Effective Date: May 1, 2020 (v.20.1)
- SERVICES. Each Campaign entered into pursuant to the Agreement shall be a separate agreement which incorporates all terms of this Agreement as if fully set forth therein. For each Campaign, Customer shall provide to Everi a set of criteria for each Campaign that Everi shall use to query Everi’s patron data, as listed in the ‘Campaign Description’ section of each Campaign entered pursuant to this Agreement. After running such query (including any reruns for query changes for the same Campaign), Everi will compile a set of patron data corresponding to such criteria and will provide such data in lettershop useable format to Customer’s designated printer, mail house, or lettershop (collectively, “Mail House”). Everi will also be responsible for data input and receipt of return mail in conjunction with each Campaign. The foregoing provision of services and actions taken by Everi pursuant to this Section 1 are collectively referred to as the “Services” and are more specifically set forth on each Campaign pursuant to this Agreement. Notwithstanding anything to the contrary, all names and other patron data remain the property of Everi at all times. Customer agrees to share response information from each Campaign with Everi. Capitalized terms used herein without definition shall have the meaning provided in the Agreement.
- PAYMENT TERMS. As consideration for the provision of the Services, Customer shall pay Everi all fees and/or expenses set forth on the applicable Campaign. A deposit, as set forth in the applicable Campaign, is due and payable to Everi prior to commencement of each Campaign. Within 30 days after the commencement of each Campaign, Everi will send a final invoice to Customer, which reflects adjustment for any variation in the actual number of names included in the patron data from the estimated number of names set forth in each Campaign Description. Customer agrees that if it does not pay any amounts due to Everi under this Agreement when due and payable, Everi is irrevocably authorized to deduct such amounts from any other funds payable to Customer or any of its subsidiaries or affiliates, by Everi under any other agreement between Everi and such entity.
- EXCLUSIONS. Customer will not have access to data prior to, during, or after each Campaign. Customer will only become aware of or know patron data if a patron responds to Customer’s offer and provides Customer with such data. Everi shall not be responsible for Customer’s acceptance or redemption of any offers that have been posted on the internet, copied, or otherwise misappropriated, or redeemed by any individual that was not the intended recipient. Everi shall not be responsible for respondents’ gaming activity and does not guarantee the outcome in terms of number of respondents for any Campaign. Everi shall not be responsible for any(i) acts, omissions, or responsibilities of the Mail House, or (ii) delivery or timing of mail delivered by the postal service. EVERI SHALL NOT BE RESPONSIBLE FOR COMPLIANCE WITH ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS WITH RESPECT TO MAILING TO ANY INDIVIDUAL THAT IS ON AN EXCLUSION OR PROBLEM GAMBLING LIST. The provisions of this Section 3 shall survive any termination or expiration of this Agreement.
- REPRESENTATIONS AND WARRANTIES. Customer represents, warrants and covenants that it will, in connection with its use of the Services and the patron data made available by Everi hereunder, comply with all applicable federal, state, and local laws and regulations applicable to its use of the Services, and the patron data. Customer represents, warrants and covenants that it is responsible for the removal of any and all individuals who, pursuant to applicable law or regulation, may not receive communications of the type contemplated hereunder, including, without limitation, individuals on an applicable state self-exclusion or problem gaming list. Customer hereby represents and warrants to Everi that Customer has all right, power and authority to grant to Everi the rights granted herein and to perform all of Customer’s obligations hereunder, and that Customer owns or controls each legal entity subject to this Agreement.
- INDEMNITY. Customer shall indemnify and hold harmless Everi from and against any losses, liabilities, damages, fines, judgments (including interest, penalties and reasonable attorneys’ fees), costs, expenses, claims, suits, demands or causes of action brought against Everi which are based upon, arising out of or otherwise in respect of any (i) negligent, wanton or willful conduct of Customer or its employees in connection with the use of Everi’s Services under any Campaign, or (ii) breach of the representations, warranties and covenants contained in this Agreement. Everi shall indemnify and save harmless Customer from and against any claims, suits, demands or causes of action brought against Customer which are the result of any negligent, wanton or willful conduct of Everi or its employees solely in the performance of Everi’s obligations as set forth herein. The provisions of this Section 5 shall survive any termination or expiration of this Agreement.
- WARRANTIES AND LIMITATION OF LIABILITY. EVERI HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Everi shall not be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including, without limitation, acts or omissions of government or military authority, acts of God, disruption of telecommunication facilities, shortages of materials, transportation delays, USPS delivery, fires, floods, labor disturbances, riots or wars. Everi shall not be liable for any special, indirect, incidental, consequential or punitive damages of any kind (including, without limitation, lost profits or any damages resulting from Customer’s use or loss of use of the Services) even if Everi has been advised of the possibility of same. Everi’s aggregate liability under this Agreement and each Campaign shall not exceed the aggregate of the total fees (as set forth in the applicable Campaign) paid by Customer under the applicable Campaign. The provisions of this Section 6 shall survive any termination or expiration of this Agreement.
- GOVERNING LAWS. This Agreement and each Campaign entered hereunder shall be governed by, construed and enforced in accordance with the laws of the State of Nevada, without regard to any choice or conflicts of laws rules that would result in the application of any laws other than the internal laws of the State of Nevada.
- SUCCESSORS AND ASSIGNS. Customer shall not assign this Agreement without the written consent of Everi. Without limiting the foregoing, the terms of this Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.