LEAFBLASTER PRO CONTRACTOR LOYALTY PROGRAM

TERMS AND CONDITIONS

 

LeafBlaster Pro Contractor Loyalty Program 

Terms and Conditions

This LBP Loyalty Program Terms and Conditions (this “Agreement” or “End User License Agreement” or “EULA”) shall be considered a legally binding agreement between Gutterglove, Inc., a Delaware corporation ("Gutterglove") and the person or entity participating in the LBP Loyalty Program (hereafter “Contractor” or “You”; and together with Gutterglove, the “Parties,” and each, a “Party”) and is effective as upon the date digitally accepted by you (“Effective Date”):  

YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE UTILIZING THIS LBP LOYALTY PROGRAM.  BY CLICKING YOUR AGREEMENT TO ACCEPT THESE TERMS, YOU ARE AGREEING AND CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF AND BE A PARTY TO THIS AGREEMENT.

1. Definitions.

“Marks” shall mean the following trademarks of Gutterglove, who may, at its sole discretion at any time, alter, amend or modify this list: 

  • LEAFBLASTER PRO; 
  • DO IT RIGHT. DO IT ONCE.; 
  • GUARD WHAT MATTERS MOST;
  • GUARD YOUR GUTTERS FOR GOOD;
  • RISERSTEP;
  • THE NATION’S MOST TRUSTED GUTTER GUARD; 
  • TRUSTED BY YOUR NEIGHBORS. INSTALLED BY PROFESSIONALS.; and,
  • Z-BEND TECHNOLOGY

“Licensed Property” shall mean the Marks and Promotional Materials, collectively.

“Member Services” shall mean the installation, maintenance, and repair of authorized Gutterglove products ONLY, as identified in the Web Portal. 

“LBP Loyalty Program” shall mean the LeafBlaster Pro Contractor Loyalty Program.

“Promotional Material(s)” shall mean pictures, displays, advertising copy, video, and other material provided by Gutterglove located on the Web Portal.

“Reward Points/Credits” shall have the meaning as defined in Section 5 of this Agreement.

“Term” shall be 12 months unless terminated earlier or renewed under the terms of this Agreement.

“Territory” is limited to the United States of America and Canada, including the District of Columbia, and all U.S. Territories.  Gutterglove reserves the right to modify the Territory at any time.

“Use Guidelines” shall mean the guidelines provided by Gutterglove on the Web Portal for the ONLY acceptable and specific ways Contractor can use the Promotional Materials & Marks.  Gutterglove may amend the Use Guidelines at its sole discretion and at any time.

“Web Portal” shall mean Gutterglove’s Web Portal located at https://loyalty.leafblasterpro.com The url of the Web Portal may change from time to time and Gutterglove will notify Contractor if it changes.

All other terms are as defined in their respective sections.

2. Grant of License.  

2.1 Grant of Limited License.  Gutterglove hereby grants to Contractor a non-exclusive, non-transferable, and non-sublicensable license to use the Licensed Property in the Territory during the Term of this Agreement solely in connection with the promotion, advertising and rendering of the Member Services and subject to the Use Guidelines and the terms and conditions of this Agreement.  

2.2  Rights & Goodwill.  Contractor recognizes the value of the goodwill associated with the Licensed Property and acknowledge that all rights to, and the goodwill associated therewith, belong exclusively to Gutterglove.  You shall not claim any rights contrary to the exclusive rights of Gutterglove to the Licensed Property and to any derivations thereof.  Contractor shall not, at any time, contest, or assist others in contesting, Gutterglove’s title to the Marks or rights in the Promotional Materials or the validity of the Marks or the rights in the Promotional Materials

2.3  Use & Ownership.  

  1. Use. All use of the Licensed Property shall inure to the benefit of Gutterglove and no license nor any such use by Contractor shall establish any rights, title or interest in and to any of the Licensed Property to Contractor other than as stated herein. Gutterglove retains the right to limit Contractor’s use of the Licensed Property to any extent that it deems necessary and advisable in its sole discretion. 
  2. Ownership. Contractor acknowledges and agrees that Gutterglove is the owner of the Licensed Property, including all derivatives, for use in connection with its goods, services and the Member Services.  Contractor acknowledges and agrees that Gutterglove is the owner of the copyrights for all Promotional Materials, including, but not limited to pictures, displays, advertising copy, video and other material provided by Gutterglove, including material provided via the Web Portal, including all derivatives of such Promotional Materials.  
  3. Derivatives. Contractor shall not make, have made, nor use any derivatives of the Licensed Properties.  If such a derivative is made and/or used, Contractor acknowledges that such derivative and any associated good will shall inure to the benefit of Gutterglove, who shall be the sole and exclusive owner.
  4. Name of Business.  Contractor shall not use any of the Marks, nor any portion or derivative thereof, in their business or corporate name, nor as part of any domain names, nor as a DBA.
  5. Acceptance of Agreement.  Acceptance of this Agreement shall terminate any and all prior loyalty agreements between Contractor and Gutterglove.

3.  Contractor Obligations and Standards; Quality Control.  

3.1  Contractor Eligibility.  The LBP Loyalty Program is open to individuals who are at least 18 years old. To participate, Contractor must complete the registration form available on the Web Portal and submit it for approval. Approval of registration is at the sole discretion of Gutterglove. Gutterglove reserves the right to deny participation to any applicant for any or no reason.

3.2  Quality Standards and Installation.  Contractor shall adhere to all Use Guidelines, and installation, maintenance, and repair guidelines provided by Gutterglove for Gutterglove products in performing the Member Services. Contractor hereby permits Gutterglove to inspect the business premises and performance of Member Services.  Further, Contractor shall supply Gutterglove, upon request, with specimens showing use of the Licensed Property.  Contractor further agrees that Gutterglove is the final arbiter of quality installation standards and use of the Licensed Property. Installation guidelines may be updated from time to time by and at the sole discretion of Gutterglove. Contractor shall cooperate with Gutterglove in facilitating Gutterglove’s control of the character and quality of the Member Services.

3.3. Customer Complaints. Contractor shall promptly notify Gutterglove of any customer complaint or adverse claim about any Member Services or Gutterglove product of which Contractor becomes aware.

3.4. False Representations.  Contractor shall not make any false or misleading representations or warranties to any customer regarding Gutterglove or its products. 

3.5. Representations of Gutterglove Products.  Contractor shall not make any representations, warranties, or guaranties to customers or to the trade regarding the specifications, features or capabilities of Gutterglove’s products that are inconsistent with the literature distributed by Gutterglove.

3.6. True Information.  Contractor shall provide accurate and true information during Contractor’s account setup and to end customers.

3.7. Conduct.  Contractor shall not engage in any unfair, competitive, misleading or deceptive practices regarding Gutterglove, the Licensed Property, or Gutterglove’s products.

3.8. Hold Yourself Out.  Contractor is not authorized or permitted to hold itself out as Gutterglove, or as the source of Gutterglove’s products, or as an affiliate of Gutterglove.  Contractor may indicate that it is a member of the LBP  Loyalty Program.

3.9. Access.  Contractor shall cooperate with Gutterglove in facilitating Gutterglove’s control of the character and quality of the Member Services, shall permit reasonable inspection of Contractor’s business premises and shall supply Gutterglove, upon request, with specimens showing use of the Marks and Promotional Materials.

3.10. Laws. Contractor shall comply with all applicable laws and regulations and obtain all appropriate government approvals pertaining to the sale, distribution, provision and/or advertising of any goods and/or services, including the Member Services covered by this Agreement.

3.11. Cooperation.  Contractor shall cooperate with Gutterglove to sign all documents, provide adequate specimens and information, and to take all steps reasonably necessary to allow Gutterglove to register or maintain the registration of the Marks and/or Promotional Materials, including the recordation of this Agreement, as needed and/or requested by Gutterglove.

3.12. Style, Font and Color of Licensed Property. All use of the Licensed Property under this Agreement shall be in the same style, font and color as provided to Contractor by Gutterglove; and Contractor shall not change the style, font or color of any of the Licensed Property.

3.13. Licensed Property.  Should Gutterglove, at its sole discretion, remove marks or material from the Licensed Property, Contractor shall immediately cease use any such removed Marks or Promotional Material.

3.14. Single Program Participation.  To the extent Gutterglove offers other loyalty programs,  Contractor shall only participate in one Gutterglove loyalty program at the same time.

4.  Term, Renewal and Termination 

4.1. Term.  The Term of this Agreement shall be for 12 months, unless sooner terminated according to this Agreement. 

4.2  Termination.  This Agreement may be terminated immediately by either Party with or without cause.  Acceptance of a new loyalty agreement offered by Gutterglove shall immediately terminate this Agreement, and the Parties will be governed by the terms of the new loyalty agreement.

4.3  Renewal. Contractor may extend this Agreement for a subsequent one-year term at any time within thirty (30) calendar days of the end of the then-current term. 

4.4. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement:

  1. Contractor shall cease to represent yourself as a member of the LBP Loyalty Program and shall otherwise desist from all conduct or representations that might lead the public to believe that Contractor is a member of the LBP Loyalty Program;

  2. Contractor shall immediately discontinue any and all use of the Licensed Property; and

  3. Contractor shall immediately no longer have any licensed rights to the Licensed Property under this Agreement.

  4. All Contractor costs associated with the termination of this Agreement shall be paid by Contractor.  Such costs shall include, but not be limited to, the costs associated with changing Contractor’s website; destroying any promotional materials, and changing any of Licensor’s materials, whether electronic or not, that include any of the Licensed Materials.  Under no circumstances shall Gutterglove be financially responsible for any costs associated with the termination of Contractor’s participation in the LBP Loyalty Program.

  5. Any Reward Points/Credits or benefits You have accumulated under the LBP Loyalty Program shall be forfeited.

5.  Reward Points/Credits.  Contractor may earn Reward Points/Credits by engaging in incentive activities as specified on the Web Portal. Reward Points/Credits have no cash value. Incentive activities may change from time to time at the sole discretion of Gutterglove. 

6.  Redeem Reward Points/Credits for Rewards.  Reward Points/Credits may be redeemed for rewards via the Web Portal. The availability redemption of rewards is subject to change without notice. Gutterglove reserves the right to substitute rewards of equal or greater value if a reward is not available.   Reward Points/Credits earned in a different Gutterglove contractor loyalty program cannot be redeemed under this LBP Loyalty Program.

7. GUTTERGLOVE HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; OR (iv) NON-INFRINGEMENT; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY GUTTERGLOVE OR ANY PERSON ON GUTTERGLOVE'S BEHALF. 

8.  Communications from Gutterglove; Opting Out.  Contractor is agreeing to receive communications from Gutterglove by phone, email, and/or text message. Contractor may opt out of receiving communications from Gutterglove by one of the following methods: (a) send an email to leafblasterpro@gutterglove.com indicating that you want to opt out of communications; (b) call (866) 483-8166; (c) visit https://leafblasterpro.com/contact-us/ and chat with a Gutterglove associate. Contractor’s communication preferences can also be managed from within the Web Portal. 

9.  Indemnification. Contractor shall indemnify, hold harmless, and defend Gutterglove and its parent, officers, directors, contractors, members, attorneys, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Parties") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party or Gutterglove arising out of or occurring in connection with: Contractor 's acts or omissions as a provider of the Member Services and an installer of Gutterglove’s products, including breach of this Agreement; your or your agents’ failure to comply with any applicable laws; or allegations that You breached your agreement with a third party as a result of or in connection with entering into, performing under, or terminating this Agreement.  The Parties hereby designate Indemnified Parties as third-party beneficiaries of this provision with the right to enforce this provision.

10.  Limitation of Liability. IN NO EVENT IS GUTTERGLOVE OR ANY GUTTERGLOVE REPRESENTATIVE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE, WHETHER OR NOT ANY PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES, AND THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS BASED.

11.  Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement.

12.  Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to give effect to the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

13.  Amendments & Waiver. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

14.  Contractor’s Remedies. The rights under a product warranty for a Gutterglove product are your sole and exclusive remedies for the events specified therein.

15.  Dispute Resolution.  

15.1. Meet and Confer. The Parties shall attempt in good faith to resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (“Dispute”), promptly by confidential negotiations between persons who have authority to settle the controversy. All such negotiations shall be treated as compromise and settlement negotiations for the purposes of the relevant rules of evidence. Any Party may give the other party written notice of any Dispute. Within ten (10) business days after delivery of such notice, the receiving party shall submit to the other a written response. The initial notice and the response shall include a statement of each Party’s position and a summary of the arguments supporting that position. Within twenty (20) business days after the date of the initial notice, the applicable authorized persons (and/or their delegates) shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the Dispute. 

15.2. Mediation.  If the Parties do not meet or the Dispute has not been resolved by the foregoing negotiation within thirty (30) business days of the disputing party’s initial notice, the Parties shall endeavor to settle the dispute by non-binding mediation under the then current Judicial Arbitration and Mediation Services, Inc. (“JAMS”) under the applicable JAMS rules. Unless otherwise agreed the Parties shall select a mediator from JAMS. The mediation shall take place in Davidson County, Tennessee and shall be concluded within seventy-five (75) business days from the date of the disputing Party’s initial notice, unless the parties mutually agree to an extension.  If, for any Dispute to which this paragraph applies, any Party (i) commences an action without first attempting to resolve the matter through mediation, or (ii) before commencement of an action, refuses to mediate after a request has been made, then that Party shall not be entitled to recover attorney fees, even if they would otherwise be available to that Party in any such action.

15.3. Litigation as a Final Resort.  If the parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within ten (10) business days after the mediation date, either Party may file suit in a court of competent jurisdiction in accordance with this Agreement.

16.  Choice of Law and Forum. This Agreement and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.  Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than any state or federal court of competent jurisdiction located within the State of Tennessee, County of Davidson, and any appellate court therein (“Chosen Courts”).  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such Chosen Courts and agrees to bring any such action, litigation, or proceeding only in Chosen Courts. Each Party waives any objection to venue and inconvenient forum.  Each Party further agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

17. Attorney Fees.  In any action or proceeding between the Parties arising out of this Agreement, the prevailing Party shall be entitled to reasonable attorney fees and costs from the non-prevailing Party.

18.  No Franchise or Business Opportunity Agreement. Nothing in this Agreement shall be deemed or construed as creating a joint venture, agency relationship, franchise, or business opportunity between Gutterglove and You. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party, except as expressly stated in this Agreement. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Contractor has the sole discretion to determine your methods of operation, accounting practices, the types and amounts of insurance You carry, personnel practices, advertising and promotion, customers, and service areas and methods.