TERMS AND CONDITIONS
OUTFITTER TERMS AND CONDITIONS
These Outfitter Terms and Conditions (the “Terms and Conditions”) govern and are hereby incorporated into the AdventureBot Outfitter Agreement between AdventureBot and Outfitter (collectively, the “Agreement”). AdventureBot may amend the Terms and Conditions in its sole discretion and at any time. The most recent version of the Terms and Conditions will be available online on AdventureBot’s Outfitter Website portal. Outfitter agrees that this method serves as adequate notice to inform Outfitter of any amendments to the Agreement. Outfitter agrees to be bound by any such amendments.
The parties agree as follows:
- Promotions. AdventureBot is authorized to promote and sell Vouchers or other Outfitter services on Outfitter's behalf (the “Outfitter Offering”). The Voucher will evidence the Outfitter Offering and will be sent to the purchaser electronically once payment is received. The purchaser will then redeem the Voucher with the Outfitter by presenting the Voucher in paper or electronic form. Outfitter is the issuer of the Vouchers and seller of the Outfitter Offering. AdventureBot is authorized to promote and sell Vouchers on Outfitter's behalf through any platform, including through its affiliates, networks, or other promotion method. The Vouchers may be offered to any subscriber base authorized by AdventureBot composed of any segments or demographics. Vouchers may be offered through any distribution channel authorized by AdventureBot, including but not limited to, the Internet, email, mobile applications, networks, or other types of electronic offerings. In addition, AdventureBot may shorten or extend promotional offerings at its discretion.
- Scheduling, Refunding, and Other Voucher Terms. Outfitter shall allow AdventureBot or its affiliates to schedule appointments on behalf of Outfitter in connection with the Vouchers. AdventureBot may terminate this Agreement and issue refunds if it determines that Outfitter services or response times are unsatisfactory, in its sole discretion. Unless Outfitter provides AdventureBot with a maximum number of Vouchers to issue, AdventureBot is authorized to promote and sell Vouchers at its discretion. AdventureBot reserves the right to reject, revise, or discontinue any Outfitter Offering, at any time and for any reason in AdventureBot's sole discretion, and to terminate the Outfitter Offering and to remove all references to the Outfitter Offering and Voucher from the Website; and redirect or delete any URL used in connection with the Outfitter Offering. Outfitter shall honor the Vouchers for the Outfitter Offering through expiration and, if applicable, Outfitter agrees to redeem the Voucher indefinitely. If the goods and services constituting the Outfitter Offering and stated on the Voucher are no longer available, the Outfitter must always allow the purchaser to redeem the Voucher toward any goods or services then offered by the Outfitter for an equivalent value. If a purchaser redeems a Voucher for less than its value, the Outfitter is responsible for handling any unredeemed value as required by applicable law. Outfitter agrees that in providing the Outfitter Offering, Outfitter will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Voucher. Unless otherwise stated, Outfitter further agrees not to impose different terms or a different cancellation policy than what it uses for its non-AdventureBot customers. Outfitter agrees that so long as an appointment or reservation is made to redeem a Voucher, or purchaser has made an attempt to make an appointment, before the Voucher's expiration date, the Voucher will be honored without restriction. Outfitter is responsible for all customer service in connection with the Outfitter Offering and for supplying all goods and services stated in the Outfitter Offering. Outfitter is also responsible for any customer loyalty programs associated with the Outfitter Offering. If applicable, Outfitter will hold the Outfitter Offering for pick-up by each purchaser at the Redemption Site. The “Redemption Site” is the complete and accurate address provided by Outfitter to AdventureBot where purchasers are able to redeem the Voucher to pick-up the Outfitter Offering. Outfitter also agrees to provide AdventureBot with the hours and dates of operation, complete with any exceptions, and a valid phone number for the Redemption Site. If any of the information related to a Redemption Site changes, Outfitter agrees to notify AdventureBot immediately of such change. Outfitter agrees to accept returns of the Outfitter Offering in compliance with applicable laws, but in any event: (i) will accept returns of a defective Outfitter Offering or nonconforming items; and (ii) will not impose a more restrictive return policy on purchasers than Outfitter's regular return policy as applied to Outfitter's purchaser in the ordinary course of Outfitter's business.
- Payment. Amounts retained by AdventureBot from the proceeds of the Outfitter Offering are compensation to AdventureBot for marketing, promoting, and advertising the Outfitter Offering and distributing the Vouchers on behalf of Outfitter. AdventureBot is authorized to initiate ACH credit transaction entries to Outfitter's depository account at the depository financial institution named in this Agreement or as otherwise provided to AdventureBot by Outfitter in writing. Only in the event of an error, AdventureBot is authorized to initiate debit entry adjustments to Outfitter’s depository account to correct any error. ACH payments may take up to 5 business days to become available after processing. Outfitter will accept the amounts received from AdventureBot as payment in full for all services provided by Outfitter delivered pursuant to the Outfitter Offering. Outfitter is solely responsible for complying with any contractual requirements imposed by its contracts with third parties, including but not limited to requirements related to offering discounted services.
- Taxes. It is Outfitter's responsibility to determine what, if any, taxes apply to the payments Outfitter makes or receives, and it is Outfitter’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. AdventureBot is not responsible for determining whether taxes apply to Outfitter’s transaction with either purchasers or AdventureBot, or for collecting, reporting or remitting any taxes arising from any transaction with or by Outfitter and purchaser. An IRS Form 1099 may be issued in Outfitter’s name for the value of payments made. Notwithstanding anything else in this Agreement, Outfitter shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Outfitter is required to be so registered in connection with the Outfitter Offering and pursuant to the terms and redemption of the Voucher, and shall be responsible for paying any and all sales, use or any other taxes related to the Outfitter Offering or the goods and services. Further, Outfitter bears sole financial responsibility for any and all sales, use, excise, general, or other taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement, if any. AdventureBot shall apply the applicable tax to the amounts it retains and/or other fees remitted to AdventureBot pursuant this Agreement. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current law. Further, in the event AdventureBot receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Outfitter, AdventureBot may, in accordance with applicable law, deduct any such amounts from payments due to Outfitter.
- Withholding. AdventureBot reserves the right to deduct any such taxes from amounts due to Outfitter and to remit them to the appropriate tax authority if required to do so for withholding purposes. AdventureBot may also be required to report the withholding tax payments to the tax authorities.
- No Obligation. Notwithstanding anything to the contrary, AdventureBot will have no obligation to advance amounts that have been paid to AdventureBot by a purchaser until Outfitter has complied with Outfitter’s obligations under this Agreement. If AdventureBot reasonably believes that Outfitter has breached any provision of this Agreement, AdventureBot may offset, delay, withhold, or suspend future payments to Outfitter, in AdventureBot’s sole discretion. In addition, if Outfitter is unwilling to, or in AdventureBot’s reasonable discretion appears unable to, perform its obligations under this Agreement, AdventureBot is authorized to offset, delay, withhold, or suspend future payments to Outfitter in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Outfitter for any refunds and/or other amounts payable by Outfitter under this Agreement.
- Term and Termination. This Agreement will continue in effect until terminated by either party in accordance with this Section (“Term”). AdventureBot is authorized to terminate this Agreement, at any time for any reason, upon written notice to Outfitter. Outfitter is authorized to terminate this Agreement upon seven (7) business days prior written notice to AdventureBot. Termination of this Agreement will not in any way affect Outfitter's obligation to redeem any Voucher according to the terms of this Agreement, including the obligation to honor Vouchers. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.
- Compliance with other Terms. Outfitter agrees to comply with all terms and conditions as stated on the Website, and to ensure that the Vouchers comply with all laws that govern vouchers, gift cards, coupons, and gift certificates, expiration dates, service charges, etc. Outfitter is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws.
- Intellectual Property. Outfitter hereby grants to AdventureBot a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Outfitter's name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Outfitter (collectively, “Outfitter IP”); and (b) any third party's name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Outfitter (collectively, “Third Party IP”), in each case in connection with the promotion and resale of the goods and services in all media or formats now known or hereinafter developed (“License”). Any use of the Outfitter IP or Third Party IP as contemplated in this Agreement is within AdventureBot's sole discretion. Outfitter acknowledges and agrees that, as between the parties, AdventureBot owns all interest in and to the Website, Customer Data, AdventureBot trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by AdventureBot or at AdventureBot's direction, or assigned to AdventureBot, and any materials, software, technology or tools used or provided by AdventureBot to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively “AdventureBot IP”). Outfitter shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the AdventureBot IP or any portion thereof, or use such AdventureBot IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that AdventureBot grants Outfitter a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of AdventureBot's mobile Outfitter software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Outfitter shall keep the AdventureBot IP confidential, and shall not prepare any derivative work based on the AdventureBot IP or translate, reverse engineer, decompile or disassemble the AdventureBot IP. Outfitter shall not take any action to challenge or object to the validity of AdventureBot's rights in the AdventureBot IP or AdventureBot's ownership or registration thereof. Except as specifically provided in this Agreement, Outfitter and any third party assisting Outfitter with its obligations in this Agreement, are not authorized to use AdventureBot IP in any medium without prior written approval from an authorized representative of AdventureBot. Outfitter shall not include any trade name, trademark, service mark, domain name, social media identifier, of AdventureBot or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Outfitter shall not use or display any AdventureBot IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Outfitter or a third party and AdventureBot. All rights to the AdventureBot IP not expressly granted in this Agreement are reserved by AdventureBot. If Outfitter provides AdventureBot or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a AdventureBot product or service or otherwise in connection with this Agreement, any AdventureBot IP, or Outfitter's participation in the Outfitter Offering or Voucher, (collectively, “Feedback”), Outfitter irrevocably assigns to AdventureBot all right, title, and interest in and to Feedback. In the event your assignment to AdventureBot is invalid for any reason, you hereby irrevocably grant AdventureBot and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Outfitter warrants that: (A) Feedback is Outfitter's original work, or Outfitter obtained Feedback in a lawful manner; and (B) AdventureBot and its sublicensees' exercise of rights under the license above will not violate any person's or entity's rights, including any copyright rights. Outfitter agrees to provide AdventureBot such assistance as AdventureBot might require to document, perfect, or maintain AdventureBot's rights in and to Feedback.
- Representations and Warranties. Outfitter represents and warrants that: (a) Outfitter has the right, power and authority to enter into this Agreement; (b) Outfitter, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Outfitter's goods and services will be provided; (c) the Voucher, upon being delivered by AdventureBot, will be available immediately for redemption and Outfitter will have sufficient goods and/or services available for redemption; (d) the terms and conditions of the Voucher, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing vouchers, gift cards, coupons, and gift certificates; (e) the Outfitter’s redemption of the Voucher will result in the bona fide provision of goods and/or services by Outfitter to the purchaser; (f) Outfitter owns all interest in and to the Outfitter IP and has licensing rights in (with the right to sublicense to AdventureBot) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Outfitter IP and the Third Party IP, the Outfitter Offering, AdventureBot's use and promotion thereof, and the results of such Outfitter Offerings, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (h) the Outfitter IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (i) the Vouchers and any advertising or promotion of Outfitter's goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Outfitter and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Outfitter Offering to provide the goods or services described in this Agreement; (k) Outfitter's business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Outfitter is the authorized entity to receive the funds forwarded by AdventureBot; (l) Outfitter is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Outfitter is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Vouchers in connection with this Agreement and (m) the Outfitter Offering is: (i) free from defects in workmanship, materials and design, (ii) suitable for the purposes, if any, stated in the Agreement, and (iii) genuine, bona fide products, as described herein and does not violate the rights of any third party.
- Indemnification. To the extent allowed under applicable law, Outfitter agrees to defend, indemnify and hold AdventureBot, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys' fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Outfitter of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Outfitter arising from the sale and redemption of a Voucher; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of any law or regulation by Outfitter or governing Outfitter's goods and/or services; (e) any claim arising out of Outfitter's violation of law or regulation governing the use, sale, and distribution of alcohol; (f) any claim by a purchaser or anyone else arising out of or relating to the goods and services provided by Outfitter and/or pick up of the goods and services at the Redemption Site, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; (g) any claim by a purchaser for the Amount Paid; (h) any claim arising out of Outfitter's misuse of Customer Data, or any violation of an applicable data privacy or security law; and (i) any claim arising out of Outfitter’s negligence, fraud or willful misconduct. AdventureBot maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between AdventureBot and Outfitter. Outfitter's duty to defend and indemnify AdventureBot includes the duty to pay AdventureBot's reasonable attorneys' fees and costs, including any expert fees.
- Confidentiality. The terms for the Outfitter Offering described in this Agreement are confidential, and Outfitter agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law). In the event of a breach, AdventureBot is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).
- Limitation of Liability. Except for Outfitter’s indemnification obligations, neither party shall be liable to the other party for lost profits, lost business, special, incidental, consequential, punitive, or indirect damages, whether in contract, tort or otherwise. AdventureBot’s sole and complete liability for any claims arising out of this Agreement is limited to the amount of fees retained by AdventureBot for the last 6 months of this Agreement. Any claims by Outfitter of underpayment must be made within 90 days from the payment due thereunder. All claims not made in accordance with the foregoing shall be deemed waived, released and discharged.
- No Warranty. Except as expressly stated herein, neither party makes any representations or warranties, express or implied, including but not limited to any implied warranty of merchantability, fitness for a particular use or non-infringement. AdventureBot does not warrant that the services will be uninterrupted or free from errors, or that any Outfitter Offering will result in revenue for Outfitter.
- Dispute Resolution. The parties agree that any dispute, claim or controversy arising out of this Agreement, whether grounded in federal or state law, shall be settled by binding arbitration including any claims that this Agreement or any portion hereof is invalid, illegal or otherwise voidable. Such arbitration proceedings shall be conducted at or near Denver, Colorado, under the Commercial Rules of the American Arbitration Association in effect at the time a demand for arbitration is made. A decision and award of such arbitrator made under the said rules shall be conclusive, final and binding on both parties, their successors and assigns. Both parties are giving up the right to a trial by Jury. Notwithstanding the foregoing, nothing in this Section shall limit the parties’ right to obtain injunctive relief from any court of competent jurisdiction in order to protect its respective rights under this Agreement. The parties also agree to bring any disputes against each other in their individual capacities and not as a plaintiff or class member in any class action suit. The arbitrator does not have the power to alter or vary these provisions. In the event AdventureBot is the prevailing party in any dispute, Outfitter shall pay to AdventureBot all reasonable attorneys’ fees and costs incurred by AdventureBot in connection with said dispute.
- Contractors. The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party's prior written approval, to bind or commit the other in any way.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
- Assignment. Outfitter is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without AdventureBot's prior written consent. Any waiver must be in writing and signed by an authorized signatory of AdventureBot. AdventureBot is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Outfitter.
- Severability. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.
Effective date ________________________.