Terms of Use

Our Terms of Use have been updated as of December 6, 2023.

IMPORTANT NOTICE: PAST, PENDING, OR FUTURE DISPUTES ABOUT THESE TERMS ARE SUBJECT TO FINAL AND BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION IN SECTION 16 BELOW. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION ON A RETROACTIVE BASIS, YOU MAY OPT OUT OF THE ARBITRATION PROVISION WITHIN THIRTY (30) DAYS BY FOLLOWING THE INSTRUCTIONS PROVIDED AT THE END OF SECTION 16.

PLEASE NOTE THAT YOUR USE OF AND ACCESS TO THE SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

Acceptance of Terms

Augmented Sports Inc. d/b/a Smashup Fantasy Sports (“We”, “Us”, or “Smashup”) provides a fantasy sports website located at www.smashupsports.com (the “Site”) and related mobile apps — which include 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. The Site, the mobile apps, and any other features, tools, materials, or other services (including co-branded or affiliated services) offered from time to time by Smashup are referred to here as the “Services.” Please read these Terms of Use (the “Terms” or “Terms of Use”) carefully before using the Services. By using or otherwise accessing the Services, 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, (2) consent to the collection, use, disclosure and other handling of information as described in our Privacy Policy and (3) accept and agree to any additional terms, rules, and conditions of participation in particular contests issued by Smashup from time to time (“Rules”). If you do not agree to the Terms, then you may not access or use the Content or Services. All of your activity on the Site and all or your transactions with Smashup, including all events which occurred before your acceptance of these Terms, are subject to these Terms.

Smashup may issue additional terms, rules and conditions of participation in particular contests. For example, Smashup may issue conditions as required by various state rules and regulations, which may impact your experience or participation on the Services. You agree to be subject to those additional rules if you participate in such contests.

Modification of Terms of Use

Except for Section 16, providing for binding arbitration and waiver of class action rights, Smashup 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. In the event of a change of Terms, the most recent version of the Terms to which you have agreed shall apply and replace all prior Terms, which shall be deemed superseded and replaced by these Terms.

Fantasy Contests

Smashup’s Fantasy Contests, and those portions of the Services used to register for or compete in Fantasy Contests, are open only to eligible users.

Except as explicitly stated in connection with a particular Fantasy Contest, Smashup is the exclusive sponsor of all Fantasy Contests Offered through the Services.

For more information on the rules governing Smashup’s Fantasy Contests, please carefully review the Smashup Fantasy Contest Rules.

Eligibility for Fantasy Contests

Some states require operators of Fantasy Contests to be licensed or registered in order to offer contests to residents of that state. Where that is the case, if you are physically located in a state with such a license or registration requirement at the time that you are entering a Fantasy Contest, and Smashup does not have a license to operate in that state, you may not be able to participate in Fantasy Contests.

If you plan to access or participate in Fantasy Contests, 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 entering a Fantasy Contest, you are further representing and warranting that all of the following are true:

• you are 18 years of age (or the minimum age in your state of residence, which may also be 19 or 21) or older;

• you are a citizen or resident of the United States of America and that you have an address in the United States of America;

• at the time of contest entry, you are physically located in the United States of America in a jurisdiction in which participation in the Fantasy Contest is not prohibited by applicable law;

• you are not listed on any U.S. Government list of prohibited or restricted parties;

• you are not subject to backup withholding tax because: (a) you are exempt from backup withholding, or (b) you have not been notified by the Internal Revenue Service (IRS) that you are subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified you that you are no longer subject to backup withholding;

• You are not an employee or officer of Smashup;

• when entering a Fantasy Contest, you are not an employee or operator of another daily fantasy site that charges entrance fees or offers cash prizes; AND

• you do not, by virtue of affiliation with another daily fantasy site or otherwise, have access to pre-release non-public confidential data about Fantasy Contest-related information.

If Smashup determines that you do not meet the eligibility requirements of this section, then you are not authorized to access or participate in Fantasy Contests. Smashup may require you to provide proof that you are eligible to participate according to this section prior to receiving prizes from Fantasy Contests (“Fantasy Prize Winnings”). This includes requesting that you fill out an affidavit of eligibility or other verification information (as discussed in Section 3.v.f. below). If Smashup otherwise determines that you do not meet the eligibility requirements of this section, in addition to any rights that Smashup may have in law or equity, Smashup reserves the right to terminate your account, restrict your account from accessing or participating in Fantasy Contests, withhold or revoke the awarding of any Fantasy Prize Winnings associated with your account or limit your ability to withdraw. In such a situation, Smashup may pay out any withheld or revoked Fantasy Prize Winnings to the other entrants in the relevant Fantasy Contest in a manner consistent with the prize structure of the Fantasy Contest, to be precisely determined by Smashup in its sole discretion. Smashup also reserves the right to withhold revoked Fantasy Prize Winnings to use in furtherance of its fraud prevention or anti-money laundering efforts.

Smashup employees may only use the Services for the purpose of testing the user experience, but may not withdraw money or Fantasy Prize Winnings. Smashup consultants or promoters of the Services may play in Fantasy Contests without such limitation, but only if (i) their arrangement with Smashup does not permit them to have any access to non-public Services data or any other data not made available to all eligible players on the Services and (ii) they do not receive any other advantages in their play on the Services.

Employees or operators of other daily fantasy sites that charge entry fees or offer cash prizes 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 Fantasy Contests. If such person enters a Smashup Fantasy Contest with a Prize, Smashup will disqualify the entry, will not award the person Fantasy Prize Winnings, 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, Smashup may maintain information about the entrant sufficient to assist Smashup in blocking the user from entering future Smashup Fantasy Contests, unless and until Smashup 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.

NFL (collectively, “League and Association”) athletes, coaches and other team management, team support personnel (e.g. without limitation, team physicians) and team owners may not participate in any Smashup Fantasy Contests. League and Association team owners, referees, league employees, commissioners, and other individuals who through an ownership interest or game-related employment can influence the gameplay are likewise ineligible.

Smashup offers tools to encourage responsible player behavior. We also allow third parties, who have concerns about a player’s ability to manage his or her play, to contact customer service to make a report regarding that player’s participation in Smashup Fantasy Contests.

Disqualification and Cancellation

Smashup also reserves the right to cancel Fantasy Contests, in our sole discretion, without any restrictions.

Smashup, in its sole discretion, may disqualify you from a Fantasy Contest, access to all Fantasy Contests, or the entire Services, refuse to award fantasy points or prizes and require the return of any Fantasy Prize Winnings, or suspend, limit, or terminate your account if you engage in conduct Smashup deems, in its sole discretion, to be improper, unfair, fraudulent or otherwise adverse to the operation of the Services 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 Services or claim a prize;

• colluding with any other individual(s) or engaging in any type of syndicate play;

• 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 Services or trying to in any way tamper with the computer programs associated with the Service;

• using IP proxying or other methods to disguise your location or the place of your residence to circumvent geographical restrictions on Fantasy Contest participation;

• obtaining other entrants’ information and spamming other entrants;

• bonus abuse of any kind, including abuse of any offers or promotions;

• abusing the Services 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 Smashup from informing the relevant authorities, and/or pursuing criminal or civil proceedings in connection with such conduct.

If for any reason Fantasy Contests are 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 Smashup corrupts or affects the administration, security, fairness, integrity or proper conduct of the Services), Smashup 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 Fantasy Contests, 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 Smashup to comply with any provision of these Terms due to circumstances beyond its control including but not limited to an act of God, hurricane, war, fire, riot, earthquake, weather, pandemic or endemic, terrorism, act of public enemies, strikes, labor shortage, actions of governmental authorities or other force majeure event will not be considered a breach of these Terms, and Smashup’s performance obligations, if any, shall be delayed until such time as performance becomes reasonably practicable and if performance is no longer possible.

Taxation

Each year, any winner of Fantasy Contests who has won $600 or more over the previous year must provide an updated address and social security details to Smashup. These details will be used to allow Smashup to comply with tax regulations and may be shared with appropriate tax authorities. You, not Smashup, are responsible for filing and paying applicable state and federal taxes on any winnings. Smashup does not provide tax advice, nor should any statements in this agreement or on the Services be construed as tax advice.

Publicity License and Release

By entering a Fantasy Contest, you grant license and consent to Smashup’s and its service providers’ and business partners’ use of your name, voice, likeness, image, location, photograph or video in connection with the development, production, distribution and/or exploitation (including marketing and promotion) of the selected Fantasy Contest and/or other Smashup Fantasy Contests and Smashup generally, unless otherwise prohibited by law. Smashup and its service providers and 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 Fantasy Contest. Entrants agree that Smashup 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 Smashup or other Fantasy Contests or games operated by Smashup. You agree that participation in and (where applicable) the winning of Fantasy Prize Winnings in connection with a Fantasy 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, and expressly release and waive any claims related to Smashup’s use of the license granted in this subparagraph. The rules specific to certain Fantasy Contests may contain additional publicity obligations or may require a written signature on a separate publicity waiver.

Game Rules

Smashup Fantasy: Rules

Each Fantasy Contest is governed by specific Rules, including with respect to scoring, controls and guidelines for that Fantasy Contest, which shall be posted on the Site or Application. You agree that you shall be subject to the Rules in effect at the time of entry of a Fantasy Contest. Such Rules shall be deemed incorporated and part of these Terms and you agree that you shall comply with them in respect of each individual Fantasy Contest which you choose to enter.

Game of Skill

Smashup Fantasy Contests are games of skill. Winners are determined by the criteria stated in each Fantasy Contest’s rules. For each Fantasy Contest, winners are determined by the individuals who use their skill and knowledge of relevant League and Association information, Smash card strategy, and fantasy sports rules to accumulate the most fantasy points. Fantasy points are accumulated through the actual statistical performance of individual athletes in League and Association events, along with any applicable modification of such statistical performance through the use of Smash cards.

Fantasy Contest Term

Smashup offers Fantasy Contests for League and Association games generally taking place over a week time frame. The duration of each Fantasy Contest may be found on each Fantasy Contest rules page.

Prizes

After each Fantasy Contest ends, the tentative winners are announced (generally in a few days) but remain subject to final verification. The players in each Fantasy Contest who accumulate the most fantasy points and comply with eligibility requirements and applicable rules will win prizes as set out in the posted Fantasy Contest details. Cash Fantasy Prize Winnings are added to the winning player’s account balance, as further described below. Non-cash prize winnings are transferred to the winning player within one month of completion of the contest. In the event of a tie, the distribution of prizes will depend on the applicable provisions of the Rules.

Smashup offers a number of different types of Fantasy Contests. For each Fantasy Contest, we announce rules and/or prizes in advance on the Tournament page. For a summary of currently open Fantasy Contests please login and visit the Tournament tab.

Prize calculations are based on the results as of the time when final scoring is tabulated by Smashup. Once winners are initially announced by Smashup, we reserve the right to make adjustments based on statistical updates, 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. Smashup 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. In short, you agree that the final decision and determination of the winner(s) of the Fantasy Contest shall be subject to the sole discretion of Smashup.

No substitution or transfer of a prize is permitted. The winner is solely responsible for all taxes associated with the receipt or use of any prize. In the event that the awarding of any prizes to winners of the Fantasy Contest is challenged by any legal authority, Smashup 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 Smashup Fantasy Contests, Smashup is the sole judge and its actions are final and binding in its sole discretion.

Notification

Winners are generally posted on the Site after the conclusion of each Fantasy Contest by 1 PM ET on the following day. 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.

Conditions of participation

Registration

In order to participate in the Services, including Fantasy Contests, you must register for an account. By registering as a user of the Services, 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 Smashup has reasonable grounds to suspect that such information is inaccurate, not current or incomplete, Smashup 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 Services. Each account on the Services may only be owned, maintained, used and controlled by one individual. For avoidance of doubt, users may not “co-own” accounts on the Services. In the event Smashup determines that you have opened, maintained, used or controlled more than one account, in addition to any other rights that Smashup may have, Smashup 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 Smashup is to participate in the Services. Smashup shall be entitled to suspend, limit or terminate your account if we have reasonable grounds to believe (as determined in our sole discretion) that you are using the Services for an illegal or improper purpose. In such circumstances, we may also report such activity to relevant authorities.

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 Smashup in its sole discretion deems offensive. Many portions of the Services 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 Services 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 Smashup 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 Services’ Restricted Areas. Smashup cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.

All data which you provide to Smashup or which is obtained or generated about you during your use of the Services shall be subject to the Privacy Policy. The Privacy Policy, and any changes to the same, is further deemed incorporated and part of these Terms.

You acknowledge and agree that Smashup is authorized to act on instructions received through the use of your Username and Password, and that Smashup 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.

Smashup may require you to change your Username or may unilaterally change your Username. Smashup recommends users to constantly consider the security of the passwords and Smashup recommends users change their passwords on a frequent basis of at least every 6 months.

User Account Funds

By creating a Smashup account, you agree to provide us with a valid mailing address, date of birth, and Social Security number as well as 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.

If you participate in Fantasy Contests, all cash Fantasy Prize Winnings you obtain will be added to your Smashup account balance, and such funds will be held in a separate, segregated bank account by a subsidiary of Smashup. These funds belong to you, subject to review for evidence of fraud, verification or other prohibited conduct as described above, and Smashup may not use them to cover its operating expenses or for other purposes. Your withdrawals of Fantasy Prize Winnings will be made from this segregated bank account, and any checks or other payments issued from that account may bear the name of Smashup’ subsidiary. All non-cash Fantasy Prize Winnings you obtain will be transferred to you within one month of completion of the contest.

We also may conduct checks for Terms compliance, including anti-fraud checks on playing and Services usage patterns 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 account balance at any time and for any reason.

Communications and Information Practices

As a result of your registration for the Services, you may receive certain commercial communications from Smashup. 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 as set forth in our Privacy Policy. Following such an opt-out, we may still communicate with you via email to the extent permitted by applicable law.

Conduct

As a condition of use, you promise not to use the Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by Smashup. By way of example, and not as a limitation, you agree not to:

• abuse, harass, impersonate, intimidate or threaten other Smashup users;

• post or transmit, or cause to be posted or transmitted, any Content that are infringing, libelous, defamatory, abusive, offensive, obscene, pornographic or otherwise violates any law or right of any third party;

• use the Services for any unauthorized purpose, or in violation of any applicable law, including intellectual property laws;

• post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Smashup user;

• create or submit unwanted email (“Spam”) to any other Smashup users;

• infringe upon the intellectual property rights of Smashup, its users, or any third party;

• submit comments linking to affiliate programs, multi-level marketing schemes, sites repurposing existing stories or off-topic content;

• post, email, transmit, upload, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed or functioning to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

• scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or using any method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any approved mobile application, application programming interface, or client application;

• violate the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services;

• post material that advocates illegal activity or discusses illegal activities with the intent to commit them (in either case as determined by Smashup in its sole discretion);

• post or otherwise make available any material that contains any software, device, instructions, computer code, files, programs and/or other content or feature that is designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment (including without limitation any time bomb, virus, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, “disabling,” “lock out,” “metering” device or any malicious code);

• that you will not falsely state or otherwise misrepresent your affiliation with a person or entity, or impersonate any person or entity in a manner that does not constitute parody;

• through misrepresentation or otherwise, solicit personal or sensitive information from other users such as address, credit card or financial account information, passwords or other Registration Data;

• submit content linking to affiliate programs, multi-level marketing schemes, sites repurposing existing stories or off-topic content;

• violate the law or encourage conduct that would constitute a criminal offense or give rise to civil liability;

• use artificial means, including creating multiple user accounts, to inflate your position and standing with the Smashup leader boards and community;

• use unauthorized scripts; all authorized scripts will be made available through the Fantasy Contests section of the Site prior to game entry;

• advertise to, or solicit, any user to buy or sell any products or Services, or use any information obtained from the Services in order to contact, advertise to, solicit, or sell to users without their prior explicit consent;

• sell or otherwise transfer, sell, or trade your Registration Data without written permission from Smashup;

• use or access a version of the Services or Registration Data that has been transferred, sold or traded from another user without written permission from Smashup, except as permitted by these Terms;

• attempt to influence the play in any sporting event from which athletes are available for selection in Smashup’ Fantasy Contests in which you are involved or in which you have a direct or indirect interest;

• enter into Fantasy Contests, by any means including use of multiple accounts, for which you are ineligible (e.g., beginner Fantasy Contests when you are not a beginner);

• use the Services in a way that violates or facilitates violations of these Terms, any other agreement or any guidelines or policies posted by Smashup.

Violation of our rules may result in the removal of your Content from the Services, forfeiture of winnings, and/or the canceling of your account. You acknowledge and agree that Smashup may remove any User Content (as defined below) and terminate any Smashup account at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content). To report Terms of Use violations, please contact us by sending an email to support@smashupsports.com.

User Content

The Services may enable you to submit, post, upload, or otherwise make available through the Services content such as profile information, communications with other users, whether privately or made publicly available, video clips, photographs, public messages, ideas, comments and other content (collectively, “User Content”) that may or may not be viewable by other users. You understand that all User Content, whether privately transmitted or made publicly available, is the sole responsibility of the person from which such User Content originated. You further agree that you have all required rights to submit, post, upload or otherwise use or disseminate such User Content without violation of any third-party rights. This means that you, not Smashup, are entirely responsible for all User Content that you upload, post, share, email, transmit, or otherwise make available via the Services. Under no circumstances will Smashup be liable in any way for any User Content.

You acknowledge that Smashup may or may not pre-screen User Content, but that Smashup and its designees have the right (but not the obligation) in their sole discretion to pre-screen, refuse, permanently delete, undelete, modify and/or move any User Content available via the Services. Without limiting the foregoing, Smashup and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in Smashup’ sole discretion. You understand that by using the Services, you may be exposed to User Content that you may consider to be offensive or objectionable. You agree that you must evaluate, and bear all risks associated with, the use or disclosure of any User Content. You further acknowledge and agree that you bear the sole risk of reliance on any Content available on or through the Services.

With respect to User Content you submit or otherwise make available on or to the Services, you grant Smashup an irrevocable, fully sub-licensable, perpetual, world-wide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such User Content (in whole or in part), and to incorporate such User Content into other works, in any format or medium now known or later developed.

You are solely responsible for your interactions with other users of the Services. Smashup reserves the right, but has no obligation, to monitor disputes between you and other users.

You acknowledge and agree that Smashup does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content. You understand that by using the Services, you may be exposed to User Content that you may consider offensive or objectionable. You also acknowledge that Smashup is a provider of an interactive computing service as set forth the Communications Decency Act, 47 U.S.C. §230. Smashup expressly reserves its rights to not be treated as the publisher or speaker of any information provided by another information content provider on or through the Services.

Indemnity

You agree to release and to indemnify, defend and hold harmless Smashup and its parents, subsidiaries, affiliates and agents, 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 out of or resulting from your use of the Services, 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. Smashup 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 Smashup in the defense of such matter.

Warranty disclaimers

You expressly understand and agree that your use of the Services is at your sole risk. THE SERVICES (INCLUDING THE SITE, ITS RELATED MOBILE APPS 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY: (A) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; (B) THAT DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED; (C) THAT THE SERVICES WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; (D) AS TO THE QUALITY, ACCURACY, COMPLETENESS AND VALIDITY OF ANY INFORMATION OR MATERIALS IN CONNECTION WITH THE SERVICES; (E) THAT YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; OR (F) THAT TRANSMISSIONS OR DATA WILL BE SECURE. You acknowledge that Smashup 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 Smashup from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to other websites containing information that some people may find offensive or inappropriate. Smashup makes no representations concerning any Content contained in or accessed through the Services, and Smashup will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services.

Exceptions

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, LIABILITIES AND DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, SMASHUP’S WARRANTIES AND LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

Limitation on liability

YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SITE AND SERVICES. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SITE AND SERVICES 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 SERVICES IS AT YOUR OWN RISK. RECOGNIZING SUCH, YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SMASHUP 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, LEGAL FEES, EXPERT FEES, COST OF PROCURING SUBSTITUTE SERVICE, LOST OPPORTUNITY, OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY OTHER DAMAGES BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY (EVEN IF SMASHUP HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING, DIRECTLY OR INDIRECTLY, 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 FANTASY CONTESTS OR PUBLIC MARKETPLACE TRANSACTIONS); ANY INJURY OR DAMAGE TO COMPUTER EQUIPMENT; INABILITY TO FULLY ACCESS THE SITE OR SERVICES 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 SERVICES.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SMASHUP’S 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 SMASHUP FOR GENERAL USE OF THE SITE OR SERVICES DURING THE TERM OF YOUR REGISTRATION FOR THE SITE, NOT INCLUDING ANY ENTRY FEES FOR FANTASY CONTESTS COMPLETED PRIOR TO THE CIRCUMSTANCES GIVING RISE TO THE CLAIM.

BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, LIABILITY OF SMASHUP SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. ADDITIONAL DISCLAIMERS MAY APPEAR WITHIN THE BODY OF THE SITE AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON YOUR USE OF THE SITE OR THE MATERIAL CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY. THIS LIMITATION OF LIABILITY SHALL APPLY TO THIRD PARTY CLAIMS AS WELL AS CLAIMS BETWEEN THE PARTIES.

IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IF YOU ARE A NEW JERSEY RESIDENT, OR A RESIDENT OF ANOTHER STATE THAT PERMITS THE EXCLUSION OF THESE WARRANTIES AND LIABILITIES, THEN THE ABOVE LIMITATIONS SPECIFICALLY DO APPLY TO YOU.

Our proprietary rights

All title, ownership and intellectual property rights in and to the Services are owned by Smashup or its licensors. You acknowledge and agree that the Services contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by Smashup, you agree not to copy, modify, rent, lease, loan, sell, distribute, perform, display or create derivative works based on the Services, in whole or in part.

Location and Other Technologies

To determine your eligibility to use the Services, Smashup may determine your location using one or more reference points, such as GPS, IP address, Beacons and/or software within your personal computer, mobile device, consumer electronics device, video game device or console, or any other equipment. If you have set your device(s) to disable GPS, Bluetooth or other location determining software, use connection methods or systems that mask your location, such a virtual private network, or do not authorize the Services to access your location data, the Services may not be able to determine your location and you will not be able to access the Services. Smashup reserves the right to suspend and/or terminate your account if you prevent the Services from accurately determining your location. For more information about how the Services collects, uses and retains your information, please read the Smashup Privacy Policy.

Links

The Services provide, or third parties may provide, links to other Web sites, applications or resources. Because Smashup has no control over such sites, applications and resources, you acknowledge and agree that Smashup 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 Smashup 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

Smashup reserves the right at any time to modify, suspend, discontinue, or terminate, temporarily or permanently, the Services or associated services (or any part thereof), with or without notice. You agree that Smashup shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services or associated services.

We do not guarantee that any of our Services will be available at all times or at any given time or that we will continue to offer all or any of our Services for any particular length of time. We may change and update our Services without notice to you. We make no warranty or representation regarding the availability of our Services and reserve the right to modify or discontinue the Services in our sole discretion without notice, including for example, ceasing a contest or other Services for technical reasons (such as technical difficulties experienced by us or on the internet) or to allow us to improve user experience. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT ANY OR ALL OF OUR SERVICES MAY BE TERMINATED IN WHOLE OR IN PART AT OUR SOLE DISCRETION WITHOUT NOTICE TO YOU. YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF OUR SERVICES

Smashup may terminate or suspend all or part of the Services and your Smashup 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 Services will immediately cease. If you wish to terminate your Smashup account, you may contact us at support@smashupsports.com with a note to say you wish to terminate your account.

The following provisions of the Terms survive any termination of these Terms or your account: CONDITIONS OF PARTICIPATION (except for Registration and Account Password and Security); GAME RULES (only Bonuses and Promotions); CONDUCT (only User 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 Smashup regarding restoration of your account only via support@smashupsports.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

Smashup 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 Smashup’s Copyright Agent a written Notice meeting all of the requirements of the Digital Millennium Copyright Act (“DMCA”). Your notice should contain the following information:

• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

• a description of the copyrighted work or other intellectual property that you claim has been infringed;

• a clear description of where the material that you claim is infringing is located on the Service;

• your address, telephone number, and email address;

• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

• a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Before you file your Notice, please carefully consider whether or not the use of the copyrighted material at issue is protected by the Fair Use doctrine. If you file a DMCA Notice when there is no infringing use, you could be liable for costs and attorneys’ fees.

Smashup’ Copyright Agent can be reached in the following ways:

Email: support@smashupsports.com

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. THIS SECTION REQUIRES YOU TO ARBITRATE ALL DISPUTES WITH SMASHUP AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. WHILE YOU MUST AGREE TO THIS SECTION AS TO ANY AND ALL CLAIMS, THERE IS AN OPTION, DESCRIBED BELOW, TO OPT OUT OF THE ARBITRATION AND CLASS WAIVER PROVISIONS. THE OPTION TO OPT-OUT IS TIME-LIMITED TO THIRTY (30) DAYS AND REQUIRES YOUR IMMEDIATE ATTENTION.

THIS SECTION GENERALLY PRECLUDES YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST SMASHUP. IT ALSO PRECLUDES YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY PAST, PENDING, OR FUTURE CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST SMASHUP BY SOMEONE ELSE. ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.

Initial Dispute Resolution

Our Customer Support Department is available at support@smashupsports.com to address any concerns you may have regarding the Services. Our Customer Service Department is able to 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.

Binding Arbitration

If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution under the Initial Dispute Resolution provision begins, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all past, pending, and future 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 Services, including claims that arose before acceptance of any version of these Terms containing an arbitration provision, shall be finally settled by binding arbitration administered by JAMS pursuant to the applicable set of Arbitration Rules & Procedures, excluding any rules or procedures governing or permitting class actions, except that no party shall be precluded from seeking remedies in small claims court for disputes or claims within the scope of its jurisdiction.

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, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. 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.

The Arbitration Rules governing the arbitration may be accessed at www.jamsadr.com or by calling the AAA at 1-800-352.5267. Allocation of Arbitration Fees. Provided your claim does not exceed $75,000, you will only be required to pay arbitration fees of $250 in connection with any arbitration under this section, and Smashup will bear all other costs charged by AAA or the arbitrator. You will solely be responsible for paying your own attorneys’ fees.

Each party shall bear its own costs in the arbitration proceeding. If any portion of this section entitled “Binding Arbitration and Class Waiver” is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.

Whether to agree to arbitration is an important decision. It is your decision to make and you are not required to rely solely on the information provided in these terms of use. You should take reasonable steps to conduct further research and to consult with counsel (at your expense) regarding the consequences of your decision.

Class Action Waver

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 SMASHUP 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.

Exception – Litigation of Intellectual Property

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, trademarks, trade dress and trade secrets, but not privacy or publicity rights).

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: SMASHUP FANTASY, 150 WATERBURY STREET, BROOKLYN, NY 11206. THE NOTICE MUST BE SENT WITHIN THIRTY (30) DAYS OF MAY 21, 2020 OR YOUR FIRST USE OF THE SERVICES, WHICHEVER IS LATER, OTHERWISE YOU SHALL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THE TERMS OF THOSE PARAGRAPHS. IF YOU OPT-OUT OF THESE ARBITRATION PROVISIONS, SMASHUP ALSO WILL NOT BE BOUND BY THEM. IF YOU DO NOT OPT-OUT, THESE TERMS WILL APPLY RETROACTIVELY TO ALL CLAIMS YOU MAY POSSESS, WHETHER ASSERTED TO DATE OR NOT.

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.

Confidentiality

You and Smashup shall maintain the confidential nature of the arbitration proceedings and the arbitration award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

Governing Law

The parties agree that these Terms of Use and the rights of the parties regarding the Services and the relationship of the parties shall be governed by and construed in accordance with the laws of the State of New York, which shall apply without regard to principles of conflicts of law.

Additional Terms for Our California Consumers

Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N – 112, Sacramento, CA 95834, or by telephone at 1(800) 952 – 5210.

Age Restrictions

Fantasy Contests are generally restricted to users over the age of 18, but some states impose a higher minimum age. If you are under 18 or the minimum age in your state of residence, you may not access the Services.

General Information

Entire Agreement

These Terms (and any additional terms, rules and conditions of participation in particular Fantasy Contests that Smashup may post on the Services) constitute the entire agreement between you and Smashup with respect to the Services and supersedes any prior agreements, oral or written, between you and Smashup. In the event of a conflict between these Terms and the additional terms, rules and conditions of participation in particular Fantasy Contests, the latter will prevail over the Terms to the extent of the conflict.

Waiver and Severability of Terms

The failure of Smashup 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.

Statute of Limitations

You and Smashup agree that any claims or lawsuits, regardless of form, arising out of or related to the Site (including Services) or these Terms of Use or Privacy Policy must BE FILED within ONE (1) YEAR of the action, omission, event or occurrence giving rise to the claim or suit, after which such claims will be time-barred and prohibited, without regard to any longer period of time which may be provided by any period of limitation or repose by law or statute. This statute of limitations provision does not apply to residents of New Jersey.

Section Titles

The section titles in the Terms are for convenience only and have no legal or contractual effect.

Communications

Users with questions, complaints or claims with respect to the Services may contact us using the relevant contact information set forth above.

Thank you for using Smashup!