RODEOREADY™ TERMS OF SERVICE
In connection with the use of the RodeoReady Service (as defined below) you and/or your Organization (the Organization”, as further defined below or “you”, “your”) and RodeoReady Ltd. (“RodeoReady”, “we”, “us”) hereby agree to the terms and conditions contained herein (collectively, the “Terms of Service”).
IF YOU ARE AN AGENT OR EMPLOYEE OF THE ORGANIZATION THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON THE ORGANIZATION’S BEHALF AND TO BIND THE ORGANIZATION, AND (II) THE ORGANIZATION HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1.1 In this Agreement:
“Agreement” means these Terms of Service.
“Competition” means rodeos, barrel racing, roping and other competitions as hosted by the The Organization or other entity.
“Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation, each as amended or superseded from time to time), the United States (including the California Consumer Privacy Act) the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the GDPR, applicable to the Processing of Personal Data under the Agreement.
“Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that RodeoReady generally makes available to users of the RodeoReady Service.
“End User” means a user that accesses the RodeoReady App to either a) follow live Competitions and/or their results; and/or (b) registers to participate in a Competition.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.
“Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
“Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organizing, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“RodeoReady App” means the mobile application for which the Organization is granted rights of access and use in accordance with this Agreement, as such RodeoReady App may be updated from time to time by RodeoReady in its sole discretion.
“RodeoReady Service” means the cloud-based service offering for which the Organization is granted rights of access and use in accordance with this Agreement and which will be remotely accessible via the RodeoReady App and Website, including any ancillary services or other product offerings available in connection therewith, as such service may be updated from time to time by RodeoReady in its sole discretion.
“RodeoReady Payment Service” means the third-party payment processing service subcontracted by RodeoReady to process payments, securely store payment card information, make bank transfers and provide related services in accordance with the Stripe Services Agreement located at: https://stripe.com/en-ca/ssa.
“RodeoReady Website” means the website for which the Organization is granted rights of access and use in accordance with this Agreement and is located at [ https://rodeoready.com/].
“Support Services” means the technical support services for the RodeoReady Service provided by RodeoReady.
“Term” means the length of time that the Organization accesses and uses the RodeoReady Service.
“User” means an employee or contractor of the Organization who accesses the RodeoReady App for the Organization.
2. The Service
2.1 Right to Use the Service. Subject to the terms and conditions of this Agreement, RodeoReady hereby grants to the Organization a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to (a) access and use (and to permit Users to access and use) the RodeoReady Service, solely during the Term. To the extent the Organization receives any software from RodeoReady in connection with the RodeoReady Service (“Software”), subject to the Organization’s compliance with these Terms of Service, RodeoReady hereby grants to you a non-exclusive, non-transferable, non-sublicensable right and license to use the Software solely as reasonably necessary for your use of the RodeoReady Service and RodeoReady App in accordance with these Terms of Service.
2.2 Mobile Applications. We make available Software to access the RodeoReady Service via a compatible mobile device (“Mobile Applications”). The Organization and its Users may incur mobile data charges from your wireless provider in connection with the Mobile Applications, and the Organization and its Users are responsible for any such charges. RodeoReady hereby grants to the Organization a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for the Organization’s Account(s) on one or more mobile devices owned or leased solely by you, solely in accordance with this Agreement. You acknowledge that we may from time to time issue upgraded versions of the Mobile Applications and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and acknowledge that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof. We or our third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void.
2.3 App Store Terms. If you acquire any Mobile Applications from any third-party app store: (i) you acknowledge that this Agreement is between you and us only, and not with such third party; (ii) your use of such Mobile Applications must comply with such third party’s then-current app store terms and conditions; (iii) such third party is only a provider of the app store where you obtained such Mobile Applications; (iv) we, and not such third party, are solely responsible for our Mobile Applications; (v) such third-party has no obligation or liability to you with respect to such Mobile Applications or this Agreement; and (vi) you acknowledge and agree that such third-party is a third-party beneficiary to this Agreement as it relates to such Mobile Applications.
2.4 Website. The content on the Website includes, without limitation, all information, data, applications and tools, design elements, text, images, photographs, illustrations, audio and video contents, artwork, graphics contained therein or otherwise made available to you in connection therewith (collectively the “Content”) and, unless the context clearly requires otherwise, or we explicitly say so in writing, the term Website includes all of the Content. You understand and agree that the Website is owned by us, our licensors, or other providers of such material and are protected in all forms by intellectual property laws including without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.
2.6 Reservation of Rights. RodeoReady and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Software, RodeoReady Service and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the RodeoReady Service and subject to all of the provisions of this Agreement. The Organization shall keep the RodeoReady Service, Software and Documentation free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, RodeoReady reserves all rights, title and interest in and to the RodeoReady Service, Software and Documentation. No rights are granted to the Organization pursuant to this Agreement other than as expressly set forth in this Agreement.
2.7 Restrictions. The Organization shall not (and shall not allow Users or any third party to): (a) possess, download or copy the RodeoReady Service or any part of the RodeoReady Service, including but not limited any component which comprises the RodeoReady Service, but not including any output from the RodeoReady Service; (b) knowingly interfere with RodeoReady Service to any of RodeoReady’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing the Service; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Service; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the RodeoReady Service in any form to any person without the written consent of RodeoReady; (f) remove any proprietary notices, labels, or marks from the RodeoReady Service; (g) create any “links” to or “frame” or “mirror” of the RodeoReady Service or any portion thereof; or (h) use the RodeoReady Service to create, collect, transmit, store, use or process any the Organization Data that: (i) the Organization does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity).
2.8 Aggregated Data. The Organization acknowledges and agrees that the RodeoReady Service compiles, stores and uses aggregated data and system usage, analytics and diagnostic information to monitor and improve the RodeoReady Service and for the creation of new products. All data collected, used, and disclosed by RodeoReady will be in aggregate, anonymized and/or de-identified form only and will not identify the Organization, its Users, The Organization Data, Personal Information, or any third parties utilizing the RodeoReady Service.
3. Account Activation
3.1 Account. The Organization will be required to open an account with RodeoReady (an “Account”) in order to use the RodeoReady Service. During registration, the Organization will be asked to provide Personal Information in order to create an Account. the Organization shall ensure that such Account activation information is accurate and complete and that such information remains current throughout the Term. The Organization is fully responsible for all activity that occurs in the Organization’s Account.
3.2 Passwords. The Organization is responsible for keeping all Account passwords secure. RodeoReady will not be liable for any loss or damage caused by or arising from a failure by the Organization to maintain the security of the the Organization’s Account and password.
3.3 The Organization Responsibilities. The Organization is also responsible for all activity in the Account and for The Organization Data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with the Organization’s Account.
3.4 Changes, Suspension, and Termination. You may cancel your Account at any time. RodeoReady may change the RodeoReady Service, stop providing the RodeoReady Service or features of the RodeoReady Service to the Organization or to End Users generally, or create usage limits for the RodeoReady Service. RodeoReady may permanently or temporarily terminate or suspend the Organization’s access to the RodeoReady Service without notice and liability, without cause or for any reason, including if in RodeoReady’s sole determination the Organization or its Users or End Users violate any provision of these Terms. Upon termination, the Organization continues to be bound by this Agreement.
4. Support Services
4.1 Basic Support. RodeoReady shall provide the following basic support services (“Basic Support”): email support is monitored and provided from 8:00 am to 5:00 pm MST, Monday to Friday (excluding statutory holidays in the Province of Alberta). Emails outside of these hours will be responded to on a reasonable efforts basis. RodeoReady will use commercially reasonable efforts to respond to support enquiries within one (1) business day. The Organization will have access to RodeoReady’s technical support web site and may use the web site to submit service requests.
4.2 Service Levels; Availability. RodeoReady will use commercially reasonable efforts to: (a) achieve the service levels set forth in this Agreement, and (b) to ensure that the RodeoReady Service will achieve Service Availability (as defined below) of at least 99.7% during each calendar month. “Service Availability” means the number of minutes in a month that the key components of the Service are operational as a percentage of the total number of minutes in such month, excluding downtime resulting from (a) scheduled maintenance, (b) events of force majeure, (c) malicious attacks on the RodeoReady Service, (d) issues associated with the Organization’s network or equipment, or (e) inability to deliver the RodeoReady Service because of acts or omissions of the Organization. RodeoReady reserves the right to take the RodeoReady Service offline for scheduled maintenance for which the Organization has been provided reasonable notice and RodeoReady reserves the right to change its maintenance window upon prior notice to the Organization.
5. Organization Data and Personal Information
5.1 Ownership. As between RodeoReady and the Organization, the Organization exclusively owns all rights, title and interest in and to all the Organization Data. RodeoReady does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any Organization Data. The Organization hereby authorizes RodeoReady to use the Organization Data as required to provide the RodeoReady Service in accordance with the terms hereof.
5.2 Disclaimer. RODEOREADY ASSUMES NO LIABILITY FOR ANY OF THE ORGANIZATION DATA THAT THE ORGANIZATION, ITS USERS OR ANY END USER OR THIRD PARTY POSTS, SENDS, OR OTHERWISE MAKES AVAILABLE OVER THE RODEOREADY SERVICE. THE ORGANIZATION SHALL BE SOLELY RESPONSIBLE FOR ALL THE ORGANIZATION DATA AND THE CONSEQUENCES OF POSTING, PUBLISHING IT, SHARING IT, OR OTHERWISE MAKING IT AVAILABLE ON THE RODEOREADY SERVICE, AND THE ORGANIZATION ACKNOWLEDGES THAT RODEOREADY IS ONLY ACTING AS A CONDUIT FOR THE ORGANIZATION’S ONLINE DISTRIBUTION AND PUBLICATION OF THE ORGANIZATION DATA. THE ORGANIZATION UNDERSTANDS AND AGREES THAT THE ORGANIZATION, ITS USERS AND END USERS MAY BE EXPOSED TO CONTENT ON THE RODEOREADY SERVICE THAT IS INACCURATE, OBJECTIONABLE, INAPPROPRIATE FOR CHILDREN, OR OTHERWISE UNSUITED TO THE ORGANIZATION’S PURPOSE, AND THE ORGANIZATION ACKNOWLEDGES AND AGREES THAT RODEOREADY WILL NOT BE LIABLE FOR ANY DAMAGES THE ORGANIZATION OR ITS USERS ALLEGE HAVE BEEN INCURRED AS A RESULT OF OR RELATING TO ANY CONTENT ACCESSED ON OR THROUGH THE RODEOREADY SERVICE.
5.4 Organization Data Portability and Deletion. Upon request by the Organization made during the term hereof or within thirty (30) days after the effective date of termination of this Agreement, RodeoReady will make the Organization Data available to the Organization for export or download as provided in the Documentation. After such 30-day period, RodeoReady will have no obligation to maintain or provide any the Organization Data, and will thereafter delete or destroy all copies of the Organization Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited.
5.5 The Organization’s Obligations Regarding Personal Information. The Organization’s instructions to RodeoReady for the Processing of Personal Information shall comply with Data Protection Laws. The Organization shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which the Organization acquired the Personal Information. The Organization hereby represents and warrants to RodeoReady that the Organization Data will only contain Personal Information in respect of which the Organization has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable RodeoReady to provide the RodeoReady Service, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to RodeoReady and to or from all applicable third parties.
5.6 RodeoReady’s Processing of Personal Information. RodeoReady shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. RodeoReady shall only Process Personal Information on behalf of and in accordance with the Organization’s documented instructions and RodeoReady’s use as described herein and applicable Data Protection Laws for the following purposes: (a) Processing in accordance with the Agreement; (b) Processing initiated by the Organization’s Users or the Organizations in their use of the RodeoReady Service; and (c) Processing to comply with other documented reasonable instructions provided by the Organization where such instructions are consistent with the terms of the Agreement and applicable Data Protection Laws. RodeoReady shall ensure that its personnel engaged in the Processing of Personal Information: (x) are informed of the confidential nature of the Personal Information, (y) have received appropriate training on their responsibilities, and (z) are under contractual or statutory obligations to maintain the confidentiality of the Organization Data. RodeoReady shall take commercially reasonable steps to ensure the reliability of any RodeoReady personnel engaged in the Processing of Personal Information.
5.7 California Consumer Privacy Act (CCPA). If the Organization is based in the United States, RodeoReady is a “Service Provider” as such term is defined under §1798.140(v) of the CCPA. As such, RodeoReady shall not retain, use or disclose any personal information (as defined in the CCPA) received from the Organization during the term of this Agreement for any purpose other than the specific purpose of providing the services specified in this Agreement or for such other business purpose as is specified in this Agreement.
6. The Organization Responsibilities
6.2 Feedback. The Organization may provide reasonable feedback to RodeoReady including, but not limited to, suitability, problem reports, suggestions and other information with respect to the RodeoReady Service (“Feedback”). The Organization hereby grants to RodeoReady a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the RodeoReady Service, RodeoReady App and any other RodeoReady products or RodeoReady services, or for any other purposes, any Feedback provided by the Organization or its End Users.
7. Fees and Financial Information
7.1 Fees. RodeoReady does not charge the Organization for use of and access to the RodeoReady Service, and the Organization shall receive the full value of the fees charged by The Organization to an End User participating in a Competition. For the rights granted by RodeoReady to the Organization in this Agreement, RodeoReady shall retain a percentage of the total transaction payment made by an End User (which total transaction includes fees charged by the Organization to an End User and the fees charged by the RodeoReady Payment Service) via the RodeoReady Service as processed by the RodeoReady Payment Service.
7.2 Financial Information. The RodeoReady Payment Service provider and not RodeoReady shall be liable for the processing, proper handling, management, and use of the Organization and End User’s financial information as required hereunder.
8. Confidentiality Obligations
8.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“ Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the RodeoReady Service, Documentation, the Organization Data (which is the Confidential Information of the Organization), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
8.2 Confidentiality. Subject to Section 8.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement. The Organization shall not disclose any performance, benchmarking, or feature-related information about the RodeoReady Service.
8.3 Protection. Each party shall protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
8.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
8.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
8.6 Return of Confidential Information. Upon Disclosing Party’s written request upon expiration or termination of this Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 8.6.
9. Limited Warranties and Disclaimers
9.1 Limited Warranties. RodeoReady hereby represents and warrants to the Organization that:
(A) during the Term, the RodeoReady Service will perform materially in accordance with the Documentation;
(B) the RodeoReady Service will not contain any Malicious Code; and
(C) it owns or otherwise has sufficient rights in the RodeoReady Service and Documentation to grant to the Organization the rights to access and use the RodeoReady Service granted herein.
9.2 Remedy. In the event of a breach of one or more of the warranties set forth in Section 9.1 hereof, RodeoReady shall use reasonable commercial efforts to correct such breach of the warranty within fifteen (15) days of such breach.
9.3 Exclusive Remedies. THE WARRANTIES SET OUT IN SECTION 9.1 HEREOF ARE THE ONLY WARRANTIES PROVIDED BY RODEOREADY AND THE REMEDIES SET OUT IN SECTION 9.2 HEREOF ARE THE SOLE AND EXCLUSIVE REMEDIES OF THE ORGANIZATION FOR A BREACH OF WARRANTY.
9.4 General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE RODEOREADY SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND RODEOREADY MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE RODEOREADY SERVICE, SOFTWARE AND RODEOREADY APP; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR THE ORGANIZATION DATA TRANSMITTED TO OR FROM RODEOREADY VIA THE RODEOREADY SERVICE. RODEOREADY DOES NOT REPRESENT OR WARRANT THAT THE RODEOREADY SERVICE WILL MEET ANY OR ALL OF THE ORGANIZATION’S PARTICULAR REQUIREMENTS, THAT THE RODEOREADY SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE RODEOREADY SERVICE CAN BE FOUND IN ORDER TO BE CORRECTED. RODEOREADY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. Indemnification by The Organization
The Organization shall defend, indemnify and hold RodeoReady harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against RodeoReady by a third party (a) alleging that the Organization Data or the Organization’s use of the RodeoReady Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of any Data Protection Laws or a breach of this Agreement;
(c) any aspect of the transactions between the Organization and End User, including but not limited to refunds, fraudulent transactions, alleged or actual violation of applicable laws (including but not limited to federal, state or provincial consumer protection laws); or (d) caused by any negligent act or omission of the Organization or its employees, contractors or agents (each an “The Organization Indemnified Claim”); provided, that RodeoReady (a) promptly gives written notice of the Organization Indemnified Claim to the Organization; (b) gives the Organization sole control of the defense and settlement of the Organization Indemnified Claim (provided that the Organization may not settle or defend any the Organization Indemnified Claim unless it unconditionally releases RodeoReady of all liability); and (c) provides to the Organization, at the Organization’s cost, all reasonable assistance and information.
11. Limitation of Liability
11.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 11.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
11.2 Limitation of Liability. SUBJECT TO SECTION 11.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S MAXIMUM, CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED $250,000. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.
11.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS SUBJECT TO THE LIMITATION CONTAINED IN SECTION 11.2 HEREOF, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) FRAUD OR WILLFUL MISCONDUCT, OR (V) BODILY INJURY OR DEATH.
12.1 Waiver.The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
12.2 Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.
12.3 Independent Contractors. The relationship of RodeoReady and the Organization established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day to-day activities of the other, (ii) constitute the parties as legal partners, joint venturers, co-owners or otherwise as participants in a joint undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of the parties are their sole respective responsibilities.
12.4 Governing Law. This Agreement shall be governed by the laws of the Province of Alberta, without regard to its conflict of law principles. The courts located in the Province of Alberta shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts.
12.5 Entire Agreement. This Agreement is the entire agreement between the Organization and RodeoReady in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written agreement with RodeoReady or a distributor of RodeoReady.
12.6 Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.7 Amendments. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW OR AS OTHERWISE AGREED IN THE ORDER FORM, RODEOREADY MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING THE ORGANIZATION PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE RODEOREADY APP. UNLESS OTHERWISE INDICATED BY RODEOREADY ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO THE ORGANIZATION OR IS POSTED ON THE RODEOREADY APP (WHICHEVER IS THE EARLIER).
12.8 Language of Agreement. The parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non- officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.
12.9 Notices. Legal notices or other communication required hereunder to shall be sent by email to RodeoReady at: email@example.com.