Scorched Ice Inc. End User License Agreement (EULA)
NOTICE: IMPORTANT TERMS FOR YOU TO UNDERSTAND
- YOUR DATA
- YOUR CONDUCT
- WAIVER OF RIGHTS
- CLAIMS (Arb and EU)
TERMS OF SERVICE
When this policy refers to the “Scorched Ice Parties” that term means, Scorched Ice Inc., its subsidiaries and affiliates, and its, and each of their directors, officers, employees, and consultants.
We may, from time to time amend or modify these Terms of Service, in which case, we will notify you by electronic means, which may include an email or pop up/ banner notification through one of our applications.
By using our product, you are contractually agreeing to be bound by these Terms of Service in all respects and are forming a legally binding and enforceable contract with Scorched Ice Inc. Where the Scorched Ice Parties are referenced you are explicitly agreeing that the Scorched Ice Parties are intended to have the benefit of, and to be able to enforce and rely on, the applicable provisions.
These Terms of Service contain specific waivers of legal rights, releases from liability, indemnities and legal authorizations and you must read them carefully.
YOUR ACCOUNT AND YOU
Scorched Ice will provide you with a secure account and the opportunity to create a secure password. This is intended to ensure that you, and you alone can access the account. You are responsible to safeguard and protect your password.
If you are using Scorched Ice as part of a company or other legal person, then by clicking “I Accept” you are representing that you have authority to enter into this Agreement on behalf of that company or legal person and are authorizing Scorched Ice to treat all interactions and authorizations using the account as being authorized. All references to “you” or the customer in these Terms of Service shall apply to any company or other legal person accessing our services.
All use of your account and password is your sole responsibility and Scorched Ice is entitled to rely on any interactions or authorization using your account as originating from you. If your password is stolen, misused or otherwise compromised it is your responsibility to immediately notify us and take appropriate steps to change your password or to re-secure your account.
By signing up for a Scorched Ice account, you represent to us that you possess legal capacity and authority to enter into and accept these Terms of Service, whether on you own behalf or on behalf of another individual or legal entity. You also represent to us that all of your entered or collected personal information and other data are owned or licensed by you and free from any claim or encumbrance from a third-party that would prevent or impair your ability to use the Services and our ability to provide the Services. Finally, you are making a legal contract to pay all fees and subscription amounts when they become due.
YOUR DATA AND HOW IT IS USED IN CONNECTION WITH THESE TERMS OF SERVICE
OWNERSHIP AND USE OF ATHLETE CONTENT, COLLECTED DATA AND PROCESSED DATA
All of your personal information and Collected Data is your property. In order to provide the Services to you and to other members the Scorched Ice community, Scorched Ice processes the Collected Data through its proprietary algorithms to produce specific metrics reports and other processed information which categorizes and stores Collected Data on and displays aggregate data sets on an anonymous basis. This means that Collected Data is not attributable to an identifiable individual unless that individual gives a specific consent. We group portions of the Collected Data into identifiable cohorts based on, among other characteristics, age, gender, level of sport, location and personal physical attributes (the “Processed Data”).
In order to access and use the Services you must provide certain Personal Information during the registration process. As a condition of using the Services you expressly acknowledge and agree that: (i) the personal information you provide will be true, accurate, complete and current and (ii) you will periodically review and will update and maintain the personal information; (iii) Scorched Ice is granted the use of your personal information and the Collected Data in order to provide the Services to you and to other users. If we reasonably believe that you are providing inaccurate or manipulated personal information, then we reserve the right to delete or suspend use of that information and your use of the Services, and /or to suspend or terminate your use of our Services. By agreeing to these terms, you represent to us, and we rely on that representation, that you are legally permitted to provide us with personal information and Collected Data and to use our services.
Collected Data and Processed Data
You are the owner of all of your personal information, Collected Data and any other information, pictures, text, sound or photographs that you enter into or upload to our applications (collectively (“Athlete Content”). In exchange for use of our Services you grant to Scorched Ice a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display all of your Athlete Content for the purpose of providing you the Services. This license shall survive unless and until you request that your data be deleted. In addition, you grant to us a perpetual, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display all Processed Data so long as such Processed Data remains anonymous and not identifiable as associated with your person unless your consent is given. The license to us for use of Processed Data requires us to keep your identity anonymous and to take measures to ensure that no Processed Data can be attributed to you without your consent.
You, and not Scorched Ice, are responsible for the integrity and accuracy of all Athlete Content, and Scorched Ice may, in its sole discretion, screen, monitor, hide, refuse or remove any Athlete Content at is sole and exclusive discretion. If your Athlete Content violates these Terms of Service, you may bear legal responsibility for that Athlete Content. Although Scorched Ice will make reasonable efforts to maintain an appropriate, supportive and constructive community of users, by using our Services you acknowledge and agree that there remains a possibility that you might, through the Services, be exposed to other Athlete Content that is inappropriate, offensive, illegal or indecent. Upon being notified of such content, we will undertake reasonable efforts to remove or block it, but under no circumstances shall we be liable to you or to any other person for any such inappropriate, offensive, illegal or indecent Athlete Content. You expressly assume all risks of loss or injury associated with use of our Services.
If data is supplied to our Services through another application or service that you have authorized to share with us, then by such authorization, you give us express permission to use all such information whether personal or otherwise to disclose and share such information. In addition, we may show advertisers or person with whom you share information that you use certain equipment or training processes. Such circumstances will be subject to your right to opt in or opt out of participation.
Scorched Ice makes commercially reasonable and appropriate efforts to protect and safeguard all Athlete Content, Collected Data and Processed Data, including by hiring third party experts and using such encryption methods and other protections it considers reasonable, practical or advisable to ensure proper security and safety with respect to data. Notwithstanding these, and other efforts undertaken by Scorched Ice, by entering into these Terms of Service, you expressly acknowledge and agree that Scorched Ice provides no absolute guarantee or warranty that information is free from being accessed or compromised by third-parties such as computer hackers, hostile parties, ransomware attackers or government institutions, and you hereby indemnify and release Scorched Ice to the maximum extent permissible under applicable laws from any claims, losses or indemnification resulting from any unauthorized use, publication, or loss of any Athlete Content, Collected Data or Processed Data.
You also expressly agree to, and indemnify and release us in connection with, any network or computer process that operates by storing and / or pre-populating any account information such as your login or password. You remain solely responsible to ensure that use of any such feature does not result in any unauthorized access or use of your account or information. You agree that you are solely responsible to understand the limitations of, risks associated with, and to comply with, the terms and conditions of any third party network or services accessed or used in connection with using our Services.
SUBSCRIPTION AND PAYMENTS
We may provide you with alternative methods to pay fees and subscription amounts to Scorched Ice, and to enable Scorched Ice to remit any applicable taxes or other levies. We will take commercially reasonable steps to ensure that each method is secure and operated by a third party in compliance with all legal requirements. By providing any payment information, you specifically authorize Scorched Ice and any applicable third party service provider, payment card network or payment processor to receive, store and encrypt that payment information. If any part of your fees or subscription remain unpaid when due, we reserve the right to immediately cut access.
All subscription fees are payable in advance, and you have the ability to choose whether to pay in annual or monthly installments. If you initiate changes to your payment option then the change will take effect on the next occurring payment cycle. We reserve the right, from time to time, by providing reasonable advance notification, to increase or change subscription fees, and associated taxes or levies, or to institute new fees.
All subscription amounts are billed in advance at the start of the applicable period. All subscriptions will automatically renew and re-enroll unless you change or cancel your subscription. You can cancel your subscription at any time, in the manner set forth below.
Changing your Mind
In some jurisdictions, you may have a short period (usually no more than 14 days) after signing up for a paid subscription to change your mind and cancel your subscription for a full refund. In most cases, you can only do this if you have not actually logged in and started using the Services.
Cancelling your Subscription
Free Trial Period
If you sign up for a free trial period, we may collect your payment information and payment methods in advance, but will not charge you for any amounts until they are due. You will retain the right to change or cancel your account in accordance with these terms.
YOUR USE OF THE SERVICES
Under these Terms of Service, Scorched Ice grants to you a non-transferable, non-sublicensable, non-exclusive license to access and use our Services based on the level of Services provided for your subscription level. This license is revocable for breaches by you of these terms and on cancellation of your subscription. It is a condition of this license that you shall not, and shall not permit any third party to, access, change, copy or create derivative works from, or to reverse engineer or otherwise attempt to copy, adapt, mimic or replace all or any part of the Services. You also are not permitted to encumber or otherwise grant an interest in the licence. Any violation by you of restrictions under this license may result in its immediate revocation, at our discretion. Any rights not expressly granted to you in these Terms of Service are reserved by Scorched Ice.
All logos, copyright, trademarks, product presentations, web page and APP designs used in connection with the Services, are, as between you and Scorched Ice, the sole and exclusive property of Scorched Ice, and may not be reproduced, displayed or otherwise reproduced without the prior written consent of Scorched Ice.
ACCEPTABLE BEHAVIOUR AND USE OF TECHNOLOGY
As a condition of your use of the Services, we require you to obey all applicable laws and conform with all local legal requirements. We also require that you refrain from posting or entering inappropriate or offensive content (which includes but is not limited to anything that is illegal, obscene, defamatory, threatening, harassing, abusive, or hateful or that advocates violence) through, or using our Services. Whether or not something is offensive or inappropriate shall be determined by us in our sole discretion. The posting or entry of offensive or inappropriate content or in appropriate use of our Services may result in us removing or deleting certain content or information, or the suspension or termination of your right to use the Services, in which case you will have no rights to a refund of payments.
REPRODUCTION OR COPYING OF ATHLETE CONTENT, COLLECTED DATA AND PROCESSED DATA
By accepting these Terms of Service and using our Services you acknowledge and agree that you are not permitted to do any of the following without our prior written consent:
- Download, copy or reproduce any Athlete Content of any user other than yourself,
- Reverse engineer, decompile or reprogram any feature of the Services,
- Extract, copy or modify any firmware or software,
- Use analytics or software to track the delivery of, or functionality of, the Services, or
- Publish distribute or disseminate any Athlete Content, Collected Data or Processed Data that is not your own and that is not published, distributed, or disseminated using an authorized feature of our Services.
ACCEPTABLE USE OF TECHNOLOGY
By accepting these Terms of Service and using our Services you acknowledge and agree that you will not use our products or Services to do anything that:
- Might damage, interfere with, or harm the Services, any user account or any third-party equipment, applications, networks, services or websites,
- Might compromise, test or impair our security settings or controls,
- Might breach, violate, infringe or misappropriate any rights relating to our or a third-party’s intellectual property, privacy or other rights or proprietary information,
- Uses automated processes, artificial intelligence or other means to scrape, harvest or download content from our Services,
- Involves contacting or selling to any member of our user community in a manner other than one authorized by us, or
- Is fraudulent, deceptive, or misrepresents you, us or our Services.
Scorched Ice does not accept any responsibility for and you expressly release it from, any liability or claims associated with network access, livestreaming, uploading or data charges or in relation to any products (whether hardware or software) that are not provided by Scorched Ice, but that are used in connection with the Services.
THE SCORCHED ICE COMMUNITY
Our Services create a community of athletes and provide an environment for athletes and other users to support, compare, motivate and compete with each other. We are a facilitator and enabler of these interactions but are not responsible for the nature, content and manner of interactions between users of the Services. The truth, accuracy, legality quality and other costs of any information entered into or collected by our Services are the responsibility of each user entering or collecting them. All users agree to this disclaimer as a condition of using the Services and we ask that you, as a community member conduct yourself appropriately and with honesty integrity and respect for others.
We may enable you to connect to, link with or synchronize to sensors, applications or other services not provided by us. These third-party products and services are not affiliated with us and we disclaim any responsibility whatsoever in relation to them and their connection, link or access through our Services. You expressly waive any right to make a claim against the Scorched Ice Parties for any and all claims liabilities, damages or losses of any kind that you may suffer or incur in connection with accessing or linking to services provided by third parties and that are not the Services or Scorched Ice products.
COMMUNICATIONS THROUGH OR IN CONNECTION WITH THE SERVICES
If the Services enable you, or others to communicate, either through or in connection with them, whether in our applications or in websites, forums, or applications connected to our Services then: (i) you expressly agree that you are solely and exclusively responsible for the nature and content of any information transmitted or initiated by you; (ii) you expressly agree that, although we reserve the right to do so, we do not monitor, censor, screen or filter, and are not responsible legally or otherwise for the legality or nature of, any content or messaging not initiated by, and expressly endorsed by us, and you release us from, and indemnify us for, any liability in connection with such messaging or content; (ii) you expressly agree that there is no expectation of privacy for any such messaging or content, all of which shall be deemed to be public and not private; and (iv) any messaging or communication by us to you using or in connection with the Services shall satisfy all legal requirements for communication in writing or legal notice.
OUR INTELLECTUAL PROPERTY AND PROPRIETARY INFORMATION AND RIGHTS
Our Services are provided using our trade secrets, confidential information, trademarks copyrights and other intellectual property. You acknowledge and agree that by using our Services you do not acquire any right, title or interest in any of the foregoing other than the right to access the Services as provided through our applications and as described herein. Except as expressly permitted by the laws of your local jurisdiction or as authorized in advance by us, you understand that you are not permitted to download, store, alter sell create derivatives if or license, assign or transfer any information or works based on the Services.
You acknowledge and agree that we are constantly developing, improving and modifying our products and Services, including as a result of customer and user feedback. By using our Services you expressly acknowledge and agree that you have no right or title to, or royalty, profit, ownership or other interest in, any enhancements, changes, developments, or improvements that we may make to the Services, notwithstanding that such enhancements, changes, developments or improvements, may be, or may appear to have been made as a result of feedback or suggestions made by you. You hereby release, assign, transfer and waive, any ownership, intellectual property or moral rights that may arise in connection with your use of the Services, other than such rights as are expressly stated herein to remain with you. If the foregoing release, assignment, transfer or waiver is unenforceable then you hereby grant to us a worldwide, non-exclusive, transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free license to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit any enhancement, change, development or improvement in which you may have an interest.
WAIVER OF LIABILITY AND DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
The Scorched Ice Parties make no representations or warranties about the hardware, software, reports, data, Collected Data, Processed Date or any coaching tips, comparisons, recommendations insights or other information provided to you in connection with the Services. All such products and features are provided to you on an as-is where-is basis and without assurances. The Scorched Ice Parties shall not be liable for, and hereby disclaim any and all representations or warranties, whether express or implied, including any representation or warranty as to title, non-infringement, fitness for purpose.
You expressly agree that Scorched Ice does not provide medical advice through the Services or otherwise. Nothing provided by us or through the Services is intended to be used or relied on as a substitute for:
- Any advice from a medical, sport performance or coaching professional,
- Any equipment or product instructions or information,
- Any safety advice or advice regarding the prevention or treatment of injury.
You acknowledge and agree that ice skating, ice hockey, lacrosse, in-line skating, roller hockey ringette, or any other activities you may perform while using our sensor modules carry with them inherent risks of injury, loss or harm, including the possibility of death and by engaging in any such activity you expressly assume all such risks and waive any right to make a claim against “Scorched Ice Parties whether in contract, tort or otherwise.
YOU HEREBY AGREE TO RELEASE THE SCORCHED ICE PARTIES FROM ANY AND ALL CLAIMS LIABILITIES, LOSSES OR DAMAGES FROM, AND WAIVE ANY CLAIM FOR PERSONAL INJURY, ECONOMIC LOSS, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OR PUNITIVE, AGGRAVATED OR SPECIAL DAMAGES, ARISING IN CONNECTION WITH: (I) YOUR USE OF OUR PRODUCTS AND THE SERVICES; (II) ANY CONNECTIVITY OR LINK BETWEEN OUR PRODUCTS AND SERVICES AND ANY THIRD-PARTY HARDWARE, SOFTWARE, NETWORK OR OTHER SERVICES, (III) ANY USE BY YOU OF DRILLS, EXERCISES OR TIPS PROVIDED THROUGH OR IN CONNECTION WITH, OUR PRODUCTS AND SERVICES, (IV) ANY ARRANGEMENT, CONTACT OR OTHER RELATIONSHIP ARISING OR OCCURRING BETWEEN YOU AND A THIRD-PARTY IN CONNECTION WITH THE USE OF OUR PRODUCTS AND SERVICES, OR (V) ANY LOSS OF ACCESS TO, OR DISRUPTION TO, USE OF OUR PRODUCTS AND SERVICES.
SENSOR MODULE WARRANTY
Scorched Ice warrants that the sensor module shall be free of defects in workmanship for a period of twelve months from the date of purchase. In order for the warranty to be effective, Scorched Ice requires that both pieces of the sensor modules (right and left) be returned to it within twelve months of the date of purchase together with proof of purchase. Scorched Ice’s responsibilities pursuant to this warranty are, at its option, to repair or replace the defective components. The warranty shall not be effective if the sensor module has been:
- opened or tampered with
- subjected to extreme temperatures (hot or cold), or
- subjected to misuse, abuse or neglect,
all as determined in the sole discretion of Scorched Ice.
All enquires for warranty must be directed to:
Suite 312 – 1167 Kensington Cres NW, Calgary, Alberta, T2N 1X7 – firstname.lastname@example.org
You acknowledge and agree that Scorched Ice does not condone or endorse any Athlete Content, including your own or that of any other user, and that Scorched Ice disclaims all responsibility or liability to any person for any damages or losses whether in the nature of personal injury or death, economic loss or indirect, consequential or punitive losses.
Our maximum liability to you, whether in contract, tort or otherwise shall be limited to: (i) in the case of a defective sensor module, repair or replacement (in our sole discretion) of such sensor module provided that it is returned to us within one year of purchase and has not been mistreated, misused or opened, modified or altered by any third party; and (ii) in any other case, the lesser of $25 and 50% of the fees or subscription amounts paid to us by you in the six months preceding the date of the claim.
TO THE EXTENT YOU ARE SUBJECT TO THE LAWS OF A JURISDICTION THAT HAS LEGISLATION WHICH RENDERS THE ABOVE LIMITATIONS, EXCLUSIONS, WAIVERS AND RELEASES UNENFORCEABLE, THEN SUCH PROVISIONS ARE NOT INTENDED TO ALTER YOUR STATUTORY RIGHTS.
As a condition of having access to our Services, and by agreeing to these Terms of Service, you are agreeing to indemnify and hold harmless the Scorched Ice Parties for any and all claims, losses, liabilities, costs (including legal costs) and damages, made by any third party in connection with your use of the Services and the content that you enter into our applications and devices, and any violation, breach, or offence by you of any privacy laws, other laws or the legal rights of any third party. This indemnification does not impair or alter your other rights as against Scorched Ice.
Notice for California Athletes
If you are in the State of California in the United States of America, then the following consumer rights apply: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs can be reached by telephone at +1 (800) 952-5210 or by mail at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834.
ARBITRATION OF DISPUTES
All claims, disagreements and disputes arising in connection with this Agreement shall require that the parties first attempt to resolve them amicably through good faith negotiations. IF a claim, dispute or disagreement cannot be resolved through discussion and negotiation within thirty days of it arising, then the parties agree that either may initiate binding arbitration to resolve it. All claims, disputes or agreements, other than those involving the intellectual property of Scorched Ice (which includes, for greater certainty, trademarks, web domains, trade names, copyright, designs, ownership or alteration of software, patents or patents pending) shall be resolved pursuant to binding arbitration before a single arbitrator, whose decision shall not be the subject of appeal except as set forth in applicable law. The arbitration shall be conducted in English, in Calgary, Alberta pursuant to the laws of the Province of Alberta and shall be subject to the International Commercial Arbitration Act (Alberta). The arbitrator appointed by the parties shall have exclusive authority to determine all matters in relation to the claim, and shall be authorized to grant any relief that is within the powers of a court, including to make determinations as to the admissibility of evidence and the enforceability of the agreement, award damages, remedies or require specific performance or grant an injunction. Notwithstanding the foregoing, the arbitrator may not award damages, the nature of which are not consistent with express terms of this Agreement. The parties hereby expressly waive the right to conduct any trial by jury and not to participate in any claim or dispute in a representative matter or as part of a class action.
WAIVER OF CLASS ACTION LITIGATION AND CLAIMS
You and Scorched Ice expressly agree that any arbitration to resolve disputes and claims shall be as between the parties in their individual capacities and not in any representative or class action capacity. In the event that an arbitrator or court of competent jurisdiction declares the above waiver of class action to be of no legal effect or to be unenforceable, then the parties shall be deemed to have also agreed that the arbitral clause in this Agreement, is revoked and shall have consented to resolve any class action or dispute pursuant to the exclusive jurisdiction of the laws of the Province of Alberta Canada, without reference to its conflict of laws provisions.
Choosing not to Arbitrate or revoking the Class Action Waiver
If you send a written notice to Scorched Ice within thirty calendar days of entering into this Agreement, then you can revoke the arbitral clause in this Agreement and/ or revoke the waiver of the right to participate in a class action lawsuit. Such a revocation shall only be valid if delivered as a hardcopy by registered mail or tracked courier to the following address:
Suite 312 – 1167 Kensington Cres NW, Calgary, Alberta, T2N 1X7
Scorched Ice reserves the right to terminate this Agreement and the provision of Services if you provide such a revocation.
LIMITATION ON THE TIME TO BRING A CLAIM
Subject to express provisions set out in applicable laws, such as those in the European Union, by entering into this Agreement you expressly agree that no claim may be brought under or in connection with this Agreement, unless such claim is brought within twelve calendar months of the earlier of (i) the date on which such claim arose; and (ii) the termination date of this Agreement.
Your legal relationship with Scorched Ice in relation to the Services and your data shall be exclusively subject to, governed by, and interpreted in accordance with, the laws of the Province of Alberta, Canada without reference to its conflict of laws principles. You expressly agree that the UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, shall not apply to the Services or to any aspect of our relationship. Subject to the Section with the Heading “Arbitration of Disputes”, you expressly and irrevocably agree that any action in connection with this Agreement may only be brought in the province of Alberta, Canada, and you attorn to the exclusive jurisdiction of such courts. To the maximum extent under the law, you waive any right to bring any claim or action in connection with these services, that is not brought within one year of the earlier of the time such claim arose or the termination of your paid subscription. To the extent that any provisions of this paragraph are ultra vires, or unenforceable under the laws of the European Union, then if you reside in, and use the Services in the European Union, then such provisions shall not apply.
Scorched Ice reserves the right, without notice or cause to immediately suspend or terminate any portion or all of your access to the Services. Scorched Ice may also terminate or suspend your access to all or any part of the Services for cause, which may include but is not limited to: (i) your breach of any condition, representation or warranty herein; (ii) any offensive, abusive or inappropriate use of the Services or in connection with the Services; (iii) any violation by you of applicable law; any attempt to modify or alter our equipment, software or applications or (iv) non-payment of any amount or fee.
The provisions of these terms shall survive its termination.
Scorched Ice reserves the right, from time to time to modify and amend this Agreement, for which purposes communication to you from within our applications or by email shall be sufficient notice, and in respect of which your acknowledgment whether by return email or confirmation in our applications shall constitute your acceptance of any such amendment or modification.