This Scotch Demolition Day Participant Agreement (the “Agreement”) is entered into by and between Scotch Inc., a Delaware corporation (“Scotch”), located at 3231 South Fillmore Street; Denver, CO 80210 and the individual or entity identified in the signature block below (“Participant”), effective as of the date last signed below (the “Effective Date”).
Participant wishes to participate in Scotch’s “Demolition Day” promotional campaign (the “Campaign”), under which Participant will (i) destroy a point-of-sale system or related equipment previously used in Participant’s business (the “Legacy Equipment”), (ii) record video and/or photographic content of such destruction (the “Submitted Content”), (iii) provide a positive written or recorded testimonial regarding Scotch’s products or services (the “Testimonial”, and together with the Submitted Content, the “Content”), and (iv) maintain Participant’s subscription to Scotch’s software and services for a minimum period as set forth herein, in exchange for the promotional consideration described below.
Subject to Participant’s full compliance with this Agreement, Scotch will provide the following (collectively, the “Promotional Benefits”): (a) twelve (12) months of Scotch software subscription services at no charge from Scotch, beginning on Participant’s go-live date, and (b) Scotch-provided point-of-sale hardware as specified in Participant’s order form at no charge from Scotch, subject to the terms set forth in Section 1.4 below.
In consideration of the Promotional Benefits, Participant agrees to maintain an active, paid subscription to Scotch’s software and services for a minimum of twenty-four (24) months following the conclusion of the twelve-month free period (the “Commitment Term”). The Commitment Term shall be governed by Scotch’s standard Master Subscription Agreement or equivalent then-current customer agreement.
If Participant terminates, cancels, downgrades, or otherwise fails to maintain its subscription during the Commitment Term for any reason other than Scotch’s uncured material breach, Participant shall pay to Scotch an early termination fee in an amount equal to the sum of (a) the then current retail value of the twelve (12) months of Scotch software services, (b) the then current retail value of the Scotch hardware provided to Participant hereunder, and (c) on a pro-rata basis, any amounts that would have been payable by Participant for the remainder of the terminated Commitment Term.
Title to the Promotional Benefits hardware shall remain with Scotch until the conclusion of the Commitment Term, at which point title shall pass to Participant at no additional cost. If Participant fails to complete the Commitment Term, Participant shall pay the current retail value thereof as described above in Section 1.3.
Scotch’s obligation to provide the Promotional Benefits is expressly conditioned upon Participant’s (a) submission of Content meeting the requirements of Section 3 within forty-five (45) days of Participant’s go-live date, (b) execution of this Agreement, and (c) execution of Scotch’s standard customer agreement (the “Customer Agreement”).
Participant acknowledges that the destruction of the Legacy Equipment (the “Destruction Activity”) involves inherent risks of bodily injury, property damage, and other harm, including but not limited to risks arising from flying debris, electrical components, lithium-ion batteries, broken glass and screens, sharp edges, and the use of tools or implements. Participant voluntarily and knowingly assumes all such risks and agrees to hold Scotch harmless from the same.
Participant agrees to conduct the Destruction Activity in a safe and responsible manner, and specifically agrees to:
Participant shall not use any of the following methods or implements in the Destruction Activity: (A) firearms or other projectile weapons; (B) explosives, fireworks, or other pyrotechnics; (C) fire, accelerants, or any open flame; (D) motor vehicles operated at speed; (E) destruction from a height greater than twenty (20) feet; (F) submersion in any body of water; or (G) any method that would violate applicable law or create an unreasonable risk of harm to persons or property.
Participant shall perform the Destruction Activity personally, or shall ensure it is performed only by individuals who are at least eighteen (18) years of age and who are not employees of Participant’s business acting in the course of their employment. Participant shall not direct, request, or permit any employee to perform or assist with the Destruction Activity as part of their job duties.
Participant represents and warrants that Participant owns the Legacy Equipment outright, free of any lease, lien, security interest, or other encumbrance, and that Participant has the unrestricted legal right to destroy the Legacy Equipment. Participant further represents that the Destruction Activity will not violate any agreement between Participant and any third party, including any prior point-of-sale vendor. Participant shall hold Scotch harmless from the same and will indemnify Scotch from any third-party claims against Scotch arising from a violation of this clause.
Participant shall submit Content meeting Scotch’s then-current submission guidelines, including without limitation: (a) video footage of the Destruction Activity of reasonable quality and length; (b) a Testimonial of not less than thirty (30) seconds in length, either incorporated into the video or provided as a separate written statement, describing Participant’s positive experience with Scotch’s products or services; and (c) such other materials as Scotch may reasonably request.
Participant hereby grants to Scotch a perpetual, irrevocable, worldwide, royalty-free, sublicensable, transferable, and fully paid-up license to use, reproduce, distribute, display, perform, modify, edit, create derivative works of, and otherwise exploit the Content, in whole or in part, in any and all media now known or hereafter devised, for any purpose, including without limitation advertising, marketing, promotion, public relations, sales enablement, social media, training, and internal use. This license includes the right to use Participant’s name, business name, likeness, voice, image, logo, biographical information, and any statements made by Participant in the Content or Testimonial.
Participant represents and warrants that: (a) Participant is the sole author and owner of the Content, or has obtained all necessary rights, releases, and permissions to grant the license set forth herein; (b) the Content does not and will not infringe upon, misappropriate, or violate any copyright, trademark, right of publicity, right of privacy, or other right of any third party; (c) any third parties appearing in the Content have provided their written consent to such appearance and to the license granted herein; and (d) the Testimonial reflects Participant’s genuine and truthful experience with Scotch’s products or services and complies with applicable Federal Trade Commission guidelines regarding endorsements and testimonials. Participant shall hold Scotch harmless and will indemnify Scotch from any third-party claims against Scotch arising from a violation of this clause.
Scotch retains sole and absolute discretion regarding whether, when, where, and how to use the Content, and is under no obligation to use any Content. Scotch may reject any Content that, in its sole judgment, is unsafe, unlawful, off-brand, or otherwise unsuitable, without affecting Participant’s obligations under this Agreement; provided, however, that if Scotch rejects Content for failing to meet submission guidelines, Participant shall have a reasonable opportunity to cure such deficiency.
Participant acknowledges that the Promotional Benefits constitute the sole and complete consideration for the Content and the licenses granted herein, and Participant shall not be entitled to any additional compensation, royalty, or payment for any use of the Content by Scotch or its licensees.
Participant, on behalf of Participant and Participant’s heirs, successors, assigns, executors, administrators, employees, agents, and personal representatives (collectively, “Releasing Parties”), hereby releases, waives, discharges, and covenants not to sue Scotch, its parent, subsidiaries, affiliates, officers, directors, employees, agents, contractors, representatives, successors, and assigns (collectively, “Released Parties”) from any and all liability, claims, demands, actions, and causes of action whatsoever, whether known or unknown, arising out of or related to any loss, damage, injury, illness, or death that may be sustained by any of the Releasing Parties in connection with the Destruction Activity, the Campaign, the Content, or this Agreement, whether caused by the negligence of any Released Party or otherwise, except to the extent such loss, damage, injury, illness, or death is caused by the gross negligence or willful misconduct of a Released Party.
Participant shall indemnify, defend, and hold harmless the Released Parties from and against any and all claims, demands, losses, damages, liabilities, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and court costs) arising out of or related to: (a) the Destruction Activity, including without limitation any injury to or death of any person (including Participant’s employees, agents, contractors, invitees, or any third-party bystanders) or damage to any property; (b) Participant’s breach of this Agreement including any representation, warranty, or covenant; (c) any claim that the Content infringes, misappropriates, or violates the intellectual property, privacy, publicity, or other rights of any third party; (d) any environmental contamination or improper disposal of materials resulting from the Destruction Activity; and (e) any violation by Participant of applicable law.
Participant acknowledges that Participant (and its employees and contractors) is not an employee, agent, or contractor of Scotch and is not covered by any workers’ compensation insurance maintained by Scotch. Participant is solely responsible for any insurance covering Participant or any persons assisting with the Destruction Activity. Participant shall hold Scotch harmless and will indemnify Scotch from any claims against Scotch arising from a violation of this clause.
Participant represents that Participant maintains general business liability insurance in commercially reasonable amounts and that such insurance, to Participant’s knowledge, will not be voided by Participant’s performance of the Destruction Activity.
Participant represents that Participant is at least eighteen (18) years of age, has full legal capacity to enter into this Agreement, and, if signing on behalf of an entity, has full authority to bind such entity.
Participant acknowledges that Participant has read this Agreement, understands its terms, has had the opportunity to consult with counsel of Participant’s choosing, and is signing voluntarily and without reliance on any representations not expressly set forth herein.
This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflict-of-laws principles. The parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Denver County, Colorado. The prevailing party in any litigation arising hereunder shall be entitled to recover their costs so expended, including reasonable attorneys’ fees, from the non-prevailing party.
(a) Scotch shall not be liable to Participant or to any third party for any indirect, incidental, special, exemplary, consequential, or punitive damages, or for any loss of profits, loss of revenue, loss of business opportunity, loss of data, or business interruption, arising out of or related to this Agreement, the Equipment, or the Subscription Services, whether arising in contract, tort (including negligence), strict liability, or otherwise, even if advised of the possibility of such damages; and
(b) The total aggregate liability of Scotch, its affiliates, and their respective officers, directors, employees, agents, and suppliers arising out of or relating to this Agreement, the Equipment, or the Subscription Services shall not exceed the total retail value of the Equipment provided to Participant by Scotch hereunder and the 12 months of free Scotch subscription to services provided under this Agreement.
The parties acknowledge that the disclaimers, exclusions, and limitations of liability set forth in this Section are an essential basis of the bargain between the parties and that, absent such disclaimers, exclusions, and limitations, the terms of this Agreement would be substantially different.
This Agreement, together with Scotch’s Customer Agreement, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous communications, whether oral or written. This Agreement may be amended only by a writing signed by both parties.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect, and the invalid provision shall be modified to the minimum extent necessary to render it enforceable while preserving the parties’ intent.
Any provision of this Agreement that, by its nature and purpose, should survive termination or expiration of this Agreement shall so survive, including Section 2 (Assumption of Risk), Section 3 (Content), Section 4 (Release and Indemnification), and Section 5 (General Provisions).
This Agreement may be executed in counterparts and by electronic signature, each of which shall be deemed an original and which together shall constitute one and the same instrument.