TERMS AND CONDITIONS
1. EQUIPMENT ORDERS:
a. Subject to the Agreement: (i) Hurdl will sell to Client the Wearables identified on the Cover Page, and/or (ii) Hurdl will lease to Client the System Rental identified on the Cover Page. For the avoidance of doubt, Hurdl shall not be responsible for providing, and Client shall be solely responsible for engaging or supplying, any personnel in connection with the operation, distribution and/or use of the Wearables and the System Rental (collectively, the “Equipment”), including without limitation, in connection with the design and activation of any graphic displays.
b. Delivery of the Equipment will be F.O.B. Hurdl’s shipping point (“Delivery”), and Client hereby assumes and shall bear the entire risk of loss and damage to the Equipment from any and all causes whatsoever, including without limitation theft or casualty, immediately upon delivery of the Equipment to Hurdl’s freight carrier.
c. Client agrees to use, operate and maintain the Equipment in accordance with all applicable laws, rules and regulations. Client further agrees to use, operate, and store the Equipment in accordance with best practices regarding maintenance and use of such Equipment. Client assumes all responsibility regarding requirements for licenses, titles, permits, and other certificates as may be required by law or otherwise to use the Equipment. Without limitation of the foregoing, if the Equipment is to be used outside the U.S., Client will arrange, pay for and provide all necessary international import/export bonds, carnets, or any other relevant documentation and fees related to international import or export of the Equipment.
d. Return of System Rental. Client shall return the two (2) System Rentals to Hurdl’s address (as provided on the Cover Page) on the return date provided on the Cover Page, in good repair, condition, and working order as determined by Hurdl in its sole discretion. Hurdl will provide Client with a return shipping label. If Client loses the return shipping label, then Client will be responsible for the costs of shipping returned System Rentals. Client shall not make any alterations, additions, or improvements to the System Rental. If the System Rental is not returned to Hurdl in good repair, condition, and working order as determined by Hurdl in its sole discretion, then without limiting any of Hurdl’s rights or remedies hereunder, Hurdl shall be entitled to withhold any and all deposits associated with the System Rental as set forth on the Cover Page. Any refunds in connection with the System Rental will be issued by Hurdl in its sole discretion within one (1) month of receipt of System Rental by Hurdl.
2. LICENSE GRANTS
a. Platform and Wearables Software. Subject to the terms and conditions of this Agreement, Hurdl grants Client a limited, non-exclusive, non-transferable license to (i) during the Term, access and use the Platform solely to manage campaigns as included in the Package chosen on the Cover Page, and to access only the data as described in Section 2.b.i below, and (ii) to use the Wearables Software, as embedded in the Wearables, to create visual displays as permitted through the intended functionality of the System Rental. The license grant in Section 2(a)(ii) is sublicenseable solely to end users, subject to the restrictions set forth in this Agreement.
ii. Hurdl will maintain commercially reasonable administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of Client Data. If Hurdl has reason to believe that Client Data may have been disclosed or accessed without authorization, Hurdl will tell Client as soon as practicable and inform the Client of remedial actions that it proposes to take.
c. Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Client will not, and will not permit or authorize third parties to: (i) reproduce, modify, translate, enhance, decompile, disassemble, discern, reverse engineer, or create derivative works of the Platform and Wearable Software (collectively, “Licensed Software”) or any Hurdl trade secrets; (ii) rent, lease, or sublicense the Licensed Software; (iii) use the Platform on a service bureau or application service provider basis; (iv) provide, divulge, disclose, or make available to, or permit the use of the Platform by any third party; (v) circumvent or disable any technological features or measures in the Licensed Software; nor (vi) alter nor remove any copyright notice or other proprietary rights notices that appear on any part of the Equipment or Licensed Software.
d. Reservation of Rights. The Licensed Software are licensed, not sold, by Hurdl to Client, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the Licensed Software. Client will not have any rights in or to the Licensed Software, or derivative works thereto, and Hurdl reserves all rights not expressly granted in this Agreement.
3. CLIENT OBLIGATIONS
a. Marketing Messages. Clients are permitted to use the Platform to send up to two (2) marketing messages to end users within forty-eight (48) hours after the conclusion of the event and in accordance with the Package chosen above. Any such messages shall be entirely written by the Client and must comply with all applicable laws, including CAN-SPAM, which shall include an opt-out mechanism, including opt-out language as provided by Hurdl, and indicate that any opt-outs will apply to Client as the sender only.
b. Merchandise. If Client uses the Platform to sell merchandise or other tangible items post event, Hurdl will provide order summaries to Client within five (5) business days of event. Client is solely responsible for fulfilling merchandise orders and any related customer support.
c. Government Restricted Rights. If Client is an agency or instrumentality of the U.S. Government, any software and documentation provided hereunder are “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of such software and documentation are governed by the terms of this Agreement.
d. Export. The Licensed Software may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Client must comply strictly with all such regulations that are now or later in effect and acknowledges that it has the responsibility to obtain licenses to export, re‑export, or import the Licensed Software.
4. Payment/Payment Terms:
a. Client shall pay Hurdl the total Fees set forth on the Cover Page, as follows: (i) Seventy-five percent (75%) of the total amount set forth on the Cover Page (the “Deposit”) shall be due upon execution of the Agreement; and (ii) the balance (i.e., twenty-five percent (25%)) will be due within five (5) business days prior to the date of Delivery. Any payment not received by Hurdl when due may result in a delay in delivery and/or additional freight cost of which shall be the sole responsibility of the Client, and/or shall accrue a late charge of 1.5% per month, or the maximum amount allowed by law, whichever is less. For the avoidance of doubt, Hurdl shall have the right to suspend manufacture and/or delivery of the Equipment until payment of the Deposit is received. Please see Exhibit B for a Timeline of Deliverables.
b. Fees, Assessments, and Taxes. Other than federal and state net income taxes imposed on Hurdl by the U.S., Client shall be solely responsible for and shall pay all license fees, permits, assessments, penalties, and sales, use, property, excise, value added and/or any other taxes, now or hereafter imposed, relating to Client’s use, operation, distribution and/or possession of the Equipment and Licensed Software (the “Product”).
c. Revenue Share. If “Merchandise Revenue Share” is selected on the Cover Page, then Hurdl will pay Client 80% of the gross revenues received by Hurdl for the sale of Client’s merchandise (less payment processing and messaging fees, as offered through the Equipment). Client will provide Hurdl with payment information, as reasonably requested by Hurdl. Payments will be made monthly and will be accompanied by a statement showing the merchandise sales.
5. TERM/TERMINATIONa. Term. This Agreement will commence upon the Effective Date and continue for one year (the “Initial Term”). Thereafter, the Agreement will renew automatically for successive one-year terms until either party provides notice 60 days prior to the end of the then-current term (each additional one-year term, a “Renewal Term”).
b. Termination. Hurdl may terminate this Agreement if Client does not comply with the terms of this Agreement. If this Agreement is terminated for any reason, Client will pay Hurdl any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination. Either party may terminate the Agreement for convenience upon 90 days’ notice to the other party.
c. Effect of Termination. Sections 1.c, 1.e, 2.c, 2.d, 5.c, and 6 – 19 will survive termination or expiration of this Agreement.
6. WARRANTIES/DISCLAIMER. HURDL MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO THE PRODUCT OR ANY MATTER WHATSOEVER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL DATA, MATERIALS, SOFTWARE, SERVICES, PRODUCTS OR OTHER INFORMATION PROVIDED BY HURDL TO CLIENT IS PROVIDED “AS IS.” HURDL EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR CLIENT’S PURPOSE, QUALITY, OR ACCURACY. HURDL DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCT OR AGAINST INFRINGEMENT. HURDL DOES NOT WARRANT THAT USE OF THE PRODUCT WILL BE ERROR-FREE OR THAT USE OF THE PRODUCT WILL BE SECURE OR UNINTERRUPTED.
7. REPRESENTATIONS AND WARRANTIES.
a. Mutual. Each party represents and warrants to the other party that (i) it has the full corporate right, power and authority to enter into this Agreement and perform its obligations hereunder and (ii) it will comply with all applicable laws and government regulations in its performance of the Agreement, including, but not limited to, the CAN-SPAM Act of 2003.
b. By Client. Client represents, warrants and covenants to Hurdl that it: (i) has the right to provide Client Data to Hurdl; and (ii) has obtained appropriate consents from consumers to collect and disclose their information to Hurdl for the purposes of this Agreement.
a. By Client. Client shall defend, indemnify and hold harmless Hurdl and its directors, officers, employees, agents, contractors, representatives, and assigns (the “Indemnified Parties”) from and against any and all damages, liabilities, losses, costs and expenses, including without limitation attorneys’ fees, arising directly or indirectly out of or in connection with any third party claims, demands or actions related to: (i) the selection, delivery, possession, use, operation, and/or return of the Equipment by Client and/or by Client’s employees, agents, sublessees, contractors, representatives, guests, invitees, attendees, or customers (except as authorized under this Agreement); (ii) any breach by Client of its obligations and agreements herein; (iii) bodily injury, personal injury, and property damage, arising in connection with the foregoing; and (iv) Client’s (or its successors’, affiliates’, licensees’ and assigns’) use of the Data or Hurdl’s use of Client Data as authorized under this Agreement.
b. By Hurdl.
i. Hurdl will defend or settle any claim, action or allegation brought against Client that the Licensed Software infringes any third party U.S. copyright, trade secret or patent and, subject to the limitations in this Section 8.b, will pay any final judgments awarded or settlements entered into, provided that Client gives prompt written notice to Hurdl of any such claim, action or allegation of infringement and gives Hurdl the authority to proceed as contemplated herein. Hurdl will have the exclusive right to defend any such claim, action, or allegation and make settlements thereof at its own discretion, and Client may not settle or compromise such claim, action, or allegation, except with Hurdl’s prior written consent. Client will give such assistance and information as Hurdl reasonably requires to settle or oppose such claims.
ii. Options. In the event any such infringement claim, action or allegation is brought, Hurdl may, at its sole option and expense: (A) procure for Client the right to continue use of the Licensed Software or infringing part thereof, as applicable; or (B) modify or amend the Licensed Software or the infringing part thereof, as applicable, or replace the Licensed Software or the infringing part thereof, as applicable, with other software having substantially the same or better capabilities; or, if neither of the foregoing is commercially practicable, (C) terminate this Agreement and repay to Client a pro-rata portion, if any, of any prepaid license Fees. Hurdl and Client will then be released from any further obligation to the other under this Agreement, except for the obligations of indemnification provided for above and such other obligations that survive termination.
iii. Exclusions. The foregoing obligations will not apply to the extent the infringement arises as a result of (A) modifications to the Licensed Software made by any party other than Hurdl, (B) use of the Licensed Software in combination with any product or software not provided by Hurdl where such infringement is caused by such use, or (C) failure to promptly update the Licensed Software when instructed to do so by Hurdl, where the infringement is caused by such failure.
c. Limitation. THIS ARTICLE 8 STATES THE ENTIRE LIABILITY OF HURDL WITH RESPECT TO INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.
9. LIMITATION OF LIABILITY
a. Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, HURDL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, COST OF COVER, OR LOSS OF BUSINESS, EVEN IF HURDL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
b. Cap on Liability. UNDER NO CIRCUMSTANCES WILL HURDL’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO HURDL UNDER THIS AGREEMENT.
c. Independent Allocations of Risk. THE PROVISIONS OF THIS AGREEMENT RELATED TO LIMITATIONS OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10. OWNERSHIP: As between Hurdl and Client, the System Rental and Licensed Software, and all software, designs, logos, and/or other intellectual properties (including but not limited to all worldwide patents, trademarks, trade names and trade secrets) embodied in or used in connection with the Wearables, are, and shall at all times be and remain, the sole and exclusive property of Hurdl; and Client shall have no right, title, or interest therein or thereto except as otherwise expressly set forth in this Agreement.
11. INSURANCE: Client will procure and maintain in full force and effect at all times for a period of at least twenty-four (24) months beginning from Delivery, Commercial General Liability Insurance in an amount not less than $5,000,000 per occurrence combined single limit bodily injury and property damage, including coverage for personal injury, operations, completed operations, and contractual liability. Hurdl shall be named on such policy as an Additional Insured on a primary and non-contributory basis. If the Equipment is leaving the U.S., coverage shall be included on a world-wide basis. Upon request, Client shall provide Hurdl with a certificate of insurance evidencing the foregoing coverage. Any certificate provided hereunder shall also provide that such insurance will not be canceled without first giving Hurdl thirty (30) days’ prior written notice.
12. ARBITRATION: The parties hereto agree that all disputes which may arise between the parties hereto under or with respect to this Agreement shall be determined solely by arbitration before a sole neutral arbitrator in accordance with the rules of J.A.M.S., including its optional appeal procedure. The arbitration shall be held in Los Angeles County, California, and the cost thereof, including reasonable attorneys’ fees, shall be borne equally by the parties hereto. Such determination by the sole arbitrator shall be final, binding, and conclusive upon the parties hereto, and shall be rendered in such form that it may be judicially confirmed under the laws of the State of California.
13. GOVERNING LAW: This Agreement shall be exclusively interpreted, enforced and governed by and under the laws of the State of California, without regard to any conflict of law principles therein.
14. REMEDIES CUMULATIVE; NO WAIVER; SEVERABILITY: All remedies of Hurdl herein are cumulative and may, to the extent permitted by law, be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy. No failure on the part of the Hurdl to exercise, and no delay in exercising, any right or remedy, shall operate as a waiver thereof; nor shall any single or partial exercise by Hurdl of any right or remedy herein preclude any other or further exercise thereof, or the exercise of any other right or remedy. If any provision of this Agreement or any application thereof is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of other provisions of this Agreement or of any other application of such provision shall in no way be affected thereby.
15. FORCE MAJEURE. Except for the payment of fees hereunder, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, governmental acts or orders or restrictions, or any other reason when failure to perform is beyond the reasonable control of the nonperforming party.
16. ASSIGNMENT: Client may not assign this Agreement, or any of its rights or obligations hereunder, without Hurdl’s prior written consent. Hurdl may assign this Agreement in its sole discretion.
17. HEADINGS: The headings in this Agreement are for convenience and reference only, and are not intended in any way to modify, enlarge, or limit the provisions hereof; nor shall any such headings be used to interpret or construe the intent of the parties hereto in respect to the provisions of this Agreement.
18. NOTICES: All notices under this Agreement will be deemed to have been duly given when delivered by hand or when mailed, if sent by a nationally recognized overnight courier (receipt requested). Notices to each party hereto shall be sent to the applicable address set forth on the Cover Page (or such other address as the parties hereto may designate in writing from time to time).
19. ENTIRE AGREEMENT: This Agreement (including the Cover Page and any Exhibits) constitutes the entire agreement between Hurdl and Client relating to the subject matter hereof and supersedes all prior oral or written understandings, communications and agreements relating to such subject matter, implied or otherwise. This Agreement and any of its terms and provisions may only be amended, modified, supplemented or waived in a writing signed by both Hurdl and Client. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other.EXHIBIT BTimeline of Deliverables
Time to Event(s) Deadline for Delivery
No less than 12 wks Letter of Intent received, Client receives estimate from Hurdl Account Services
9 weeks Client confirms estimate, terms and conditions, Client receives invoice from Hurdl Account Services
8 weeks 75% Deposit due from Client, Client onboarding type-form due (artwork, shipping, contacts, etc)
7 weeks Wristband ribbon artwork submitted to client for approval
6 weeks Wristband artwork approved by Client
4 weeks Client custom branded PIXLs shipped stateside
5 days Remaining 25% balance due
0 days PIXLs delivered to event
* Note any additional / rush shipping charges outside this timeline will be charged to Client.
Hurdl’s cost per PIXL is $3.75 includes:
• Wearable wristband/bracelet• System rental• Single color bracelet branding• Shipping in accordance with Exhibit B• Two (2) marketing messages• Data capture file (5-point .CSV file)
Additional charges apply for:
• International shipping• Rush shipping charges outside the timeline as outlined in Exhibit B• More than four (4) survey questions• Additional marketing messages• Multi-color bracelet options (pricing below)• Locking wristband• Custom wristband sizing• Custom PIXL form factors• Multi-color PIXL screen printing
Prices for branding on the wearable module (base) is as follows:
One color screen print$0.08 / wearableTwo color screen print$0.12 / wearableThree color screen print$0.18 / wearableFour color screen print$0.22 / wearable
Costs for common color change on the base is free if order meets 50k unit minimum.