Terms of Service

Terms of Service version: 1.0
Last modified: July 1st 2020

LottoShield Terms of Service Agreement

This Terms of Service Agreement (the "Agreement"), effective as of July 07, 2020 (the "Effective Date"), is by and between OneFabric Technologies, a California corporation, or its Affiliate, d/b/a LottoShield (together, "LottoShield," or “Company”), and customer (together, “Customer,” “You,” “Your” or similar terms).

THIS IS A LEGAL, ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND LOTTOSHIELD, AND BY ACCEPTING THE TERMS OF THIS AGREEMENT BY CLICKING THE "ACCEPT" BUTTON ON THE ORDER FORMYOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, CUSTOMER  MAY NOT SUBSCRIBE TO LOTTOSHIELD’S SOLUTIONS.

  1. Definitions.
    • "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
    • "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
    • "Agreement" has the meaning set forth in the preamble.
    • "Authorized Users" means Customer's employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
    • "Backup Policy" has the meaning set forth in Section 6.
    • "Confidential Information" has the meaning set forth in Section 9.1.
    • "Customer" has the meaning set forth in the preamble.
    • "Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the use of the.
    • "Customer Failure" has the meaning set forth in Section 4.2.
    • "Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
    • "Disclosing Party" has the meaning set forth in Section 9.1.
    • "Documentation" means any manuals, instructions, or other documents or materials that the LottoShield provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Solutions, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
    • "Effective Date" has the meaning set forth in the preamble.
    • "Fees" has the meaning set forth in Section 8.1.
    • "Force Majeure Event" has the meaning set forth in Section 15.9.
    • "Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or LottoShield Systems as intended by this Agreement. Harmful Code does not include any LottoShield Disabling Device.
    • "Indemnitee" has the meaning set forth in Section 12.3.
    • "Indemnitor" has the meaning set forth in Section 12.3.
    • "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
    • "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
    • "Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder.
    • "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
    • "Process" means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content[, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy]. "Processing" and "Processed" have correlative meanings.
    • "LottoShield" has the meaning set forth in the preamble.
    • "LottoShield Indemnitee" has the meaning set forth in Section 12.2.
    • "LottoShield Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of LottoShield or any Subcontractor.
    • "Receiving Party" has the meaning set forth in Section 9.1.
    •  "Renewal Term" has the meaning set forth in Section 14.2.
    • "Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, independent contractors, and legal advisors.
    • "Term" has the meaning set forth in Section 14.1/
  2. Services.
    1. Scope the Agreement. The terms and conditions of this Agreement govern Customer’s purchase, using LottoShield’s online order form (“Order Form”), of LottoShield’s together with its internet-connected device (the “Device”), the underlying software, and services and updates for these products (collectively, “LottoShield’s Solutions,” the “Solutions”).
    2. Access and Use. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, LottoShield hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 8) right to access and use LottoShield’s Solutions during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use.
    3. Documentation License. LottoShield hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 8) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of LottoShield’s Solutions.
    4. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
      1. LottoShield has and will retain sole control over the operation, provision, maintenance, and management of the Solutions; and
      2. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Solutions by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Solutions or LottoShield; (ii) results obtained from any use of the Solutions; and (iii) conclusions, decisions, or actions based on such use.
    5. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, LottoShield’s Solutions whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to LottoShield’s Solutions are and will remain with LottoShield.
    6. Changes. LottoShield reserves the right, in its sole discretion, to make any changes to the Solutions that it deems necessary or useful to: (a) maintain or enhance the cost efficiency or performance of the Solutions; or (b) to comply with applicable Law..
    7. Suspension or Termination of Services. LottoShield may, directly or indirectly, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Solutions without incurring any resulting obligation or liability, if: (a) LottoShield receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires LottoShield to do so; or (b) LottoShield believes, in its good sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Solutions beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Solutions; or (iii) this Agreement expires or is terminated. This Section 2.7 does not limit any of LottoShield's other rights or remedies, whether at law, in equity, or under this Agreement.
  3. Use Restrictions; Service Usage and Data Storage.
    1. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Solutions except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
      1. copy, modify, or create derivative works or improvements of the Solutions;
      2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Solutions to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
      3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Solutions, in whole or in part;
      4. bypass or breach any security device or protection used by the Solutions or access or use the Solutions other than by an Authorized User through the use of his or her own then valid Access Credentials;
      5. input, upload, transmit, or otherwise provide to or through the Solutions, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
      6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Solutions or LottoShield's provision of services to any third party, in whole or in part;
      7. remove, delete, alter, or obscure any trademarks, Documentation warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Solutions, including any copy thereof;
      8. access or use the Solutions in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
      9. access or use the Solutions for purposes of competitive analysis of the Solutions the development, provision, or use of a competing software service or product or any other purpose that is to the LottoShield's detriment or commercial disadvantage; or
      10. otherwise access or use the Solutions beyond the scope of the authorization granted under this Section 3.1.
  4. Customer Obligations.
    1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Documentation all Customer Systems on or through which the Solutions are accessed or used; (b) provide LottoShield Personnel with such access to Customer's premises and Customer Systems as is necessary for LottoShield to exercise its rights and provide the Solutions to Customer in connection with this Agreement.
    2. Effect of Customer Failure or Delay. LottoShield is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
    3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Solutions and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify LottoShield of any such actual or threatened activity.
  5. Service Levels [and Credits].
    1. Service Support. For support service with respect to the Solutions ("Support Services"), Customer should contact LottoShield at support@lottoshield.com. LottoShield will respond to Support Service inquiries within one business day.
  6. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. LOTTOSHIELD HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
  7. Privacy and Security.
    1. Data Privacy and Security. LottoShield will employ security measures in accordance with LottoShield's Data Privacy and Security Policy [attach a link here] as amended from time to time.
    2. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Solutions; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Solutions directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
    3. Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Solutions; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
  8. Fees and Payment.
    1. Fees. Customer shall pay LottoShield the fees in accordance to LottoShield’s fee schedule (“Fee Schedule”).
    2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on LottoShield's income.
    3. Payment. Customer shall pay all Fees within 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by debit or credit card
    4. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
      1. LottoShield may charge interest on the past due amount at the rate of 1.5% per monthcalculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
      2. Customer shall reimburse LottoShield for all reasonable costs incurred by LottoShield in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
      3. if such failure continues for days following written notice thereof, LottoShield may suspend performance of the Solutions until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
    5. No Deductions or Setoffs. All amounts payable to LottoShield under this Agreement shall be paid by Customer to LottoShield in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
    6. Fee Increases. LottoShield may increase Fees after the initial contract term by providing written notice to Customer at least 60 calendar days prior to the commencement of such Renewal Term.
  9. Confidentiality.
    1. Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential". Without limiting the foregoing: all materials submitted by LottoShield in connection with providing the Solutions to Customer are the Confidential Information of LottoShield and the terms and existence of this Agreement are the Confidential Information of each of the parties.
    2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
    3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for:
      1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
      2. except as may be permitted by and subject to its compliance with Section 4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
      3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
      4. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
      5. Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
    4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
  10. Intellectual Property Rights.
    1. LottoShield’s Solutions. All right, title, and interest in and to the Solutions, including all Intellectual Property Rights therein, are and will remain with LottoShield. Customer has no right, license, or authorization with respect to the Solutions except as expressly set forth in Section 2.2 and subject to Section 1. All other rights in and to the Solutions are expressly reserved by LottoShield. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to LottoShield an assignment of all right, title, and interest in and to anonymized Customer Data, including all Intellectual Property Rights relating thereto.
    2. Customer Data. As between Customer and LottoShield, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 3.
    3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to LottoShield and the LottoShield Personnel to enforce this Agreement and exercise LottoShield's and the LottoShield Personnel's rights and perform LottoShield's and LottoShield Personnel's obligations hereunder.
  11. Representations and Warranties.
    1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
      1. it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
      2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
      3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
      4. when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
    2. Additional LottoShield Representations, Warranties, and Covenants. LottoShield represents, warrants, and covenants to Customer that LottoShield will provide the Solutions using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
    3. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to LottoShield that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by LottoShield and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
    4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 1 AND SECTION 11.2, THE SOLUTIONS ARE PROVIDED "AS IS." LOTTOSHIELD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LOTTOSHIELD MAKES NO WARRANTY OF ANY KIND THAT THE SOLUTIONS WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
  12. Indemnification.
    1. LottoShield Indemnification. LottoShield shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any Action by a third party that Customer's or an Authorized User's use of the Solutions (excluding Customer Data) in accordance with this Agreement infringes or misappropriates such third party's US Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
      1. Customer Data;
      2. access to or use of the Solutions in combination with any hardware, system, software, network, or other materials or service not provided by LottoShield or specified for Customer's use in the Documentation;
      3. modification of the Solutions other than: (i) by or on behalf of LottoShield; or (ii) with LottoShield's written approval in accordance with LottoShield's written specification;
      4. failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of LottoShield; or
      5. act, omission, or other matter described in Section 2(a), Section 12.2(b), Section 12.2(c), or Section 12.2(d), whether or not the same results in any Action against or Losses by any LottoShield Indemnitee.
    2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless LottoShield and its directors, employees, agents, successors, and assigns (each, a "LottoShield Indemnitee") from and against any and all Losses incurred by such LottoShield Indemnitee resulting from any Action by a third party to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:
      1. Customer Data, including any processing of Customer Data by or on behalf of LottoShield in accordance with this Agreement;
      2. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including LottoShield's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by LottoShield;
      3. allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
      4. negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
    3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 1 or Section 12.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee's prior written consent , which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
    4. Mitigation. If the Solutions are, or in LottoShield's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Solutions is enjoined or threatened to be enjoined, LottoShield may, at its option and sole cost and expense:
      1. obtain the right for Customer to continue to use the Solutions materially as contemplated by this Agreement;
      2. modify or replace the Solutions, in whole or in part, to seek to make the Solutions (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the Solutions, as applicable, under this Agreement; or
      3. by written notice to Customer, terminate this Agreement with respect to all or part of the Solutions, and require Customer to immediately cease any use of the Solutions. Customer will be entitled will refund to all prepaid Fees for the Solutions.
    5. Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND LOTTOSHIELD'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOLUTIONS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  13. Limitations of Liability.
    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL LOTTOSHIELD BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES[, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 1; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF LOTTOSHIELD ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO LOTTOSHIELD UNDER THIS AGREEMENT.
  14. Term and Termination.
    1. Term. The term of this Agreement commences as of the Effective Date and shall remain in effect for the period set forth on the Order Form, unless terminated earlier pursuant any of the Agreement's express provisions (the "- Term").
    2. Renewal Term. This Agreement will automatically renew for up an additional successive Term (“Renewal Term”) unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least 60 days prior to the expiration of the then-current Term.
    3. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
      1. LottoShield may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days after LottoShield's delivery of written notice thereof; or (ii)] breaches any of its obligations under Section 1 or Section 9;
      2. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
      3. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    4. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
      1. all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
      2. LottoShield shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) within 60 days return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems LottoShield directly or indirectly controls, provided that, for clarity, LottoShield's obligations under this Section 14.4(b) do not apply to any anonymized Customer Data;
      3. Customer shall immediately cease all use of the Solutions and (i) within 60 days return to LottoShield, or at LottoShield's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on LottoShield's Confidential Information; (ii) permanently erase LottoShield's Confidential Information from all systems Customer directly or indirectly controls; and (iii) within 30 days after the Termination, return by mail to LottoShield, the Device;
      4. notwithstanding anything to the contrary in this Agreement, with respect to LottoShield may disable all Customer and Authorized User access to the Solutions;
      5. if Customer terminates this Agreement pursuant to Section 3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and LottoShield will: (i) refund to Customer Fees paid in advance in connection to the provision of the Solutions after the effective date of termination;
      6. if LottoShield terminates this Agreement pursuant to Section 3(a) or Section 14.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of LottoShield's invoice therefor.
    5. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1, Section 9, Section 11.4, Section 12, Section 13, Section 14.4, this Section 14.5, and Section 15.
  15. Miscellaneous.
    1. Further Assurances. On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
    2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    3. Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that LottoShield may, without Customer's consent, include Customer's name and other indicia in its lists of LottoShield's current or former customers of LottoShield in promotional and marketing materials.
    4. Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.4):
               If to LottoShield: support@lottoshield.com
               If to Customer: To an address as identified in the signature box below or in a valid Order Form.

      Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the 5 day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

    5. Interpretation. For purposes of this Agreement: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
    6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
    7. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits; (b) second, the exhibits attached to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
    8. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without LottoShield's prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which LottoShield's prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
    9. Force Majeure.
      1. No Breach or Default. In no event will LottoShield be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond LottoShield's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
      2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, LottoShield shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
    10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    11. Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of] this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    12. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    13. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of California in each case located in the city of San Ramon and County of Contra Costa and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
    14. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
    15. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 9 or, in the case of Customer, Section 1, Section 4.3, or Section 7.2, would cause LottoShield irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, LottoShield will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    16. Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.