices.

Disclaimer of Warranties, Limitation of Liability and Indemnity

Disclaimer of Warranties

YOU AGREE THAT USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, INCLUDING THE ASE SITE, CONTENT, FEATURES, AND ALL OTHER MATERIALS CONTAINED ON OR PROVIDED THROUGH ANY SYSTEM, COMPATIBLE DEVICE, OR OTHER DEVICE, ARE PROVIDED “AS IS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ARE PROVIDED

WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ASE DOES NOT MAKE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY OR NONINFRINGEMENT; OR THAT THE SERVICE WILL BE UNINTERRUPTED, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ACCURATE, ERROR FREE, OR RELIABLE.

Limitation of Liability

IN NO EVENT SHALL ASE OR ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND EACH OF THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS AND CONTENT PROGRAMMERS (COLLECTIVELY, THE “ASE PARTIES”), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE SERVICE (INCLUDING ANY INFORMATION, PRODUCTS, OR SERVICE ADVERTISED IN, OBTAINED ON, OR PROVIDED THROUGH ANY ACCESS POINT), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHER THEORY, EVEN IF THE ASE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

CERTAIN STATE 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.

NOTHING IN THESE TERMS SHALL AFFECT ANY NON- WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

WITHOUT LIMITING THE FOREGOING DISCLAIMER OF LIABILITY, IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO USE OF THE SERVICE OR $50 (WHICHEVER IS LESS).

Indemnity

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE ASE PARTIES FROM AND AGAINST ALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS), AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR

ALLEGED BREACH OF THESE TERMS OR YOUR USE OF THE SERVICE OR CONTENT. ASE RESERVES THE RIGHT, AT OUR OWN EXPENSE (WITH THE RIGHT TO SEEK REIMBURSEMENT FROM YOU AND/OR A THIRD-PARTY), TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.

Arbitration of Claims and Class Action Waiver

Please read the following section carefully because it requires You to waive Your right to a jury trial and class action litigation, and instead, to individually arbitrate certain disputes and claims with ASE. No class or representative actions or arbitrations are allowed under this agreement.

You and ASE waive Your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court.

If we cannot reach an agreed upon solution for any dispute for at least 30 days, You agree that any and all claims that either of Us may have arising out of or relating to: (i) these Terms (including formation, performance, or breach of them, and including the scope and enforceability of this arbitration provision); (ii) any aspect of our relationship with each other; and (iii) use of the Services, must be resolved through binding arbitration before the American Arbitration Association (“AAA”) using its Commercial Arbitration Rules, as may be altered by these Terms. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision.

You and ASE agree that any dispute arising out of or related to these Terms or our Services is personal to You and ASE and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative or consolidated proceeding.

All arbitration hearings will be held in New York, New York before a single arbitrator. If your claim is for $25,000 or less, we agree that ASE may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as provided for in the Expedited Procedures in the Commercial Arbitration Rules. If your claim exceeds $25,000, the right to a hearing will be determined by the Commercial Arbitration Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a written decision explaining the essential findings and conclusions on which the award is based. The arbitrator is not authorized to award punitive damages, or any other types of damages that are not actual damages. If the arbitrator issues you an award that is lesser than the value of ASE’s last written settlement offer made before an arbitrator was selected, then you will be responsible for ASE’s reasonable costs and attorneys’ fees. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the Commercial Arbitration Rules. The arbitrator may

award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.

The arbitrators, ASE, and You will maintain the confidentiality of any proceedings, including but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the dispute therein. The arbitrators will have the authority to make appropriate rulings to safeguard that confidentiality.

You and ASE agree that for any arbitration, the initiating party will pay the associated filing fees. For any arbitration fees thereafter, the parties agree to evenly split the fees, provided that such fees and costs will be recoverable by the prevailing party as part of the arbitration. You and ASE agree that the state courts of the State of New York and the United States federal courts, sitting in New York County, New York, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim first arose; otherwise, the claim is permanently barred, which means that You and ASE will not have the right to assert the claim.

If any portion of this arbitration section is found to be unenforceable or unlawful for any reason: (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the arbitration section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the arbitration section; and (3) to the extent that any claims proceed on a class, collective, consolidated, or representative basis notwithstanding these Terms, such claims must be litigated in a state or federal court located in New York County, New York, and the parties agree that litigation of those claims shall be stayed pending the outcome of any pending individual User claims in arbitration.

General Information

Export Controls

Software and the transmission of applicable technical data, if any, in connection with the Service are subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States or the country in which You reside.

Choice of Law and Forum

These Terms are governed by, and construed in accordance with, the laws of the State of New York without giving effect to principles of conflicts of law. To the extent that the arbitration provision outlined above is not

applicable, You and ASE agree to submit to the exclusive jurisdiction of the courts located in New York County in the State of New York.

No Waiver/Reliance

If We fail to act in response to a violation of these Terms, You should not assume that We do not object to the violation or even that We are aware of it. ASE’s decision to delay exercising or enforcing any right or remedy under these Terms shall not constitute a waiver of such right or remedy. Even if ASE acts in a way that appears to You to be inconsistent with these Terms, ASE’s action shall not be deemed a waiver or constructive amendment of these Terms.

Integration, Amendment, and Severability

Please note that these Terms constitute the entire legal agreement between You and ASE that govern Your use of the Service (including Your use of Content), and completely replace any prior agreements between You and ASE in relation to the Service. These Terms operate to the fullest extent permissible by law. If any provision of these Terms is held to be unlawful, void, or unenforceable, You and ASE agree that the provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.

Electronic Communications

From time to time, We may communicate with You about the Service and these Terms electronically (e.g., emails to Your registered email address, texts, faxes, notices on the ASE Site and other applications or locations). You consent to receive electronic communications from ASE and further agree that any notices, agreements, disclosures, and other communications that We send to You electronically will satisfy any applicable legal notification requirements.