Mobile Application End-User License Agreement

Last Updated: June 16, 2021

PLEASE CAREFULLY READ this Mobile Application End-User License Agreement (“Agreement”). This Agreement is a binding legal agreement between you, the user (“you”, “your” or “yourself”), and Alterra Mountain Company, on behalf of itself and each resort destination whose App you use pursuant to this Agreement (individually and collectively, “we”, our”, “us” or the “Company”). This Agreement governs your use of our Ikon Pass and resort destination mobile applications (including all related interfaces and documentation, each an “App”).

You may use the App only if you are of legal age in your jurisdiction to enter into a binding legal agreement with us or, if you are a minor, if your parent or legal guardian permits your use of the App and has read and accepted this Agreement on your behalf. You may not use the App if we previously barred you from using the App.

BY EITHER EXPRESSLY CONSENTING TO THIS AGREEMENT OR BY USING THE APP, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU SATISFY THE ELIGIBILITY QUALIFICATIONS ABOVE; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT USE THE APP AND DELETE IT FROM YOUR MOBILE DEVICE.

1.    License Grant. Subject to the terms and conditions of this Agreement, we grant you a limited, revocable, non-exclusive and non-transferable license to download and use the App, including to stream, download and run Content and Services (as defined in Section 5) made available through the App, for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) in accordance with the App’s operating parameters and any instructions.

2.    License Restrictions. You agree not to:

(a)   use automated means (such as bots and other web scraping devices) to collect information from the App or the Websites (as defined below);

(b)   copy, modify, translate, adapt or create derivative works or improvements of the App;

(c)   reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the App or any part thereof;

(d)   remove, alter or obscure any copyright, trademark or other intellectual property or proprietary rights notices in the App;

(e)   rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the App, or any part thereof, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any given time;

(f)   remove, disable, circumvent or otherwise work around any copy protection, rights management or security features in or protecting the App;

(g)   use the App in a way that could foreseeably harm or impair others’ use of the App or the security or integrity of the App;

(h)   use the App in violation of any laws or regulations applicable to you; or

(i)   interact with the App while skiing, snowboarding or participating in other snow sports and recreational activities; while operating a motor vehicle; or while involved in any other activity to which close attention should reasonably be paid in order to mitigate safety risks.

3.    Reservation of Rights. The App is licensed, not sold, to you. You do not acquire any ownership interest in the App under this Agreement, or any other rights thereto other than to use the App in accordance with the license granted, and subject to all terms and conditions of this Agreement. The Company and its licensors and service providers reserve and retain their entire right, title and interest in and to the App, including all intellectual property rights, except as expressly granted to you in this Agreement.

4.    Collection and Use of Your Information. You acknowledge that, when you download and/or use the App, we may use automated means (including, for example, cookies and web beacons) to collect information about your Mobile Device and your use of the App. You also may be required to provide certain information about yourself as a condition to downloading or using the App or certain of its features or functionality, and the App may provide you with opportunities to share information about yourself with others. All personally identifiable information we collect through or in connection with this App is subject to our Privacy Policy located at https://www.alterramtnco.com/privacy-policy (the “Privacy Policy”). By making available personally identifiable information to us through or in connection with the App, you consent to all actions taken by us with respect to such information that comply with the Privacy Policy.

5.    Content and Services. The App may provide you with access to Company websites such as www.ikonpass.com and www.mammothmountain.com (each, a “Website”), as well as Company content, software, products, services and other materials hosted by or made available through a Website (collectively, “Content and Services”). Your access to and use of Content and Services are subject to any terms and conditions applicable to that Website (the Website’s “Terms of Use”), which are incorporated herein by this reference, in addition to this Agreement. You may be required to register with a Website in order to access its Content and Services.

6.    Geographic Restrictions. The Content and Services are based in the United States and intended for access and use by persons located in the United States and Canada, as applicable based on the App(s) you use. You might not be able to access all or some of the Content and Services outside of the United States and Canada, and international as well as foreign (non-U.S. and Canada) laws and regulations may apply to your use of the App. The Content and Services may vary based on your location (e.g., the resort you are visiting) through the App’s use of geolocation tools.

7.    Updates. We might from time-to-time in our sole discretion develop and provide App updates, such as bug fixes, patches, enhancements or new features (collectively, “Updates”). Updates might modify or delete in their entirety certain features and functionalities. We assume no obligation to make any Updates or to continue to provide any particular features or functionalities. You agree to promptly download all Updates and acknowledge that the App might not properly operate should you fail to do so. All Updates will be deemed part of the App and be subject to all of this Agreement. You acknowledge that Apple and Google have no obligation whatsoever to maintain or support the App.

8.    Third-Party Materials. The App might display, include, link to or otherwise make available third-party content, software, products, services and other materials (collectively, “Third-Party Materials”). Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials are intended to improve the App experience for your benefit, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

9.    Term and Termination.

(a)    This Agreement commences when accepted by you (as described above) and will continue in effect until terminated by you or us as set forth in this Section 9.

(b)    You may terminate this Agreement by deleting the App and associated Content and Services from your Mobile Device.

(c)    We may terminate this Agreement at any time without notice or cause, including in the event it ceases to support the App, which we may do in our sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

(d)    Upon any termination of this Agreement:

(i)    all rights granted to you under this Agreement terminate;

(ii)   you must cease all use of the App and delete the App from your Mobile Device; and

(iii)  Sections 4, 10-14 and 16-17 will survive and remain in effect.

(e)    Termination will not limit any of our rights or remedies at law or in equity.

10.  Disclaimer of Warranties. YOUR USE OF THE APP IS AT YOUR SOLE RISK. THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY, ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, AS WELL AS APPLE (FOR iOS USERS) AND GOOGLE (FOR ANDROID USERS) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, REGARDING THE APP AND ANY USE THEREOF. IN THE EVENT OF ANY FAILURE OF THE APP, APPLE OR GOOGLE (AS APPLICABLE TO YOU) MAY ISSUE A REFUND OF FEES PAID FOR THE APP (IF ANY) BUT OTHERWISE HAVE NO RESPONSIBILITY FOR THE FAILURE. COMPANY SPECIFICALLY DISCLAIMS RESPONSIBILITY FOR ANY APP FEATURES, DATA AND TOOLS THAT ARE INACCURATE OR INACCESSIBLE DUE IN WHOLE OR IN PART TO YOUR MOBILE DEVICE’S INTERNET CONNECTIVITY (OR LACK THEREOF) OR USER SETTINGS.

11.  Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, ANY OF THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, OR ANY OF THE FOREGOING ENTITIES’ DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APP OR THE CONTENT AND SERVICES FOR:

(a)    PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; OR

(b)    DIRECT DAMAGES IN AMOUNTS THAT COLLECTIVELY EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APP (OR, IF NONE, TEN U.S. DOLLARS ($10.00).

THE FOREGOING LIMITATIONS WILL APPLY IRRESPECTIVE OF WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE DISCLAIMERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

12.  Indemnification. You agree to indemnify, defend and hold harmless the Company and its affiliates, licensors and service providers, together with each of the foregoing’s directors, officers, employees, contractors, agents, successors and assigns (all of the foregoing, the “Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the App or your breach of this Agreement, including the content you submit or make available through the App. The “Indemnified Parties” further include Apple Inc. (together with its subsidiaries and affiliates, “Apple”) if you are an iOS user, and Google LLC (together with its subsidiaries and affiliates, “Google”) if you are an Android user.

13.  Governing Law & Venue; NO JURY TRIAL. Any question, claim or controversy arising out of or related to this Agreement (a “Dispute”) will be governed by and construed in accordance with the laws of (a) in the case of the Ikon Pass App, the State of Colorado, and (b) in the case of a resort destination (e.g., Mammoth Mountain or Blue Mountain) App, the laws of the state or province with jurisdiction over that resort destination, in each of the foregoing cases, without regard for any conflict of laws principles that would require application of other laws. You and we both irrevocably and unconditionally (i) consent and submit to the exclusive jurisdiction of the state/provincial and federal courts located in said jurisdiction(s) for the resolution of any Dispute and (ii) waive any claim that a Dispute filed in said jurisdiction has been brought in an inconvenient forum. YOU AND WE BOTH IRREVOCABLY AND UNCONDITIONALLY WAIVE EACH OF OUR RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTES.

14.  Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APP MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

15.  Changes to this Agreement. We might propose changes to this Agreement from time-to-time. The changes will not become binding on you unless and until you are presented with those changes (e.g., in the form of an updated Agreement), whether in the App, by e-mail notification or otherwise, and you either expressly consent to the changes or continue to use the App.

16.  Entire Agreement; Severability; Waiver. This Agreement, including the documents referenced within it, constitute the entire agreement between you and us with respect to the App and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the App. If any provision of this Agreement is held to be void or unenforceable, the parties intend for such provision to be modified and enforced by the adjudicator in a manner that best achieves the intent of such provision and for the remainder of this Agreement to remain in full force and effect. No failure to exercise, nor any delay in exercising, any right or power hereunder by a party shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right or power hereunder.

17.  Third-Party Beneficiaries. This Agreement is only between you and us. However, the Indemnified Parties defined above (excluding the Company) are expressly intended to be third-party beneficiaries to this Agreement. There are no other third-party beneficiaries to this Agreement.

18.  Usage Rules. This Agreement is intended to supplement, and in the event of conflicting provisions shall be subject to, any usage rules set forth by Apple or Google that you accepted in order to access and use their app stores.

19.  Prohibited Party. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

20.  Contacting Us. We, and not Apple or Google, are responsible for addressing any claims that you may have regarding our App. For any such claims and for any other inquiries regarding this Agreement, please email us at legal@alterramtnco.com or mail us at Alterra Mountain Company, Attn: Chief Legal Officer, 3501 Wazee St., Ste. 400, Denver, CO 80216 USA.