Exhibit A

 

Simple Kicking Terms & Conditions of Use

Welcome to the Simple Kicking Program which is made up of the Simple Kicking App (“App”), Pro-Posts, and Go-Posts provided by Simple Kicking Solutions, LLC dba Simple Kicking (“SK”).

Your use of the Program is governed by these terms and conditions (this “Agreement”) and, if applicable, the Simple Kicking Software License Agreement (“EULA”). By using the App, you agree to be bound by this Agreement or you are a user with a registered account (“Registered User”). SK may at any time in its sole discretion (i) modify this Agreement and such modification shall be effective once posted to the App, (ii) change the App, including eliminating or discontinuing any App or other feature; and/or (iii) deny or terminate your use of and/or access to the App.

You agree to be bound to any changes to this Agreement when you use the App immediately after any modification to this Agreement has been posted. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.

The term “User” refers to any Registered User. You are only authorized to use the App if you agree to abide by all applicable laws, this Agreement and the EULA, if applicable. Please read this Agreement carefully and save it. If you do not agree with it, you should discontinue use of the App immediately. If you wish to become a Registered User, communicate with other Users, and make full use of the App, you must read this Agreement and indicate your acceptance during the registration process.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.

1. Limited License.

SK authorizes you to copy materials on this App to your hard drive solely for the purpose of viewing and using the App on your iPhone, iPad, and/or computer. You may also print portions of the App in hard copy for the sole purpose of facilitating the team’s use and retention of information from the App.; provided, that (i) you must retain all trademark, copyright, and other proprietary notices contained in the original materials, (ii) you must provide attribution to SK, and if possible provide a reference to the Site, (iii) the material must be printed in its entirety without modification, reformatting or adaptation of any kind, (iv) any such copies are subject to the terms and conditions of this Agreement and remain the property of SK, and (v) you agree to advise any person to whom you share the materials as to this Agreement and they must agree to abide by this Agreement. You may not sell or modify the material or reproduce, republish, display, publicly perform, distribute, or otherwise use the material in any way for any public or commercial purpose other than through the App. Unauthorized use of the App for any other purpose is prohibited. You may not decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from the App. Nor may you use any network monitoring or discovery software to determine the App architecture, or extract information about usage or users. You may not use any robot, spider, other automatic device, or manual process to monitor or copy our App or its content without our prior written permission.

Failure to abide by these conditions will immediately terminate this permission and may result in the infringement of the copyrights and/or trademarks and other proprietary rights of SK or others.

2. User Content.

Except as provided in the EULA or in this Agreement, SK does not claim any ownership rights in the text, data, files, images, photos, video, sounds, or any other materials (collectively, “Content”) that you post or upload to the Site and/or through the App (“User Generated Content”). After posting or uploading your User Generated Content to the Site and/or through the App, you continue to retain all your ownership rights in such User Generated Content except as set forth in the EULA or in this Agreement.

In addition, the Site and/or App may contain Content, under license to SK from one or more third parties, in which you are featured and/or visible or which includes your name, sobriquet, professional name, image, likenesses, other identifications, and biographical material (“User Featured Content” and together, with User Generated Content, “User Content”).

3. SK Intellectual Property.

The App, as well as certain Content available therein (together, “SK Intellectual Property”), are protected by copyright, trademark, patent, trade secret and other intellectual property laws in the United States and other countries, and SK owns and retains all such rights in the SK Intellectual Property.

Without limiting the foregoing, SK, the SK logo, are trademarks of SK, protected under international law, the laws of the United States and other countries. Other parties’ trademarks used, depicted or identified on this App are the property of their respective owners, used here by permission, and may be registered in one or more countries. Use on this App of the trademark(s) (including, but not limited to, names and logos) of any other party is not intended to imply SK’s affiliation with or endorsement of that party, or that party’s sponsorship or endorsement of SK and their products or App.

4. Privacy.

You agree to the terms of the SK Privacy Policy, as it may be updated from time to time, a copy of which is posted on the Site.

5. Disclaimers.

DISCLAIMERS OF WARRANTIES: SK DOES NOT WARRANT THAT THE APP WILL OPERATE ERROR-FREE. IF YOUR USE OF THE APP RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, SK IS NOT RESPONSIBLE FOR THOSE COSTS. THE SITE AND APP ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. SK, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON- INFRINGEMENT OF THIRD PARTIES RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. SK MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE APP.

DISCLAIMER OF CONSEQUENTIAL DAMAGES: EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER SK NOR THE SK ENTITIES OR THEIR DIRECTORS, EMPLOYEES, LICENSORS, CONTENT PROVIDERS, AFFILIATES OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND EXEMPLARY DAMAGES, ARISING FROM THE USE OF THIS APP, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

REMEDY: IF YOU ARE DISSATISFIED WITH THE APP, YOUR EXCLUSIVE REMEDY SHALL BE TO CEASE USING THE APP.

Some U.S. states and foreign countries do not permit the exclusion or limitation of implied warranties or liability for certain categories of damages. Therefore, some or all of the limitations above may not apply to you to the extent they are prohibited or superseded by state or national provisions. SK makes no representation of any kind with respect to the applicability and enforceability of laws or policies of countries other than the United States over the content of this site and the provisions of this Agreement.

7. Other Miscellaneous Terms.

Should any clause of this Agreement be found unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect. SK’s failure to expressly enforce any provision of this Agreement does not waive its rights to enforce that or any other provision. SK may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder (in whole or in part) in its sole discretion.

8. NCAA Regulations / Other Regulations.

SK is in no way affiliated with or sponsored by the NCAA. You are responsible for your own activities in connection with the Site, including your use of the App. Accordingly, you are responsible for knowing and complying with the NCAA’s rules, regulations, and laws or other similar rules, regulations, and laws (collectively, “NCAA Regulations”). SK is not responsible if you do not abide by NCAA Regulations (or any other similar rules or regulations) in connection with your use of the Site, and/or App. If you act in violation of the NCAA Regulations, SK may take reasonable steps in response, including, but not limited to, termination of your access to and use of the App and/or reporting of such conduct to the NCAA, the authorities, or other appropriate entity. SK does not knowingly promote any violations of NCAA Regulations (or any other similar rules or regulations).

9. Notice for California Users

Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer App of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.

 

Exhibit B

 

SK Software License Agreement

 

NOTICE: PLEASE READ THIS CONTRACT CAREFULLY. THIS IS A LICENSE AGREEMENT (“AGREEMENT”) BETWEEN YOU AS THE LICENSEE AND SIMPLE KICKING SOLUTIONS, LLC. DBA SIMPLE KICKING (“SK”) AS THE LICENSOR. THE SOFTWARE IS LICENSED FOR USE ONLY PURSUANT TO THE TERMS SET FORTH HEREIN. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THE TERM

“YOU” OR “LICENSEE” SHALL MEAN THE LEGAL ENTITY FOR WHICH THE SOFTWARE HAS BEEN OBTAINED AND ON WHOSE BEHALF IT IS USED, AS INDICATED IN YOUR ORDER (E.G., THE SCHOOL OR ATHLETIC ORGANIZATION). IF YOU DO NOT AGREE, DO NOT USE THE SOFTWARE. THE PERSON PLACING THIS ORDER REPRESENTS THAT THEY HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE LICENSEE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF YOUR INITIAL ORDER (“EFFECTIVE DATE”).

1. Definitions.

1.1            “Client Software” means those elements of the App intended for installation on iPhones, iPads or other iOS computers.

1.2            “Coaching Data” means Licensee coaching tools and data, such as charts, graphs, tables, and Video Content, diagrams, as contained in the Software. Coaching Data does not include Coach Contact Information.

1.3            ”Coach Contact Information” means name, email address, phone number, and any other contact information of any coaches provided by Licensee to SK.

1.4            “Documentation” means the standard user, operations and training manuals that SK makes available to its licensees generally in connection with the Software.

1.5            “End Users” means members of each Licensee Team and such Team’s respective coaching and support staff.

1.6            “Enhancements” means improvements, updates, fixes, or version upgrades which offer enhancements to the functionality, performance or reliability of the Software and that are made available by SK to its licensees generally; provided, however, that Enhancements shall not include any new platforms, modules or other software that SK may develop from time to time, which are generally licensed separately by SK.

1.7            “Intellectual Property Rights” means any rights under any patent (including patent applications and disclosures), copyright, trademark, trade secret, or other intellectual property right recognized in any country or jurisdiction in the world.

1.8            “Software” means SK’s non-professional sports team training and management system software marketed as “Simple Kicking”, in object code form only, and the related Documentation, and any Enhancements provided by SK to Licensee in SK’s sole discretion. Software shall include the Client Software.

1.9            “Statistical Data” means Team rosters and performance statistics for each Team and End User, as inputted by Licensee into the App.

1.10         “Team” means each athletic team identified in an order for which Licensee has paid in full any amounts owed under this Agreement.

1.11         “Video Content” means any and all Team, End User video clips and other game or practice film, uploaded by Licensee to the Software, including, the voices, performances, poses, acts, plays, appearances, pictures, images, likeness, photographs, silhouettes and other reproductions of the physical likeness and sound of the players, coaches, and all others appearing in the Video Content.

1.12         “Vital Information” means physical characteristics (e.g., height and weight) and contact information concerning any End User, as input by Licensee into the Software or as otherwise publicly available.

2. Licenses.

2.1            Software License Grant. Subject to this Agreement, SK grants to Licensee the non-exclusive, non- transferable, revocable right during the Term (as defined below) to (i) download and install the Client Software on End User iPhones, iPads other iOS computers, and (ii) access and use the Software for internal use by End Users. Licensee may grant its End Users the rights in (i) and (ii). As a condition of the grant in this section, Licensee may not modify, transfer, or otherwise sublicense or distribute the Software to any third party, and Licensee may not disassemble, decompile or reverse engineer the Software. SK shall have the right to immediately terminate the foregoing license upon any breach (including any attempted and/or threatened breach) of this Section 2.1.

2. Feedback.

SK may solicit from Licensee and/or End Users, and/or Licensee and/or End Users may submit to SK comments, information, questions, data, ideas, enhancement requests, recommendations, description of processes, or other information concerning the Software (“Feedback”). SK owns all Intellectual Property Rights in any Feedback and may use such Feedback for any purpose related to the Software without further approval or acknowledgement, and Licensee and each End User hereby assigns to SK any and all rights of Licensee in any such Feedback throughout the universe in perpetuity.

 

3. Promotion.

SK may, in its sole discretion, issue a press release to announce Licensee as a new customer. Subject to SK’s confidentiality obligations hereunder, SK may display on SK’s website and in any and all promotional materials (irrespective of the means of exploitation) a case study or other customer usage scenario referencing or featuring Licensee. SK may prepare and utilize testimonials of a reasonable number of End Users, subject to Licensee’s prior consent (to the extent Licensee is entitled to grant such consent). Licensee hereby grants to SK, and represents to SK that it may grant, a non-exclusive, non-transferable, royalty-free license for SK to make use of Licensee’s name or logo during the Term on SK’s website and in any and all promotional materials (irrespective of the means of exploitation). All such use shall inure to the benefit of Licensee, and SK shall have no implied right to any other intellectual property of Licensee except as set forth in this Agreement. SK shall use its best efforts to comply with any use guidelines that Licensee provides to SK in writing; provided, that an inadvertent failure to comply shall not be a breach of this Agreement.

 

4. Support.

SK will provide Licensee with the maintenance and support App for the Software indicated on Licensee’s order, subject to Licensee’s payment of the fees as set forth in Section 7 below.

5. Payment.

5.1            Costs. Licensee will pay SK the fees, in such amounts and at such times, as indicated on Licensee’s order(s). Fees are payable in advance of the then-applicable periodic term and are not refundable in the event of any cancellation. SK reserves the right to terminate or limit Licensee’s use of the Software at any time without notice to Licensee in the event payment has not been received within thirty (30) days of the date due. Licensee is responsible for all costs and expenses related to the use of the Software (e.g., cameras, laptops, and any other equipment or software used by End Users).

6. Confidentiality.

Each party (a “Receiving Party”) may be provided or have access to Confidential Information (as defined below) of the other party (a “Disclosing Party”). Confidential Information will not include anything that is authorized by Licensee for disclosure to third parties pursuant to the terms of this Agreement or use of the Software, as provided herein, already in the possession of the Receiving Party without obligation of confidence, is independently developed by the Receiving Party without use of Confidential Information, is or becomes available to the general public without breach of this Agreement, or is rightfully received by the Receiving Party from a third party without obligation of confidence. A Receiving Party agrees that it will not, without the consent of the other party, disclose Confidential Information to third parties or use it in any way except as set forth herein, and take actions reasonably necessary to protect the confidentiality of the Confidential Information. “Confidential Information” means (i) any proprietary information, technical data, trade secrets or know-how of SK, including, but not limited to, research, product plans, and proprietary information concerning products and App, pricing, or other business or technical information of SK that is designated to be confidential or proprietary or which reasonably appears to be confidential or proprietary; and (ii) to the extent not otherwise released by Licensee and except as provided in the Privacy Policy, the Video Content, Coaching Data and Player Confidential Profile Data.

7. Term and Termination.

The term of this Agreement shall commence upon the Effective Date and will continue for an initial period, as

specified in Licensee’s initial order, and thereafter shall be automatically renewed on an annual basis, as specified in an order, for so long as Licensee’s order(s) are in effect (the “Term”), unless otherwise terminated, as provided below. Licensee may provide notice of cancellation of the use of the Software by one or more Teams, or this Agreement, at any time prior to the expiration of the then-current annual term. SK may terminate this Agreement if Licensee materially breaches any term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Upon termination, Licensee shall have no further rights hereunder and shall promptly remove the Software and Enhancements from each and every Licensee and End User computer.

8. Representations and Warranties.

8.1            Licensee represents to SK as follows: (i) it has the authority to enter into this Agreement and perform its obligations under this Agreement; (ii) it has all secured and will maintain any and all rights, consents and/or releases, including all Intellectual Property Rights, necessary to grant the licenses herein, including from any End Users, independent contractors, governing athletic bodies, conferences or organizations, and parents of End Users that are minors; (iii) the Video Content and the Coaching Data, as incorporated into the Software by Licensee and SK exploitation thereof in accordance with the terms of this Agreement, do not violate, infringe upon, or misappropriate the Intellectual Property Rights, or any other right, of any third party; (iv) there are no existing or threatened claims or litigation which would materially adversely affect or materially adversely impair Licensee’s ability to perform under this Agreement; (v) it has no agreement with or obligations to any third party with respect to the rights herein granted which conflict or interfere with or adversely affect any of the provisions of this Agreement or the use or enjoyment by SK of any of the rights herein granted; and (vi) Licensee has not sold, assigned, transferred or conveyed, and will not sell, assign, transfer, or convey, to any party any right, title, or interest in and to the rights herein granted or any part thereof, adverse to or in derogation of the rights herein granted to SK.

8.2            SK represents to Licensee that it has the authority to enter into this Agreement and perform its obligations under this Agreement.

8.3. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, LICENSEE’S USE OF THE SOFTWARE IS AT LICENSEE’S OWN RISK AND PROVIDED AS-IS, WITHOUT ANY WARRANTIES, AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.

9. SK Indemnification.

9.1            SK will defend or settle any action brought against Licensee to the extent that it is based upon a third party claim that the Software, as provided by SK to Licensee under this Agreement and used within the scope of this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret with regard to any third party (a “Claim”), and will pay any costs, damages and reasonable attorneys’ fees attributable to such Claim that are awarded against Licensee, provided that Licensee: (i) promptly notifies SK in writing of the Claim; (ii) grants SK sole control of the defense and settlement of the claim; and (iii) provides SK, at SK’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the Claim. Notwithstanding the foregoing, any and all of SK’s obligations under this Section 9 shall be limited to an amount equal to the subscription fees paid to SK under this Agreement.

9.2            If Licensee’s use of any of the Software hereunder is, or in SK’s opinion is likely to be, enjoined due to a Claim, SK may, at its sole option and expense, (i) use commercially reasonable efforts to procure for Licensee the right to continue using such Software under the terms of this Agreement; or (ii) use commercially reasonable efforts to replace or modify such Software so that it is non-infringing and substantially equivalent in function to the enjoined Software; or (iii) terminate Licensee’s rights and SK’s obligations hereunder with respect to such Software and refund to Licensee all fees paid for such Software for the then-current annual term.

9.3            Notwithstanding anything herein to the contrary, SK will have no liability for any infringement or misappropriation claim of any kind to the extent that related to: (i) modifications to the Software made by a party other than SK; (ii) the combination, operation or use of the Software or any other material licensed to Licensee hereunder with equipment, devices, software or data not supplied by SK; or (iii) Licensee’s failure to use an Enhancement provided by SK; (iv) Licensee’s breach of this Agreement; or (v) due to any action or inaction of Licensee.

9.4            THE INDEMNIFICATION PROVISIONS OF SECTION 9.1 AND THE REFUND PROVISIONS OF SECTION 9.2, SUBJECT TO THE EXCLUSIONS OF SECTION 9.3, SET FORTH SK’S SOLE AND EXCLUSIVE OBLIGATIONS, AND LICENSEE’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

10. Limitation of Liability.

10.1         EXCEPT FOR SK’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL SK BE LIABLE TO LICENSEE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST VIDEO CONTENT, COACHING DATA, OR STATISTICAL DATA, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR OTHER CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT, REGARDLESS OF WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2         SK’S TOTAL CUMULATIVE LIABILITY TO LICENSEE FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL NOT EXCEED THE FEES PAID TO SK BY LICENSEE PURSUANT TO THIS AGREEMENT.

11. Cooperation.

In the event Licensee becomes aware of any infringement by a third party of the Video Content and/or the Statistical Data, Licensee shall promptly notify SK. In the event SK becomes aware of, or is notified by Licensee of, any infringement by a third party of the Video Content and/or the Statistical Data, Licensee shall cooperate with SK, at SK’s reasonable request and at SK’s expense, in preparing any communications and/or bringing and prosecuting any action or suit with regard to such infringement.

Exhibit C

 

SK Equipment Rental and Service Agreement

 

1. Definitions.

1.1            “Agreement” means the Rental and Service Agreement, including these Rental and Service Terms which are incorporated by reference therein.

1.2            “Customer” means the person or entity identified as such in the Reservation Details or any representative, agent, officer or employee of Customer.

1.3            ”Equipment” means the “Pro Posts” and/or the “Go Posts.”  Any one or more of the items identified as rental items in the Reservation Details and any accessories, attachments or other similar items delivered to Customer including, but not limited to, wheels and hardware (such as bolts, pins, screws, nuts, washers).

1.4            “Rental and Service Agreement” means the agreement made between Customer and Simple Kicking for Customer to rent Equipment.

1.5            “Rental Period” means the period of time between the “Rental Out” and “Scheduled In,” set forth in the Rental and Service Agreement, except that the Rental Period may terminate earlier if Customer returns the Equipment earlier. “Credit Card” means the credit card provided by Customer as part of this Agreement or otherwise kept on file with Simple Kicking.

1.6            “Reservation Details” means the Equipment, Rental Period, delivery information, payment information and other information set forth on the Confirmation/Order Summary Screen or the Rental and Service Agreement, as the case may be.

1.7            “Location” means the Simple Kicking Address set forth in the Rental and Service Agreement.

2. Indemnity/Hold Harmless.

TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD SIMPLE KICKING, AND ANY OF ITS RESPECTIVE OFFICERS, AGENTS, SERVANTS OR EMPLOYEES, AND AFFILIATES, PARENTS AND SUBSIDIARIES, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, LOSS, DAMAGE OR COSTS (INCLUDING, BUT NOT LIMITED TO, LEGAL FEES, LOSS OF PROFIT, BUSINESS INTERRUPTION OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES, DAMAGES RELATING TO PROPERTY DAMAGE, BODILY INJURY OR DAMAGES RELATING TO WRONGFUL DEATH) ARISING OUT OF OR RELATED TO THE (A) INSTALLATION, OPERATION, USE, POSSESSION OR RENTAL OF THE EQUIPMENT, OR (B) ERRORS, OMISSIONS, INACCURACIES OR MISREPRESENTATIONS (WHETHER INTENTIONAL OR INADVERTENT) IN THE DOCUMENTS OR OTHER INFORMATION PROVIDED BY CUSTOMER, OR OBTAINED FROM OTHERS, UPON WHICH SIMPLE KICKING RELIES WHEN PROVIDING THE EQUIPMENT OR SERVICES. THIS INDEMNITY PROVISION ALSO APPLIES TO ANY CLAIMS ASSERTED AGAINST SIMPLE KICKING BASED UPON STRICT OR PRODUCT LIABILITY CAUSES OF ACTION. HOWEVER, CUSTOMER SHALL NOT BE OBLIGATED TO INDEMNIFY SIMPLE KICKING FOR THAT PART OF ANY LOSS, DAMAGE OR LIABILITY CAUSED SOLELY BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF SIMPLE KICKING. IN FURTHERANCE OF, BUT NOT IN LIMITATION OF THE INDEMNITY PROVISIONS IN THIS AGREEMENT, CUSTOMER EXPRESSLY AND SPECIFICALLY AGREES THAT THE FOREGOING OBLIGATION TO INDEMNIFY SHALL NOT IN ANY WAY BE AFFECTED OR DIMINISHED BY ANY STATUTORY OR CONSTITUTIONAL LIMITATION OF LIABILITY OR IMMUNITY CUSTOMER ENJOYS FROM SUITS BY ITS OWN EMPLOYEES. THE DUTY TO INDEMNIFY WILL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING THE EXPIRATION OR EARLY TERMINATION OF THE AGREEMENT.

 

3. Limitation of Liability.

In no event shall Simple Kicking be liable or responsible to Customer or any other party for: (i) any loss, damage or injury caused by, resulting from or in any way connected with the Equipment, its installation or its use; (ii) Simple Kicking’s failure to deliver the Equipment as required hereunder or Simple Kicking’s failure to repair or replace non-working Equipment; or (iii) any incidental, consequential, punitive or special damages, even if so advised of the possibility of such damages. Customer acknowledges and assumes all risks inherent in the operation, use and possession of the Equipment from the time the Equipment is delivered to Customer until the Equipment is returned to Simple Kicking and will take all necessary precautions to protect all persons and property from injury or damage from the Equipment.

 

4. Use of Equipment.

Customer is familiar with the proper installation and use of each item of Equipment. Customer has selected the Equipment based on its requirements and will not use or allow anyone to use the Equipment for an illegal purpose or in an illegal manner; without a license, if required under any applicable law; or who is not qualified to operate it.  CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD SIMPLE KICKING HARMLESS FROM ALL FINES, PENALTIES, DAMAGE TO EQUIPMENT. Customer agrees to: (i) clean and visually inspect the Equipment daily; and (ii) immediately cease using the Equipment and immediately notify Simple Kicking if Equipment needs repair or maintenance. Customer acknowledges that Simple Kicking has no responsibility to inspect the Equipment while it is in Customer’s possession. Simple Kicking shall have the right to replace the Equipment with other reasonably similar equipment at any time and for any reason.

5. Warranty.

SIMPLE KICKING WARRANTS THAT THE EQUIPMENT WILL BE IN GOOD WORKING ORDER UPON DELIVERY AND THE SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SIMPLE KICKING MAKES NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE EQUIPMENT, SPECIALTY MEDIA, OR SERVICES AND MAKES NO WARRANTIES AS TO THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, INCLUDING THE PERFORMANCE OF ANY FILTRATION EQUIPMENT TO MEET ANY APPLICABLE REGULATORY STANDARD. THERE IS NO WARRANTY THAT THE EQUIPMENT IS SUITED FOR CUSTOMER’S INTENDED USE, OR THAT IT IS FREE FROM DEFECTS OR CONTAMINANTS. EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THE AGREEMENT, SIMPLE KICKING DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, MADE IN CONNECTION WITH THIS RENTAL TRANSACTION.  IN THE EVENT OF A BREACH OF THE ABOVE EQUIPMENT WARRANTY, SIMPLE KICKING SHALL, AT ITS SOLE COST AND EXPENSE, REPAIR OR REPLACE THE EQUIPMENT. IN THE EVENT OF A BREACH OF THE ABOVE SERVICE WARRANTY, SIMPLE KICKING SHALL, AT ITS SOLE COST AND EXPENSE, RE-PERFORM THE SERVICE.

6. Return of Equipment/Damaged & Lost Equipment.

At the expiration of the Rental Period, Customer will return the Equipment to the Location with the provided shipping label. Customer is obligated to restore the Equipment to the same condition as when delivered, reasonable wear and tear (as defined below) accepted. Customer shall be responsible for all damages to or loss of the Equipment from the time Customer takes possession of the Equipment until the Equipment is either returned to the Location by Customer or confirmation of acceptance by the shipping company. In the case of the loss or destruction of any Equipment, or inability or failure to return same to Simple Kicking for any reason whatsoever, Customer will pay Simple Kicking the then full replacement list value of the Equipment together with the full rental rate as specified until such Equipment is replaced. If the Equipment is returned in a damaged or excessively worn condition, Customer shall pay Simple Kicking the replacement list value and pay rental on the Equipment at the regular rental rate until such Equipment is replaced. Simple Kicking shall be under no obligation to commence rental until Customer has paid to Simple Kicking the estimated cost therefor. Customer agrees that Simple Kicking reserves the right to charge the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this section due to damaged or lost Equipment.

6.1            Late Return

Customer agrees that if the Equipment is not returned by the end of the Rental Period), Simple Kicking, in its sole discretion, may require Customer to do any of the following: (A) continue to pay the rental rate(s) applicable to the Equipment as specified in the Agreement; (B) for periods less than 24 hours, pay $20. Customer agrees that Simple Kicking reserves the right to charge the

7. Deposit and Payment.

7.1            Deposit: In addition to securing the payment of rental charges hereunder, Customer agrees that any rental deposit shall be deemed to be a guarantee by Customer of the full and complete performance of each and all of the terms of this Agreement to be performed by Customer. In the event of any breach by Customer, the deposit will be credited against any damages, cost or expense incurred by Simple Kicking as a result of the breach.

 

7.2            Payment: All amounts due hereunder shall be payable in equal installments, beginning with the first installment due full upon receipt of invoice by Customer. Customer acknowledges that timely payment of rental and service charges is essential to Simple Kicking’s business operations and it would be impractical and extremely difficult to fix the actual damages caused by late payment. Customer and Simple Kicking agree that there shall be added to all past due rental charges a late payment fee equal to the lesser of two percent (2%) per month (24% per annum) on any such payments outstanding after 30 days, or the maximum amount allowed by applicable law.  Effective January 1, 2022 and where permitted by law, Simple Kicking may impose a surcharge of 2.4% for credit card payments on charge accounts.  This surcharge is not greater than Simple Kicking’s merchant discount rate for credit card transactions and is subject to sales tax in some jurisdictions. Rental rates do not include sales tax, goods and services tax or other taxes, levies and assessments required to be collected by Simple Kicking from Customer at any time upon, or in respect of, the Equipment and/or the Agreement (collectively, “Taxes”). Customer agrees that Simple Kicking reserves the right to charge the Credit Card and/or Customer’s account for any amount owed by Customer pursuant to this section due to late or past due payment(s) or rental charges or Taxes.

8. No Assignment, Lending, or Subletting.

Customer shall not sublease, subrent, assign or loan the Equipment without first obtaining the written consent of Simple Kicking, and any such action by Customer, without Simple Kicking’s written consent, shall be void. Customer agrees to use and keep the Equipment at the job site set forth in the Agreement unless Simple Kicking approves otherwise in writing. Simple Kicking may at any time, without notice to Customer, transfer or assign the Agreement or any Equipment or any moneys or other benefits due or to become due hereunder.

 

9. Entire Agreement/Only Agreement.

These terms and conditions and the front the Agreement, and any Addendum attached thereto, represent the entire agreement between Customer and Simple Kicking with respect to the Equipment and the rental and servicing of the Equipment. There are no oral or other representations or agreements not included herein. None of Simple Kicking’s rights or Customer’s rights may be changed and no extension of the terms of this Agreement may be made except in writing, signed by both Simple Kicking and Customer. Any use of Customer’s purchase order number on this Agreement is for Customer’s convenience only.

10. Class action waiver.

Customer agrees that any claims or proceedings brought by Customer relating to this Agreement will be conducted on an individual basis, and not on a class-wide, collective, or representative basis, and that any one person’s claims or proceedings may not be consolidated with any other claims or proceedings. Customer will not sue Simple Kicking as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class-action lawsuit against Simple Kicking. Nothing in this paragraph, however, limits Customer’s right to bring a lawsuit as an individual plaintiff.

11. Jury waiver.

The federal and state courts in the county in which the Location is located shall have exclusive jurisdiction over all matters relating to this Agreement. TRIAL BY JURY IS WAIVED. In order to effect service of process on Simple Kicking, please contact the Secretary of State Corporations Division or the equivalent office in your state to obtain the name of the registered agent and the registered office address that is on file with the Secretary of State for Simple Kicking. Simple Kicking shall be entitled to decrees of specific performance (without posting bond or other security) in addition to such other remedies as may be available.

11.1         Other provisions.

1. Any failure of Simple Kicking to insist upon strict performance by Customer of any terms and conditions of this Agreement shall not be construed as a waiver of Simple Kicking’s right to demand strict compliance. Customer has carefully reviewed this Agreement and waives any principle of law which would construe any provision hereof against Simple Kicking as the drafter of this Agreement. Any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement.
2. Customer agrees to pay all reasonable costs of collection, court costs, attorneys’ fees and other expenses incurred by Simple Kicking in the collection of any charges due under this Agreement or in connection with the enforcement of its terms.
3. Customer shall pay the rental charges without any offsets, deductions or claims.
4. Customer consents to the collection, use and disclosure of his or her personal identification and financial information as described herein and in Simple Kicking’s Privacy Policy. Customer’s personal identification and financial information is provided voluntarily and not as part of a credit card transaction. Personal identification information includes, for example, Customer’s name, billing address, ZIP code, telephone number, date of birth, driver’s license number and email address. Financial information includes, for example, information related to any balances or invoices related to the Agreement. Customer’s personal identification information can be used for purposes of this transaction, any subsequent transactions with Simple Kicking and for Simple Kicking to evaluate and improve its products and services and/or develop new products or services. Customer’s personal identification information and/or financial information may be disclosed to contractors, service providers and other third parties that support Simple Kicking’s business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them.
5. Simple Kicking shall have the right to immediately repossess the Equipment, without any liability to Customer, in the event of (i) permanent closure of the Location; (ii) declaration of any emergency, disaster or similar situation by any federal, state or local government; or (iii) as otherwise set forth in this Agreement.