Tonk Group, LLC Raffle Terms of Services Agreement

Terms of Services (“Terms”)

Please read these Terms of Services before submitting your Charity’s Raffle Services Registration for raffle services provided by Tonk Group, LLC.

Charity access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, employees, volunteers, members, users and others who access or use the Services.

By accessing or using the services, you agree to be bound by these Terms. If you disagree with any part of these Terms you may not access the services.

Charity represents and warrants that:

TONK is the exclusive supplier of electronic raffle management Systems, Tickets, software, contests, and Accessories to Charity.

TONK shall be responsible for all costs required to allow the Users to play 50/50 on the software.

All costs and expenses incurred in Charity’s operation of the systems, including, without limitation, costs for rent, utilities, Internet service, and leasing space in which to operate, oversee and manage the systems, shall be paid for by the Charity.

Charity agrees to open a bank account with a bank located in New Hampshire exclusively for all raffle revenue, transaction fees and disbursements to winner and Charity operating fund.

TONK shall provide to Charity operating instructions for the systems, and Charity shall maintain and operate the systems in accordance with such instructions. The operating instructions provided to the Charity are confidential and are considered to be an integral part of the systems. On termination of this Agreement, all operating instructions shall be returned to TONK, without the Charity making or retaining copies thereof.

Charity agrees to licence the use of its URLs, the associated brand, content, images, likeness, trademarks and any additional or related subdomains utilized to market the 50/50 platform to Tonk for the operation of the 50/50 platform for as long as this Agreement remains in effect.

Conditions of License:

This Agreement is made under the following terms and conditions:

TONK offers a 50/50 raffle where nonprofits may offer tickets for purchase online, where a winning ticket/number is selected either weekly, bi-weekly or monthly, or other time frame, ​and the purchaser of the winning ticket/number receives 50% of the cash value of the total tickets purchased during the time period leading up to the draw date and time.

Charity acknowledges that the rights in and to TONK and it’s software may be assigned, licensed, sub-licensed or otherwise transferred by TONK to any third party at its total discretion.

Charity receives the remaining 50% of the total cash value of the tickets sold less (a) all ticket processing ​fees including debit card/merchant service processing fees and (b) TONK’s 16% licensing and service fee.

TONK shall not be responsible for performance failure or other disruptions to the services contemplated hereunder due to causes beyond its control, including, but not limited to, power failures, technology failures, work stoppages, fires, civil disobedience, riots, rebellions, acts of God, and similar occurrences.

Regulatory Compliance.

Charity covenants, represents and warrants that the Equipment, when under Charity’s use, control or supervision, whether during the Operating Period or otherwise, shall only be used in accordance with New Hampshire law.

Local Compliance. Following execution of this Agreement, Charity shall promptly, but no later than within five (5) business days, provide TONK a copy of Charity’s valid Raffle Permit issued by the selectmen or designee of the town, or the mayor and aldermen or designee of the city where the drawing for prizes is to be held that Charity hereby represents and warrants is current and valid for one year as of the effective date.

Distribution of Tickets. Raffle tickets shall be sold only to persons 16 years of age or over and no raffle tickets shall be sold by persons other than the members of the Charity or such person or persons, as may be designated by the organization, and who shall receive no financial remuneration.

Term and Termination:

This Agreement shall commence and be deemed effective on the date when submitted and shall remain in effect for a period of two years (the “Term”) unless either party is in breach of any of the Terms and Conditions of this Agreement.

At its option, TONK may by written notice to Charity declare Charity in default on the occurrence of any of the following events:

  • Failure by Charity to make payments or perform any other of its obligations as set forth in this Agreement.

  • Charity fails to comply with any of the applicable terms, conditions or obligations set forth herein.

Charity will conduct all draws, inform players and winners (or non-winners as the case may be) immediately following the draws.

Charity shall remit to Contest winners the total amount of prizes and moneys due immediately at the close of every Raffle by check or money order either in person at the raffle drawing location or Charity location, by certified mail.

Charity shall be responsible for licensing and service charges which shall be paid by Charity to TONK within 7 business days from the end of each Raffle Contest. All payments are to be made payable to Tonk Group, LLC via check, money order or ACH transfer or Direct Deposit into TONK’s bank account.

Charity may incur a 10% late fee for payments not received on time.

Confidentiality & Non-disclosure:

Neither party shall disclose, publish, or disseminate confidential Information to anyone other than those of its employees, partners or others with a need to know, and the parties agree to take all precautions necessary to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. Charity agrees not to use Confidential Information otherwise for its own or any third party’s benefit without the prior written approval of an authorized representative of TONK in each instance.

All Confidential Information, and any derivatives thereof whether created created exclusively by the TONK remain the property of TONK and no license or other rights to Confidential Information is granted or implied hereby. For purposes of this Agreement, “Derivatives” shall mean: (a) for copyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast, transformed or adapted; (b) for patentable or patented material, any improvement thereon; (c) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret; and (d) all customer information including contact and transactional data.

The System and Tickets may be protected by one or more issued patents, pending applications for patents, and copyrights (“Patents and Copyrights”). In addition, there are confidential plans, formulas, processes, algorithms, and programs used in the manufacture and operation of services which may be disclosed to or become known to the Charity during the Term. These plans, formulas, processes, algorithms, and programs (“Proprietary Information”) were generated by TONK at a great expense and disclosed to Charity and are held in confidence, or TONK has received the Proprietary Information from third parties and disclosed them to Charity under an obligation to maintain them as confidential. The Charity agrees to hold and maintain the Proprietary Information in the strictest confidence and in trust for the sole and exclusive benefit to TONK, whether disclosed by or discovered by the Charity. The Charity shall not use the Proprietary Information for its own benefit, publish or otherwise disclose it to others, or permit its use by others for their benefit or to the detriment of TONK, and shall carefully restrict access to the Proprietary Information to those of its employees who clearly require it in order to conduct the obligations of the Charity hereunder.

Technical Support:

TONK shall ensure that customer support is supplied via the Internet and phone or in person during the Term of this Agreement.

Accounting & Data:

Charity shall maintain records of all transactions, including all draws, sales and Net Deposits for at least 1 year from the date of the raffle drawing(s).

Games:

Charity acknowledges that TONK in its sole discretion, shall determine player redemption and deposit policies, betting limits, households, game content and return to player structures for the games pursuant to state and federal law.

Marketing:

Charity must agree to promote the platform to their donors and/or membership base and feature a link and live feed on their website and other social media platforms, to the 50/50 raffle being conducted with TONK’s raffle management system.

Charity grants TONK permission to use Charity’s name or logo on designated areas within the system, in marketing materials, Websites and platforms including digital and print media used in promoting Charity raffles.

Force Majeure and Limitation of Liability.

TONK shall not be responsible for damages caused by its delay or failure to perform in whole or in part under this Agreement, or for noncompliance with any of the terms of this Agreement when such delay, failure or noncompliance is caused by or results from acts of God; fires; floods; strikes or labor disputes; failures or shortages of parts, materials or services required by TONK to perform hereunder; breakdown or destruction of, or damage to, facilities or equipment used for production, transportation or storage of Equipment and/or Tickets; acts in compliance with applicable laws, regulations and requests of any governmental authority or persons purporting to act therefor; seizure or confiscation of Systems and/or Tickets, or any parts or components thereof; or any other causes beyond the reasonable control of TONK, whether or not similar to those enumerated herein. It is understood that the settlement of labor disturbances shall be entirely within the discretion of TONK. For the purposes of this section, the term “TONK” shall be defined to include TONK’s suppliers, contractors and subcontractors. In the event that TONK must invoke the provisions of this section, TONK shall use its best efforts to give to the Charity, in writing, as much advance notice as possible of the underlying circumstances of the particular cause(s) or event(s) of force majeure, and the expected duration thereof. Charity hereby acknowledges and agrees that System malfunctions void all pays and plays and that TONK is not responsible for any liability relating to Tickets that are illegible, mutilated, damaged, altered, counterfeited or forged, defective, misprinted, cancelled, produced in error and/or not recorded in the system, incomplete or not validly purchased. UNDER NO CIRCUMSTANCES SHALL TONK EVER HAVE ANY OBLIGATION, LIABILITY OR RESPONSIBILITY TO THE CHARITY FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, RESULTING FROM ITS FAILURE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, EVEN IF TONK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Arbitration:

Any dispute in connection with this Agreement shall be settled by arbitration in accordance with any Arbitration Act agreed upon between the parties; provided, however, should any dispute arise under this Agreement, the parties shall endeavor to settle such dispute amicably between themselves. In the event that the parties fail to agree upon an amicable solution, such dispute shall be finally determined by arbitration as aforesaid.

Good Faith:

The parties acknowledge to one another that each respectively intends to perform its obligations as specified in this Agreement in good faith.

Parties to Act Reasonably:

The parties agree to act reasonably in exercising any discretion, judgment, approval or extension of time that may be required to effect the purpose and intent of this Agreement. Whenever the approval or consent of a party is required under this Agreement, such consent shall not be unreasonably withheld and/or delayed.

Governing Law:

This Agreement  shall be governed by and construed in accordance with the laws of New Hampshire determinable by TONK. Charity further agrees to attorn to the exclusive jurisdiction of the dispute mechanisms available in New Hampshire, notwithstanding any other provision expressed and/or implied in either this Agreement.

Indemnification

Charity shall defend, indemnify hold TONK, and the shareholders, officers, directors, employees and representatives of each of them (collectively, “Agents”), harmless from and against all loss, liability and expense, including reasonable attorneys’ fees, caused by or arising out of the use, operation or management of the Equipment and/or Tickets not otherwise caused by TONK’S willful misconduct. The Charity shall further defend, indemnify and hold harmless TONK and their Agents from and against all loss, liability and expense, including reasonable attorneys’ fees, resulting from the Charity’s failure to comply with any terms, provisions or conditions of any insurance policy insuring TONK, or the Charity’s authorized agents, or resulting from the Charity’s failure to comply with the terms and provisions of this Agreement. If the Equipment, or any portion thereof covered by this Agreement is/are damaged, lost, stolen, seized, confiscated or destroyed, or if any person is injured or dies or if any property is damaged as a result of its operation, use or possession, the Charity shall promptly notify TONK of the occurrence, and shall file all necessary accident reports, including those required by law and those required by insurers.

Time to be of the Essence:

Time is of the essence of this Agreement and of every part thereof.

Benefit:

This Agreement shall ensure to the benefit of and be binding upon TONK, its successors and permitted assigns. TONK may delegate the performance of any of its obligations hereunder to any third party.

Waiver:

No condoning, excusing or waiver by any party hereto of any default, breach of non-observance by any other party hereto, at any time or times with respect to any covenants or conditions herein contained, shall operate as a waiver of that party’s rights hereunder with respect to any continuing or subsequent default, breach or nonobservance, and no waiver shall be inferred from or implied by any failure to exercise any rights by the party having those rights.

Further Assurance:

Each of the parties hereto hereby covenants and agrees to execute such further and other documents and instruments and to do such further and other things as may be necessary to implement and carry out the intent of this Agreement.

Entire Agreement:

The parties agree that this Agreement along with any appendixes, exhibits or schedules attached, constitutes the complete and exclusive statement of the terms and conditions agreed to between TONK and Charity covering the performance hereof and cannot be altered, amended and/or modified except in writing executed by an authorized representative of each party.

Except as specifically provided for herein, this Agreement contains all of the terms agreed upon by the parties with respect to the subject matter herein and supersedes all prior Agreements, assumptions, arrangements and understandings with respect thereto, whether oral or written.

Severability:

If any part of this Agreement is unenforceable because of any rule of law or public policy, such unenforceable provision shall be severed from this Agreement, and this severance shall not affect the remainder of this Agreement.

No Partnership:

Notwithstanding anything which is contained in this Agreement, no part of this Agreement, nor the Agreement as a whole shall be construed as creating a partnership and/or agency relationship between the parties. If any part of this Agreement should become construed as forming a partnership or agency relationship, that part shall be amended such that no partnership or agency relationship is created, but that part achieves what it was originally intended to achieve.