Gearly Platform Use Agreement
This Gearly Platform Use Agreement ("Agreement") is effective as of [DATE] ("Effective Date") by and between:
"Gearly" Gearly by Alpine is owned by Alps Alpine North America, Inc.
a California corporation with a principal place of business at
1500 Atlantic Boulevard, Auburn Hills, Michigan 48326
"Merchant" [LEGAL NAME]
a [STATE] [BUSINESS ENTITY TYPE] with a principal place of business at [ADDRESS]
or
[LEGAL NAME]
an individual residing at [ADDRESS]
"Party" and "Parties" AANA and Merchant referred to separately and collectively.
with reference to the following facts:
A. Merchant is engaged in the business of renting sporting goods and sporting equipment ("Products").
B. Gearly is engaged in the business of providing a platform for businesses to rent their sporting goods and sporting equipment to consumers.
C. The Parties desire to enter into an agreement in which Gearly will provide the website and infrastructure ("Platform") for Merchant to rent its Products to consumers (the "Service") on the terms and conditions set forth below.
For good and valuable consideration, the receipt and sufficiency of which is acknowledged, Merchant and Gearly agree as follows:
1. PLATFORM AND SERVICE
Overview. Gearly makes the Platform available to Merchant in order to enable Merchant to access the Services and interact with consumers. Merchant's use of the Platform and the Services is subject to its compliance with the terms of this Agreement. Merchant is solely responsible for obtaining and maintaining all equipment and services needed for its own access to and use of the Platform.
Services. Gearly makes various Services available to Merchant via the Platform. Gearly may add new Services, and may modify, limit or discontinue existing Services, from time to time and in its sole discretion. The use of certain Services may require Merchant to visit or otherwise use certain third party services, which shall be subject to the third parties' own terms of use. For the avoidance of doubt, the Services do not include and this Agreement does not apply to third party software code hosting sites that are linked to or otherwise referenced from the Platform, the use of which is subject to separate agreements with third parties.
Accounts. To make use of many of the Services on the Platform, Merchant will need to create a Platform account for itself (an "Account"). Merchant may only create an Account for itself through the interface provided by Gearly. Merchant may not create Accounts for others or use an automated process to create Accounts. Merchant may not share its Account with others; each individual entity that uses the Platform must create their own Account. Merchant is responsible for ensuring the security of its user login credentials, including the use of secure passwords. Merchant will promptly notify Gearly if its becomes aware of any actual or likely misuse of Merchant Account. Merchant acknowledges and consents to Gearly using and sharing Merchant information to prevent fraud. Some of the information requested during registration of Merchant's Account is mandatory and Merchant must provide this information in order to create an Account; other information is optional and Merchant may choose whether to provide it. Creation of an Account may be subject to requests for more information, review and/or approval by Gearly in its sole discretion. In order to provide an integrated Platform and collection of related Services, Merchant's Account may be used across the Platform and may incorporate information received through Merchant's use of the different Services.
Not a Backup or Storage Site. The Platform is intended solely to provide Merchant and third parties with access to and use of the Services. It is not intended for use as a data backup or storage site. Merchant is solely responsible for ensuring that Merchant maintains copies of any of Merchant Content (as defined herein). Except as may be required under applicable data privacy or other laws and regulations, Gearly is under no obligation to provide Merchant with access to any data or other materials stored on the Platform or to ensure their reliability or availability.
Modifications. Gearly may alter the Platform, Services and Content and/or may choose to modify, suspend or discontinue the Platform and Services at any time and without notifying Merchant. Gearly may also change, update, add or remove provisions (collectively, "Modifications") of the Agreement from time to time. If Merchant objects to any such Modifications, Merchant's sole recourse shall be to cease all use of the Platform. Continued use of any part of the Platform following notice of any such Modifications indicates Merchant acknowledges and agrees to be bound by the Modifications.
2. TERM AND TERMINATION
Term. The Agreement shall commence as of the date that Merchant accepts the Agreement by signing this Agreement, by making an Account, or by otherwise making use of the Platform or the Services, and shall continue until terminated as set forth herein.
Termination by Merchant. Merchant may terminate this Agreement at any time by closing its Account and ceasing all subsequent use of the Platform and the Services.
Termination by Gearly. The Agreement shall be terminated without notice effective upon Merchant's breach of its terms. Gearly may terminate this Agreement at any time by closing Merchant's Account; by otherwise disabling Merchant's access to the Platform or the Services; or by attempting to provide Merchant with notice of termination.
Effect of Termination. Upon the termination of the Agreement, Merchant shall cease all subsequent use of the Platform and the Services and shall delete or destroy any copies Merchant has made of Gearly Content. If the Agreement was terminated by Merchant without breach, then Merchant may re-accept the Agreement at a later time and create a new Account. If the Agreement was terminated by Gearly, then Merchant shall not attempt to circumvent termination by creating a separate Account using different identifying information.
Survival. Sections 2.4, 2.5, 4.1, 4.3-4.5, and 5-12 of this Agreement shall survive the termination of the Agreement.
3. ACCEPTABLE USE
Acceptable Use. Merchant shall only use the Platform and Services in accordance with this Agreement.
Suspension. If Merchant uses the Platform or Services in a manner that Gearly believes in its sole discretion is harmful to the Platform, the Services, or other users of the Platform or Services, then Gearly may suspend Merchant's Account or Merchant's use of the Platform or any Services.
4. INTELLECTUAL PROPERTY RIGHTS
Gearly Content. As used herein, "Content" means text, data, information, software, graphics, videos, photographs and other materials. Content provided to Merchant via the Platform and the Services ("Gearly Content") shall remain owned by Geraly or its licensors, as applicable. Subject to Merchant's compliance with the Agreement and all applicable laws and regulations, Gearly grants Merchant a limited, personal, non-exclusive, non-transferable license to use and display the Gearly Content. Merchant must retain any copyright and other proprietary notices on any copies Merchant makes of Gearly Content. All rights in Gearly Content not expressly granted herein are reserved.
Merchant's Content. Content that Merchant posts to the Platform ("Merchant Content") shall remain owned by Merchant. Merchant hereby grants Gearly an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to (a) use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display Merchant Content (or any modification thereto), in whole or in part, in any format or medium now known or later developed; and (b) use (and permit others to use) Merchant Content in any manner and for any purpose (including, without limitation, commercial purposes) that Gearly deems appropriate in its sole discretion (including, without limitation, to incorporate Merchant Content or any modification thereto, in whole or in part, into any technology, product, or service). Gearly may, but is not obligated to, pre-screen Merchant Content or monitor any area of the Platform through which Merchant Content may be submitted. Gearly is not required to host, display, or distribute any of Merchant Content on or through the Platform and may remove at any time or refuse any of Merchant Content for any reason. Gearly is not responsible for any loss, theft, or damage of any kind to any of Merchant Content.
Merchant Marks. When Merchant uploads Merchant names, logos and other trademarks to the Platform (collectively, "Merchant Marks"), Merchant hereby grants to Gearly a non-exclusive, royalty-free, worldwide license to reproduce and display Merchant Marks via the Platform and the Services in connection with the corresponding Products. All goodwill arising from such use shall inure to the benefit of the holders of such marks. Merchant acknowledges that Gearly shall use the logo image files that Merchant provides to Gearly via the Platform and the Services, and accordingly Gearly shall not be responsible for ensuring that the logo image files Merchant uploads are compliant with or conformant to any trademark usage guidelines that Merchant may have in place regarding Merchant Marks. For the avoidance of doubt, Merchant Marks shall not include trademarks that are owned by Gearly.
Gearly and Third Party Trademarks. This Agreement does not grant Merchant any rights to use the trademarks of Gearly or of third party organizations displayed via the Platform or the Services. Other third party's trademarks are subject to their own trademark usage policies.
Feedback. If Merchant sends or transmits any communications, comments, questions, suggestions, or related materials to Gearly whether by letter, email, telephone, or otherwise (collectively, "Feedback"), suggesting or recommending changes to any part of the Platform, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. Merchant hereby assigns to Gearly all right, title, and interest in, and Gearly is free to use, without any attribution or compensation to Merchant, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. To the extent the foregoing assignment of rights, title and interest in and Merchant Feedback is prohibited by applicable law, Merchant hereby grants Gearly a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to (a) to fully use, practice and exploit those non-assignable rights, title and interest, including, but not limited to, the right to use, reproduce, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute Merchant Feedback, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, for any purpose, and to develop, manufacture, have manufactured, license, market, and sell, directly or indirectly, products and services using such Feedback; and (b) authorize any such use by others of Merchant Feedback, or any portion thereof, in the same manner. Merchant understands and agrees that Gearly is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and Merchant have no right to compel such use, display, reproduction, or distribution.
5. DATA PRIVACY; COMPLIANCE WITH LAWS
Data Privacy. Gearly's use of personal information is subject to the Privacy Policy. Merchant shall not provide Gearly with the personal information of any third party unless such third party has consented to (a) its provision to Gearly for the purposes for which it is being provided, and (b) its use pursuant to the Privacy Policy. Third parties' use of personal information that Merchant provides to them shall be subject to the third parties' own privacy policies.
Compliance with Laws. Merchant shall comply with all laws and regulations that are applicable to Merchant's use of the Platform and the Services, including without limitation all any laws related to Merchant's operation as a sporting goods and sporting equipment rental business, United States export controls, import controls, sanctions, anti-boycott, money laundering, data privacy and otherwise. Without limiting the generality of the foregoing, Merchant shall be solely responsible for ensuring that Merchant's use of the Platform and the Services is compliant with applicable laws, and Merchant shall not make use of the Platform and the Services in any fashion that would be contrary to applicable laws (for instance, to receive access to certain technology or payments if such would be prohibited under applicable laws). Gearly controls and operates the Platform from the United States of America and the entirety of this Platform may not be appropriate or available for use in other locations. If Merchant uses the Platform or any part of the Platform outside the United States of America, Merchant shall be solely responsible for following applicable local laws.
Electronic Communications. By using the Platform, Merchant consents to receiving electronic communications from Gearly. These electronic communications may include notices about applicable fees and charges, transactional information, privacy policy and other information concerning or related to the Platform and the Services. These electronic communications are part of Merchant's relationship with Gearly. Merchant agrees that any notices, agreements, disclosures or other communications that Gearly sends Merchant electronically will satisfy any legal communication requirements, including that such communications be in writing. If Merchant does not want to communicate with Gearly electronically in the future, Merchant must discontinue use of its Account, the Platform and the Services.
Links to Third-Party Sites. Gearly sometimes provides links from the Platform to third-party websites. If Merchant uses these links, Merchant will leave the Platform. Gearly provides these links to Merchant as a convenience, and Gearly does not verify, make any representations or take responsibility for such third-party sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such third-party sites. Therefore, unless specifically stated on Gearly's website or elsewhere in the Platform, Gearly does not endorse or make any representations about such websites or any information, material or results that may be obtained from using them. If Merchant decides to access any of the third-party websites linked to from the Platform, Merchant does this entirely at Merchant's own risk and Merchant must follow the privacy policies and terms and conditions for those third-party websites. MERCHANT AGREES THAT GEARLY WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH MERCHANT'S USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.
6. MERCHANT'S REPRESENTATIONS AND WARRANTIES
Authority. Merchant represents that it has all necessary authority and capacity to enter into this Agreement on its own behalf.
Merchant's Account. Merchant represents and warrants that all information Merchant provides to Gearly in connection with its Account and its use of the Services shall be true, complete, accurate and not misleading.
Merchant Content and Merchant Trademarks. Merchant represents and warrants that Merchant has all necessary rights, title and licenses to make the license grants specified herein, with regards to (a) all of Merchant Content, and (b) all of Merchant Trademarks. Merchant represents and warrants that Merchant Content and Merchant Trademarks shall not violate this Agreement.
Taxes. Merchant is solely responsible for the payment of any and all taxes relating to Merchant's use of the Platform and the Services, or to Merchant's receipt of anything of value in connection therewith.
Third Party Services. Where use of the Platform or any Service requires Merchant to visit or otherwise make use of a third-party service, such as by visiting a third-party service provider's website, Merchant represents and warrants that Merchant will comply with the terms and conditions applicable to use of that third-party service.
7. DISCLAIMER
THE PLATFORM AND THE SERVICES ARE PROVIDED 'AS IS', 'AS-AVAILABLE' AND "WITH ALL FAULTS", WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PLATFORM AND THE SERVICES IS WITH MERCHANT, AND MERCHANT'S USE OF THE PLATFORM AND THE SERVICES IS AT MERCHANT'S OWN DISCRETION AND RISK. GEARLY DISCLAIMS ALL WARRANTIES AND MAKES NO WARRANTIES, AND MERCHANT ACKNOWLEDGES THAT MERCHANT RECEIVES NO WARRANTIES WITH RESPECT TO THE PLATFORM AND THE SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. GEARLY PROVIDES NO GUARANTEE OF SUPPORT FOR THE PLATFORM OR THE SERVICES; NO COMMITMENT FOR A PARTICULAR SERVICE LEVEL, AVAILABILITY, UPTIME, RESPONSIVENESS OR CORRECTNESS; AND NO COMMITMENT THAT THE PLATFORM AND THE SERVICES WILL BE ERROR-FREE, FREE FROM VULNERABILITIES OR DEFECTS, UNINTERRUPTED, TIMELY, SECURE, OR THAT THE PLATFORM OR THE SERVICES WILL MEET MERCHANT'S REQUIREMENTS. GEARLY IS NOT RESPONSIBLE FOR ANY LOST OR MODIFIED CONTENT; MERCHANT IS SOLELY RESPONSIBLE FOR ITS USE OF THE PLATFORM AND THE SERVICES, AND FOR MAKING ANY NECESSARY BACKUPS OF MERCHANT CONTENT. GEARLY MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM OR THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PLATFORM OR THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MERCHANT THROUGH THE PLATFORM OR THE SERVICES SHALL CREATE ANY WARRANTY. GEARLY DISCLAIMS ALL EQUITABLE INDEMNITIES.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GEARLY AND ITS SERVICE PARTNERS, AFFILIATES, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, REVENUE, PROFITS, GOODWILL, USE OR OTHER ECONOMIC ADVANTAGE, OR FOR ANY DAMAGES, INCLUDING DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXTRAORDINARY, EXEMPLARY OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE PLATFORM OR THE SERVICES OR ANY USE THEREOF, OR THIS AGREEMENT OR ANYTHING RELATING HERETO. THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS OF GEARLY'S DECISION TO OFFER THE PLATFORM AND THE SERVICES, AND SHALL APPLY REGARDLESS OF THE LEGAL THEORY UPON WHICH DAMAGES MAY BE CLAIMED; REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; AND REGARDLESS OF WHETHER THE FOREGOING LIMITATIONS OF LIABILITY CAUSE ANY REMEDY TO FAIL IN ITS ESSENTIAL PURPOSE.
9. REPORTS OF INTELLECTUAL PROPERTY INFRINGEMENT
Gearly respects the intellectual property rights of others and encourages Merchant to do the same. Accordingly, Gearly has a policy of removing Content that violates intellectual property rights of others, suspending access to the Platform or the Services (or any portion thereof) to any user who uses the Platform or the Services in violation of someone's intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Platform or the Services in violation of someone's intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, Gearly has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If Merchant believes Merchant's copyright or other intellectual property rights are being infringed by a user of the Platform, please provide written notice to Gearly's agent for notice of claims of infringement: [ADDRESS], [PHONE], [EMAIL]. Unless the notice pertains to copyright or other intellectual property infringement, Gearly's agent will be unable to address the listed concern. To be sure the matter is handled promptly, Merchant's written notice must:
a) Contain Merchant's physical or electronic signature;
b) Identify the copyrighted work or other intellectual property alleged to have been infringed;
c) Identify the allegedly infringing material in a sufficiently precise manner to allow Gearly to locate that material;
d) Contain adequate information by which Gearly can contact Merchant (including postal address, telephone number, and e-mail address);
e) Contain a statement that Merchant has a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law;
f) Contain a statement that the information in the written notice is accurate; and
g) Contain statement, under penalty of perjury, that Merchant is authorized to act on behalf of the copyright or other intellectual property right owner.
10. INSURANCE
Merchant shall procure and maintain throughout the term of this Agreement, insurance in amounts and coverage reasonable in the circumstances and acceptable to Gearly at Merchant's sole expense, insurance against any and all:
a) Commercial and civil general liability, including premises, operations, broad form property damage, independent contractors and contractual liability covering obligations under this Agreement for bodily injury and property damage;
b) Workers' compensation and Employer Liability as required by applicable laws in statutory amounts covering Merchant's and its employees; and
c) Errors and Omissions liability covering Merchant's obligations to its customers.
Merchant shall provide Gearly with a Certificate of Insurance for all referenced policies that names Gearly, its subsidiaries and affiliates as an Additional Insured. All insurance required by this Agreement shall be carried with insurance companies licensed to do business in the region where operations are maintained.
11. INDEMNIFICATION
Merchant agrees to protect, defend, hold harmless, and indemnify (collectively "Indemnify" and "Indemnification") Gearly, its affiliates, and its and their respective successors, assigns, directors, officers, employees, and agents (collectively, "Indemnified Parties") from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs, and expenses, whether or not involving a claim by a third party, including but not limited to reasonable attorneys' fees and costs (collectively, "Claims"), actually or allegedly, directly or indirectly, arising out of or related to (1) any breach of any representation or warranty of Merchant contained in this Agreement; (2) any breach or violation of any covenant or other obligation or duty of Merchant under this Agreement or under applicable law; (3) any third party Claims which arise out of, relate to or result from any act or omission of Merchant; (4) any Claims of intellectual property infringement; and (5) any Claims of personal injury, death, or property damage caused by the Merchant's use of the Platform or Services.
12. MISCELLANEOUS
Entire Agreement. The Agreement constitutes the final, entire understanding and agreement of Merchant and Gearly regarding Merchant's use of the Platform and the Services. Any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect. The Agreement may be modified from time to time, and shall not be modified by Merchant except in a writing signed by both Merchant and Gearly.
Severability. If any provision of the Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of the Agreement shall nevertheless remain in full force and effect.
Waiver. Gearly's failure or delay in exercising its rights under the Agreement shall not operate as a waiver of those rights or constitute a waiver of any prior, concurrent, or subsequent breach.
Choice of Law; Venue. The Agreement shall be interpreted and enforced in accordance with the laws of the State of California and applicable U.S. federal law, without reference to conflict of law provisions. Any dispute regarding the Agreement shall be subject to the sole jurisdiction of the federal or state courts located in Santa Clara County, California.
Assignment. Merchant may not assign the Agreement without Gearly's prior written consent, and any purported assignment shall be null and void. Gearly may assign the Agreement in its discretion.
Force Majeure. Gearly shall not be liable for any delay, breach or failure to perform for reasons that are beyond its reasonable control.