SKIKRUMB ENTERPRISE TERMS AND CONDITIONS
These Enterprise Terms and Conditions (the “Terms”) are entered into by and between SkiKrumb Trackers Inc. (“SkiKrumb”) and the entity identified in the applicable Order (“Company”). For purposes of this Agreement, an “Order” refers to any order document provided by SkiKrumb and executed by the parties that references these Terms.
These Terms, including the supplemental terms set forth in Schedule A (the “Supplemental Terms”), together with all Orders (collectively, this “Agreement”), govern the relationship between the parties with respect to all Orders, including the Company’s access to and use of SkiKrumb’s products and services as specified therein. SkiKrumb’s products and services include, without limitation: SkiKrumb’s proprietary registration and tracking software-as-a-service solution (the “SkiKrumb Service”), including any data, materials, or content made available through the SkiKrumb Service (“SkiKrumb Content”); SkiKrumb’s proprietary tracking devices that connect to the SkiKrumb Service (“Tracking Devices”), as well as any chargers, scanners or accessories for such devices (collectively “Devices”); any infrastructure installed or provided by SkiKrumb, including antennas (“Infrastructure”); and any related support, training, or other services offered or provided by SkiKrumb (collectively, the “SkiKrumb Products and Services”).
1. GENERAL TERMS
1.1 Updates and Changes. Company acknowledges and agrees that SkiKrumb may, in its sole discretion, make updates, bug fixes, modifications, or improvements to the SkiKrumb Products and Services, or any part or feature thereof (“Updates”), at any time, with or without notice to Company, provided such Updates do not materially reduce the level of performance, functionality, security or availability of the SkiKrumb Products and Services during the then-current Initial Term or Renewal Term, as applicable. SkiKrumb will provide Company 10 days’ notice of any material Updates.
1.2 Third Party Services. Company may have the option to connect to content, functionality, software and other services developed, provided, or maintained by third parties (collectively, “Third Party Services”) through the SkiKrumb Service. All Third Party Services are provided by third parties and are not under the direction or control of SkiKrumb. Company acknowledges and agrees that SkiKrumb shall not be liable or responsible, directly or indirectly, for Company’s, its affiliates’ or its and their respective employees’ and contractors’ (each, an “Authorized User”) access to or use of any Third Party Services, including any damages, losses, liabilities, failures, or problems caused by, related to, or arising from any Third Party Services. Company’s, its Affiliates’ and Company’s Authorized Users’ use of and access to any Third Party Services is solely between Company and the third party provider of the Third Party Services and is subject to any additional terms, conditions, agreements, or privacy policies provided or entered into in connection with the Third Party Services. If SkiKrumb determines (acting in its sole discretion) that a Third Party Service threatens the security, integrity or availability of the SkiKrumb Service, then SkiKrumb may immediately and without notice to Company disable access through the SkiKrumb Service to such Third Party Service.
1.3 Emergency Response Systems. Company represents and warrants that it does, and will continue to, maintain, use and rely upon other incident response and tracking systems and processes for safety, rescue and emergency operations (the “Emergency Response Systems”). The Company acknowledges and agrees that the SkiKrumb Products and Services are intended solely for convenience, may only be used in addition to, and not as a replacement for, the Emergency Response Systems, and are not designed to replace or serve as a substitute for such systems. Company further acknowledges and agrees that it is solely responsible for: (i) evaluating, using, or making any decisions related to the SkiKrumb Products and Services, including any reliance on or actions taken based on the SkiKrumb Products and Services or their outputs, by the Company or any of the Company Parties (“Company Decisions”); (ii) training its Personnel and the Personnel of its affiliates and ensuring that they use, maintain and rely exclusively upon the Emergency Response Systems for safety, rescue and emergency operations; and (iii) ensuring that the SkiKrumb Products and Services are used by its Personnel and the Personnel of its affiliates solely for convenience purposes and not as the basis for any decision related to safety, rescue, or emergency operations.
1.4 Security and Protection. To the extent Devices and/or Infrastructure are provided to Company pursuant to an Order, Company shall take all necessary measures to protect the integrity, security, and exclusivity of the Devices, Infrastructure and network, including but not limited to storing the Devices while not in use in a safe and secure manner, protected from the elements. Except as otherwise provided in this Agreement, Company shall not, and shall not permit, authorize or allow any third party to: (i) attend to, inspect, maintain, or repair any of the Devices or Infrastructure; (ii) make alterations or modifications to the Devices or Infrastructure without the prior written consent of SkiKrumb; or (iii) tap into, intercept, or otherwise access any signals, transmissions, data, or communications flowing through or processed by the Infrastructure network. Company shall promptly report any violation of this Section or any unauthorized access or interference by a third party to SkiKrumb.
1.5 Inspections. To the extent Devices and/or Infrastructure are provided to Company pursuant to an Order, Company shall permit SkiKrumb at all reasonable times to fully inspect the Devices and Infrastructure for any reason, including, without limitation, to determine the condition of the Devices and Infrastructure, to observe the operations of the Devices and Infrastructure, or to confirm Company’s compliance with this Agreement.
1.6 Loss, Damage or Destruction of Devices or Infrastructure. To the extent Devices and/or Infrastructure are provided to Company pursuant to an Order, Company bears all risk of damage to, or loss or destruction of, the Devices and Infrastructure until such time as the Devices and Infrastructure have been returned to SkiKrumb in accordance with the terms of this Agreement. Company shall notify SkiKrumb promptly, but in no event longer than 72 hours of becoming aware, of any damage to or loss of any Devices or Infrastructure, and shall deliver, at Company’s sole cost and expense, any damaged Devices or Infrastructure to SkiKrumb within 30 days of providing such notice. Except for Devices and Infrastructure that are obsolete and no longer in use by SkiKrumb, Company shall pay SkiKrumb for Devices and Infrastructure that are lost or damaged at 100% of the then-current replacement cost for Devices if 10% or greater of the devices are lost or damaged and 100% of the then-current replacement cost for Infrastructure within 30 days of SkiKrumb providing an invoice for such Devices and/or Infrastructure.
2. PAYMENT
2.1 Fees. Company agrees to pay SkiKrumb the fees set out in an Order (if any)(“Fees”), plus all applicable taxes in accordance with the payment terms in the Order. Company acknowledges and agrees that: (a) Fees will not be prorated based on actual usage; (b) payment obligations are non-cancelable and, except as expressly provided in this Agreement, all Fees are non-refundable; and (c) quantities cannot be reduced during an Order Term. Customer may not withhold, reduce or set-off Fees owed.
2.2 Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Company is responsible for paying all Taxes associated with all Fees due under an Order. If SkiKrumb is legally obligated to pay or collect Taxes for which Company is responsible, then SkiKrumb will include and collect such Taxes from Company unless Company provides SkiKrumb with a valid tax exemption certificate authorized by the appropriate taxing authority. SkiKrumb is solely responsible for all taxes assessable against SkiKrumb based on its revenues, assets (including real property) and personnel.
2.3 Expenses. Except as may otherwise be agreed to by the parties in writing, each party is responsible for all expenses incurred by it in connection with performing its obligations under this Agreement.
3. TERM AND TERMINATION
3.1 Term of Agreement. The term of this Agreement commences on the start date specified in the first Order entered into under this Agreement and will continue until all Orders have either expired or been terminated in accordance with this Agreement.
3.2 Order Term. The initial term of each Order (the “Initial Term”) shall be as defined by the start date and end date specified in the applicable Order. Unless otherwise stated in an Order, upon the expiration of the Initial Term, the Order will automatically renew for additional one-year periods (each, a “Renewal Term”), unless either party provides written notice of non-renewal to the other party at least 90 days prior to the end of the then-current term. The Initial Term of an Order, together with any Renewal Terms, is collectively referred to as the “Order Term.”
3.3 Termination. Either party may terminate this Agreement or an Order if the other party: (i) fails to cure any material breach of this Agreement within 30 days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, insolvency, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within 60 days). SkiKrumb may also terminate this Agreement or an Order for any reason by providing Company with 90 days’ written notice. In the event of termination by Company under this Section or termination for convenience by SkiKrumb, SkiKrumb shall provide Company with a pro-rata refund of any prepaid, unused Fees.
3.4 Effect of Termination. On termination or expiration of this Agreement or an Order, to the extent applicable:
(a) Company’s right to access and use the SkiKrumb Products and Services will terminate;
(b) Company shall, at its sole cost and expense and within 10 days or such other timeframe agreed to by SkiKrumb, return all Devices to SkiKrumb in the same condition as when initially provided, reasonable wear and tear only being excepted;
(c) if any Devices or Infrastructure are lost or damaged beyond reasonable wear and tear, Company shall pay to repair such Devices and/or Infrastructure (if practicable, as determined by SkiKrumb) or replace such Devices and/or Infrastructure at 100% of the then-current replacement cost for Devices replacement cost for Devices and 100% of the then-current replacement cost for Infrastructure, within 30 days of SkiKrumb providing an invoice for such repairs or replacements; and
(d) each party will delete the other party’s Confidential Information, but may retain such information pursuant to its policies for: (a) accounting, tax, billing, audit, and compliance purposes; or (b) as required by applicable law, provided such retention, use, and disclosure for the foregoing purposes is subject to the confidentiality obligations under Section 5.
4. INTELLECTUAL PROPERTY
4.1 License Grants. Company is granted a non-exclusive, non-transferable license to sell, distribute, or lease the SkiKrumb Products and Services solely to the extent required for and in accordance with the engagement type selected in the applicable Order and subject to compliance with the terms of this Agreement. To the extent Company provides any content, trademarks, or other materials to SkiKrumb, Company represents and warrants that it has all necessary rights, licenses, and permissions to provide such materials and grants SkiKrumb a non-exclusive, royalty-free license to use them as required to exercise its rights or perform its obligations under this Agreement.
4.2 Operations Data. SkiKrumb may collect technical logs, analytics or other data and learnings related to Company’s use of the SkiKrumb Products and Services (“Operations Data”) and use it to operate, improve and support the SkiKrumb Products and Services and for other lawful business purposes, including benchmarking and reports. SkiKrumb will not disclose Operations Data externally without Company’s prior written consent unless it is: (i) de-identified so that it does not identify Company or any individual; and (ii) aggregated with data across other customers.
4.3 SkiKrumb Proprietary Rights. SkiKrumb’s names, slogans, logos, trademarks, service marks, domain names, and designations, the SkiKrumb Products and Services, Operations Data, Feedback (as defined below), the arrangement and look and feel of the SkiKrumb Products and Services, and any and all documentation, technology, code, and know-how related to, updates and modifications to, or derivative works of any of the foregoing (including any customizations, modifications, adaptations, interfaces or derivative works that may be developed at the request of Company)(collectively the “SkiKrumb IP”) are SkiKrumb’s exclusive property. SkiKrumb retains all rights, title, and interests in and to the SkiKrumb IP. Company acknowledges having been advised by SkiKrumb that the SkiKrumb IP is protected in Canada and internationally by applicable law including, but not limited to, copyright laws, trademark laws, treaty provisions and other intellectual property, confidential information and proprietary rights laws. This Agreement does not grant any right or license to any intellectual property except as expressly provided in this Agreement, and no other right or license is to be implied by or inferred from any provision of this Agreement or by the conduct of the parties.
4.4 Restrictions. Except as expressly permitted in this Agreement, Company agrees Company will not (and will not allow any third party to): (i) rent, lease, copy, transfer, resell, sublicense, time-share, or otherwise provide access to the SkiKrumb Products and Services to a third party; (ii) alter, edit, modify or create derivative works of the SkiKrumb Products and Services or any portion of the SkiKrumb Products and Services; (iii) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs of the SkiKrumb Products and Services; (iv) use the SkiKrumb Products and Services to store or transmit any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses; (v) interfere with or disrupt the integrity or performance of the SkiKrumb Products and Services or third-party data contained therein; (vi) attempt to gain unauthorized access to the SkiKrumb Products and Services or the related systems or networks; (vii) make any representations, warranties, guarantees, indemnities, similar claims or other commitments about the SkiKrumb Products and Services to any third party; (viii) access the SkiKrumb Products and Services for the purpose of building a competitive product or service or copying features or user interfaces of the SkiKrumb Products and Services; (ix) use the SkiKrumb Products and Services in any manner that violates terms of this Agreement or applicable law; (x) remove or obscure any of SkiKrumb’ proprietary or other notices contained in or on the SkiKrumb Products and Services; or (xi) use a third party product, software or service that competes with the SkiKrumb Products and Services in combination with or to connect to any of the SkiKrumb Products and Services.
4.5 Feedback. If Company, its affiliate, any Personnel or any other individual provides suggestions, ideas, enhancement requests, corrections, or other feedback to SkiKrumb concerning the SkiKrumb IP (“Feedback”), SkiKrumb may use, disclose and exploit such Feedback without restriction or any obligation to account to Company or the individual or entity providing the Feedback. SkiKrumb is not required to consider or implement any Feedback.
5. CONFIDENTIALITY
5.1 Confidential Information. All non-public information acquired by one party from the other party in connection with this Agreement, directly or indirectly, and irrespective of the form of the communication or disclosure, whether orally, in writing, by demonstration or electronically, is the disclosing party’s Confidential Information (“Confidential Information”). Furthermore, the terms of any Orders shall constitute SkiKrumb’s Confidential Information. Confidential Information shall not include information that, at the time of the receiving party’s acquisition, was generally available to the public or which, after the receiving party’s acquisition, becomes generally available to the public other than as a result of a disclosure by the receiving party in violation of this Agreement.
5.2 Restrictions on Disclosure. The receiving party agrees that all Confidential Information of the disclosing party shall be maintained in strict confidence and not be used for any purpose unrelated to this Agreement nor disclosed to any third party. The receiving party shall take all reasonable precautions against the disclosing party’s Confidential Information being accessed, used, acquired by, or disclosed to any unauthorized person. These precautions shall involve the same degree of care that the receiving party uses in preserving the confidentiality of its own confidential information, which shall in no event be less than reasonable care.
6. DISCLAIMER
6.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SKIKRUMB PRODUCTS AND SERVICES ARE MADE AVAILABLE ON AN “AS-IS”, “AS AVAILABLE”, “WHERE AS” AND “WITH ALL FAULTS” BASIS. SKIKRUMB EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, ACCURACY, RELIABILITY, WORKMANSHIP, AVAILABILITY, EFFECTIVENESS, QUALITY AND NON-INFRINGEMENT OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
6.2 SKIKRUMB DOES NOT WARRANT THAT THE SKIKRUMB PRODUCTS AND SERVICES ARE SUITABLE FOR OR WILL MEET COMPANY’S REQUIREMENTS, INCLUDING BUT NOT LIMITED TO COMPLYING WITH ANY LAW, RULE OR REGULATION, OR THAT THE SKIKRUMB PRODUCTS AND SERVICES ARE FREE OF DEFECTS, MALICIOUS CODE, VIRUSES OR MALWARE. SKIKRUMB DOES NOT WARRANT THAT THE OPERATION OF THE SKIKRUMB PRODUCTS AND SERVICES WILL BE FREE FROM INTERRUPTION OR ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SKIKRUMB PRODUCTS AND SERVICES WILL BE CORRECTED.
7. LIMITATION OF LIABILITY
7.1 SKIKRUMB IS NOT RESPONSIBLE OR LIABLE FOR COMPANY’S, IT’S AFFILIATE’S OR ITS OR THEIR PERSONNEL’S USE OF, RELIANCE UPON, OR INABILITY TO USE THE SKIKRUMB PRODUCTS AND SERVICES OR ANY THIRD PARTY SERVICES. COMPANY ACCEPTS THAT ANY AND ALL ACCESS TO AND USE OF THE SKIKRUMB PRODUCTS AND SERVICES AND ANY THIRD PARTY SERVICES BY COMPANY, ITS AFFILIATE, OR ITS OR THEIR PERSONNEL SHALL BE ENTIRELY AT COMPANY’S SOLE RISK AND EXPENSE. FOR THE PURPOSES OF THIS AGREEMENT, “PERSONNEL” MEANS ANY INDIVIDUAL OR ENTITY EMPLOYED, ENGAGED, CONTRACTED, AUTHORIZED, OR OTHERWISE INVOLVED BY OR ON BEHALF OF COMPANY OR ITS AFFILIATE, INCLUDING EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, VOLUNTEERS, AND ANY THIRD-PARTY EMERGENCY RESCUE TEAMS OR INDIVIDUALS TO WHOM COMPANY GRANTS ACCESS, DIRECTLY OR INDIRECTLY, TO THE SKIKRUMB PRODUCTS AND SERVICES.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY, ON COMPANY’S OWN BEHALF AND ON BEHALF OF COMPANY’S AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, PERSONNEL, AGENTS, INVITEES, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (THE “COMPANY PARTIES”), HEREBY RELEASES AND FOREVER DISCHARGES SKIKRUMB, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “SKIKRUMB PARTIES”) FROM ANY AND ALL CLAIMS AND LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT AND THE SKIKRUMB PRODUCTS AND SERVICES, OF ANY NATURE OR KIND WHATSOEVER, AND REGARDLESS OF THE THEORY OF LIABILITY (WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), THAT ANY OF THE COMPANY PARTIES NOW HAVE OR IN FUTURE MAY HAVE, EVEN IF ANY OF THE SKIKRUMB PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR SUCH LOSSES WERE OTHERWISE REASONABLY FORESEEABLE, INCLUDING IN RESPECT OF PROPERTY DAMAGE, PERSONAL OR BODILY INJURY, OR DEATH. FOR THE PURPOSES OF THIS AGREEMENT, “CLAIM” MEANS ANY AND ALL MANNER OF CLAIMS, DEMANDS, ACTIONS, SUITS, INVESTIGATIONS OR PROCEEDINGS, INCLUDING, WITHOUT LIMITATION, ALL RIGHTS WITH RESPECT TO ANY AND ALL MANNER OF LOSSES AND “LOSSES” MEANS ANY AND ALL MANNER OF LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING LEGAL FEES AND EXPENSES ON A FULL INDEMNITY BASIS), KNOWN OR UNKNOWN, FORESEEABLE OR NOT FORESEEABLE, LIQUIDATED OR UNLIQUIDATED, DIRECT OR INDIRECT.
7.3 IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISION OF THE SKIKRUMB PRODUCTS AND SERVICES UNDER THIS AGREEMENT SHALL NOT INCLUDE ANY ASSUMPTION OF RISK OR LIABILITY BY THE SKIKRUMB PARTIES FOR ANY LOSSES SUFFERED BY THE COMPANY PARTIES OR ANY CLAIMS MADE AGAINST THE COMPANY PARTIES BY ANY PARTY RELATING TO THE SKIKRUMB PRODUCTS AND SERVICES OR THEIR USE. COMPANY FURTHER AGREES AND ACKNOWLEDGES THAT THE SUPPLY OF THE SKIKRUMB PRODUCTS AND SERVICES IS CONDITIONAL ON THE ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, INCLUDING THE DISCLAIMER OF WARRANTIES (SECTION 5), THE LIMITATION OF LIABILITY (SECTION 6) AND THE INDEMNITIES (SECTION 7) SPECIFIED HEREIN. IT IS AGREED AND ACKNOWLEDGED THAT THE FUNDAMENTAL PURPOSE OF THESE PROVISIONS IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT AND FOR THE SUPPLY AND USE OF THE SKIKRUMB PRODUCTS AND SERVICES BETWEEN SKIKRUMB AND COMPANY AND EACH HAS RELIED ON THIS ALLOCATION AND LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THE AGREEMENT. THIS LIMITATION UPON CLAIMS AND LOSSES SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE OTHERWISE PROVEN INEFFECTIVE OR UNENFORCEABLE.
7.4 TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY AGREES THAT IT SHALL NOT PURSUE ANY CLAIM OF ANY KIND, NATURE OR CHARACTER WHATSOEVER AGAINST SKIKRUMB IN ANY COURT, ADMINISTRATIVE AGENCY, ARBITRAL FORUM, OR OTHER TRIBUNAL, ARISING OUT OF OR IN ANY WAY RELATED TO ANY COMPANY DECISIONS.
8. INDEMNITY
8.1 Indemnity by Company. To the maximum extent permitted by applicable law, Company shall defend, indemnify, and hold harmless the SkiKrumb Parties from and against any and all third-party Claims and SkiKrumb Losses arising out of or relating to: (i) Company’s breach of any representation, warranty, or obligation under this Agreement; (ii) Company’s negligence or willful misconduct in marketing, distributing, leasing, or selling the SkiKrumb Products and Services; (iii) any unauthorized modifications or misuse of the SkiKrumb Products or Services by or for the Company; and (iv) any misrepresentations or unauthorized statements made by the Company regarding the SkiKrumb Products and Services.
8.2 Indemnification Procedure. SkiKrumb may, at its own expense, participate in the defense of any Claim with counsel of its choosing. If Company fails to assume or diligently defend any Claim subject to indemnification within 15 days of receiving notice of the Claim, SkiKrumb may assume control of the defense and hire counsel of its choosing, with all reasonable costs and expenses, including attorneys’ fees, advanced or reimbursed by Company. Company may not, without SkiKrumb’s prior written consent (not to be unreasonably withheld or delayed), settle, compromise, or consent to the entry of any judgment in any such commenced or threatened Claim, if such settlement, compromise, or consent: (a) imposes any obligation, liability, or restriction on SkiKrumb; (b) does not provide a full and unconditional release of SkiKrumb; or (c) adversely affects SkiKrumb’s business, reputation, or operations.
9. MISCELLANEOUS
9.1 Amendment of Enterprise Terms and Conditions. SkiKrumb may amend these Terms (including the Supplemental Terms) at any time. Any amendments will become effective on the earlier of: (i) the next Renewal Term of any existing Order(s), or (ii) the execution of an Order by Company that incorporates the updated Terms. By continuing to use the SkiKrumb Products or Services or entering into new Orders following the effective date of the updated Terms, Company agrees to be bound by the updated Terms. If Company does not agree to the updated Terms, Company may terminate this Agreement or any active Order(s) as permitted under the Agreement.
9.2 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including labor disputes, strikes, destruction of equipment, interruption or break-down of transport, internet, telecommunication, cellular network, information system, power or energy, wars, riots, terrorism, criminal acts of third parties, inclement weather, acts of God or governmental action, provided that such party uses commercially reasonable efforts to resume performance as soon as reasonably practicable.
9.3 Publicity. Unless otherwise stated in an Order, Company consents to SkiKrumb referencing Company, including its trademarks or trade names, on SkiKrumb’s website and in marketing materials.
9.4 Survival. Sections 2.2, 3.4. 4, 5, 6, 7, 8, and 9.4 – 9.12 of these Terms and Sections 1.5 and 3.6 of the Supplemental Terms, together with any provisions necessary for the interpretation and construction of this Agreement, shall survive and continue notwithstanding any termination of this Agreement.
9.5 Relationship. Nothing in this Agreement will be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
9.6 Notices. Under this Agreement, notices to Company will be sent to the contact email identified on the applicable Order, and notices to SkiKrumb must be sent to [email protected]. Notice will be treated as received when the email is sent. A party may change the address to which to send notices by notifying the other party of such changes in writing in accordance with this Section.
9.7 Entire Agreement. This Agreement, including the Order(s), constitutes the entire agreement of the parties related to the subject matter of this Agreement and supersedes all prior or contemporaneous understandings, agreements, and representations and warranties, both written and oral, related to the subject matter of this Agreement (including, without limitation, any letter of intent entered into by the parties). For clarity, terms and conditions included in Company’s purchase order, or contained on any ‘shrinkwrap’ agreement, committing document or other form provided or generated by Company will be of no force and effect, even if ‘accepted,’ acknowledged or ‘clicked-through’ by SkiKrumb. If there is a conflict among the documents that make up this Agreement, then the following precedence will apply: (1) the applicable Order; (2) the main text of these Terms; and (3) the Supplemental Terms.
9.8 Enurement and Assignment. Neither party may assign its rights and obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, SkiKrumb may assign its rights and obligations to an acquirer of all or substantially all of its business assets in connection with merger, corporate reorganization, or like corporate transaction. This Agreement is binding on and will enure to the benefit of the parties and their respective permitted successors and assigns.
9.9 Waiver and Severability. A waiver of any term of this Agreement is effective only if it is in writing and signed by the authorized representatives of both parties and is not a waiver of any other term. Each section of this Agreement is distinct and severable. If any section of this Agreement, in whole or in part, is or becomes illegal, invalid, void, voidable or unenforceable in any jurisdiction by any court of competent jurisdiction, the illegality, invalidity or unenforceability of that section, in whole or in part, will not affect: (i) the legality, validity or enforceability of the remaining sections of this Agreement, in whole or in part; (ii) the legality, validity or enforceability of the remaining part of that section, if applicable; or (iii) the legality, validity or enforceability of that section, in whole or in part, in any other jurisdiction.
9.10 No Drafting Presumption. Each party has consulted with and sought the advice of counsel in the negotiation of this Agreement, or has had the opportunity to do so. Accordingly, in interpreting the provisions of this Agreement, no presumption shall apply against a party that otherwise would operate against such party by reason of such document having been drafted by such party or at the direction of such party.
9.11 Governing Law, Jurisdiction and Venue. This Agreement is governed by and is to be construed in accordance with the laws of the Province of British Columbia, without giving effect to any choice or conflict of law rule in any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods. The parties accept and submit to the exclusive jurisdiction of the federal or provincial courts located in Vancouver, British Columbia, Canada, and waive all objections to jurisdiction and venue of such courts; provided that nothing in this Section will restrict SkiKrumb from seeking injunctive relief in a forum of its choice.
9.12 Jury Trial and Costs Recovery. EACH PARTY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees on a full indemnity basis.
SCHEDULE A
SUPPLEMENTAL TERMS
These Supplemental Terms apply only to the extent that the applicable engagement type is selected in the Order. If an engagement type is not selected in the Order, the corresponding Supplemental Terms do not apply to that Order.
1. AFFILIATE MARKETING
If the “Affiliate Marketing” checkbox is selected in the Order, the following terms and conditions apply:
1.1 Promotion. Company shall include a prominent link on its website to promote and sell the SkiKrumb Products and Services. All marketing content related to the SkiKrumb Products and Services will be provided by SkiKrumb and may not be modified by Company without SkiKrumb’s prior written consent. Company agrees to use commercially reasonable efforts to promote the SkiKrumb Products and Services.
1.2 Revenue Share. SkiKrumb customers will purchase SkiKrumb Products and Services directly from SkiKrumb and SkiKrumb shall be responsible for the fulfillment of all orders. Company will receive a commission on the sale price of each Tracking Device and on the subscription fees for each subscription to the SkiKrumb Service sold via the link on the Company’s website during the Order Term, in the amounts specified in the Order (if any), excluding any applicable taxes (“Revenue Share”). For clarity, no Revenue Share shall be payable for any subscriptions sold after the termination of this Agreement or the applicable Order, regardless of whether such subscriptions are renewals of subscriptions sold during the Order Term. SkiKrumb shall provide Company with a monthly sales report detailing the number of Tracking Devices and subscriptions sold via the link on the Company’s website and the corresponding Revenue Share.
1.3 Payment. SkiKrumb shall pay Company the Revenue Share within 30 days following the end of each month, commencing from the month in which Company begins winter operations. Revenue Share accrued prior to the first day of winter operations will be included in the initial Revenue Share payment.
1.4 Trademarks. Each party grants the other a non-exclusive, non-transferable, royalty-free license to use its trademarks, service marks, and logos (collectively, ‘Marks’) in connection with the marketing and sale of the SkiKrumb Products and Services during the Order Term. Such use must be in accordance with any trademark usage guidelines provided by the other Party.
1.5 Effect of Termination. Upon termination or expiration of the Order, Company shall immediately cease using SkiKrumb’s marketing content and remove any links to SkiKrumb’s website. All accrued but unpaid Revenue Share up to the date of termination will be paid to Company within 30 days of the termination date.
2. RENTAL LOCATION
If the “Rental Location” checkbox is selected in the Order, the following terms and conditions apply:
2.1 Payment for Tracking Devices. Payment for Tracking Devices may be made by SkiKrumb Customers either: (i) directly to SkiKrumb via the SkiKrumb Service for pick-up at the Company’s premises; or (ii) directly to the Company when rented in-store at the Company’s premises.
2.2 Revenue Share. For Tracking Devices purchased via the SkiKrumb Service for pick-up at the Company’s premises, SkiKrumb shall pay Company a one-time fee equal to the percentage specified in the Order of the rental price actually received by SkiKrumb from the customer. For Tracking Devices rented directly in-store, Company shall pay SkiKrumb a one-time fee equal to the percentage specified in the Order of the rental price received by the Company from the customer. For the purposes of this Agreement, all payments described in this section shall collectively be referred to as “Revenue Share.”
2.3 Reporting and Payment. Commencing after the month in which Company begins winter operations, SkiKrumb shall provide Company with a monthly report detailing: (i) the total Revenue Share owed by SkiKrumb to Company for rentals purchased through the SkiKrumb Service in the previous month; (ii) the total Revenue Share owed by Company to SkiKrumb for in-store rentals purchased in the previous month; and (iii) the net amount due from one party to the other after offsetting the amounts described in subsections (i) and (ii). Payment of the net amount shall be made by the party owing the balance within 15 days of receiving the report. Revenue Share accrued prior to the first day of winter operations will be included in the initial Revenue Share report and payment.
3. INFRASTRUCTURE
If the “Infrastructure” checkbox is selected in the Order, the following terms and conditions apply:
3.1 License. Company hereby grants SkiKrumb an exclusive, non-fee-bearing license to occupy and attend the location identified as the “Licensed Location” on the Order (the “Licensed Location”) for the purpose of maintaining and repairing, and if applicable, installing and removing, the Infrastructure in order to provide the SkiKrumb Products and Services.
3.2 Reservation of Rights by SkiKrumb. Notwithstanding the degree of attachment or affixation of the Infrastructure to the Licensed Location or any rule of law or equity to the contrary, the Infrastructure shall at all times remain the sole and exclusive property of SkiKrumb. Company acknowledges and agrees that Company does not and shall not claim any rights, title or interests of any kind or extent whatsoever in or to the Infrastructure by virtue of this Agreement or the installation or occupation of the Infrastructure on the Licensed Location, including but not limited to any right to use or connect to the Infrastructure for any purpose other than to access or offer the SkiKrumb Service in accordance with this Agreement.
3.3 Installation and Repair. Unless otherwise agreed to in writing, Company shall be responsible, at its sole cost and expense, for installing and removing the Infrastructure at and from the Licensed Location in accordance with any written instructions that may be provided by SkiKrumb from time to time. Except as expressly provided in this Agreement, SkiKrumb shall be responsible, at its sole cost and expense, for maintaining and repairing the Infrastructure at the Licensed Location.
3.4 Access. SkiKrumb and its employees, contractors or agents agree to only access the Licensed Location upon advance written notice to Company and in compliance with any security protocols and procedures communicated in writing by Company from time to time.
3.5 Utilities and Expenses. Company shall be responsible for all utilities associated with the Licensed Location, including as related to operation of the Infrastructure, and shall, at its sole cost and expense, keep and maintain the Licensed Location and the Infrastructure, and any other equipment, fixtures or property at the Licensed Location, in good repair and in a clean and safe condition.
3.6 Effect of Termination. Upon termination or expiration of this Agreement or the applicable Order, Company shall, at its sole cost and expense, uninstall the Infrastructure from the Licensed Location. SkiKrumb shall, at SkiKrumb’s sole cost and expense, retrieve the Infrastructure from the Company within a timeframe mutually agreed upon by the parties, following written notice from the Company confirming the uninstallation.
4. SKI SCHOOL / SHUTTLE TRACKER
If the “Ski School” or “Shuttle Tracker” checkbox is selected in the Order, the following terms and conditions apply:
4.1 Delivery. SkiKrumb shall deliver the Devices to Company, at SkiKrumb’s sole cost and expense, by the date mutually agreed upon by the parties.
4.2 Use of the SkiKrumb Service. Subject to the terms of this Agreement, SkiKrumb grants Company a fee-bearing, non-exclusive, revocable, non-transferable, non-sub-licensable, personal and limited right to access and use the SkiKrumb Service solely for Company’s internal business purposes for the Order Term. Company may allow its Authorized Users to use the SkiKrumb Service, provided that: (i) Company causes each Authorized User to use the SkiKrumb Service in accordance with this Agreement; and (ii) Company remains liable for each Authorized User’s use of the SkiKrumb Service and compliance with this Agreement as if the Authorized User was Company.
4.3 Account Activity. Company is responsible for all activities that occur under Company’s accounts, including, but not limited to, maintaining the confidentiality of login credentials associated with the accounts, ensuring that only those individuals authorized by Company have access to the accounts and any connected Third Party Services, and ensuring that all activities that occur in connection with Company’s accounts comply with this Agreement and applicable law.
4.4 Company Content. Company acknowledges and agrees that it is solely responsible for the legality, completeness, accuracy, quality and suitability of any material that Company or its Personnel submits, creates or uploads by use of the SkiKrumb Service (“Company Content”), including but not limited to obtaining all necessary consents and authorizations, and providing all required notices, to ensure that the collection, use and disclosure of personal information by Company complies with applicable law. As between SkiKrumb and Company, Company owns all right, title and interest in and to Company Content. Company grants SkiKrumb a sublicensable, fully paid-up, non-exclusive, limited right to use Company Content as necessary to provide and improve the SkiKrumb Products and Services.
4.5 Ski School – Additional Obligations. If the “Ski School” checkbox is selected in the Order, Company shall only provide Tracking Devices to those individuals that are participating in a class at the Company’s ski school.
4.6 Shuttle Tracker – Additional Obligations. If the “Shuttle Tracker” checkbox is selected in the Order, Company shall:
(a) prominently display the marketing materials provided by SkiKrumb in the shuttle at all times;
(b) ensure that the SkiKrumb logo on the online shuttle tracking widget is not obscured or altered in any way; and
(c) keep the shuttle Tracking Device(s) fully charged at all times and ensure that the Tracking Device(s) remain with the shuttle(s) and powered on.
4.7 Suspension. Without limitation to SkiKrumb’s right to terminate this Agreement or the applicable Order, SkiKrumb may suspend Company’s and its Authorized Users’ access to the SkiKrumb Service: (i) upon notice to Company if Company or an Authorized User commits a material breach of this Agreement, including Company’s failure to pay the Fees when due; or (ii) immediately, where any use of the SkiKrumb Products and Services, in SkiKrumb’ sole discretion, threatens the security, integrity or availability of the SkiKrumb Products and Services. SkiKrumb will provide Company with notice and an opportunity to remedy such breach (including 15 days’ written notice if Company is in default of its payment obligations hereunder) before any such suspension. SkiKrumb will promptly remove such suspension once the applicable breach has been cured or the event that threatened the security, integrity or availability of the SkiKrumb Products and Services is resolved. Suspension of the SkiKrumb Service will not constitute a termination of this Agreement or the appliable Order, nor will it relieve Company of any of Company’s obligations or liabilities under this Agreement.
4.8 Content Export. On termination or expiration of this Agreement or the applicable Order, if the SkiKrumb Service does not include a feature that enables Company to export Company Content prior to the end of the Order Term, SkiKrumb will assist Company to export the Company Content, provided Company makes such request before the end of the Order Term.