Last updated: February 23, 2021.
THESE INFLUENCER MARKETING & SALES PROGRAM TERMS OF SERVICE (“TERMS”) ARE A LEGAL CONTRACT BETWEEN THE ENTITY IDENTIFIED ON THE ORDER FORM REFERENCING AND INCORPORATING THESE TERMS (“COMPANY”) AND GUIDEFITTER, INC. ("GUIDEFITTER"), AND GOVERN COMPANY’S USE OF AND PARTICIPATION IN GUIDEFITTER’S INFLUENCER MARKETING & SALES PROGRAM (THE "SERVICE").
Guidefitter operates a software platform, including without limitation certain mobile applications, the website located at www.guidefitter.com (and any other websites set forth on the Order Form or otherwise provided by Guidefitter pursuant to the Agreement as designated by Guidefitter) and related service (collectively, “Website”) to identify, verify and organize a database of Insiders.
The Service includes ongoing marketing by Guidefitter to encourage eligible Insiders to opt-in to participating in the Company’s Brand Program via a listing for the Company on the Website and also encourages and enables participating Customers to shop for and purchase Products from the Website.
The Service allows Customers to create promotional content including but not limited to product reviews in order to promote the Company and its Products to other Customers.
The Service provides certain community features encouraging Customers to share content with each other, create personal or professional profiles, answer questions and generally engage with each other online.
The Service allows Customers to shop for those Company’s Products set forth on the Order Form via the Website pursuant to the Guider Online Retailer Addendum available at https://www.guidefitter.com/legal/online-retailer-addendum (“Retailer Addendum”, collectively with these Terms and the Order Form, the “Agreement”).
The Service provides certain reporting features made available to the Company through a Company-branded online portal whereby the Company can view program participation, sales statistics, and other information Guidefitter makes generally available to its other brand partners (“Brand Portal”, references to the Website and Service include the Brand Portal). The Brand Portal also provides certain shipping and logistics features enabling the Company to provide information regarding the shipping and fulfillment status of Orders.
The Service may also include certain business to business integration services, enabling the Company to integrate its inventory, order fulfillment, shipping and other IT systems with the Website.
In consideration of the mutual promises and agreements set forth in these Terms, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed by the parties, the parties agree as follows:
1.1 “Activation Date” means the date, set forth in the applicable Order Form, on which Insiders can began opting in to receive discounts on Company’s Products, even if no Products are made available on the Website.
1.2 “Affiliate” means any entity that controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise. An entity shall be considered an “Affiliate” only so long as that entity meets the foregoing definition.
1.3 “Brands” means those Company lines of products identified on the Order Form as being subject to this Agreement.
1.4 “Brand Programs” means pro purchase programs also sometimes known as insider or influencer programs, whereby Company has decided to offer certain discounts to eligible Insiders (as defined herein) in one or more Insider Categories.
1.5 “Company Data” means all data, images, text, content or other materials submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Company or any User on or through the Service.
1.6 “Company Content” means images, text, content, trademarks, logos, or other materials provided to Guidefitter for use in developing Company-specific pages and content for the Service. Company Content includes the Product Collateral.
1.7 “Company System” means Company’s internal website(s), servers and other equipment and software used in the conduct of Company’s business.
1.8 “Conservation Org” means organizations that are directly involved in the conservation and preservation of game animals or game fish (animals/fish that can be legally harvested/caught) and/or their habitat, including for example The National Wild Turkey Federation (NWTF), The Rocky Mountain Elk Foundation (RMEF), The Wild Sheep Foundation (WSF) and Safari Club International (SCI).
1.9 “Conservation Org Members” means those Customers who are active members in good standing with a Conservation Org as validated by Guidefitter.
1.10 “Conservation Org Member Discount” means the percentage discount, if any, that is used to calculate the Conservation Org Member Price, as set forth on the Order Form.
1.11 “Conservation Org Member Price” means the price at which a Conservation Org Member can purchase Products from Guidefitter.
1.12 “Customer(s)” includes General Consumers, Conservation Org Members and Insiders.
1.13 “Customer Price” means the price at which a Customer can purchase Products from Guidefitter.
1.14 “Customer Sale” means any sale of Products to a Customer, whether a Drop Ship Sale or Inventory Sale.
1.15 “Documentation” means the online user instructions and help files made available by Guidefitter for use with the Service, as may be updated from time to time by Guidefitter.
1.16 “Drop Ship Order” means the order placed by Guidefitter with Company that occurs simultaneously with a Drop Ship Sale. The Drop Ship Order placed with Company will always have Guidefitter as the purchaser of the Product, and the ship-to information on the Drop Ship Order will be that of the Customer.
1.17 “Drop Ship Sale” means a sale by Guidefitter to a Customer for Products that are not managed by Guidefitter in its own physical inventory. The inventory is managed by the Company or the Company's affiliates in their own warehouse(s).
1.18 “General Consumers” means persons who visit the Website and may purchase Products but who are not Insiders. General Consumers are not typically eligible for Insider Discounts.
1.19 “General Consumer Discount” means the percentage discount authorized by the Company on the Order Form, if any, that may be used to calculate the General Consumer Price.
1.20 “General Consumer Price” means the Customer Price authorized by Company for a General Customer.
1.21 “Guidefitter Content” means any content provided to Company or its Users via the Service, including original artwork, graphics, photographs, images, screen shots, text, trademarks, logos, Participant information, and any combination of the foregoing.
1.22 “Guidefitter Price” means the price at which Guidefitter can purchase products from Company.
1.23 “Insiders” means persons who have successfully gone through Guidefitter’s verification/vetting process and have been placed into a specific Insider Category. Insiders are industry influencers of some type or another that may be eligible to receive Insider Pricing and/or the Insider Discounts for purchases of certain Products pursuant to Company’s Brand Program and this Agreement.
1.24 “Insider Categories” means specific audiences of Insiders, managed by Guidefitter on the Website, including Guides & Outfitters, Military, First Responders, Outdoor Government Employees, Brand Employees, Retail Associates, Outdoor Educators and any other audiences as may be introduced by Guidefitter in the future.
1.25 “Insider Discount” means the percentage discount that is used to calculate the Insider Price, as set forth on the Order Form.
1.26 “Insider Price” means the Customer Price authorized by the brand for an Insider. The Insider Price may be different for different Insider Categories.
1.27 “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.28 “Inventory Order” means an order placed by Guidefitter with Company whereby Guidefitter will take physical inventory of products for later resale to a Customer.
1.29 “Inventory Sale” means a sale by Guidefitter to a Customer for Products that are managed in Guidefitter’s physical inventory. Fulfillment of an Inventory Sale is the responsibility of Guidefitter and not Company.
1.30 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.40 “MAPP” means the Company’s Minimum Advertised Pricing Policy, as further described in the Retailer Addendum. MAPP generally only applies to prices quoted and advertised for General Consumers and does not apply to pricing for Insiders.
1.41 “Marks” means those Company’s tradenames, logos, trade dress and other trademarks provided to Guidefitter and licensed pursuant to the Retailer Addendum for use in conjunction with Guidefitter’s provision of the Services.
1.42 “MSRP” means the Company’s manufacturer’s suggested retail price that is published on an official MSRP price list authored and published by Company.
1.43 “Order Form” means the ordering documents for the Service that are executed hereunder by the parties from time to time, including modifications, supplements and addenda thereto. Order Forms shall be deemed incorporated herein. Affiliates of Company may purchase licenses to access and use the Service subject to these Terms by executing Order Forms hereunder. By executing an Order Form, that Company Affiliate shall be bound by these Terms as if it were an original party hereto.
1.44 “Product(s)” means those certain products of Company’s included Brands as periodically selected by Company at its discretion that Guidefitter is authorized to sell pursuant to the terms of the Agreement.
1.45 “Product Collateral” means all Product information (including without limitation all assets, images, price lists, SKU information and other data) provided to Guidefitter by Company for use in the listing and/or promotion of the Products on the Website.
1.46 “Service” means Guidefitter’s Influencer Marketing and Sales Program provided by Guidefitter to Company pursuant to these Terms.
1.47 “Subscription Term” means the subscription period for Company’s use of the Service set forth in an Order Form.
1.48 "Territory” means those geographic areas identified on the Order Form, or, if no such areas are specified, the United States and Canada.
1.49 “Users” means Company’s or its Affiliates’ employees, consultants, contractors, agents and third parties (a) who are authorized by Company or its Affiliates to access and use the Service on Company’s behalf, and (b) who have been supplied user identifications and passwords for such purpose by Company (or by Guidefitter at Company’s request).
Capitalized Terms not defined herein shall have the meaning set forth elsewhere in the Agreement.
2.1 Access and Use License. Subject to Company’s compliance with the terms and conditions contained in these Terms, Guidefitter hereby grants to Company, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use the Service (including the Brand Portal) and related Guidefitter Content in accordance with the Documentation, in each case solely for Company’s internal business purposes and not for the benefit of any other person or entity. Company’s use of the Service may be subject to certain limitations, such as, for example, limits on storage capacity for Company Data. Any such limitations will be specified either in the Order Form or in the Documentation.
2.2 Restrictions. Company shall not, directly or indirectly, and Company shall not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Service; (b) modify, translate, or create derivative works based on any element of the Service or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Service; (d) use the Service for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Company and Users; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of the Service without Guidefitter's prior written consent; (g) use the Service for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Service; or (i) attempt to gain unauthorized access to the Service or their related systems or networks.
2.3 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Company, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Guidefitter
3.1 Sales of Products; Online Retailer Addendum. Guidefitter is authorized, in connection with and as part of the Services to be offered hereunder, to sell Company’s Brand’s Products to Customers on the terms set forth herein and the in the Retailer Addendum.
4.1 Passwords. Guidefitter will issue to Company (or, as applicable, its Affiliates), user logins and passwords for each of its Users authorized to access and use the Service. Company shall be and shall ensure that each of its Affiliates and their respective Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Company is solely responsible for any and all access and use of the Service that occurs using logins and passwords Guidefitter issues to any of Company and Company’s Affiliates. Company shall, and shall ensure that Company’s Affiliates, restrict its Users from sharing passwords. Company agrees to immediately notify Guidefitter of any unauthorized use of any account or login and password issued to Company’s or Company’s Affiliates’ Users, or any other breach of security known to Company. Guidefitter shall have no liability for any loss or damage arising from Company’s failure to comply with the terms set forth in this Section.
4.2 No Circumvention of Security. Neither Company nor any of Company’s Affiliates nor any User may circumvent or otherwise interfere with any user authentication or security of the Service. Company will immediately notify Guidefitter of any breach, or attempted breach, of security known to Company.
5.1 Company System. Company is responsible for (a) obtaining, deploying and maintaining the Company System, and all computer hardware, software, modems, routers and other communications equipment necessary for Company, its Affiliates and their respective Users to access and use the Service via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Service via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Guidefitter shall not be responsible for supplying any hardware, software or other equipment to Company under these Terms.
5.2 Acceptable Use Policy. Company shall be solely responsible for its actions and the actions of its Users while using the Service. Company acknowledges and agrees:(a) to abide by all local, state, national, and international laws and regulations applicable to Company’s use of the Service, including without limitation the provision, display and use of Company Data as contemplated under this Agreement; (b) not to send or store data on or to the Service which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Service or another's computer or mobile device; (d) not to upload in any way any data regarding an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (e) not to use the Service for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Service or interfere with other ability to access or use the Service; (g) not to distribute, promote or transmit through the Service any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another’s use and enjoyment of the Service or another person or entity's use and enjoyment of similar services; (j) not to use the Service in any manner that impairs the Service, including without limitation the servers and networks on which the Service is provided; (k) to comply with all regulations, policies and procedures of networks connected to the Service and Guidefitter’s service providers; and (l) to use the Service only in accordance with the Documentation. Company acknowledges and agrees that Guidefitter neither endorses the contents of any Company communications, Company Content, Company Data, or Other Information (as defined in Section 11.2 below) nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. Guidefitter may remove any violating content posted or stored using the Service or transmitted through the Service, without notice to Company. Notwithstanding the foregoing, Guidefitter does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Company Data, Other Information, or any other information or data input into or stored in the Service by any third party for completeness, integrity, quality, accuracy or otherwise. Company shall be responsible and liable for the completeness, integrity, quality and accuracy of Company Data and Other Information it and its Users input into the Service. Guidefitter reserves the right to amend, alter, or modify Company’s conduct requirements as set forth in these Terms at any time. Guidefitter may deliver notice of such updated requirements to Company via e-mail or through the Service. Company’s continued access to and use of the Service following issuance of such updated Company requirements shall constitute Company’s acceptance thereof.
5.3 Accuracy of Company’s Contact Information; Email Notices. Company agrees to provide accurate, current and complete information as necessary for Guidefitter to communicate with Company from time to time regarding the Service, issue invoices or accept payment, or contact Company for other account-related purposes. Company agrees to keep any online account information current and inform Guidefitter of any changes in Company’s legal business name, address, email address and phone number. Company agrees to accept emails from Guidefitter at the e-mail addresses specified by its Users for login purposes. In addition, Company agrees that Guidefitter may rely and act on all information and instructions provided to Guidefitter by Users from the above-specified e-mail address.
5.4 Temporary Suspension. Guidefitter may temporarily suspend Company’s, its Affiliates’ or their respective Users’ access to the Service in the event that either Company, its Affiliates or any of their Users is engaged in, or Guidefitter in good faith suspects Company, its Affiliates’ or any of their Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Guidefitter will attempt to contact Company prior to or contemporaneously with such suspension; provided, however, that Guidefitter’s exercise of the suspension rights herein shall not be conditioned upon Company’s receipt of any notification. A suspension may take effect for Company’s entire account and Company understands that such suspension would therefore include its Affiliates and User sub-accounts. Company agrees that Guidefitter shall not be liable to Company, any of its Affiliates or Users, or any other third party if Guidefitter exercises its suspension rights as permitted by this Section. Upon determining that Company has ceased the unauthorized conduct leading to the temporary suspension to Guidefitter’s reasonable satisfaction, Guidefitter shall reinstate Company’s, its Affiliates and their respective Users’ access and use of the Service. Notwithstanding anything in this Section to the contrary, Guidefitter’s suspension of Service is in addition to any other remedies that Guidefitter may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Guidefitter may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
6.1 Availability. Subject to the terms and conditions of these Terms, Guidefitter will use commercially reasonable efforts to make the Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Guidefitter will use commercially reasonable efforts to provide at least 48 hours advance notice and routine maintenance times currently scheduled for every Fri-Sun, 11:01pm to 4:00am (Pacific Time) and as otherwise specified by Guidefitter, (b) any emergency maintenance of the Service; or (c) any unavailability caused by circumstances beyond Guidefitter’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, pandemics, strikes or other labor problems or Internet service provider failures or delays.
6.2 Ancillary Services. Certain features of the Service for which Company may subscribe involve the creation of Company-specific webpage(s) on the Service. If Company has subscribed to such features, Guidefitter shall use commercially reasonable efforts to develop such webpages using Company Content. Guidefitter and Company shall cooperate to enable Guidefitter to perform the development of the webpages according to the dates of performance and delivery terms (if any) set forth on the applicable Order Form. Additionally, as specified in the Order Form the Ancillary Services may include the development or creation of integrations between the Website and the Company System.
6.3 Changes. Guidefitter may make changes to the Guidefitter Content and Services at any time. Guidefitter may also change, update, or add or remove provisions of these Terms at any time by posting the updated Terms on this site and by emailing notice of such changes to Company’s email address on record with Guidefitter. Continued use of the Service or access of the Website by Company following notice of such changes means the Company is agreeing to the Terms as modified. Certain enhancements to the Service made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Company at no additional charge. However, the availability of some new enhancements to the Service may require the payment of additional fees, and Guidefitter will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Service includes, any enhancements, updates, upgrades and new modules to the Service subsequently provided by Guidefitter to Company hereunder.
7.1 Company Payments.
7.1.1 Fees. Company agrees to pay all fees specified in all Order Forms (“Fees”) using one of the payment methods Guidefitter supports. Except as otherwise specified in these Terms or in an Order Form, (a) fees are quoted and payable in advance in United States dollars, (b) fees are based on Service purchased, regardless of actual usage, and (c) payment obligations are non-cancelable and fees paid are non-refundable. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
7.1.2 Invoices and Payment. All Fees will be invoiced in advance and in accordance with the applicable Order Form. Company agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date. Company is responsible for providing complete and accurate billing and contact information to Guidefitter and notifying Guidefitter of any changes to such information.
7.1.3 Suspension of Service. If any amounts owed by Company for the Service are thirty (30) or more days overdue, Guidefitter may, without limiting Guidefitter’s other rights and remedies, suspend Company ’s and its Users’ access to the Service until such amounts are paid in full. Guidefitter agrees that it will not exercise its rights under this Section 7.1.3 if the applicable charges are under reasonable and good-faith dispute and Company is cooperating diligently to resolve the dispute.
7.2 Guidefitter Payments. For Products sold via the Website, Guidefitter shall pay Company as set forth in the Retailer Addendum.
7.3 Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, order form or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Fees and charges imposed under this Agreement, or under any order form or similar document ancillary to or referenced by this Agreement, shall not include Taxes except as otherwise provided herein. Company shall be responsible for all of such Taxes. If, however, Guidefitter has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Company is responsible under this section, Company shall promptly pay the Taxes invoiced by Guidefitter unless Company has furnished Guidefitter with valid tax exemption documentation regarding such Taxes at the execution of this Agreement or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by this Agreement. Company shall comply with all applicable tax laws and regulations. Company hereby agrees to indemnify Guidefitter for any Taxes and related costs paid or payable by Guidefitter attributable to Taxes that would have been Company’s responsibility under this Section 7.3 if invoiced to Company. Company shall promptly pay or reimburse Guidefitter for all costs and damages related to any liability incurred by Guidefitter as a result of Company ’s non-compliance or delay with its responsibilities herein. Company’s obligation under this Section 7.3 shall survive the termination or expiration of this Agreement.
7.4 Overdue Charges. If either party (the “Collecting Party”) does not receive any amounts payable hereunder from the other party (the “Paying Party”) by the due date for such amounts, then at the Collecting Party’s discretion, such amounts may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such amounts were due until the date paid. The Paying Party shall also reimburse the Collecting Party for all costs reasonably incurred in collecting any late payments, including without limitation, attorneys’ fees. The Collecting Party agrees that it will not exercise its rights under this Section 7.4 if the applicable amounts are under reasonable and good-faith dispute and the Paying Party is cooperating diligently to resolve the dispute.
8.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
8.2 Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 8, THE SERVICE ARE PROVIDED ON AN AS-IS BASIS. COMPANY’S USE OF THE SERVICE, ANY APIS CREATED AS PART OF AN INTEGRATION, THE WEBSITE, THE COMPANY CONTENT, AND THE COMPANY DATA IS AT ITS OWN RISK. GUIDEFITTER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ANY WARRANTIES MADE BY GUIDEFITTER ARE FOR THE BENEFIT OF COMPANY ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. GUIDEFITTER IS NOT RESPONSIBLE FOR THE PRODUCTS, SERVICES, ACTIONS, OR FAILURE TO ACT OF ANY THIRD PARTY. ANY MATERIALS PROVIDED THROUGH THE SERVICE ARE LICENSED AND NOT SOLD.
NO AGENT OF GUIDEFITTER IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF GUIDEFITTER AS SET FORTH HEREIN. GUIDEFITTER DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET COMPANY’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY COMPANY THROUGH THE SERVICE WILL MEET COMPANY’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICE WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GUIDEFITTER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
9.1 Guidefitter Indemnity.
(a) General. Guidefitter, at its expense, shall defend Company and its Affiliates and their respective officers, directors and employees (the “Company Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Service infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Company Indemnified Parties from any such Third-Party Claim. Guidefitter’s obligations under this Section are conditioned upon (i) Guidefitter being promptly notified in writing of any claim under this Section, (ii) Guidefitter having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Company providing all reasonable assistance (at Guidefitter’s expense and reasonable request) in the defense of such claim. In no event shall Company settle any claim without Guidefitter’s prior written approval. Company may, at its own expense, engage separate counsel to advise Company regarding a Claim and to participate in the defense of the claim, subject to Guidefitter’s right to control the defense and settlement.
(b) Mitigation. If any claim which Guidefitter is obligated to defend has occurred, or in Guidefitter’s determination is likely to occur, Guidefitter may, in its sole discretion and at its option and expense (a) obtain for Company the right to use the Service, (b) substitute a functionality equivalent, non-infringing replacement for such the Service, (c) modify Service to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Company any prepaid amounts attributable the period of time between the date Company was unable to use the Service due to such claim and the remaining days in the then-current Subscription Term.
(c) Exclusions. Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Company’s use of infringing Company Data; (ii) use of the Service in combination with any software, hardware, network or system not supplied by Guidefitter where the alleged infringement relates to such combination, (iii) any modification or alteration of the Service other than by Guidefitter, (iv) Company’s use of the Service in a manner not authorized herein, (v) Company’s continued use of the Service after Guidefitter notifies Company to discontinue use because of an infringement claim; (vi) Company’s violation of applicable law; (vii) Company Content; or (viii) the Company System.
(d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF GUIDEFITTER WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICE OR OTHERWISE, AND COMPANY HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF GUIDEFITTER WITH RESPECT THERETO.
9.2 Company Indemnity. Company shall defend Guidefitter and its Affiliates, licensors and their respective officers, directors and employees (“Guidefitter Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Company Content, Company Data, Company Mark or Company System (and the exercise by Guidefitter of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Company’s use or alleged use of the Service other than as permitted under these Terms; (c) the Products, including without limitation any Product defects, harm to persons resulting from use of the Product, inaccuracies in the Product Collateral, or failures of Products to conform to its Product Collateral; or (d) the occurrence of any of the exclusions set forth in Section 9.1(c). Company shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Guidefitter Indemnified Parties from any such Third-Party Claim. Company’s obligations under this Section are conditioned upon (x) Company being promptly notified in writing of any claim under this Section, (y) Company having the sole and exclusive right to control the defense and settlement of the claim, and (z) Guidefitter providing all reasonable assistance (at Company’s expense and reasonable request) in the defense of such claim. In no event shall Guidefitter settle any claim without Company’s prior written approval. Guidefitter may, at its own expense, engage separate counsel to advise Guidefitter regarding a Third-Party Claim and to participate in the defense of the claim, subject to Company’s right to control the defense and settlement.
10.1 Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to these Terms, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the terms of these Terms and any Order Form. Confidential Information of Guidefitter shall include the Service and any integration code or APIs developed as part of any integration. Confidential Information also includes all summaries and abstracts of Confidential Information.
10.2 Non-Disclosure. Each party acknowledges that in the course of the performance of these Terms, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under these Terms. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, Affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of these Terms and who are subject to confidentiality obligations at least as stringent as the obligations set forth in these Terms.
10.3 Exceptions to Confidential Information. The obligations set forth in Section 10.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of these Terms or any obligation of confidentiality by the Receiving Party. Nothing in these Terms shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
10.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
11.1 Service. As between Guidefitter and Company, all right, title and interest in the Service, the Guidefitter Content, and any other Guidefitter materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Company regarding the Guidefitter, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Guidefitter or Guidefitter’s licensors and providers, as applicable. Company hereby does and will irrevocably assign to Guidefitter all evaluations, ideas, feedback and suggestions made by Company to Guidefitter regarding the Service (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
11.2 Company Data and Company Content. As between Guidefitter and Company, all right, title and interest in (a) the Company Data and Company Content, (b) other information input into the Service by Company (collectively, “Other Information”) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Company. Company hereby grants to Guidefitter a limited, non-exclusive, royalty-free, worldwide license to use the Company Data and Company Content and perform all acts with respect to the Company Data as may be necessary for Guidefitter to provide the Service to Company, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Other Information as a part of the Aggregated Statistics (as defined in Section 11.3 below). To the extent that receipt of the Company Data requires Guidefitter to utilize any account information from a third party service provider, Company shall be responsible for obtaining and providing relevant account information and passwords, and Guidefitter hereby agrees to access and use the Company Data solely for Company’s benefit and as set forth in these Terms. As between Guidefitter and Company, Company is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Company Data and Company Content.
11.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, Guidefitter may monitor Company’s use of the Service and use data and information related to such use, Company Data, Participant sales transaction data of Company’s products, and Other Information in an aggregate or anonymous manner, including to compile statistical and performance information related to the provision and operation of the Service (“Aggregated Statistics”). As between Guidefitter and Company, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Guidefitter. Company acknowledges that Guidefitter will be compiling Aggregated Statistics based on Company Data, Other Information, and information input by other customers into the Service and Company agrees that Guidefitter may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Company or its Confidential Information.
11.4 Guidefitter Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Guidefitter, whether solely or jointly with Company (“Guidefitter Developments”), and all Intellectual Property Rights therein, shall be the sole and exclusive property of Guidefitter. Company agrees that, to the extent that the ownership of any contribution by Company or its employees to the creation of the Guidefitter Developments is not, by operation of law or otherwise, vested in Guidefitter, Company hereby assigns and agrees to assign to Guidefitter all right, title and interest in and to such Guidefitter Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration. For clarity, these Guidefitter Developments shall include any integration code or application programming interfaces developed as part of any integration of the Services with Customer System.
11.5 Further Assurances. To the extent any of the rights, title and interest in and to Feedback or Guidefitter Developments or Intellectual Property Rights therein cannot be assigned by Company to Guidefitter, Company hereby grants to Guidefitter an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. To the extent that the foregoing assignment and license are not enforceable, Company agrees to waive and never assert against Guidefitter those non-assignable and non-licensable rights, title and interest. Company agrees to execute any documents or take any actions as may reasonably be necessary, or as Guidefitter may reasonably request, to perfect ownership of the Feedback and Guidefitter Developments. If Company is unable or unwilling to execute any such document or take any such action, Guidefitter may execute such document and take such action on Company’s behalf as Company’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
12.1 No Consequential Damages. NEITHER GUIDEFITTER NOR ITS LICENSORS OR SUPPLIERS (EXCLUDING COMPANY) SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF GUIDEFITTER OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICE OR THE RESULTS THEREOF. GUIDEFITTER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
12.2 Limits on Liability. NEITHER GUIDEFITTER NOR ITS LICENSORS OR SUPPLIERS (EXCLUDING COMPANY) SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY COMPANY TO GUIDEFITTER UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) THE AMOUNT OF FEES PAID BY COMPANY IN A SINGLE SUBSCRIPTION TERM WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
COMPANY IS SOLELY RESPONSIBLE FOR ALL OF ITS COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF SERVICE, AND WITH OTHER PERSONS WITH WHOM COMPANY COMMUNICATES OR INTERACTS AS A RESULT OF ITS USE THEREOF. COMPANY UNDERSTANDS THAT GUIDEFITTER IS NOT OBLIGATED TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICE. GUIDEFITTER EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER OF THE SERVICE AND ALL OTHER THIRD PARTIES.
12.3 Essential Purpose. COMPANY ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
13.1 Term. The term of the Agreement commences on the Activation Date and continue until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided herein. Except as otherwise specified in the applicable Order Form, Subscription Terms for all Users shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least ninety (90) days prior to the expiration of the then current Subscription Term. The subscription pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Guidefitter has given Company written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then current Subscription Term.
13.2 Termination for Cause. A party may terminate the Agreement (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the notifying party or such other period as the parties may agree. Upon any termination for cause by Company, Guidefitter shall refund Company any prepaid fees for the remainder of the terminated Subscription Terms after the effective termination date. Upon any termination for cause by Guidefitter, Company shall pay any unpaid fees covering the remainder of the term of all Order Forms up to the effective date of termination. In no event shall any termination relieve Company of the obligation to pay any fees payable to Guidefitter for the period prior to the effective date of termination.
13.3 Effects of Termination. Upon expiration or termination of the Agreement, (a) Company’s use of and access to the Service shall cease; (b) all Order Forms shall terminate; and (c) all fees and other amounts owed to Guidefitter shall be immediately due and payable by Company. Guidefitter shall have no obligation to maintain or provide any Company Data and/or Company Content and may thereafter, unless legally prohibited, delete all Company Data and/or Company Content in its systems or otherwise in its possession or under its control. If the Agreement is terminated by either party, at Company’s option, Guidefitter will either (x) return all unsold Products in its physical inventory, if any, to Company within fifteen (15) days of Company’s request, in return for the Guidefitter Price paid for such Product inventory and via shipping instructions provided by and paid for by Company, or (y) sell the remaining Product inventory on the terms set forth in this Agreement. Upon termination of this Agreement for any reason, Guidefitter will promptly remove from its Website(s) all references to Company and Products (except that, if Guidefitter has Products in physical inventory and Company allows Guidefitter to sell off the remainder of such inventory, Guidefitter may continue to list such Products and use the Marks until such Products are sold).
13.4 Survival. This Section and Sections 1, 2.3, 7.3, 8.2, 10, 11, 12, 13.3, and 14 shall survive any termination or expiration of these Terms.
14.1 Notices. Guidefitter may give notice to Company by means of a general notice through the Service interface, electronic mail to Company’s e-mail address on record with Guidefitter, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Company’s address on record with Guidefitter. Company may give notice to Guidefitter by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to ATTN: Legal, Guidefitter, Inc., 392 Gallatin Park Drive, Suite 201, Bozeman, MT 59715. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
14.2 Governing Law. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Montana as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings. The seat or legal place of arbitration shall be Bozeman, Montana. Notwithstanding the foregoing, Guidefitter has the right to pursue equitable relief in the state and federal courts located in Montana, and Company agrees to the exclusive jurisdiction and venue of such courts.
14.3 Publicity. Guidefitter has the right to reference and use Company’s name and trademarks and disclose the nature of the Service provided hereunder in each case in Guidefitter business development and marketing efforts.
14.4 Waiver. No term or provision of these Terms shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
14.5 Severability. If any provision of these Terms is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
14.6 Assignment. Company may not assign its rights or delegate its obligations under the Agreement to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Company), without the prior written consent of Guidefitter, such consent not to be unreasonably withheld, and subject to Company paying any applicable transfer or set-up fees. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, these Terms will bind and benefit the parties and their successors and permitted assigns. With the exception of Affiliates of Company who have executed Order Forms under these Terms, there are no third-party beneficiaries to these Terms.
14.7 Attorneys’ Fees. In any action to enforce these Terms, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
14.8 Force Majeure. Except for Company’s payment obligations, neither party shall be liable for any failure or delay in performance under these Terms due to fire, explosion, earthquake, storm, epidemic, pandemic, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms); or any other event beyond the reasonable control of the party whose performance is to be excused.
14.9 Entire Agreement. The Agreement, including these terms, all applicable Order Forms, and the Retailer Addendum, constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.