Ride Spot Agreement
This Ride Spot Agreement (this “Agreement”) is made by and among PeopleForBikes Coalition, Ltd, a Colorado nonprofit corporation (“PFB”) and you (the “Company”), and governs your use of Ride Spot, which is a software as a service platform accessible via a mobile application and online (the “Ride Spot Platform”) that provides services to users, including helping users to find bike routes, track bike rides, enter contests, navigate with turn-by-turn directions, share ride stories, and other services as offered from time to time by PFB (the “Ride Spot Services”). By clicking the [I AGREE BUTTON] below you hereby accept this Agreement, and this Agreement will become effective (the “Effective Date”) Each of PFB and the Company are a “Party” and collectively the “Parties” to this Agreement.
Ride Spot Platform.
Provision of the Platform. Subject to the provisions of this Agreement, PFB will use commercially reasonable efforts to provide the Ride Spot Platform (as defined on the Cover Sheet) to the Company and Authorized End Users during the Term.
License. Subject to the provisions of this Agreement, PFB hereby grants to the Company a non-exclusive, non-sublicensable, non-transferable right and license, during the Term and in accordance with the documentation made available by PFB (the “Documentation”), access and use the software made available on the Ride Spot Platform.
Administrator Logins. As part of the registration process, the Company will designate one or more persons who will have administrator access to the Company’s profile on the Ride Spot Platform and will establish one or more usernames and passwords for the Company’s account. To the extent Company has administrator access. the Company will be responsible for maintaining the security of the usernames and passwords and for all uses of the Company’s account.
Restrictions on Use. In the event that the Company manufactures, markets, sells, or offers for sale bicycles to others (a “Manufacturer”), Company agrees to only use the Ride Spot Platform, Ride Spot Services, and Documentation solely for internal purposes directed to its employees and not for the sale or advertising of bicycles, customer insights and purchasing behaviors, or use the Ride Spot Platform, Ride Spot Services, or Documentation on behalf of any Manufacturer. Company agrees not to use the Ride Spot Platform, Ride Spot Services, or Documentation with any Manufacturer branding or advertising, including but not limited to, challenges, events, or features of a Manufacturer. The Company agrees not to include the branding of Manufacturers on the Ride Spot Platform or associated materials, nor use any Licensed Trademarks on the same materials as those featuring Manufacturer branding. Company shall not charge a fee or subscription for the Ride Spot Services.
The Company may not use the Ride Spot Platform or the Ride Spot Service for any purpose other than the Permitted Use and subject to the Restrictions on Use. Except to the extent expressly permitted herein, the Company will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how or algorithms relevant to the Ride Spot Platform or any software, documentation, or data related to the Ride Spot Services; modify, translate, or create derivative works based on the Ride Spot Services or Ride Spot Platform; use, evaluate, or view the Ride Spot Platform for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure, or any portion thereof, which performs functions similar to the functions performed by the Ride Spot Platform; use the Ride Spot Services or the Ride Spot Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Ride Spot Platform.
Neither the Ride Spot Platform nor the Ride Spot Services is sold to the Company. The Ride Spot Platform, the Ride Spot Services, the Documentation, and all Intellectual Property Rights therein, are the exclusive property of PFB or its licensors. All rights in and to the Ride Spot Platform, the Ride Spot Services, and the Documentation which are not expressly licensed to the Company hereunder are reserved by PFB and its licensees.
Fees. The Company shall pay PFB the fees (the “Fees”) set forth in the Order Form. Unless otherwise set forth in an Order Form or this Agreement, all Fees due hereunder will be paid quarterly in advance, are non-refundable, will be paid in U.S. dollars, and will be due and payable within 30 days of the date of the invoice therefor.
Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments (“Taxes”). The Company is responsible for paying all Taxes associated with the payment of Fees hereunder, excluding taxes on PFB’s net income. If PFB has the legal obligation to pay or collect Taxes for the Company, where the Company is responsible hereunder, PFB will invoice the Company and the Company will pay the amount unless the Company provides PFB with a valid tax exemption certificate from the appropriate taxing authority.
PFB hereby grants to the Company a non-exclusive, non-sublicensable, non-transferable right and license, during the Term, to use those trademarks provided by PFB to the Company (the “Licensed Trademarks”) solely in accordance with the guidelines established by PFB or as otherwise authorized in writing by PFB. Any goodwill or ownership rights derived from the use of the Licensed Trademarks by the Company shall inure to the benefit of PFB.
PFB may modify the Licensed Trademarks from time to time to ensure that all goods and services which are identified by or associated with the Licensed Trademarks, and all uses of the Licensed Trademarks, are of good taste and high quality and maintain and enhance the value of the Licensed Trademarks and the reputation for high quality associated with the Licensed Trademarks.
Company and End User Data.
Company Data. The Company may be required to provide certain data, information, and other materials (the “Company Data”) to PFB to enable PFB to provide the Ride Spot Platform and the Ride Spot Services. The Company hereby grants to PFB the right and license to use any Company Data provided to it as is reasonably necessary to provide the Ride Spot Platform and the Ride Spot Services.
Data License. The Company hereby grants to PFB, the right and license to use, copy, manipulate, and anonymize the End User Data. To the extent that End User Data contains PII, the Company will maintain the security and confidentiality of such information in accordance with all applicable laws and the Company’s internal policies concerning PII.
Term and Termination.
Term. The term will commence on the Effective Date and remain in effect for as long as the Company continues to use the Ride Spot Platform or the Ride Spot Services.
Termination. Notwithstanding Section 5.01, this Agreement shall automatically terminate if one Party (the “Breaching Party”) has materially breached this Agreement and the breach remains uncured for 30 days following the Breaching Party’s receipt of written notice of the breach from the other Party. Either Party may terminate this Agreement, with or without cause, upon providing 45 days’ prior written notice thereof to the other Party.
Effect of Termination. Upon the expiration or termination of this Agreement for any reason, the rights and licenses granted to the Company hereunder will cease, the Company will promptly discontinue all use of the Ride Spot Platform, the Ride Spot Services, and the Documentation, and the Company will immediately delete or destroy all locally installed software and Documentation, if any, provided by PFB as part of the Ride Spot Platform.
Survival. The provisions of this Agreement which should survive the termination of this Agreement to give effect to the purpose of this Agreement and the Parties’ intent shall so survive, including without limitation Sections 6.02, 7, 8, 9, and 10, and any other section that should reasonably survive.
Representations and Warranties.
PFB will use reasonable efforts consistent with prevailing industry standards to maintain the Ride Spot Platform in a manner which minimizes errors and interruptions in the Ride Spot Services. The Ride Spot Platform and the Ride Spot Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by PFB or by third-party providers, or because of other causes beyond PFB’s reasonable control, but PFB shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
Except as expressly provided in Section 6.01, the Ride Spot Platform and the Ride Spot Services are provided “as is” and PFB disclaims any and all other representations and warranties, express or implied, including any implied warranties of merchantability, title, or fitness for a particular purpose.
Liability. In no event shall either Party be liable for any consequential, indirect, exemplary, special, punitive, or incidental damages, or for damages for lost data or lost profits, arising out of or relating to this Agreement, however caused and under any theory of liability, even if the Party in question has been advised of the possibility of such damages.
Mutual Third-Party Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party, its Affiliates, and the other Party’s and its Affiliates’ shareholders, officers, directors, managers, employees, agents, and other representatives (the “Indemnitees”) from and against any and all actions, suits, proceedings, claims, liabilities, damages, losses, judgments, and expenses, including reasonable attorneys’ fees and costs (“Damages”), resulting from, arising out of, or relating to a Third Party Claim. “Third Party Claim” means an action, suit, proceeding, and claims brought or made by a third party which results from, arises out of, or relates to actual or alleged facts which, if true, constitute the Indemnifying Party’s breach of this Agreement or commission of any act or omission that relates to the subject matter of this Agreement and gives rise to the Third Party Claim under any theory of law.
Intellectual Property Infringement. If the Ride Spot Platform, the Ride Spot Services, or the Documentation, or any part or use thereof, is held or in PFB’s opinion is reasonably likely to be held by a court of competent jurisdiction to infringe, misappropriate, or otherwise violate any third party’s Intellectual Property Rights, PFB will (in addition to indemnification under Section 8.01), at its option and expense and as the Indemnitees’ sole and exclusive remedy, procure for the Company the right to continue using the Ride Spot Platform, the Ride Spot Services, or Documentation; replace or modify the Ride Spot Platform, the Ride Spot Services, or Documentation so that it becomes non-infringing (such as modification or replacement shall be functionally equivalent to the original); or if neither (a) or (b) is practicable, terminate this Agreement.
Exclusions. PFB will have no obligation under Section 8.01 or 8.02, and the Company hereby releases PFB from any Damages hereunder, to the extent that a Third Party Claim or holding in connection with the infringement, misappropriation, or other violation of a third party’s Intellectual Property Rights is based on the Company’s alteration, use, or promotion of the Ride Spot Platform, the Ride Spot Services, or the Documentation in violation of this Agreement or the use of the Ride Spot Platform, the Ride Spot Services, or the Documentation by any Authorized End User which violates the Ride Spot Terms and Conditions or by any person who is not an Authorized End User.
Definition of Confidential Information.
“Confidential Information” means all information that one Party discloses (the “Disclosing Party”) to the other Party (the “Receiving Party”) that falls within one or more of the following categories: any information identified, whether orally or written, as confidential by the Disclosing Party; any information, including cost data, customer lists, formulas, patterns, compilations, programs, devices, methods, techniques, or processes that derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainably by proper means by, other persons who could obtain economic value from its disclosure or use; any information which the Receiving Party knows or reasonably should know that the Disclosing Party is required to keep confidential under law or under a binding obligation with a third party; and all information provided to the Receiving Party which the Receiving Party knows or reasonably should know could be detrimental to the interests of the Disclosing Party if disclosed or used without authorization, whether or not such information is identified as confidential.
Information that falls into any one or more of the following categories will not constitute Confidential Information: information that is or becomes part of the public domain through no fault of the Receiving Party; information that the Receiving Party can show was known by the Receiving Party prior to receipt from the Disclosing Party; information that the Receiving Party can show was independently developed by or for the Receiving Party without relying on any Confidential Information of the Disclosing Party; and information that the Receiving Party can show was rightfully received from a third party who is not under any obligation to maintain the confidentiality of such information, under circumstances not involving a violation of the rights of the Disclosing Party.
Protection of Confidential Information. The Receiving Party will not, directly or indirectly, without the written consent of the Disclosing Party, disclose, transfer, or otherwise communicate any Confidential Information to any third party or use Confidential Information for any purpose. A Receiving Party may only disclose, transfer, or otherwise communicate Confidential Information to such Party’s employees, subcontractors, and third-party suppliers that need to know the information to facilitate the Receiving Party’s performance of its obligations or exercise its rights hereunder, provided that such third party has agreed to terms and conditions restricting the disclosure and use of such information which are at least as restrictive as those set forth herein.
Disclosure by Court Order or Law. The Receiving Party will not be in breach of the obligations hereunder to the extent that it provides Confidential Information under a court order or discloses Confidential Information as required by law. Before the Receiving Party discloses Confidential Information under this Section 9.03, the Receiving Party must promptly notify the Company in writing of the court order or legal requirement, must give the Company a reasonable opportunity to contest or limit the required disclosure, and must provide reasonable assistance at the Company’s expense, except to the extent it is illegal to do any of the foregoing.
Further Assurances. Each Party shall execute all further documents and take all further acts reasonably necessary or appropriate to carrying out the intent of this Agreement.
Notices. All notices given or required under this Agreement shall be in writing and shall be deemed to have been given when personally delivered, one business day after deposited with a nationally recognized delivery service (i.e., Federal Express), overnight and prepaid; or four business days after deposited in the US Mail, certified with return receipt requested, postage prepaid. A Party shall acknowledge a notice when received. All notices shall be addressed to the person identified on the Cover Page. A Party may change its address by giving notice to the other Party.
Export Laws. The Company will not export or re-export any software provided by PFB without obtaining the written consent of PFB and all required United States and foreign government licenses.
Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to conflict of laws principles.
Venue and Jurisdiction. An action brought by either Party to interpret or enforce any provision of this Agreement shall be brought only in a state or federal court located in Delaware. Each Party submits to the jurisdiction and venue of such courts and waives any objection to which it otherwise might be entitled regarding such jurisdiction or venue.
Waiver of Jury Trial. Each Party hereby waives any right it has or may have to a trial jury in any action, suit, or proceeding arising out of or in connection with this Agreement.
Transfer and Assignment. Neither Party may assign or otherwise transfer (whether voluntarily, by operation of law, or otherwise) this Agreement nor any right or obligation hereunder without the prior written consent of the other Party; provided, however, that either Party, without such consent, may assign this Agreement and all of its rights and obligations hereunder in connection with any of the following transactions: the transfer or sale of all or substantially all of the its business and assets; the sale, spin-off, or creation of a subsidiary or affiliated entity of the assigning Party; or a merger, consolidation, change in control, or similar transaction to which the assigning Party is a party. Any permitted assignee will be deemed to have assumed all the obligations of the assigning Party under this Agreement.
Entire Agreement. This Agreement states the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes and replaces all previous discussions, negotiations, and agreements between the Parties.
Severability. If any provision of this Agreement is held to be invalid or unenforceable, the Parties intend that the provision be enforceable to the maximum extent permitted under law and therefore the Parties desire and request that the court reform the invalid or unenforceable provision to render it enforceable to the maximum extent permitted. If the court refuses to modify or reform the provision, then the provision shall be severed from this Agreement with no effect upon the remaining provisions of this Agreement.
Waiver. The failure of any Party to insist upon the performance of any provision of this Agreement or to exercise any right or privilege granted to such Party under this Agreement will not be construed as waiving such provision or any other provision of this Agreement.
Third Party Beneficiaries. This Agreement is intended for the benefit of the Parties and their respective successors and permitted assigns and not for the benefit of, and may not be enforced by, any third party.
Amendments. Any amendment or addition to this Agreement will be effective only if in writing and signed by both Parties.
Interpretation and Definitions.
Sections headings are for reference only. The word “including” means “including without limitation.”
“Affiliate” means an entity that controls, is controlled by, or is under common control of a Party.
“Intellectual Property Rights” means rights to copyrights, trademarks, trademark applications (including intent-to-use applications), trade names, moral rights, trade secrets, patents, patent applications, inventions, invention disclosures, know-how, designs, and other items commonly recognized as intellectual property under the laws of the United States or any other country.
“Ride Spot Terms and Conditions” means the terms and conditions applicable to end users of the Ride Spot Platform and the Ride Spot Service available at https://ridespot.org/terms-and-conditions, and which may be modified by PFB from time to time.
Counterparts. This Agreement may be executed and delivered in counterparts (including by means of electronic signatures), all of which taken together will constitute one and the same agreement.