Terms of service

TERMS OF SUBSCRIPTION SERVICE

Effective: [October 23, 2023]

These Terms of Subscription Service (“Agreement”) are entered into by and between the entity or person placing an order or accessing the Products (as defined below) (“Client”) and Pete’s Adventure Pack, LLC, a Utah limited liability company (“Pete’s”).

The “Effective Date” of this Agreement is the date that Client first accesses the Products through the Website, linked content, or any of Pete’s online registration, provisioning, or order process.

If you receive free access to the Products, or you receive a Subscription or Trial Subscription to the Products (as set forth in Article 5), you are deemed a “Client” under this Agreement and are subject to its terms, including all restrictions and limitations.  

This Agreement governs any Subscription to the Products from Pete’s, access to the Website, and any other communications between Pete’s and the Client, and sets forth the terms and conditions under which those Products will be delivered.  This Agreement shall govern Client’s access to all Products whether or not they reference this Agreement.

You agree that from time to time Pete’s may modify this Agreement by updating this Agreement on the Website.  Upon such an update, the modified Agreement will become the Agreement ten (10) days after any such update unless formally rejected by Client in writing.  To reject, Client must notify Pete’s of such disagreement within the ten (10) day period.  If Client continues accessing services, the Agreement as modified will then govern notwithstanding any such rejection.

Each party expressly agrees that this Agreement is legally binding upon it.

  1. 1.DEFINITIONS AND INTERPRETATION

    1. Definitions – Capitalized terms not included in this Section are defined contextually in this Agreement.

      1. “Account” means the online account and any dashboard that Pete’s provides for Client to manage its use of the Products.

      2. “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common ownership or control with Client, where “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting securities or other equivalent voting interests of an entity.

      3. “Client Data” means all data collected about or from any Client, including personally identifiable information.  

      4. “Laws” means all applicable local, state, federal, and international laws, regulations and conventions, including those related to data privacy and data transfer, in effect in the State of Utah, United States on the Effective Date.

      5. “Order Term” means the subscription term specified for each Product in the applicable Quote and, in the event that such Quote does not include a “start date”, the Order Term will commence on the date that Pete’s electronically confirms Client’s order to the applicable Product.

      6. “Permitted Users” means Client’s employees, Contractors, and Affiliates (and its Affiliates’ employees and Contractors).

      7. “Products” means the specific online software-as-a-service products ordered by Client as identified on the applicable Quote, access to the Website (whether public or subscription-only sections or otherwise), video training or consultation services, and all other communications by and between Client and Pete’s.

      8. “Quote” means Pete’s-generated order documentation (including any Pete’s online registration, provisioning, or other order process) referencing this Agreement and mutually executed or electronically accepted by Client.

      9. “Website” means only the online website created and maintained by Pete’s, and not any websites or resources to which the Website provides links, references, or referrals.

    2. Interpretation – In this Agreement, the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions.  Further, headings in this Agreement are for convenience only and do not affect its interpretation.  The use of the masculine, feminine, or neuter genders are meant to be all inclusive and will not limit the application of this Agreement.

  2. 2.
    THE PRODUCTS

    1. Overview – Pete’s offers various Products to you, the Client.  The Products may be provided on a free-to-access, trial, or subscription basis, at Pete’s sole discretion at any time.  Pete’s may make available or revoke access to any part of the Products at any time.

    2. Access and Use – Client may access and use the Products solely for its own internal purposes and in accordance with the terms and conditions of this Agreement.  This includes the right for Client to view and apply the information contained in the Products for its own household use only.  Client agrees that it will not copy, publicly display, broadcast, or share with non-attributable link any of the Products.  Client agrees that it will not share access credentials to any subscription or trial-based access materials.  Use of the Products is charged based on, or limited to, the Subscription terms.  

    3. Accounts – Access to subscription- and trial-based Products shall be regulated with a unique user ID, which shall be assigned to Client upon such subscription or trial, which may not be shared.  Client shall keep its authentication factors (such as user ID and user credentials) strictly confidential and not share such information.  Client shall be responsible for any and all actions taken in Client’s Account by any person using such credentials and shall immediately notify Pete’s of any unauthorized access to or use of its Account.

    4. General Restrictions – Client shall not (and shall not permit any third party to)—

      1. rent, lease, provide access to, or sublicense any Product to a third party, copy any Products, or use any Product for time sharing, hosting, service bureau, or like purposes;

      2. reverse engineer, decompile, or disassemble any Product, or otherwise seek to obtain the source code or non-public source to any Product, except to the extent expressly permitted in separate writing by Pete’s;

      3. modify any Product or create any derivative work from any of the foregoing;

      4. remove or obscure any proprietary or other notices contained in any Product;

      5. attempt to gain unauthorized access to any Product or other systems, networks, or data of Pete’s, or interfere with or disrupt the integrity or performance of any such Product, systems, networks, or data;

      6. use or knowingly permit the use of any security testing tools in order to probe, scan, or attempt to penetrate or ascertain the security or vulnerability of any Product or other systems, networks, or data of Pete’s; or

      7. use any Product to retrieve, store, or transmit any malware (e.g., viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs).

  3. 3.
    DATA RETENTION AND PROTECTION POLICY

    1. Data Retention Policy – Pete’s retains Client Data in accordance with the policies contained in this Article 3.  Pete’s expressly disclaims all other obligations with respect to data storage or delivery, including storage or delivery of any raw data included in Client Data.

    2. Regional Limitations.  Pete’s data will be collected and kept only in accordance with data privacy laws in effect in the State of Utah and the United States.  You agree that you are not a person subject to any other data privacy laws, and, if so, you will not enter into this Agreement or use any of the Products.  Client will be solely responsible for breach of this section and indemnify and hold Pete’s harmless for any such breach.

    3. Client Data Security – Pete’s agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of the Client Data.  Except to the extent caused by Pete’s’ gross negligence or intentional misconduct, Pete’s shall have no responsibility for any breach or unauthorized disclosure of data whether caused by errors in transmission, unauthorized third-party access, other causes beyond Pete’s’ control, or otherwise.  

  4. 4.
    OWNERSHIP

This Agreement is an access and subscription agreement for access to and use of the Products.  Client acknowledges that it is obtaining only a limited right to the Products and that irrespective of any use of the words “purchase”, “sale”, or like terms hereunder, no ownership rights are being conveyed to Client under this Agreement.  Client agrees that Pete’s or its licensors retain all right, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Products, and all pre-existing content and materials of Pete’s, all related and underlying technology, documentation, work product, tools, designs, methodologies, processes, techniques, ideas, and know-how, and all derivative works, modifications, or improvements of any of the foregoing, as well as all comments, questions, suggestions, or other feedback relating to the Products that Client submits to Pete’s (collectively, “Pete’s Technology”) remain property of Pete’s.  Except for the limited right to access and use the Products as expressly set forth in this Agreement, no rights in any Pete’s Technology are granted to Client. Further, Client acknowledges that the Products are offered as on-line Software-as-a-Service (SaaS), and that Client has no right to obtain a copy of any underlying code or technology in any Product.

  1. 5.
    TRIALS AND SUBSCRIPTIONS

    1. Trial Subscriptions – If Client receives free access or a trial or evaluation subscription to the Products (a “Trial Subscription”), then Client may use the Products in accordance with the terms and conditions of this Agreement for the period designated by Pete’s (and if not designated, then for thirty (30) days) (“Trial Period”).  Trial Subscriptions are permitted solely for Client’s use to determine whether to purchase a full subscription to the Products.  Client may not use a Trial Subscription for any other purpose, including for competitive analysis.  At the end of the Trial Period, the Trial Subscription will expire, and Client will have the option to purchase a full subscription to the Products.  If Client purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Products unless otherwise specified.  Pete’s has the right to terminate a Trial Subscription at any time for any reason.  The Products may have a mechanism that limits access to such Products during the Trial Period, and Pete’s may otherwise restrict certain product functionality during the Trial Period.  Client shall not attempt to circumvent any such mechanism or restriction.  Notwithstanding anything else in this Agreement, Pete’s has no obligation to retain any date or information collected or retrieved with a Trial Subscription during or after the Trial Period.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING THE TRIAL PERIOD THE PRODUCTS ARE PROVIDED “AS IS,” AND PETE’S WILL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN WRITING.

    2. Subscription Access – If Client opts to subscribe to the subscription-only Products (a “Subscription”) for a periodic auto-renewing fee (a “Subscription Fee”), then Client may use the Products in accordance with the terms and conditions of this Agreement only for the period covered by the Subscription (the “Subscription Period”).  A Client with a Subscription agrees to auto-renewal of its Subscription and payment of the Subscription Fee until cancelled using the Website.  Use of the Products is for the sole non-commercial personal and household use for the subscribing Client, and no other person.  Pete’s has the right to terminate a Subscription at any time for any reason.  The Products may have a mechanism that limits access to certain Products during the Subscription Period, and Pete’s may otherwise restrict certain product functionality during the Subscription Period, depending upon availability, access level, Subscription level, or any other reason at Pete’s’ sole discretion.  Client shall not attempt to circumvent any such mechanism or restriction.  Notwithstanding anything else in this Agreement, Pete’s has no obligation to retain any date or information collected or retrieved with a Subscription during or after the Subscription Period.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING THE SUBSCRIPTION PERIOD, THE PRODUCTS ARE PROVIDED “AS IS,” AND PETE’S WILL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN WRITING.

  2. 6.
    TERM AND TERMINATION

    1. Term – This Agreement is effective as of the Effective Date and, except as otherwise provided in this Article 6, expires upon termination of the last access by the Client to any of the Products. 

    2. Termination for Cause – Either party may terminate this Agreement if the other party—

      1. fails to cure any material breach of this Agreement within thirty (30) days after written notice;

      2. fails to pay subscription fees;

      3. ceases operation without a successor; or

      4. seeks protection under any bankruptcy, insolvency event, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

Upon termination by Pete’s for Client’s breach, Client shall pay Pete’s for the total fees contractually committed for.

    1. Effect of Termination – Upon any expiration or termination of this Agreement, Client shall—

      1. immediately cease any and all use of and access to its Account and the Products (including any and all related content, materials, the Website, or otherwise);

      2. erase any copies of the Products, any Pete’s-related passwords or access codes, and any other Pete’s’ information in its possession; and

      3. remove all Products locally stored and otherwise discontinue use thereof.

Client acknowledges that, following termination, it shall have no further access to its Account or any Products, and that Pete’s may (but is not required to) delete Client’s Account and erase any Client Data in its possession at any time, except for backup copies kept for disaster recovery purposes or as required to comply with Laws.  Neither party shall have any liability resulting solely from a permitted termination of this Agreement in accordance with its terms.  Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

    1. Survival – The following Sections shall survive any expiration or termination of this Agreement: Article 1 (Definitions); Article 2 (The Products); Article 3 (Data Retention and Protection); Article 4 (Ownership); Article 6 (Term and Termination); Article 7 (Disclaimer of Warranties); Article 8 (Limitations of Remedies and Damages); Article 9 (Indemnification); and Article 10 (General Terms).

  1. 7.
    DISCLAIMER OF WARRANTIES

9.1 Disclaimer of Warranties – Pete’s provides no warranty or representation regarding the Products, and expressly disclaims all warranties.  Clients agrees that it is using the Products for information purposes only and agrees to indemnify and hold Pete’s harmless for all damages caused by any application of the Products whatsoever.  Pete’s’ sole liability (and Client’s sole and exclusive remedy) for any use or misuse of the Products shall be, in Pete’s’ sole discretion, a refund of Subscription Fees, if any.  If agreed to by and between Pete’s and Client, Client shall receive as its sole remedy a refund of any Subscription Fees that Client already paid with respect to the terminated portion any applicable Subscription Term.

    1. Further Disclaimer – EXCEPT FOR ANY EXPRESS REPRESENTATION OR UNDERTAKING IN THIS AGREEMENT, THE PRODUCTS AND ALL RESULTS GENERATED THEREFROM ARE PROVIDED “AS IS”. NEITHER PETE’S NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.  PETE’S DOES NOT WARRANT THAT CLIENT’S USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT IT WILL REVIEW THE PRODUCTS FOR ACCURACY, THAT IT WILL PRESERVE OR MAINTAIN CLIENT DATA WITHOUT LOSS, OR THAT THE PRODUCTS WILL MEET CLIENT’S GOALS OR OTHER REQUIREMENTS OR EXPECTATIONS (OR, IF ACHIEVED, THAT SUCH RESULTS WILL BE SUSTAINABLE).  PETE’S SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS, WHETHER WITHIN OR OUTSIDE THE REASONABLE CONTROL OF PETE’S (INCLUDING ANY THIRD PARTY PLATFORM).  CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF SUCH STATUTORY RIGHTS, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

  1. 8.
    LIMITATION OF REMEDIES AND DAMAGES

    1. Consequential Damages Waiver – NEITHER PARTY (NOR ITS LICENSORS) SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, ANY LOSS OF USE, OR INTERRUPTION OF BUSINESS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

    2. Liability Cap –NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY’S AND ITS LICENSORS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO PETE’S DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT.

    3. Failure of Essential Purpose – The parties agree that the limitations specified in this Article 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

  2. 9.
    INDEMNIFICATION

    1. Indemnification – Client shall defend Pete’s from and against any claim by a third party arising from or relating to (a) any Products or (b) any breach or alleged breach by Client of this Agreement; and shall indemnify and hold harmless Pete’s from and against any damages awarded against Pete’s or agreed in settlement by Client (including reasonable legal fees) resulting from such claim.  

    2. Rights of Indemnifying Party and Indemnified Party – The indemnified party may participate in the defense of any claim with counsel of its own choosing at its expense.  The indemnifying party may not settle a claim without the indemnified party’s prior written consent unless such settlement unconditionally releases the indemnified party from all liability and does not require the indemnified party to take or refrain from taking any action (except with respect to use or non-use of the Products or allegedly infringing materials).

  3. 10.
    16. GENERAL TERMS

    1. Assignment – This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.  Neither party may assign this Agreement except upon the advance written consent of the other party.  Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

    2. Severability – If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

    3. Governing Law; Jurisdiction and Venue – This Agreement shall be governed by the laws of the State of Utah and the United States without regard to conflicts of laws provisions thereof.  The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal or Utah State courts located in Salt Lake City, Utah, and both parties hereby submit to the personal jurisdiction of such courts.

    4. Attorneys’ Fees and Costs – The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

    5. Notice – Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Website (in the case of Pete’s) and as provided by Client in its Client Data and if so transmitted shall be deemed to have been received by the addressee:

(a) if given by hand, immediately upon receipt;

(b) if given by overnight courier service, the first business day following dispatch; or

(c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

Notices and communications may also be provided via electronic mail (which notices and communications shall be deemed to have been received immediately upon receipt), except that neither party shall provide any notice or communication related to Article 6 (Term and Termination) via electronic mail.

    1. Amendments; Waivers – Except as otherwise expressly set forth herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.  No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.  No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

    2. Entire Agreement – This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

    3. Updates – Client acknowledges that the Products are on-line and (if applicable) subscription-based products/services, and that, in order to provide improved customer experience, Pete’s may make changes to the Products at any time in its sole discretion.  The support, data retention, security, and other terms, including this Agreement, may be updated from time to time without notice to Client to reflect improvements or changing practices.

    4. Force Majeure – Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

    5. Subcontractors – Pete’s may use the services of subcontractors and permit them to exercise the rights granted to Pete’s to provide the Products under this Agreement, provided that Pete’s remains responsible for—

(a) compliance of any such subcontractor with the terms of this Agreement; and

(b) the overall performance of the Products as required under this Agreement.

    1. Independent Contractors – The parties to this Agreement are independent contractors.  There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

    2. No High Risk Use – The Products and all components thereto are not fault-tolerant.  The Products and all components thereto are not designed or intended for use in any situation where failure or fault of any kind of the Products could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).  Client is not licensed to use the Products or any component thereof in, or in conjunction with, High Risk Use.  High Risk Use is STRICTLY PROHIBITED.  High Risk Use includes, for example, the following: law enforcement, use with or among children, multiple animals, non-canines, service animals for the blind, deaf, or other assistive uses, other modes of transportation, nuclear or chemical facilities, etc.  Client agrees not to use the Products, or any component thereof, in or in connection with, any High Risk Use.

    3. Counterparts. This Agreement is effective upon any and all access to the Products, including the free and public sections of the Website without any signature or “click to agree” to terms required.  A copy of such access log and digital copy of the Agreement will be deemed an original and legally binding agreement and all of which together will be considered one and the same agreement.