MockOut, Inc. – Terms of Use Agreement

I. Acceptance of Terms and Conditions

This Website Terms of Use Agreement governs your use of the website located at www.mockout.com (the “Site”), the MockOut web-based application (the “Application”), and your use of any other applications, competitions, contests, widgets, tools, features, content, services and/or options available through the Site and/or the Application or otherwise provided, owned and/or operated by MockOut, Inc. (the “Company,” “MockOut,” “we,” “us” or “our”) in connection with the Site or Application (collectively with the Site and the Application, the “Services”). By accessing, browsing, using or participating in any manner in the Services or any pages of the Services, you are indicating that you have read and acknowledge and agree to be bound by this Website Terms of Use Agreement and any additional terms and conditions applicable to certain areas of the Services and posted in those areas of the Services, which are incorporated herein by reference (collectively, “Terms and Conditions”), and the Company’s Website Privacy Statement located at www.mockout.com/privacy. If you do not agree to every provision of these Terms and Conditions and the Company’s Website Privacy Statement, please do not access, browse, participate or use the Services.

These Terms and Conditions may be revised at any time for any reason, and we may provide you notice of these changes by any reasonable means, including by posting the revised version of the Terms and Conditions on the Services. You can determine when we last updated these Terms and Conditions by referring to the “Last Updated” legend at the bottom of these Terms and Conditions. By participating in, accessing, browsing or using the Services following the posting of changes to these Terms and Conditions, you accept such changes. You agree to use the Services for lawful purposes only in a manner consistent with any and all applicable rules, laws and regulations. Any use of the Services in a manner inconsistent with these Terms and Conditions is deemed unauthorized access and may subject the user to civil or criminal penalties. We strongly recommend that you periodically visit this page of the Services to review these Terms and Conditions.

II. Services Content

The Services and all material on the Services or contained therein, including without limitation, all text, graphics, images, sounds, and other works on the Services, the Service’s design and coding, all computer programs used and licensed in connection with the Services, the business process, procedures, methods and techniques used in or in connection with the Services, the look and feel of the Services, and all data and reports generated by the Services (collectively, the “Services Content”) are owned by, or licensed to, the Company. These materials are protected under copyright, trademark and other laws. You may not copy, download, transmit, modify, distribute or republish the Services or any portion of the Services, including without limitation any of the Services Content without the prior written consent of Company. You may not sell, publicly display, create derivative works of, reverse engineer, assign, sub-license, transfer or otherwise exploit the Services or any Service Content. Use of any Service Content is prohibited without the prior written permission of Company. As long as you comply with these Terms and Conditions, Company grants you a personal, non-exclusive, non-transferable, non-sublicenseable right to access and make personal, non-commercial use of the Services in compliance with these Terms and Conditions. You shall not, and shall not permit anyone else to, directly or indirectly: (i) remove or alter proprietary notices or labels on or in the Service or Service Content; (ii) engage in any activity that interferes with or disrupts the Service or Service Content; (iii) engage in any fraudulent activity or activity that facilitates fraud; or (iv) otherwise act in violation of these Terms and Conditions. All rights not expressly granted herein are reserved.

III. Company Trademarks

All product and service names appearing in a typeface different from that of the surrounding text or with a trademark symbol, including without limitation the following:

MockOut, NFLMockOut, NBAMockOut, NHLMockOut, MLBMockOut, MockOuts

are registered and unregistered trademarks and service marks owned by Company or its subsidiaries or affiliates or a third party. The absence of a name, trademark or logo in this list does not constitute a waiver of any and all intellectual property rights that Company has established in any of its goods, services, names or logos. These trademarks and all other trademarks, service marks, logos, and company names (each a “Mark”) used in connection with the Services are the property of Company or third parties and shall remain the property of Company and such third parties. Nothing contained in the Services shall be construed as granting, by implication or otherwise, any license or right to use any such Mark without the prior written permission of Company or such third party that may own such Mark. Your misuse of any such Mark, or any other Service Content, is strictly prohibited.

IV. Registration

Each registration is for a single “Authorized Account Holder” only. In consideration of your use of the Services, you agree to provide accurate, current and complete information about yourself or your company as requested on the Services registration form and to maintain and promptly update the information (including, in particular, your e-mail address) you provide from time to time as necessary to keep the information true, accurate, current and complete. By accepting these Terms and Conditions, you represent and warrant that you are 18 years of age or older and that, if you have accepted these Terms and Conditions on behalf of any business (such as a corporation, partnership, limited liability company or other organization) or other entity, you represent and warrant that you have legal authority to do so.

Any changes to registration information should be made on the Services. If you, as the Authorized Account Holder, provides information that is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Services.

In connection with registering for the Services, you may receive a password for your use of the Services. You are responsible for keeping your password confidential. You will be responsible for all uses and activity that occurs through your password or account. You will close the browser window for the Services at the end of each use, and you will immediately notify us of any unauthorized use of your password. We cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 4.

V. Eligibility

You must be at least eighteen (18) years of age to participate in the Services (including online competitions and/or contests) or win prizes offered by the Company. In locations where the minimum age for permissible use of the Services is greater than eighteen (18) years of age, you must meet the age requirement in your local jurisdiction or territory.

By inputting a payment method to participate in any of the Company’s online competitions, you, as the Authorized Account Holder, hereby affirm that you are the lawful owner of the payment method used to make any deposits or enter any competitions and/or contests in connection with the Services.

MockOut employees are eligible to use the Services for the purpose of interacting with you and other users, experiencing and creating a satisfying user experience, and other reasonable business purposes as determined in the sole discretion of the Company.

VI. Participation in Competitions

Each MockOut competition and/or contest provided through the Services is a game of skill. Winners are the entrants who are best able to apply their knowledge of professional sports franchises, including ownership, management, coaches, coordinators, and scouts; draft eligible prospects and their specific fit within the unique system of each team; and awareness of the relative value and scarcity of draft picks and player positions within the draft itself; creating the mock draft which outscores the mock drafts of other users by most closely matching the outcome of the live draft, as determined by the criteria stated in each contest’s rules.

The Scoring System, Rules, Regulations, all other decisions relevant to the creation, execution, scoring and payouts resulting from a MockOut competition and/or competition are at the sole discretion of the Company. By entering into a competition, you agree to be bound by all rules and decisions. The Company, at its sole discretion, may choose to disqualify, refuse entry, refuse reward, or require the return of any prizes won from, in connection with or use of the Services, if the Company deems your behavior or actions to be improper, unfair, or to otherwise adversely affect the competitive integrity of the competition or the entrants who compete therein.

These actions include, but are not limited to (a) verbally assaulting, intimidating, or threatening another member of the MockOut community, (b) utilizing advance, confidential, or otherwise not readily available information, resulting in an unfair advantage that could impact the competitive decision making process, (c) collusion with another user or users or working in tandem to claim a competitive advantage over individual users, (d) tampering with the administration or security of a competition and/or contest, (e) falsifying personal information, (f) engaging in financial fraud, (g) abusing the Services in any way, to either gain an unfair competitive advantage, or to unfairly affect another user’s ability to compete in the Services.

Disqualification from competition or forfeiture of funds may occur if the Company determines that you were not in complete compliance with the Terms and Conditions.

All entries to all competitions and/or contests, and all collected data resulting from said entries, shall be and shall remain the exclusive property of the Company, and will not be acknowledged or returned.

VII. Legal Requirements

Where Company has a good faith belief that such action is necessary to comply with a judicial proceeding, court order, warrant, administrative order, civil investigative demand, subpoena, or other valid process, Company may disclose IP addresses, personal information, and any contents of the Services where it is legally compelled to do so. Please see the Company’s Website Privacy Statement located at www.mockout.com/privacy for additional information relating to the privacy and security of information collected hereunder.

VIII. Your Use of the Services

You are solely responsible and liable for all data, information and other materials (“User Content”) that you submit, upload, post, e-mail or otherwise transmit (“Transmit”) in connection with the Services. In addition, we have no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third party of information made public through the Services. IF YOU CHOOSE TO SUBMIT TO US, OR OTHERWISE MAKE ANY PERSONAL INFORMATION OR OTHER INFORMATION PUBLICLY AVAILABLE, YOU DO SO AT YOUR OWN RISK AND COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY THEREFOR.

You agree that you will not, and will not permit anyone else to, directly or indirectly: (a) Transmit any User Content that is unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, dishonest or misleading, invasive of another’s privacy or racially, ethnically or otherwise objectionable; (b) use the Services to harm minors in any way or to stalk, threaten, or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity, or harvest or collect personal information, including e-mail addresses, about other users of the Services; (c) Transmit any User Content: (i) that you do not have the right to Transmit, under any law or contractual or fiduciary relationships, including, without limitation, any inside information or proprietary or confidential information; (ii) that infringes any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret or right of privacy of any third-party; (iii) that constitutes unsolicited or unauthorized advertising or promotional materials, “spam,” “chain letters,” or pyramid schemes; or (iv) that contains any software routine, code, instruction or virus that is designed to disable, delete, modify, damage or erase software, hardware or data; (d) forge headers or otherwise manipulate identifiers in order to disguise any User Content Transmitted through the Services; (e) interfere with the Services or servers or networks used in connection with the Services; (f) interfere with the ability of others to use the Services; (g) copy, download, transmit, modify, reproduce, sell, resell, sub-license, distribute, publish create derivative works of, reverse engineer, assign, transfer or exploit for any commercial purposes, any portion of the Services, the Services Content or any User Content contained therein; (h) conduct your business using the Services in a way that is unfair, unlawful, or constitutes a deceptive business practice; (i) use any robot, spider, or other automatic device to monitor or copy portions of the Services or the Services Content without Company’s prior written permission; (j) include in any third party website any hypertext link to any page or location within the Services without Company’s prior written permission; (k) mirror or display the Services or any portion thereof in frames without Company’s prior written permission; (l) impersonate any person or entity, including, but not limited to, other users of the Services, falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that we endorse any statement you make; (m) download, reproduce, duplicate, copy or otherwise exploit any portion of the Services for the purpose of sale, resale or making other commercial use thereof, or (n) disable, circumvent, obstruct or otherwise interfere or tamper with security utilized by the Services to protect the transmission of sensitive information on behalf of users and the Services themselves.

You acknowledge and agree that Company may disclose or use any User Content that you Transmit for purposes that include, but are not limited to: (a) enforcing these Terms and Conditions; (b) complying with any laws, regulations or rules of any federal, state or local government or agency; (c) responding to claims that any User Content violates the rights of third parties; or (d) protecting the rights or property of Company, its customers or the public. With respect to User Content that you Transmit to the Services, you grant Company a perpetual, worldwide, royalty-free, non-exclusive, transferable, sub licensable (through multiple tiers) license to use, copy, excerpt, reproduce, display, aggregate, de-identify, publish, modify, distribute and create derivative works of such User Content in any form or media, and to allow others to do so, however, Company will only share personally identifiable information that you provide in accordance with Company’s privacy statement at www.mockout.com/privacy. As between the parties, we own all right, title, and interest in and to all intellectual property rights in all materials, products or services developed by us, or on behalf of us by third parties, based on or including as a component thereof any such information as described above, and all generalized knowledge, skill, know-how and expertise relating to such information.

Company does not and cannot verify the identity of all registered user of the Services, review all User Content posted to the Services, or created by users accessing the Services, and is not in any manner responsible for the content of any User Content. You acknowledge that by providing you with the ability to view and distribute user-generated content on the Services, Company is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any User Content or activities on the Services. However, Company reserves the right to block, remove, move or edit any of the submissions in its sole discretion.

IX. Linked Sites

Company has not reviewed all of the websites linked to the Services and is not responsible for the content of any third-party pages or any other websites linked to the Services. Nothing in the Services, including, without limitation, any links to other websites, should be construed as an endorsement of any products, services or information of any other persons or companies by Company. Your choice to link to any other website is at your own risk, and you agree to comply with all terms and conditions relating to such websites. Company reserves the right not to link, or to remove the link, to a particular website at any time. Any links to third party websites are provided as a convenience to you and are neither owned nor operated by Company. Company has no control over these linked websites and makes no representations or warranties with respect to these linked websites. Your viewing and use of any third party websites is at your sole discretion and risk.

X. Special Admonitions for International Use

The Services are hosted in the United States, and all matters relating to the Services are governed exclusively by the laws of the State of North Carolina in the United States of America, and not the jurisdiction in which you are located. If you are located outside of the United States of America and you contact us, please be advised that any information you provide to us will be transferred to the United States of America and that by submitting information, you explicitly authorize such transfer.

XI. Indemnification

You agree to defend, indemnify and hold harmless Company, its subsidiaries and affiliates, business partners, contractors, clients and service providers, and their respective officers, employees, agents and representatives from and against any claims, liabilities, costs or damages, including reasonable attorneys’ fees and paralegal fees through final appeals, made by any third party, relating to or arising from your use of the Services, your interactions with other users of the Services, any User Content that you Transmit to or through the Services, including, without limitation, any intellectual property, any violation of these Terms and Conditions by you, your non-compliance with any federal, state or local law or regulations, or any other act or omission by you, including your violation of any rights of another, arising from your use of the Services.

XII. Availability and Features

Availability and features of the Services are subject to change without notice.

XIII. Termination

You acknowledge and agree that Company may terminate your account or access to use of the Services for any reason, including, without limitation, your violation of these Terms and Conditions. You agree that Company may terminate your access to and use of the Services without prior notice and without any liability to you or any third party. You acknowledge and agree that Company may modify, limit, suspend or discontinue the Services or any part of the Services at any time, without notice or liability to you. Company may also, from time to time, establish general rules and policies regarding use of the Services. Company will post such rules and policies on the Services, and you agree that your compliance with such rules and policies shall be a condition of your use or continued use of the Services. Company shall have no liability or responsibility with respect to any lost Services Content, User Content, or other data, such as the deletion of or failure to store Services Content, User Content, or other data. All provisions of these Terms and Conditions that by their nature should survive termination of your right to access and use the Services shall survive (including, but not limited to, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections and licenses). Company reserves the right to, but has no obligation to, store or keep copies of any Services Content, User Content, or other information, unless otherwise required by law or court order.

XIV. Disclaimers and Limitation of Liability

COMPANY IS PROVIDING THE SERVICES AND ALL FEATURES OF THE SERVICES CONTENT ON AN “AS-IS,” “AS-AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. COMPANY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND TO THE EXTENT THAT THEY MAY BE EXCLUDED BY LAW, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AS TO THE OPERATION OF THE SERVICES, OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED IN THE SERVICES. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL OPERATE IN AN UNINTERRUPTED, SECURE OR ERROR-FREE MANNER. COMPANY ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS, USEFULNESS, OR DECENCY OF THE SERVICES. COMPANY MAKES NO WARRANTY REGARDING THE QUALITY, SAFETY, OR LEGALITY OF THE SERVICES, AND COMPANY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.

YOU ACKNOWLEDGE THAT COMPANY HAS NO CONTROL OVER AND DOES NOT GUARANTEE AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE QUALITY, SAFETY OR LEGALITY OF INTERACTIONS OR EVENTS FORMED OR POSTED AS A RESULT OF THE SERVICES OR THE TRUTH OR ACCURACY OF ANY REGISTERED USERS (INCLUDING WITHOUT LIMITATION IDENTITY, AGE OR CONDUCT).

YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES. ANY SERVICES CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE DONE TO YOUR COMPUTER OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITY.

IN NO EVENT SHALL COMPANY, OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (“AFFILIATED ENTITIES”) BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR OTHER INTANGIBLES, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY OR PERSON OR CLAIMS OF THIRD PARTIES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RESULTING FROM (1) THE USE OF OR INABILITY TO USE THE SERVICES, ANY SERVICES, OR THE USER CONTENT; (2) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SERVICES; (3) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICES, ANY SERVICES AND/OR USER CONTENT; (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (5) ANY OTHER MATTER RELATING TO THE SERVICES, ANY SERVICES, OR THE USER CONTENT. YOU SPECIFICALLY AGREE THAT COMPANY IS NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR UNLAWFUL, HARASSING, DEFAMATORY, ABUSIVE, THREATENING, HARMFUL, VULGAR, OBSCENE, SEXUALLY EXPLICIT, OR OTHERWISE OBJECTIONABLE CONDUCT OR SPEECH OF ANY OTHER PARTY ON OR THROUGH, OR ARISING FROM THE SERVICES, OR FOR ANY INFRINGEMENT OR VIOLATION OF YOUR RIGHTS BY ANY OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. THE MAXIMUM LIABILITY OF COMPANY AND THE AFFILIATED ENTITIES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE WILL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO COMPANY TO ACCESS AND USE THE SERVICES. IF YOU LIVE IN A JURISDICTION WHOSE LAWS PREVENT YOU FROM TAKING FULL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES IN ACCORDANCE WITH THESE TERMS AND CONDITIONS, COMPANY’S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY THE LAW OF THAT JURISDICTION.

XV. Governing Law and Jurisdiction

Company operates the Services from its offices in Durham, North Carolina, U.S.A. These Terms and Conditions and the transactions they contemplate, including without limitation their interpretation, construction, performance and enforcement shall be governed by the laws of the State of North Carolina, U.S.A. without reference to conflict or choice of law provisions, as applicable to contracts made and performed entirely within such State. The International Convention on the Sale of Goods, and other international treaties that are not mandatory with respect to contracts made and performed entirely in the United States, shall not apply. The exclusive forum for the resolution of any dispute relating to these Terms and Conditions shall be the state and federal courts in Wake County, North Carolina, U.S.A., and you agree to personal jurisdiction of such courts over you with regard to any dispute relating to these Terms and Conditions and agree to service of process on you by e-mail to the address you have submitted on the Services, if any, and by any other means permitted by law.

XVI. Notice

All notices, demands, or consents given by you under these Terms and Conditions will be in writing and will be deemed given when delivered to Company at the following contact:

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.

P.O. Box 2611

Raleigh, NC 27602-2611

Attention: Matthew G. Lenora

Any notices to you may be made via either e-mail or postal mail to the address in Company’s records or via positing on the Services.

Please report any violations of these Terms and Conditions to Company at the contact listed above.

XVII. Miscellaneous

You may not assign, sublicense or otherwise transfer any of your rights under these Terms and Conditions. If any provision of these Terms and Conditions is found to be invalid by any court having competent jurisdiction, the invalidity of that provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Headings in these Terms and Conditions are for convenience only and shall have no legal meaning or effect. No action arising under this Agreement may be brought at any time more than twelve (12) months after the facts occurred upon which the cause of action arose. These Terms and Conditions, and not the conduct between us or any trade practice, shall control the interpretation of these Terms and Conditions between the parties respecting the Services. Company’s failure to enforce a particular provision of these Terms and Conditions does not mean that Company waives the right to enforce it in the future; Company shall waive such a right only in writing.

These Terms and Conditions and all other written agreements duly executed between you and Company in connection with your use of the Services constitute the entire agreement between you and Company with respect to the subject matter hereof and supersede any prior or contemporaneous proposals, discussions, communications, or oral agreements heretofore made.

XVIII. Procedure for Making Claims of Copyright Infringement

We expect users of the Services to respect the intellectual property rights of others. If you believe in good faith that any of the content on the Services infringes your copyright, please provide our copyright agent the written information specified below.

(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

(b) A description of the copyrighted work that you claim has been infringed;

(d) Your address, telephone number and email address;

(e) 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

(f) A statement by you, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.

Company’s copyright agent for notice of claims of copyright infringement can be reached as follows: