Terms of Use
Our Terms of Use have been updated as of April 1, 2023
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN SECTION 15.
Acceptance of Terms
SimWin Sports, Inc. and SimWin Sports Global Ltd. (collectively, “We”, “Us”, or “SimWin”) provide a fantasy sports website located at www.simwinsports.com (the "Site"), which includes all of the text, images, audio, code and other material they contain or provide (collectively, the “Content”) and all of the features, contests and other services they provide. Users of the Site for fantasy sports, in-play, streaming, etc. will be contracting with SimWin Sports, Inc, while users who purchase, train, own, and collect NFTs will be contracting with SimWin Sports Global Ltd.. The Site, any mobile app, and any other features, tools, materials, or other services (including co-branded or affiliated services) offered from time to time by SimWin Sports are referred to here as the “Service.” Please read these Terms of Use (the “Terms” or “Terms of Use”) carefully before using the Service. By using or otherwise accessing the Service, or clicking to accept or agree to these Terms where that option is made available, you (1) accept and agree to these Terms and our additional Rules and Scoring system and (2) consent to the collection, use, disclosure and other handling of information as described in our Privacy Policy and (3) any additional terms, rules and conditions of participation in particular contests issued by SimWin Sports from time to time. If you do not agree to the Terms, then you may not access or use the Content or Services.
SimWin Sports may issue additional terms, rules and conditions of participation in particular contests. For example, SimWin Sports may issue conditions as required by various state rules and regulations, which may impact your experience or participation on the Service. You agree to be subject to those additional rules if you participate in such contests.
Modification of Terms of Use
Except for Section 15, providing for binding arbitration and waiver of class action rights, SimWin Sports reserves the right, at its sole discretion, to modify or replace the Terms of Use at any time. The most current version of these Terms will be posted on our Site. You shall be responsible for reviewing and becoming familiar with any such modifications. If a revision to the Terms, in our sole discretion, is material, we will notify you by contacting you through the email address associated with your account. Use of the Services by you after any modification to the Terms constitutes your acceptance of the Terms of Use as modified.
Eligibility
You hereby represent and warrant that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these terms and to abide by and comply with these terms.
By depositing money or entering a contest, you are representing and warranting that:
If SimWin Sports determines that you do not meet the eligibility requirements of this section, then you are not authorized to use the Service. SimWin Sports makes no representation that participation in paid entry fantasy sports contests is lawful under Texas state law. SimWin Sports may require you to provide proof that you are eligible to participate according to this section prior to receiving a prize. This includes by requesting that you fill out an affidavit of eligibility or other verification information (as discussed in Section 4 below). If SimWin Sports otherwise determines that you do not meet the eligibility requirements of this section, in addition to any rights that SimWin Sports may have in law or equity, SimWin Sports reserves the right to terminate your account, withhold or revoke the awarding of any prizes associated with your account or limit your ability to withdraw. In such a situation, SimWin Sports may pay out any withheld or revoked prizes to the other entrants in the relevant contest in a manner consistent with the prize structure of the contest, to be precisely determined by SimWin Sports in its sole discretion. SimWin Sports also reserves the right to withhold revoked prizes to use in furtherance of its fraud prevention or anti-money laundering efforts. SimWin Sports employees may use the Service for the purpose of testing the user experience, but may not withdraw money or prizes except when playing in a private league. Relatives of SimWin Sports employees with whom they share a household are not eligible to participate in paid contests unless they are private contests with other SimWin Sports employees or household members. SimWin Sports consultants or promoters of the Service may play in contests without such limitation, but only if (i) their arrangement with SimWin Sports does not permit them to have any access to non-public Service data or any other data not made available to all players on the Service and (ii) they do not receive any other advantages in their play on the Service.
Employees or operators of other daily fantasy sites that charge entry fees or offer cash prizes, including but not limited to FanDuel, DraftKings and Yahoo, and individuals who, by virtue of affiliation with another daily fantasy site, have access to the site's pre-release non-public confidential data about game-related information may not enter any contests in which a real money prize is awarded. If such person enters a SimWin Sports contest that awards prizes, SimWin Sports will disqualify the entry, will not award a prize, and may report such person's violation of this provision to the daily fantasy site for which the entrant is employed by, operates or affiliated with. Additionally, SimWin Sports may maintain information about the entrant sufficient to assist SimWin Sports in blocking the user from entering future SimWin Sports contests, unless and until SimWin Sports determines, in its sole discretion, that the entrant is no longer an employee or operator of another daily fantasy site or no longer has access to pre-release non-public confidential data about game-related information by virtue of affiliation with a daily fantasy site.
SimWin Team Owners may not participate in any SimWin Sports contests in the sport or sports with which they own a SimWin Digital Team. Similarly, affiliated team owners, league employees, sports commissioners and other individuals who through an ownership interest or game-related employment can influence the gameplay are likewise ineligible.
SimWin Sports offers proactive tools and support meant to encourage healthy player behavior and deliver positive player experiences. We also allow qualified third parties, who have concerns about a player's ability to manage his or her play, to request a limitation on that player's use of SimWin Sports.
SimWin Sports is neither affiliated with nor is it sponsored by any professional sports league, including but not limited to the National Football League, National Hockey League, or Major League Baseball.
Conditions of Participation
4.1. Registration
In order to participate in a contest on the Service, you must register for an account. By registering as a user of the Service, you agree to provide accurate, current and complete information about yourself as prompted (such information being the “Registration Data”) and maintain and promptly update the Registration Data to keep it accurate, current and complete. If you provide any information that is inaccurate, not current or incomplete, or SimWin Sports has reasonable grounds to suspect that such information is inaccurate, not current or incomplete, SimWin Sports may deny you access to areas requiring registration, or terminate your account, at its sole discretion.
You may establish, maintain, use and control only one account on the Service. Each account on the Service may only be owned, maintained, used and controlled by one individual. For avoidance of doubt, users may not “co-own” accounts on the Service. In the event SimWin Sports determines that you have opened, maintained, used or controlled more than one account, in addition to any other rights that SimWin Sports may have, SimWin Sports reserves the right to suspend or terminate any or all of your accounts and terminate, withhold or revoke the awarding of any prizes.
You agree that the sole and specific purpose of creating an account on SimWin Sports is to participate in fantasy sports contests on the Service. SimWin Sports shall be entitled to suspend, limit or terminate your account if we determine, in our sole discretion, that you are depositing funds without the intention of using them in contests on the Service. In such circumstances, we may also report such activity to relevant authorities.
4.2. Account Password and Security
At the time of registration for online account access, you must provide a valid email address and supply a Username and Password to be used in conjunction with your account. You may not use a Username that promotes a commercial venture or a Username that SimWin Sports in its sole discretion deems offensive. Many portions of the Service require registration for access (the "Restricted Areas"). You are responsible for maintaining the confidentiality of Password, and are fully responsible for all uses of your Username and Password, whether by you or others. You agree to (a) never to use the same Password for the Service that you use or have ever used outside of the Service; (b) keep your Username and Password confidential and not share them with anyone else; (c) immediately notify SimWin Sports of any unauthorized use of your Username and Password or account or any other breach of security; and (d) use only your own Username and Password to access the Service's Restricted Areas. SimWin Sports cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
You acknowledge and agree that SimWin Sports is authorized to act on instructions received through the use of your Username and Password, and that SimWin Sports may, but is not obligated to, deny access or block any transaction made through use of your Username and Password without prior notice if we believe your Username and Password are being used by someone other than you, or for any other reason.
SimWin Sports may require you to change your Username or may unilaterally change your Username.
4.3. Communications and Information Practices
As a result of your registration for the Service, you may receive certain commercial communications from SimWin Sports. You understand and agree that these communications are part of your registration, and that, to the extent required by law, you may opt out of receiving these communications at any time by either using the unsubscribe functionality or sending an email to info@simwinsports.com. Following such an opt-out, we may still communicate with you via email to the extent permitted by applicable law.
4.4. Disqualification and Cancellation
SimWin Sports also reserves the right to cancel contests, in our sole discretion, without any restrictions.
SimWin Sports, in its sole discretion, may disqualify you from a contest or the entire Service, refuse to award fantasy points or prizes and require the return of any prizes, or suspend, limit, or terminate your account if you engage in conduct SimWin Sports deems, in its sole discretion, to be improper, unfair, fraudulent or otherwise adverse to the operation of the Service or in any way detrimental to other users. Improper conduct includes, but is not limited to: falsifying personal information, including payment information, required to use the Service or claim a prize; violating eligible payment method terms, including the terms of any cash rewards payment card, violating any of these rules, accumulating points or prizes through unauthorized methods such as unauthorized scripts or other automated means; tampering with the administration of the Service or trying to in any way tamper with the computer programs associated with the Service; obtaining other entrants' information and spamming other entrants; and abusing the Service in any way; or otherwise violating these Terms of Use. You acknowledge that the forfeiture and/or return of any prize shall in no way prevent SimWin Sports from informing the relevant authorities, and/or pursuing criminal or civil proceedings in connection with such conduct.
If for any reason the Service is not running as originally planned (e.g., if the Site becomes corrupted or does not allow the proper usage and processing of entries in accordance with the rules, or if infection by a computer virus, bugs, tampering, unauthorized intervention, actions by entrants, fraud, technical failures, or any other causes of any kind, in the sole opinion of SimWin Sports corrupts or affects the administration, security, fairness, integrity or proper conduct of the Service), SimWin Sports reserves the right, in its sole discretion, to disqualify any individual implicated in or relating to the cause and/or to cancel, terminate, extend, modify or suspend the Service, and select the winner(s) from all eligible entries received. If such cancellation, termination, modification or suspension occurs, notification may be posted on the Site.
The failure of SimWin Sports to comply with any provision of these Terms due to an act of God, hurricane, war, fire, riot, earthquake, terrorism, act of public enemies, actions of governmental authorities outside of the control of SimWin Sports (excepting compliance with applicable codes and regulations) or other force majeure event will not be considered a breach of these Terms.
4.5. Deposits and Withdrawals Generally
By depositing funds or entering paid contests, you agree to provide us with a valid mailing address, date of birth and social security number and any other information we may require in order to run appropriate identity checks and comply with applicable rules and regulations.
If necessary, you may be required to provide appropriate documentation that allows us to verify you. While your account is pending verification, you may be able to deposit funds into your account and participate in contests, but you will not be able to withdraw any funds from your account until verification is complete. If we are unable to verify you, we reserve the right to suspend your account and withhold any funds until such time as we have been able to successfully verify you.
We also may conduct checks for Terms compliance, including anti-fraud checks on playing patterns and deposits prior to processing a withdrawal, and we may request additional information before permitting a withdrawal. Subject to such checks, you may close your account and withdraw your deposits and/or winnings at any time and for any reason.
Deposits, and player winnings after contests are finished, are held in a separate, segregated bank account by a subsidiary of SimWin Sports, Inc. These funds belong to you, subject to review for evidence of fraud, verification or other prohibited conduct as described above, and SimWin Sports will not use them to cover its operating expenses or for other purposes. Your withdrawals will be made from this segregated bank account, and checks issued from that account may bear the name of SimWin Sports' subsidiary.
SimWin Sports may limit the amount a user can deposit into his or her account in accordance with state-imposed deposit limits.
In cases where you have participated in a promotion to receive a bonus or other benefit, you may be required to play through your deposit (by entering contests) whose total entry fees equal the value of the deposit to receive the entirety of such bonus.
4.6. Taxation
Each year all winners who have won $600 or more over the previous year must provide updated address and social security details to SimWin Sports. These details will be used to allow SimWin Sports to comply with tax regulations and may be shared with appropriate tax authorities. You, not SimWin Sports, are responsible for filing and paying applicable state and federal taxes on any winnings. SimWin Sports does not provide tax advice, nor should any statements in this agreement or on the Service be construed as tax advice.
By agreeing to these Terms, you are consenting to electronic delivery of all informational tax forms such as Form 1099 and Form W-2G.
4.7. Publicity
By entering a contest, you consent to SimWin Sports' and its service providers' and business partners' use of your name, voice, likeness, location and photograph in connection with the development, production, distribution and/or exploitation (including marketing and promotion) of the selected contest and/or other SimWin Sports contests and SimWin Sports generally, unless otherwise prohibited by law. SimWin Sports Inc and its business partners reserve the right to make public statements about the entrants and winner(s), on-air, on the Internet, or otherwise, prior to, during, or following the contest. Entrants agree that SimWin Sports Inc may announce any winner's name on-air or on any of its websites or any other location at any time in connection with the marketing and promotion of SimWin Sports or other contests or games operated by SimWin Sports Inc. You agree that participation in and (where applicable) the winning of a prize in connection with a contest constitute complete compensation for your obligations under this paragraph, and you agree not to seek to charge a fee or impose other conditions on the fulfillment of these obligations. The rules specific to certain contests may contain additional publicity obligations or may require a written signature on a separate publicity waiver.
Game
5.1. Game of Skill
SimWin Sports is a game of skill. Winners are determined by the criteria stated in each contest's rules. For each contest, winners are determined by the individuals who use their skill and knowledge of relevant sports information and fantasy sports rules to accumulate the most fantasy points. Fantasy points are accumulated through the performance of individual athletes in sports events.
5.2. Entry fees
Each SimWin Sports contest has an entry fee listed in US dollars. When you opt to participate in a contest, that amount in US dollars will be debited from your SimWin Sports Account. Then, follow the links and instructions provided for entry. In the event of a dispute regarding the identity of the person submitting an entry, the entry will be deemed submitted by the person in whose Username the entry was submitted, or if possession of the Username itself is contested and in SimWin Sports' opinion sufficiently uncertain, the name in which the email address on file was registered with the email service provider. SimWin Sports reserves the right not to award a prize to an individual it believes in its sole discretion did not submit the winning entry.
Users may cancel entries up to 5 minutes prior to game start. If you timely cancel an entry, your entry fee will be refunded back into your SimWin Sports account. SimWin Sports has no obligation to honor cancellation requests received within 5 minutes of or after game start. Similarly, contests lock when the first game starts and no more entries or lineup changes may be made at that time.
5.3. Contest Term
SimWin Sports offers contests for its strategic coaching virtual-based sporting games generally taking place on the SimWin Platform.
5.4. Prizes
After each contest ends, the tentative winners are announced (generally by the following day) but remain subject to final verification. The players in each contest who accumulate the most fantasy points and comply with eligibility requirements and applicable rules will win prizes as set out in the posted contest details. Prizes are added to the winning player&aspo;s account balance. In the event of a tie, the prize is divided evenly between the tied players, unless otherwise specified.
SimWin Sports offers a number of different types of contests. For each contest, we announce the entry fees and prizes in advance on the contest page. For a summary of entry fees and prizes for currently open contests please login and visit the main lobby.
Prize calculations will be based on the results as of the time when final scoring is tabulated by SimWin Sports. Once winners are initially announced by SimWin Sports, the scoring results will not be changed in light of official adjustments made by the leagues, though we reserve the right to make adjustments based on errors or irregularities in the transmission of information to us from our stats provider or in our calculation of results. We also may make adjustments in the event of noncompliance with the Terms. SimWin Sports has no obligation to delay the awarding of a prize in anticipation of any adjustment, and we reserve the right to reverse payments in the event of any adjustment. You agree to cooperate with our efforts to reverse payments.
No substitution or transfer of a prize is permitted. All taxes associated with the receipt or use of any prize are the sole responsibility of the winner. In the event that the awarding of any prizes to winners of the Contest is challenged by any legal authority, SimWin Sports reserves the right in its sole discretion to determine whether or not to award or adjust such prizes. In all disputes arising out of the determination of the winner of SimWin Sports contests, SimWin Sports Inc is the sole judge and its actions are final and binding.
5.5. Notification
Winners are generally posted on the Site after the conclusion of each contest. Winners may be requested to return via email or regular mail an affidavit of eligibility, a publicity agreement and appropriate tax forms by a specified deadline. Failure to comply with this requirement can result in disqualification. Any prize notification returned as undeliverable may result in disqualification and selection of an alternate winner. In addition, a list of winners and winner's names for each competition period may be obtained by writing to:
SimWin Sports, Inc.,
Attn: Legal
PO Box 271064,
Flower Mound, Texas 75027.
5.6. Bonuses and Promotions
We frequently offer bonuses to newly depositing users and for other marketing purposes. Certain bonuses are awarded as a “pending bonus” earned gradually when users enter and complete paid contests. A user's pending bonus is converted into a monetary credit that can be used to play on the SimWin Sports Platform or in the SimWin Sports Marketplace as the user enters real money contests in accordance with the terms of the offer or promotion.
Unless otherwise stated, any unconverted pending bonus remaining in a player's account 45 days after it has been initially credited can be removed by SimWin Sports. Any credit a new user receives is for entry into competitions on SimWin Sports and can only be withdrawn if they have been previously entered into at least one game. Additionally, if a user immediately withdraws money after a deposit which delivers a deposit bonus then the bonus will be retracted. In the event of abuse of the bonus system by any user, SimWin Sports reserves the right to retract your user bonuses.
SimWin Sports may also offer SimWin Sports Tokens (known as the “SMWN Token”) in accordance with the terms of a promotion or for other marketing purposes at SimWin Sports' sole discretion.
Conduct
6.1. User Generated Content
The SimWin Sports Platform may ask for or allow you to communicate, submit, upload or otherwise make available text, chats, images, audio, video, contest entries or other content (“User Generated Content”), which may be accessible and viewable by the public. Access to these features may be subject to age restrictions. Whether the SimWin Sports Platform made available by us or in connection with the SimWin Sports Platform appears on the SimWin website, service and/or platform or is integrated with a third-party website, service, application, and/or platform, you may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.
In most instances, we do not claim ownership of your User Generated Content; however, you grant us a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights for the full duration of those rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, transform, adapt, translate, create derivative works based upon, publicly perform, publicly communicate, make available, and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the Disney Products and on third-party websites, services, applications, and/or platforms), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, without attribution (to the extent this is not contrary to mandatory provisions of applicable law), and without the requirement of permission from or payment to you or any other person or entity. You agree that submission of User Generated Content does not establish any relationship of trust and confidence between you and us, and that you have no expectation of compensation whatsoever (except as may be specifically stated in the provisions of the SimWin Sports Platform in connection with the submission or arising from it).
You represent and warrant that your User Generated Content conforms to this Agreement and that you own or have the necessary rights and permissions including, without limitation, all copyrights, music rights and likeness rights (with respect to any person) contained in the User Generated Content, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by this Agreement; and you agree to indemnify and hold us harmless from any claims or expenses (including attorneys' fees) by any third party arising out of or in connection with our use and exploitation of your User Generated Content resulting from your breach of this Agreement. You also agree to waive and not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement to waive and not to enforce from others who may possess such rights.
To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of our copyrighted works, we grant you a non-exclusive license to create a derivative work using the specifically referenced copyrighted works as required for the sole purpose of creating such a work, provided that such license shall be conditioned upon your assignment to us of all rights worldwide in the work you create for the duration of copyright in the User Generated Content, in all formats and media known or unknown to date, including for use on the SimWin Sports Platform and on third party sites and platforms. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
We may monitor, screen, post, remove, modify, store and review User Generated Content or communications sent through the SimWin Sports Platform, at any time and for any reason, including to ensure that the User Generated Content or communication conforms to this Agreement, without prior notice to you. We may terminate your account and access to the SimWin Sports Platform if your User Generated Content violates this Agreement, including unlawful postings or content, without prior notice to you. We are not responsible for, and do not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by users.
Indemnity
You agree to release and to indemnify, defend and hold harmless SimWin Sports and its parents, subsidiaries, affiliates and agencies, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including attorneys' fees and court costs) claims or actions of any kind whatsoever arising or resulting from your use of the Service, your violation of these Terms of Use, your receipt, ownership, use or misuse of any prize, and any of your acts or omissions that implicate publicity rights, defamation or invasion of privacy. SimWin Sports reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with SimWin Sports in the defense of such matter.
Warranty disclaimers
You expressly understand and agree that your use of the Service is at your sole risk. The Service (including the Service and the Content) are provided on an "AS IS" and "as available" basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose or non-infringement. You acknowledge that SimWin Sports has no control over, and no duty to take any action regarding: which users gain access to or use the Service; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release SimWin Sports from all liability for you having acquired or not acquired Content through the Service. The Service may contain, or direct you to other websites containing information that some people may find offensive or inappropriate. SimWin Sports makes no representations concerning any Content contained in or accessed through the Service, and SimWin Sports will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Service. SimWin Sports makes no representation that participation in paid entry fantasy sports contests is lawful under California state law.
Limitation on liability
YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SITE AND SERVICE. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SITE AND SERVICE MAY NOT BE SECURE AND MAY BE INTERCEPTED OR LATER ACQUIRED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND SERVICE IS AT YOUR OWN RISK. RECOGNIZING SUCH, YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SIMWIN SPORTS NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY OTHER DAMAGES BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY (EVEN IF SIMWIN SPORTS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE SITE OR SERVICE; THE USE OR THE INABILITY TO USE THE SITE OR SERVICE; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR SERVICE; ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; ANY INCORRECT, ILLEGIBLE, MISDIRECTED, STOLEN, INVALID OR INACCURATE ENTRY INFORMATION; HUMAN ERRORS; TECHNICAL MALFUNCTIONS; FAILURES, INCLUDING PUBLIC UTILITY OR TELEPHONE OUTAGES; OMISSIONS, INTERRUPTIONS, LATENCY, DELETIONS OR DEFECTS OF ANY DEVICE OR NETWORK, PROVIDERS, OR SOFTWARE (INCLUDING, BUT NOT LIMITED TO, THOSE THAT DO NOT PERMIT AN ENTRANT TO PARTICIPATE IN THE SERVICE); ANY INJURY OR DAMAGE TO COMPUTER EQUIPMENT; INABILITY TO FULLY ACCESS THE SITE OR SERVICE OR ANY OTHER WEBSITE; THEFT, TAMPERING, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ENTRIES, IMAGES OR OTHER CONTENT OF ANY KIND; DATA THAT IS PROCESSED LATE OR INCORRECTLY OR IS INCOMPLETE OR LOST; TYPOGRAPHICAL, PRINTING OR OTHER ERRORS, OR ANY COMBINATION THEREOF; OR ANY OTHER MATTER RELATING TO THE SITE OR SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SIMWIN SPORTS' LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SIMWIN SPORTS FOR GENERAL USE OF THE SITE OR SERVICE DURING THE TERM OF YOUR REGISTRATION FOR THE SITE, NOT INCLUDING ANY ENTRY FEES FOR CONTESTS COMPLETED PRIOR TO THE CIRCUMSTANCES GIVING RISE TO THE CLAIM.
IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED ONE THOUSAND U.S. DOLLARS (US $1,000).
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
Our Proprietary Rights
All title, ownership and intellectual property rights in and to the Service are owned by SimWin Sports or its licensors. You acknowledge and agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by SimWin Sports, you agree not to copy, modify, rent, lease, loan, sell, distribute, perform, display or create derivative works based on the Service, in whole or in part.
Links
The Service provides, or third parties may provide, links to other World Wide Web sites, applications or resources. Because SimWin Sports has no control over such sites, applications and resources, you acknowledge and agree that SimWin Sports is not responsible for the availability of such external sites, applications or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that SimWin Sports shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
Termination and suspension
SimWin Sports may terminate or suspend all or part of the Service and your SimWin Sports account immediately, without prior notice or liability, if you breach any of the terms or conditions of the Terms. Upon termination of your account, your right to use the Service will immediately cease. If you wish to terminate your SimWin Sports account, you may contact us via the “Contact Us” page with a note to say you wish to terminate your account.
The following provisions of the Terms survive any termination of these Terms:
CONDITIONS OF PARTICIPATION (except for Registration and Account Password and Security); GAME RULES (only Bonuses and Promotions); CONDUCT (only User Generated Content); INDEMNITY; WARRANTY DISCLAIMERS; LIMITATION ON LIABILITY; OUR PROPRIETARY RIGHTS; LINKS; TERMINATION; NO THIRD PARTY BENEFICIARIES; BINDING ARBITRATION AND CLASS ACTION WAIVER; GENERAL INFORMATION.
If your account is subject to a suspension, you must respect the restrictions and limitations imposed on your account as part of the suspension, and you should communicate with SimWin Sports regarding restoration of your account only via support@simwinsports.com.
No third-party beneficiaries
You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to the Terms.
Notice and procedure for making claims of copyright infringement
SimWin Sports may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who infringe the intellectual property of others. If you believe that your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please provide SimWin Sports' Copyright Agent a written Notice containing the following information:
SimWin Sports' Copyright Agent can be reached in the following ways:
To be valid, a Notice must be in writing and must follow the instructions above. You also may use the contact information in this Section to notify us of alleged violations of other intellectual property rights.
Binding arbitration and class action waiver
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
15.1. Initial Dispute Resolution
Our Customer Support Department is available via the website to address any concerns you may have regarding the Service. Our Customer Service Department can resolve most concerns quickly to our players' satisfaction. The parties shall use their best efforts through this Customer Service process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees against you in arbitration.
15.2. Binding Arbitration
If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the parties' relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Streamlined Arbitration and Procedures, excluding any rules or procedures governing or permitting class or representative actions.
Except as set forth in Section 15.5, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator's award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
The Streamlined Arbitration Rules governing the arbitration may be accessed at www.jamsadr.com or by calling JAMS at (800) 352-5267. If you commence arbitration in accordance with these Terms, you will be required to pay $250 to initiate the arbitration. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require SimWin Sports to pay the additional cost. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, SimWin Sports will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $25,000. For claims above $25,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorney's fees in certain cases.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party's identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS's Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 15 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
15.3. Location
If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents in Canada, arbitration shall be initiated in the County of Los Angeles, State of California, United States of America, and you and SimWin Sports agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
15.4. Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND SIMWIN SPORTS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If there is a final judicial determination that applicable law precludes enforcement of this Paragraph's limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
15.5. Exception - Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court's jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party's claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party's right to arbitration under this agreement.
15.6. 30-Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: SimWin Sports, Inc., PO Box 271064, Flower Mound, Texas 75027. The notice must be sent within 30 days of your first use of the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, SimWin Sports also will not be bound by them.
15.7. Changes to this Section
SimWin Sports will provide 30 days' notice of any changes to this section. Changes will become effective on the 30th day. If you continue to use the site after the 30th day, you agree that any unfiled claims of which SimWin Sports does not have actual notice are subject to the revised clause.
For any dispute not subject to arbitration you and SimWin Sports agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Los Angeles, CA. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The Terms and the relationship between you and SimWin Sports shall be governed by the laws of the State of California without regard to conflict of law provisions.
APPLICATION LICENSE
Subject to your compliance with these Terms, SimWin Sports grants you a limited non-exclusive, non-transferable license to download and install a copy of the app on a device that you exclusively control and to run such copy of the app solely for your own personal use. SimWin Sports reserves all rights in and to the app not expressly granted to you under these Terms. You will not run any version of the app on a jailbroken device.
If you have downloaded our app, you agree to promptly download and install any new version that we make available, as applicable. Some new versions may contain updated Terms. Some new versions may contain security fixes and service improvements, whether or not we disclose that they do; accordingly, failure to promptly update your version of the App may in some cases expose you to increased security risks or Service malfunctions.
GENERAL INFORMATION
17.1. Entire Agreement
These Terms (and any additional terms, rules and conditions of participation in particular contests that SimWin Sports may post on the Service) constitute the entire agreement between you and SimWin Sports with respect to the Service and supersedes any prior agreements, oral or written, between you and SimWin Sports. In the event of a conflict between these Terms and the additional terms, rules and conditions of participation in particular contests, the latter will prevail over the Terms to the extent of the conflict.
17.2. Waiver and Severability of Terms
The failure of SimWin Sports to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
17.3. Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
17.4. Section Titles
The section titles in the Terms are for convenience only and have no legal or contractual effect.
17.5. Communications
Users with questions, complaints or claims with respect to the Service may contact us using the relevant contact information set forth above.
17.6. Account Inactivity Fee
If your SimWin Sports account has no activity for twelve (12) months, it will be considered inactive. SimWin Sports will assess fee of $9.99 per month on all inactive accounts until the account is reactivated by logging in to your account, entering a contest, making a deposit, or withdrawing funds. SimWin Sports will provide all users subject to an inactivity fee with at least thirty (30) days notice prior to deducting any fees.
If your account remains inactive for the amount of time specified by applicable state law, usually between thirty-six (36) and sixty (60) months, it will be considered abandoned. Once an account is abandoned, SimWin Sports is required by state law to remit the abandoned funds to the appropriate state agency as unclaimed property. SimWin Sports may also charge additional fees associated with the delivery of abandoned funds to the applicable state agency.
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