Terms and Conditions of Sale to Curling Clubs
TERMS AND CONDITIONS OF SALE TO CURLING CLUBS
- - DEFINITIONS
- In this Agreement:
- “Agreement” means these Terms and Conditions of Sale to Curling Clubs, the Quotation and any attachments or schedules referred to within these Terms and the Quotation;
- “Business Day” means any day other than Saturday or Sunday or a statutory holiday so recognized by the Province of Quebec and by the Province or Territory in which the Client is located (if different);
- “Client” means the curling club that signed/mentioned in the Quotation;
- “Client Group” means the Client, its partners, their respective subcontractors and affiliates, and the shareholders, officers, directors, employees, agents and servants of each of them;
- “Delivery Fees” means the costs associated with the Delivery of the Hardware at the delivery address indicated in the Quotation including as applicable freight insurance and other clearance fees, taxes and transportation costs;
- “Defective Hardware” means Hardware that is not free from significant defects in material and workmanship;
- “Delivery Terms” means the manner in which the Hardware will be delivered to the Client, the Delivery Fees and anticipated date for delivery;
- “Guide” means the instructions guide explaining how to use the Hardware and providing other information related thereto, available on IntelliSports’ website, as amended from time to time;
- “Hardware” means the products described in the Quotation required to operate the Klutch System and, as the context requires, means the Hardware as a whole or any part thereof ;
- “Improvements” means any and all modifications, improvements and changes to existing Intellectual Property Rights, as well as all protectable modifications, improvements and changes;
- “Intellectual Property Right” means all intellectual property rights and moral rights and other titles, interests and protections of any kind or nature throughout the world including without limitations all (i) patents, patent applications, continuations, continuations-in-part, divisionals, reissues, re-examinations; (ii) copyrights, copyright applications and copyrightable subject matters, registrations substitutions and extensions; (iii) industrial designs, applications and registrations; (iv) trademarks, logos, service marks and trade names, (v) know-how and trade secrets, and (v) their respective applications and registrations, Improvements, rights to obtain intellectual property protections and all goodwill associated therewith.
- “IntelliSports” means IntelliSports Inc., a corporation incorporated in Québec under the Business Corporations Act,
- “IntelliSports Group” means IntelliSports, its partners, their respective subcontractors and affiliates, and the shareholders, officers, directors, employees, agents and servants of each of them;
- “Klutch System” means the Klutch Technology and all Intellectual Property and Improvements associated therewith;
- “Klutch Technology” means the proprietary technologies related to curling rock tracking, some aspects of which are described in IntelliSports PCT patent ;
- “Parties” means IntelliSports and the Client and “Party” means each one of the Parties to this Agreement;
- “Person” means any individual, corporation, partnership, trust, government or governmental body or other incorporated or unincorporated entity;
- “Quotation” means the signed document or invoice attached to the Terms and Conditions of Sale to Curling Clubs which may describe, among other items, the Hardware, Sale Price, Delivery Terms and contact information of the general manager, head coach and ice technician of the Client or other person representing the Client;
- “Sale Price” means the price of the Hardware, plus applicable sales, value-added, excise or other similar taxes imposed by applicable law ;
- - HARDWARE SALE AND DELIVERY
- Subject to the terms and conditions of the Agreement, IntelliSports agrees to sell to the Client and the Client agrees to purchase from IntelliSports the Hardware for the Sale Price, plus any Delivery Fees. That sale is final. No refunds will be issued and no returns will be accepted except in accordance with Article 6 hereto.
- The Sale Price and Delivery Fees, where applicable, must be paid in full by credit card or by cheque as per the terms agreed. The price of Hardware shall be the price set out in the Quotation. The Sale Price for Hardware stated in the Quotation, unless indicated otherwise, do not include applicable taxes.
- IntelliSports will use reasonable efforts to deliver the Hardware in accordance with the Delivery Terms, but will have no liability should the Hardware not be delivered to the Client by the anticipated date for delivery indicated in the Quotation. All risks of loss or damage to the Hardware is transferred to the Client upon delivery at its premises identified in the Quotation. IntelliSports will have no responsibility or liability for the condition of the Hardware after delivery except pursuant to Article 6 hereto. Unless otherwise specified in the Quotation, IntelliSports will not be required to deliver the Hardware, and title to the Hardware shall not pass to the Client until the Sale Price and Delivery Fees have been paid in full. Any customs duties and other Delivery Fees shall be borne exclusively by the Client.
- - INSTALLATION OF INTELLISPORTS’ LOGO
- The Client may affix IntelliSports’ logo (which will be provided by IntelliSports upon request) (the “Logo”) in the curling rink where the Hardware will be used and on the curling rocks in which the Hardware is placed, the whole in the manner specified in the Guide, for as long as the Client offers its members to use the Hardware (the “TM License Term”).
- IntelliSports hereby grants the Client a non-exclusive, revocable, non-transferable and royalty-free license to use the Logo only as provided in section 3.1 for the duration of the TM License Term and solely for the purposes and in the manner expressly authorized by the TM License Term. This right shall not be sublicensable. The Client acknowledges that IntelliSports is the owner of the Logo, and undertakes not to use or adopt the Logo or any confusingly similar mark, to dilute IntelliSports’ goodwill in the Logo or to otherwise use the Logo in any manner and for any purpose other than those expressly authorized. The Client acknowledges that the Logo is used under license to IntelliSports’ exclusive benefit. The Client shall not challenge or encourage any Person to challenge the validity of the Logo or IntelliSports’ rights in and to the Logo. IntelliSports has a right to inspect, at any reasonable time during business hours, the premises where the Logo is installed to verify that the Logo is used in accordance with the Agreement and the quality of the products and services offered by the Client in association with the Logo.
- - GRANT OF LICENSE TO KLUTCH SYSTEM
- Subject to the terms and conditions of the Agreement, IntelliSports hereby grants the Client a non-exclusive, non transferable, revocable and royalty-free license to use the Klutch System in the Hardware, for such uses that are allowed in the Guide and for no other purpose for the duration of the TM License Term. This right shall not be sublicensable.
- - OWNERSHIP OF HARDWARE
- Subject to the limited rights granted under this Agreement, the Client acknowledges and agrees that IntelliSports is and shall be the sole and exclusive owner of all Intellectual Property Rights in and to the Hardware, the Klutch System and the Logo, including any and all Intellectual Property Rights.
- The Client shall not:
- make, copy, manufacture, reverse engineer, decompile, translate, disassemble, alter or otherwise modify or make any other unauthorised uses the Hardware, Klutch System or other material delivered, or any discrete part(s) thereof;
- remove or modify any product markings or any notice of IntelliSport’s proprietary rights;
- copy, merge, sell, lease, sublicense, assign, transfer or make available the Hardware, Klutch Technology or any other material delivered to any third party;
- hypothec, charge, encumber or otherwise grant any other right over the Hardware, Klutch Technology or any other material delivered or any of their components;
nor will it assist any third party to do so, anywhere in the world, without the prior written consent of IntelliSports.
Client’s failure to comply with the provisions of this Section shall render the warranty provisions under the Agreement null and void and may cause legal actions from IntelliSports in addition to any other right provided for herein.
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- Subject to the provisions of this Agreement, the Client shall have no right to, and covenants not to apply for, any Intellectual Property Rights protection in respect of the Hardware, Klutch System, Logo or any other material delivered, or any of their components in any jurisdiction at any time.
- If the Client becomes aware that any Person is infringing, or threatening to infringe, any Intellectual Property Rights in the Hardware, Klutch System, Logo or any other material delivered, or any of their components, the Client shall immediately notify IntelliSports, in writing, to that effect. IntelliSports shall, at its own expense and discretion, take all commercially reasonable actions and proceedings necessary to prevent any third party infringement of such Intellectual Property Rights, and may take any other action or proceeding it deems necessary or desirable against any third party to protect or defend same. The Client agrees to take no action against any third party infringer without the prior written approval of IntelliSports. The Client shall co-operate and assist IntelliSports in any such action or proceeding, including the execution of documents, at IntelliSports costs provided that such expenses be preapproved by IntelliSports.
- The Client hereby assigns, grants and transfers to IntelliSports, and acknowledges and agrees that IntelliSports shall be the sole and exclusive owner of, all Intellectual Property Rights and other rights, titles and interests, in and to all of the Improvements, throughout the world, including, without limitation, all trade secrets, patent rights, copyrights and all other Intellectual Property Rights therein (all regardless of who was involved therewith). IntelliSports' ownership of and title to the Improvements and Intellectual Property Rights therein arises automatically upon the creation of such Improvements. To the extent the Client (or any of its employees or Person for whom it is in law responsible) retains any title to any Improvements for any reason whatsoever, the Client shall take and cause to be taken all necessary steps (including a waiver of any moral rights therein) to transfer full title and ownership thereto to IntelliSports. The Client further renounces or, as applicable, shall ensure that any Person for whom it is in law responsible renounces to the moral right in such Intellectual Property and otherwise comply with this provision.
- - MANUFACTURER’S WARRANTY
- IntelliSports warrants that, for the current curling season, starting in September and ending in May (the “Warranty Period”), the Hardware will be free from significant defects in material and workmanship (the “Manufacturer’s Warranty”).
- The Manufacturer’s Warranty does not apply where the Hardware has:
- been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to the Guide, this Agreement or any other instructions issued by IntelliSports from time to time;
- been reconstructed, repaired or altered by Persons other than IntelliSports or a Person authorized by IntelliSports; or
- been used with any third-party product, hardware or product that has not been previously approved in writing by IntelliSports.
- During the Warranty Period, with respect to any allegedly Defective Hardware:
- the Client shall notify IntelliSports, in writing, of any alleged claim or defect within five (5) Business Days from the date the Client discovers, or upon reasonable inspection should have discovered, such alleged claim or defect;
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- if so instructed by IntelliSports, the Client shall ship, at its expense and risk of loss, such allegedly Defective Hardware to IntelliSports’ facility at the address provided by IntelliSports for inspection and testing by IntelliSports;
- if IntelliSports’ inspection and testing reveals, to IntelliSports’ reasonable satisfaction, that any Hardware shipped by the Client to IntelliSports in accordance with this section is Defective Hardware and any such defect has not been caused or contributed to by any of the factors described under Section 6.2 (or Client’s fault or negligence), then IntelliSports shall in its sole discretion (i) repair or (ii) replace, at its own cost, such Defective Hardware;
- the Client has no right to return for repair or replacement any Hardware except as set forth in this Section. In no event shall the Client reconstruct, repair, alter or replace any Hardware, in whole or in part, either itself or by or through any third party, except as expressly permitted, in writing, by IntelliSports.
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This warranty does not apply to third party program or third party hardware.
- - OTHER WARRANTIES
- The Client acknowledges and agrees that:
- Except for the warranties defined at section 6.1, IntelliSports makes no warranty whatsoever with respect to the Hardware or the Klutch System or other material delivered, including any warranty of fitness for a particular purpose whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise;
- any support services provided by anyone in the IntelliSports Group are of such a nature that no certainty of results can be assured by IntelliSports and IntelliSports makes no warranty concerning the accuracy or completeness of the Hardware, Klutch System and of any data collected therein, the effectiveness of material used, recommendations given, or results of the services rendered; and
- The Client's sole and exclusive remedy at law or equity, whether in contract, tort or other theory of law in connection with this Agreement for any reason whatsoever is limited to the repair or the replacement of Defective Hardware as set forth in Section 6.3.IntelliSports’ maximum liability shall not exceed the amount paid to IntelliSports by Client under the Quotation in connection with each individual defective Hardware.
- TRAINING AND COACHING
- Notwithstanding the above, it is expressly agreed that the Client shall be responsible for the consequences of the loss or destruction of the Hardware of other material that are a result of the Client’s fault, negligence or use of the Hardware.
- The Client acknowledges and agrees that:
- – LIABILITIES AND INDEMNITIES
- The Client shall indemnify, defend and hold harmless the IntelliSports Group from and against any and all losses, damages, liabilities, infringement, deficiencies, claims, demands, actions, judgments, settlements, interest, awards, penalties, fines, costs (including settlement costs) and expenses of whatever kind, including reasonable attorney’s fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by IntelliSports, relating to, arising from or in connection with claims made against the IntelliSports Group arising out of any acts or omissions or negligence of the Client Group in relation to this Agreement, or arising out of or related to the use, operation and possession of the Hardware or the licensed properties and other material devivered by the Client.
- It is expressly understood and agreed that IntelliSports shall not be responsible for the negligence, acts or omissions of the Client Group in relation to this Agreement (or to any Person for whom they are in law responsible).
- The Client acknowledges and agrees that IntelliSports Group shall not be responsible for any accidental or intentional interception of, or tampering with data or other breaches by others, nor does IntelliSports Group guarantee the safe storage or the length of time of storage of any data in any form.
- - CONFIDENTIAL INFORMATION
- By virtue of the Agreement, Client may have access to technical, scientific, commercial and financial data and information, proprietary information or other information considered as confidential and treated as such by IntelliSports. All information directly or indirectly obtained by the Client from IntelliSports in the context of the Agreement shall be considered and treated as confidential information, shall only be disclosed to Client’s employees on a “need-to-know” basis and shall not be divulged to any third party by the Client or its employees without the prior written consent of IntelliSports. Such information shall be destroyed or returned to IntelliSports upon request; despite the foregoing should the Client be required to retain one copy of that information for compliance purposes, then such copy shall remain subject to the provisions of this Article 9.
- The obligations of confidentiality hereunder shall not apply to any particular part of the confidential information if the Client can establish:
- it is generally available to the public or subsequently enters the public domain through no fault of the Client (or employees);
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- it was received by the Client without obligation of confidence from a third party who the Client had no reason to believe was not lawfully in possession of such information free of any obligation of confidence;
- it was developed and applied by the Client using only its own knowledge and resources or using the knowledge and resources of a third party not connected with or under an obligation of confidentiality in relation to confidential information of IntelliSports; or
- it is required to disclose this information by law
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all as attested by proper written evidence.
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- These obligaitons of confidentiality shall remain in full force and effect for the term of this Agreement and for a 10-year period following its termination or expiration.
- – TERMINATION
Should a Party breach a material term of the Agreement and fail to correct such breach within thirty (30) days following written notice, the other party may terminate the Agreement. Client understands that if it is in default under the Agreement, it may not use the Hardware, the Klutch System or any other material delivered. Despite the end of the Agreement, all provisions which by their nature should survive such termination or expiry (such as those relating to limitation of liability, infringement, indemnity and confidentiality) shall remain in full force and effect.
- – GENERAL
- The addresses for notices for the Client and IntelliSports are those set out on the Quotation, or such other address subsequently specified in writing. Any notice that may be or is required to be given pursuant to this Agreement shall be in writing and shall be delivered by mail or email.
- This Agreement entered into by the Parties pursuant hereto, constitutes with the Privacy Policy and the Terms of Use the entire agreement of the Parties concerning its subject matter and no other representation, warranties or agreements, either oral or written, shall be binding upon IntelliSports or the Client. This Agreement supersedes and invalidates all prior agreements, understandings, negotiations, representations and warranties, whether oral or written, with respect thereto.
- No amendment to this Agreement made hereunder shall be effective or binding upon the Parties unless it is set forth in writing and duly executed by each of the Parties.
- If any of the provisions of this Agreement are determined to be invalid, illegal or unenforceable in any respect, this provision shall be deemed to be severable from the rest of the other provisions, and the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- The Client may not assign any of its rights or obligations hereunder without the written consent of IntelliSports.
- This Agreement is binding on the Client and IntelliSports and their respective successors and as applicable permitted assignees.
- The failure or delay by a Party in enforcing, or insisting upon strict performance of, any provision of this Agreement does not constitute a waiver of such provision or in any way affect the enforceability of this Agreement (or any of its provisions) or deprive a Party of the right, at any time or from time to time, to enforce or insist upon strict performance of that provision or any other provision of this Agreement. Any waiver by a Party of any provision of this Agreement is effective only if in writing and signed by a duly authorized representative of such Party. The waiver of any breach shall not be deemed to be a waiver of any future breach, even similar in nature, or to affect the validity of this Agreement.
- This Agreement and any related documentation shall be interpreted, construed and enforced in accordance with the laws in force in the Province of Québec, excluding any conflicts of law principles and other private international law rules, and the principles of the U.N Convention on Contracts for the International sale of Goods that could lead to the application of another jurisdiction's laws. Any legal proceedings that may be taken by the Parties in respect of this Agreement or any related such documentation, shall be taken before the courts of Québec, judicial district of Montreal, and each of the Parties specifically agrees to the jurisdiction thereof.
- The Parties declare that they have required that this Agreement and any documents relating thereto be drawn up in English. Les parties aux présentes déclarent qu’elles ont exigé que cette entente et tous les documents y afférents soient rédigés en anglais.
Terms & Conditions for App Users