Camp Operator Agreement


Brain Chase Productions, LLC (“Brain Chase”) provides access to and use of an online platform and related services and components that facilitate the creation, management, hosting and delivery of educational content (collectively, the “Platform”). Access to and use of the Platform is subject to the terms and conditions of this Agreement.

PLEASE REVIEW THIS AGREEMENT CAREFULLY. IT IMPOSES BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS. THIS AGREEMENT REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’S (DEFINED BELOW) ACCESS TO OR USE OF THE PLATFORM, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS AGREEMENT (EACH, A “CLAIM”), AND CUSTOMER AGREES THAT ANY CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 12 CAREFULLY TO UNDERSTAND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE PLATFORM, OR BY PAYING FOR ACCESS TO OR USE OF THE PLATFORM, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE PLATFORM.

1.       Definitions
(a)     “Aggregate Data” means Customer Data that has been aggregated in a manner that does not reveal any personal information and cannot reasonably be used to identify Customer or any User as the source or subject of such data.
(b)     “Camp” means an online camp, as identified in the applicable order form, operated by Customer.
(c)     “Credential” means any user account, password and other authentication credential associated with access to or use of the Platform by Customer or Users.
(d)     “Customer” means: (i) you; or (ii) if you are entering into this agreement on behalf of a company or other legal entity, such company or other legal entity.
(e)     “Customer Data” means all data, content, information and other materials that Customer or Users submit, upload, email, transmit or otherwise make available through the Platform.
(f)      “Customer Facilities” means any Credentials, accounts, hardware, systems or other facilities within the custody or control of Customer.
(g)     “Effective Date” means the earlier of the date on which Customer commences access to or use of the Platform or enters into this Agreement.
(h)     “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
(i)       “Policy” means any terms of use, acceptable use policy, privacy policy, end user license agreement or other guidelines instituted by Brain Chase or its licensors or service providers, as may be updated from time to time and presented to Customer and Users. “Policy” includes the Terms of Use and Privacy Policy posted on the Brain Chase website at https://brainchase.com/.
(j)       “Suggestion” means any suggestion, comment, idea, improvement or other feedback relating to the Platform that Customer elects to provide or make available to Brain Chase.
(k)     “Territory” means the United States of America and its territories.
(l)       “User” means each participant in a Camp conducted by Customer or such participant’s parent or guardian.

 

2.       Grant of Rights
(a)     Grant. During the term of this Agreement and subject to Customer’s compliance in all material respects with the terms and conditions of this Agreement (including any limitations set forth in any applicable order form), Brain Chase hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right within the Territory to: (i) access and use the Platform to create, manage, host and deliver online content for the Camp; and (ii) provide Users with access to the Camp on the Platform.
(b)     Third-Party Components. Some components of the Platform may be provided with or incorporate third-party components licensed under open source license agreements or other third-party license terms (collectively, “Third-Party Components”). Third-Party Components are subject to separate terms and conditions set forth in the respective license agreements covering such components.
(c)     Changes. Brain Chase may improve, modify, add or remove functions or features to or from the Platform from time to time, with or without notice or liability to Customer.

 

3.       Conditions and Restrictions
(a)     Restrictions. Customer may not itself, nor may Customer permit any other party to: (i) reproduce, distribute, modify, translate, adapt or create derivative works based upon the Platform, except as expressly permitted under Section 2; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework for the Platform; (iii) access or use the Platform for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Platform; (iv) take any action that imposes an unreasonable or disproportionately heavy load on the Platform or its infrastructure or that negatively affects the ability of others to access or use the Platform; (v) rent, lease, lend, sell or sublicense the Platform,  or otherwise provide access to or use of the Platform as part of a service bureau or similar fee-for-service purpose, except as expressly permitted under Section 2; or (vi) access or use the Platform in any way that does not comply with applicable law.
(b)     Technical Requirements. Customers and Users are solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to access or use the Platform.
(c)     Protection. Customer shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the Platform through Customer Facilities. All such measures must comply with prevailing industry standards but in no case consist of less than reasonable care.
(d)     Policies. In addition to the terms and conditions of this Agreement, access to and use of the Platform are subject to the Policies. Before Customer permits any User to access or use the Platform, Customer shall ensure that the User: (i) is made aware of the Terms of Use and Privacy Policy posted on the Brain Chase website at https://brainchase.com/; and (ii) agrees that the User’s access to and use of the Platform are subject to such Terms of User and Privacy Policy.
(e)     Permits and Applicable Law. In the event that any governmental approvals or permits are required for Customer to exercise its rights or perform its obligations under this Agreement, Customer shall be solely responsible for obtaining, at its own expense, all such approvals and permits. Customer shall comply with all applicable laws in exercising any rights or performing any obligations under this Agreement.
(f)      Privacy and Data. Customer shall not submit any personal information relating to Users to the Platform or otherwise provide any personal information about Users to Brain Chase. Customer shall be solely responsible for complying with all laws and regulations applicable to its collection, use, disclosure, storage and processing of any data relating to Users, including the Children’s Online Privacy Protection Act (COPPA), California Consumer Privacy Act (CCPA), and General Data Protection Regulation (GDPR).
(g)     Customer Content. All information, data, content and other materials accessible through the Platform (collectively, “Content”) are the sole responsibility of the party from whom the Content originated. As between Customer and Brain Chase, Customer is solely responsible for: (i) all Content that Customer and Users submit through the Platform (collectively, “Customer Content”); and (ii) giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders) for all Customer Content.

 

4.       Fees, Payment and Taxes
(a)     Fees and Payment. Customer shall pay Brain Chase or its designee all fees set forth in the applicable order form in accordance with the payment terms set forth in such order form. In the event such order form does not set forth payment terms, payment will be due within 30 days from the date of invoice. Any payment not received by Brain Chase from Customer when due will incur interest at the rate of 1.5% per month or the maximum amount permitted by law, whichever is lower.
(b)     Taxes. All amounts payable hereunder by Customer are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”). If Brain Chase has the legal obligation to collect any Taxes, Customer shall reimburse Brain Chase upon invoice by Brain Chase. If Customer is required by law to withhold any Taxes from its payments to Brain Chase, Customer shall provide Brain Chase with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payments.

 

5.       Intellectual Property
(a)     Brain Chase Ownership. Customer acknowledges and agrees that, as between Brain Chase and Customer, Brain Chase owns all rights, title and interest (including all Intellectual Property) in and to: (i) the Platform, including all improvements, enhancements or modifications thereto; and (ii) all Content provided by Brain Chase.
(b)     Customer Ownership. Brain Chase acknowledges and agrees that, as between Customer and Brain Chase, Customer owns all rights, title and interest (including all Intellectual Property) in and to Customer Data. During the term of this Agreement, Customer hereby grants Brain Chase and its service providers a worldwide, royalty-free, non-exclusive license to use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made Customer Data as necessary for Brain Chase to provide access to the Platform to Customer and Users.
(c)     Aggregate Data. Customer acknowledges and agrees that Brain Chase may collect or generate Aggregate Data in connection with providing Customer and Users with access to and use of the Platform. Customer hereby grants Brain Chase a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data for any lawful purpose.
(d)     Suggestions. In the event that Customer provides any Suggestions to Brain Chase, Customer hereby grants Brain Chase a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Suggestions for any lawful purpose, without credit or compensation to Customer.
(e)     Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright or trademark notices or other proprietary notices or disclaimers that appear within the Platform or in Content provided by Brain Chase.
(f)      Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.

 

6.       Term, Suspension and Termination
(a)     Term. The term for this Agreement shall commence on the Effective Date and continue in effect for the duration specified in the order form.
(b)     Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows: (i) by the non-breaching party upon a material breach of this Agreement by the other party, which breach is not cured within 30 days after receipt of written notice from the non-breaching party; or (ii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law in force for the winding up or liquidation of such party’s business.
(c)     Events Upon Termination. Upon expiration or termination of this Agreement for any reason: (i) all rights granted to Customer under this Agreement will immediately terminate; (ii) Customer shall immediately cease accessing or using the Platform or providing any User with access to or use of the Platform; and (iii) each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 9(a)) and return or destroy all copies of such Confidential Information that are within its custody or control.
(d)     Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement will survive such expiration or termination, including Sections: 3 (Conditions and Restrictions); 4 (Fees, Payment and Taxes); 5 (Intellectual Property); 6(c) (Events Upon Termination); 6(d) (Survival); 7 (Representations and Warranties); 8 (Indemnification); 9 (Confidential Information); 10 (Disclaimer of Warranties); 11 (Limitation of Liability); 12 (Binding Arbitration and Waiver of Class Action); and 13 (Miscellaneous).

 

7.       Representations and Warranties
Brain Chase and Customer each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.

 

8.       Indemnification
(a)     Brain Chase Indemnification. Brain Chase agrees that Customer shall have no liability and Brain Chase shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Losses”) asserting that the Platform infringes the Intellectual Property of such third party, provided that Brain Chase shall have no obligation to indemnify Customer from any Losses to the extent they arise from: (i) access to or use of the Platform in any manner by Customer or Users (or through Customer Facilities) that does not comply in all material respects with the terms and conditions of this Agreement; (ii) access to or use of the Platform by Customer or Users (or through Customer Facilities) in combination with any hardware or software not provided or approved by Brain Chase; (iii) modifications to the Platform made by or on behalf of Customer without Brain Chase’s approval; or (iv) any Customer Data (Sections 8(a)(i) through 8(a)(iv), collectively, “Exceptions”). In the event that any part of the Platform becomes the subject of a claim, or Brain Chase reasonably determines that any part of the Platform is likely to become the subject of a claim, asserting that the Platform infringes the Intellectual Property of a third party, Brain Chase may, in its sole discretion: (1) procure for Customer a license as necessary for Customer to exercise the rights granted by Brain Chase under this Agreement; (2) modify or replace the Platform to avoid infringement, provided that the Platform as modified or replaced retains substantially the same or better features and functionality; or (3) terminate this Agreement and provide a pro rata refund to Customer of the unused portion of fees paid by Customer to Brain Chase for access to or use the Platform under this Agreement. This Section 8(a) states Customer’s sole and exclusive remedies, and Brain Chase’s sole liability, for any claim asserting that use of the Platform infringes the Intellectual Property of a third party.
(b)     Customer Indemnification. Customer agrees that Brain Chase shall have no liability and Customer shall indemnify, defend and hold Brain Chase harmless against any Loss to the extent arising from any Exception or Customer’s violation of applicable law, gross negligence or willful misconduct.
(c)     Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim, provided that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 8, except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim, provided that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.

 

9.       Confidential Information
(a)     Definition. “Confidential Information” means information identified in good faith by either party as being confidential or proprietary, or information that should reasonably be understood to be confidential or proprietary given the nature of the information or the circumstances of its disclosure. Confidential Information includes the terms and conditions of this Agreement, the source code and architectural framework of the Platform, API specifications, data files and structures, information relating to future releases of the Platform, pricing information, and business plans provided by either party.
(b)     Non-Disclosure. Each party agrees that it may use the Confidential Information provided by the other party only as necessary to exercise its rights and perform its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing party. Neither party shall disclose to a third party Confidential Information of the other party. The receiving party shall protect Confidential Information of the disclosing party using the same degree of care it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than a reasonable care. The foregoing obligations of confidentiality will not apply to any Confidential Information that: (i) can be demonstrated to have been publicly known at the time of the disclosing party’s disclosure of such Confidential Information to the receiving party; (ii) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party; (iii) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information; (iv) is provided to the receiving party on a non-confidential basis by a third party who is under no obligation to the disclosing party to keep the information confidential; or (v) is required to be disclosed by applicable law, provided that the receiving party takes reasonable action to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by applicable law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure.

 

10.    DISCLAIMER OF WARRANTIES
ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING: (i) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (ii) ANY WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE; AND (iii) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET THE REQUIREMENTS OF CUSTOMER OR USERS.

 

11.    LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR BREACH OF CONFIDENTIALITY UNDER SECTION 9, OR WITH RESPECT TO CUSTOMER’S BREACH OF THE RESTRICTIONS UNDER SECTION 3(a): (a) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE PLATFORM OR ITS DELIVERY VIA THE INTERNET, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (b) IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO BRAIN CHASE UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.

 

12.    BINDING ARBITRATION AND CLASS ACTION WAIVER
(a)     Binding Arbitration. ALL CLAIMS (DEFINED IN THE PREAMBLE) WILL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CUSTOMER MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS AGREEMENT AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CUSTOMER’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement or the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration will be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, such hearing will be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim will be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(b)     Class Action Waiver. CUSTOMER AND BRAIN CHASE EACH: (i) AGREES THAT ALL CLAIMS (DEFINED IN THE PREAMBLE) WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS; AND (ii) EXPRESSLY WAIVES ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 12 REQUIRING BINDING ARBITRATION WILL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, CUSTOMER AND BRAIN CHASE EACH WAIVES ANY RIGHT TO A JURY TRIAL AND AGREES THAT SUCH CLAIM WILL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. CUSTOMER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(c)     Injunctive Relief. Notwithstanding anything to the contrary, either party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Intellectual Property, whether in aid of, pending or independent of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 12.
(d)     Changes. If Brain Chase implements any material change to this Section 12, such change will not apply to any Claim for which Customer provided written notice to Brain Chase before the implementation of the change.

 

13.    Miscellaneous
(a)     Independent Contractors. The relationship between Brain Chase and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
(b)     Insurance. Customer shall purchase and maintain adequate insurance, including commercial general liability, workers compensation (to the extent required by applicable law), errors and omissions, and professional liability insurance, naming Brain Chase as an additional insured. Customer shall furnish to Brain Chase upon request evidence of such insurance in the form of a certificate issued by Customer’s insurance carrier, which certificate shall specify that no material change in, or cancellation of, such insurance may take place unless at least 30 days prior written notice of such change or cancellation is given to Brain Chase.  Such insurance shall be maintained at all times during which this Agreement is in effect and continuously (whether by consecutive annual policy periods or otherwise) for six years thereafter.
(c)     Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided below, or such other contact information as either party shall notify the other in accordance with this Section 13(c):
To Brain Chase

Allan Staker

1178 Tom Sawyer Rd.

Dripping Springs, TX 78620

 

To Customer

As set forth in the registration data provided by Customer.

 

(d)     Assignment. Customer may not assign this Agreement or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of Brain Chase. Brain Chase may assign this Agreement or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the consent of Customer. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(e)     Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(f)      Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Policy, the terms and conditions of this Agreement will take precedence and govern.
(g)     Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
(h)     Severability. If any provision of this Agreement is held to be invalid or unenforceable under applicable law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(i)       Governing Law. This Agreement will be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws, and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(j)       No Waiver. The failure of either party to require strict performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(k)     Force Majeure. Except with respect to Customer’s payment obligations, neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, pandemic, public health crisis, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.

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