Terms Of Participation

This Terms of Participation Agreement was last modified on January 31, 2018.

THIS TERMS OF PARTICIPATION AGREEMENT (“Agreement”) is made on the date of acceptance (“Acceptance Date”), as defined below in this Agreement, by and between the excavator participant in the Gold Shovel Standard certification program (“Participant”) and the Gold Shovel Association, an Arizona non-profit corporation (“GSA”). Together, GSA and Participant may be referred to in the Agreement as the “Parties” and, separately, as a “Party.”

WHEREAS, upon completion of the Gold Shovel Standard excavation certification program requirements by Participant to the reasonable satisfaction of GSA, Participant desires certification of Participant’s completion of such program requirements by GSA, to provide certain information to GSA as requested by GSA for use by GSA and its sublicenses, and to license certain GSA trademarks in connection with certification, as further described in the Agreement (the “GSA Trademarks”), in order to promote certification of Participant by GSA and to promote public awareness of worker and public safety in connection with excavations near underground infrastructure and facilities (the “Purpose”), under and subject to this Agreement; and

WHEREAS, upon completion of the Gold Shovel Standard excavation certification requirements by Participant to the reasonable satisfaction of GSA, GSA desires certification by GSA of Participant’s completion of such program requirements, receipt and use by GSA of Participant’s information, and license by GSA to Participant of the GSA Trademarks for the Purpose, under and subject to this Agreement,

NOW, THEREFORE, in consideration of the mutual promises set forth in the Agreement, and the preamble and recitals, which are incorporated herein, the Parties agree as follows:

1. Certification. Upon completion of Gold Shovel Standard excavation certification requirements by Participant to the reasonable satisfaction of GSA, GSA will certify completion of such requirements by Participant. Participant must demonstrate to GSA’s reasonable satisfaction the following in order to earn GSA certification of Participant’s completion of excavation certification requirements:

a. At a minimum, Participant must conduct annual basic excavation damage prevention awareness training for all Participant workers, whether employees or contractors, that will perform excavation work, or be present at excavation work sites, including new hires, and Participant must preserve records of such training;

b. Participant must have whistleblower and stop work practices for such workers, and Participant must notify such workers of these practices;

c. Participant must have a policy to adhere to all applicable Common Ground Alliance (“CGA”) Best Practices[1] , especially Chapter 5 of CGA Best Practices;

d. Participant must have a policy to hire excavator subcontractors (if any subcontractors are used for excavation services by Participant) certified by GSA or to hire non-certified excavation subcontractors only after evaluation and approval of such subcontractors by Participant in lieu of such certification (the Parties each understand and acknowledge however that Participant unilaterally shall determine the hiring of excavation subcontractors by Participant);

e. Participant must have thorough investigation procedures that are used by Participant in the event of an excavation incident;

f. Participant must have corrective action procedures for excavation incidents including root cause analysis;

g. Participant must pay GSA fees charged by GSA for excavator program participation when due, as such fees may be determined by GSA from time-to-time without prior notice to, or consent by, Participant; and

h. Participant must comply with practices and policies determined by GSA that pertain to the GSA program for excavator certification, including, without restriction, program enrollment, as such practices and policies may be determined by GSA from time-to-time without prior notice to, or consent by, Participant.

2. Maintenance of Certification. To maintain such certification, Participant must demonstrate to the reasonable satisfaction of GSA the following:

a. Participant’s compliance in full with the terms, conditions, and requirements applicable to Participant in section 1 of this Agreement;

b. That Participant investigates and reports to its management and GSA all damages to any buried infrastructure (including, without limitation, gas, electric, water, sewer, and telecommunications) promptly following any and all excavation incidents;

c. Participant either hires excavator subcontractors (if any subcontractors are used for excavation services by Participant) certified by GSA or hires non-certified excavation subcontractors after evaluation by Participant under its subcontractor evaluation policy in lieu of such certification (the Parties each understand and acknowledge however that Participant unilaterally shall determine the hiring of excavation subcontractors by Participant); and

d. Participant reports certain work volume information reasonably requested by GSA that is used by GSA for normalizing metrics data.

3. Modification of Certification Requirements. GSA reserves the right to reasonably modify excavator certification requirements from time-to-time without prior notice to, or consent by, Participant, including, without limitation, certification requirements set forth in sections 1 and 2 of this Agreement. GSA will give Participant electronic notice of such modified certification requirements. Electronic notice shall include, without limitation, electronic mail notice of such modifications to Participant and/or GSA posting of such modifications on GSA’s website. Such electronic notice, including, without limitation, by GSA posting of such modifications on GSA’s website alone, shall be deemed actual notice to Participant of such modifications notwithstanding any contrary terms of this Agreement. To maintain excavator certification of Participant by GSA, Participant shall promptly come into compliance with such modified excavator certification requirements after GSA provides Participant electronic notice of such modified requirements.

4. Certification Representations. While Participant is certified by GSA under this Agreement, Participant shall represent publicly and prominently, (a) on its website where certification of Participant by GSA is mentioned, and (b) in all materials prepared by or for Participant that refer to such Participant’s GSA excavator certification that are made available to the public, its customers, or its potential customers, the following: that certification of Participant by GSA under GSA’s excavator certification program means only that Participant has satisfied certification requirements set forth in sections 1 and 2 of this Agreement to the reasonable satisfaction of GSA. Participant shall also enumerate such certification requirements on such website and in such materials. Participant shall make no additional representations or statements about such certification, or its meaning, including, without restriction, representations or statements that that are inconsistent with this section 4 of this Agreement.

5. Participant Information and License. At Participant’s sole cost and expense, Participant will provide to GSA the information set forth in sections 2(b) and 2(d) of this Agreement and such other information as GSA may reasonably request from time-to-time (“Participant Information”). With respect to Participant Information, Participant represents, warrants, covenants, and agrees as follows:

a. The Participant Information is accurate and complete at the time it is reported to GSA, and Participant will update Participant Information reported to GSA, at Participant’s sole cost and expense, in order to maintain the accuracy and completeness of Participant Information;

b. Participant Information is solely owned by Participant, or, if it is not solely owned by Participant, Participant has all permissions, consents, agreements, and/or licenses from all third parties, including, without limitation, owners of interests in Participant Information, that are or may be necessary or required in order to report Participant Information to GSA and to grant GSA the rights set forth in this Agreement pertaining to Participant Information;

c. Participant Information is neither confidential information nor trade secrets of Participant or any third party, and Participant will not assert, and will cause such third parties not to assert, against GSA or its sublicensees any confidential information interest or obligation, any trade secret right or interest, any ownership right or interest, or any other right, obligation, or interest that would have the effect of restricting or barring reporting of Participant Information to GSA or use of Participant Information by GSA or its sublicensees as set forth in this Agreement; and

d. Participant hereby grants GSA a royalty-fee, perpetual, non-exclusive license, with the right to sublicense others, to receive and use Participant Information for internal business purposes of GSA, including, without limitation, the rights to disclose Participant Information within GSA, including, without limitation, to GSA directors, officers, employees, contractors, and/or agents, to make copies of Participant Information, to prepare derivative works from Participant Information, including, without limitation summaries or compilations of Participant Information alone or together with other GSA information and/or information of third parties, and to publish, perform, and/or display Participant Information internally within GSA, including, without limitation, to its directors, officers, employees, contractors, and/or agents, with full rights to authorize others to do one or more of the foregoing, provided that, GSA will not disclose Participant Information to GSA members or other third parties, who are not GSA or its directors, officers, employees, contractors, or agents, without the prior consent of Participant.

6. Ownership of GSA Trademarks. The Parties agree that GSA is and shall remain the sole and exclusive owner of all rights, title, and interests in the GSA Trademarks, including, without limitation statutory, common law, and all other rights, title, and interests, as such GSA Trademarks are further described in Exhibit A to this Agreement. Exhibit A is attached to, hereby made a part of, and is incorporated into this Agreement. The Parties further agree that Exhibit A may be modified from time-to-time by GSA without prior consent by, or notice to, Participant. Except as expressly granted in this Agreement, Participant shall have no other rights or interests of any kind in the GSA Trademarks. Under no circumstances will anything in this Agreement be construed as granting a license to any of GSA’s other intellectual property or a license to the GSA Trademarks for any purpose other than the Purpose. GSA shall have the sole right and ability to enforce and defend the GSA Trademarks and to file trademark applications before the US Patent and Trademark Office, trademark offices of one or more States of the United States, or any other foreign or domestic trademark office in the name of GSA for the GSA Trademarks. Participant shall not object to or contest in any manner GSA’s applications or subsequent registrations or renewals of the GSA Trademarks. Participant agrees not to directly or indirectly impair, contest, challenge or dispute GSA’s ownership of the GSA Trademarks.

7. GSA Trademark License. Subject to the terms and conditions of this Agreement and provided that Participant has been and is certified by GSA under this Agreement, GSA hereby grants to Participant a revocable, individual, non-exclusive, non-transferable, royalty-free license, without right of sublicense, to use the GSA Trademarks solely for the Purpose during the period of time that Participant is certified by GSA under this Agreement (the “License”). Participant shall not license, sublicense, sell, transfer, pledge, hypothecate, or otherwise dispose of or encumber the GSA Trademarks or any right, interest, or title therein. In every use of the GSA Trademarks, Participant shall, at Participant’s sole cost and expense: (i) acknowledge in writing, including, without limitation, in electronic communications, that the GSA Trademarks are registered trademarks of GSA and are used with permission of GSA; (ii) cooperate with GSA to maintain the goodwill associated with GSA Trademarks; and (iii) only use the GSA Trademarks in compliance with this Agreement and for the Purpose and in compliance with GSA’s Gold Shovel Standard Emblem Usage Guidelines, as such Guidelines may be amended by GSA from time-to-time (the “Guidelines”), without prior consent by, or notice to, Participant, which Guidelines are hereby incorporated into, and made a part of, this Agreement, and at a quality equal to or higher than the current use of the GSA Trademarks by GSA. In order to protect and preserve GSA’s rights in the GSA Trademarks, Participant understands, acknowledges, and agrees that the GSA shall have the right, at all reasonable times and with reasonable notice, to inspect the manner in which Participant is using the GSA Trademarks to ensure that such use is of proper quality and is otherwise consistent with this Agreement. Participant hereby acknowledges receipt of the Guidelines.

8. Term and Termination. This Agreement shall be effective on the Acceptance Date, as defined below in this Agreement and shall continue in effect until termination in accordance with its terms. The Parties may terminate this Agreement at any time upon mutual written agreement of the Parties. Either Party may terminate this Agreement at any time by giving the other Party at least thirty (30) days prior written notice of termination. GSA shall have the right to revoke certification of Participant immediately upon notice to Participant in the event that Participant fails to perform any term or condition related to certification of Participant by GSA set forth in this Agreement, including, without limitation, any of the requirements for certification set forth in sections 1-4 of this Agreement. GSA shall have the right to terminate, or suspend its performance of, this Agreement and/or to revoke the certification and/or licenses granted herein, immediately upon notice to Participant if Participant: (i) fails to perform any term or condition of this Agreement pertaining to certification of Participant by GSA, including, without limitation, any certification requirement set forth in sections 1-4 of this Agreement; (ii) fails to perform any term or condition of this Agreement pertaining to the License; (iii) fails to comply with applicable laws; (iv) fails to perform or breaches any warranty, covenant, or representation in this Agreement applicable to Participant; and/or (v) fails to perform or breaches any other material provision of this Agreement. Upon revocation of certification or the License under this Agreement by GSA, Participant shall immediately cease making any and all representations that it is certified by GSA and shall immediately cease all use of the GSA Trademarks. Upon termination of this Agreement for any reason or no reason by any Party, certification of Participant by GSA and the License shall automatically terminate, Participant shall immediately cease all use of the GSA Trademarks, and Participant shall immediately cease making any and all representations that it is certified by GSA.

9. No GSA Warranty and Liability Limitation; Participant Warranties. GSA MAKES NO WARRANTIES UNDER THIS AGREEMENT TO PARTICIPANT, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. GSA SHALL HAVE NO LIABILITY TO PARTICIPANT IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER SUCH LIABILITY ARISES IN TORT, INCLUDING, WIHTOUT LIMITATION, GSA’S NEGLIGENCE, BREACH OF CONTRACT, OR OTHERWISE. GSA’S AGGREGATE LIABILITY TO PARTICIPANT UNDER THIS AGREEMENT SHALL NOT EXCEED THE DIRECT COSTS BORNE BY GSA IN CERTIFYING PARTICIPANT.

Participant represents, warrants, covenants and agrees as follows: (a) Participant, if an entity, was duly formed, is validly existing, is in good standing in the State of its formation; (b) Participant, if a natural person, is at least eighteen years of age, is a citizen or lawful resident of the United States, and is competent to enter into this Agreement; (c) Participant, if an entity, has taken all actions, corporate and otherwise, to authorize Participant, and its representatives, to enter into this Agreement; (d) entry into, and performance of, this Agreement by Participant, if an entity, is consistent with Participant’s governing instruments, and does not conflict with such instruments nor with any law, order, decree, obligation, by contract or otherwise, or any right of any third party, to which Participant is subject, and (e) this is the binding agreement of Participant.

10. Indemnity. Participant, at its sole cost and expense, will defend, indemnify, and hold harmless GSA and its members, officers, directors, employees, contractors and agents (“Indemnified Parties”) from and against all third party claims, suits, actions, demands, damages, liabilities, judgments, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs of litigation) brought against, alleged, or incurred by one or more Indemnified Parties arising from or in connection with (a) Participant’s negligent or otherwise wrongful acts, omissions, or willful misconduct; (b) Participant’s breach of any of representation, warranty, covenant, or other term of this Agreement; (c) Participant’s violation of any applicable law, statute, or regulation; (d) Participant’s violation or misappropriation of any property right, interest, or title of any third party, including, without limitation, third party trade secrets, copyrights, trademarks, patents, proprietary information, common law, or other intellectual property rights, including, without limitation, in connection with Participant Information; and/or (e) any death, bodily injury, or property damage caused or incurred by Participant (together, the “Claims”). GSA will give Participant prompt written notice of written Claims received by GSA. Upon such notice, Participant shall promptly assume the defense of such Claims. GSA and other Indemnified Parties may, at its or their cost and expense, participate in the defense of such Claims. In the event that Participant does not promptly assume the defense of such Claims, GSA and/or one or more of the Indemnified Parties may assume such defense at the expense of Participant. Participant shall not settle or compromise any Claims without the prior written consent of GSA and all affected Indemnified Parties.

11. General Provisions. This Agreement, the exhibit(s) made a part of this Agreement, and the Guidelines contain the entire agreement between the Parties concerning the subject matter of this Agreement and they supersede all prior and contemporaneous agreements, understandings, and representations of the Parties concerning the subject matter of this Agreement. The waiver by either Party of any provision of this Agreement (including but not limited to a waiver of a breach or violation) shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision of this Agreement. No such waiver of this Agreement shall be effective unless in writing that is signed by the Party against whom the waiver is charged. If any term of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement shall remain in full force and effect, and the Parties shall negotiate in good faith substitute terms that are consistent with the Parties’ intentions under the invalid, unenforceable, or void terms. The rights and obligations of the Parties under this Agreement are subject to, and shall be construed under the internal laws of, the State of Arizona without regard to its choice of law principles. The parties consent to the jurisdiction and venue of the state and federal courts located in the State of Arizona with respect to disputes between the Parties arising under this Agreement. Participant will not assign this Agreement in whole or in part without the prior written consent of GSA, which GSA may refuse in its sole discretion. GSA may assign this Agreement in whole or in part by giving notice of assignment to Participant. Any assignment in violation of this section shall be void and of no effect. Subject to the foregoing, the Agreement shall inure to the benefit of the successors and permitted assigns of the Parties. This Agreement may be executed or otherwise accepted in accordance with its terms in two or more counterparts and by electronic signature and may be delivered by electronic mail, facsimile, or other electronic means. All such executed or accepted documents (including facsimiles) when taken together shall be deemed original and shall have the same force and effect as a single document. All notices under this Agreement will be in writing and will be deemed to have been duly given when delivered personally, charges prepaid, sent by first class or certified U.S. mail, postage prepaid, or sent by email with confirmation of receipt, addressed to Participant at the address set forth in the records of GSA and to GSA at the following address: Executive Director, Gold Shovel Association, 2307 S Rural Road, Tempe, AZ 85282, legal@goldshovelstandard.org. Such notices shall be deemed effective upon receipt if delivered personally, three (3) days after mailing by U.S. mail, or upon confirmation of receipt if sent by email. Either Party may change its notice address information by sending notice in accordance with this section. The rights, remedies, and obligations of the parties set forth in section 5(d) and sections 8 through 11 of this Agreement shall survive termination or expiration of this Agreement. Except as otherwise set forth in the Agreement, all other rights, remedies, and obligations incurred during the term of this Agreement shall survive termination or expiration of this Agreement.

12. Modification of Agreement Terms and Conditions; Posting. GSA may reasonably modify the terms and conditions of this Agreement from time-to-time by giving Participant electronic notice of such modifications. Electronic notice shall include, without limitation, notice of such modifications by electronic mail from GSA to Participant and/or posting of such modifications by GSA on GSA’s website. Electronic notice by GSA to Participant of such modifications, including, without limitation, by GSA posting of such modifications alone on GSA’s website, shall be deemed actual notice to Participant of such modifications, notwithstanding any contrary terms or conditions in this Agreement. Participant may not modify the terms or conditions of this Agreement without the prior written assent of GSA, which GSA may withhold in its sole discretion.

13. Acceptance and Acceptance Date. This Agreement, and all of its terms and conditions, shall be deemed accepted by Participant upon the first to occur of the following: submission of an application by Participant to enroll in the excavator certification program of GSA, whether electronically or otherwise; provision of any Participant Information to GSA by Participant; any use of the GSA Trademarks by Participant; performance of any other term or condition of this Agreement by Participant; or signature of this Agreement on behalf of Participant in writing or electronically, including, without limitation, by click-through acceptance of this Agreement online by or on behalf of Participant. This Agreement, and all of its terms and conditions, shall be deemed accepted by GSA upon the first to occur of the following: GSA notifies Participant that GSA has accepted Participant’s application to enroll in the excavator certification program of GSA, whether electronically or otherwise; GSA’s certification of Participant under this Agreement; receipt and use of Participant Information by GSA; performance of any other term or condition of this Agreement by GSA; or signature of this Agreement on behalf of GSA in writing or electronically, including, without limitation, by click-through acceptance of this Agreement online by or on behalf of GSA. GSA shall accept this Agreement, if at all, after Participant. Upon acceptance of this Agreement by GSA, the Agreement shall become effective (“Acceptance Date”).

EXHIBIT A

Registration Number Registration Date
U.S. Reg. No. 5,049,534 September 27, 2016
U.S. Reg. No. 5,049,526 September 27, 2016


[1] The Best Practices are a publication of CGA, a District of Columbia, non-profit corporation. CGA and GSA are independent organizations and are not affiliated. References by GSA to CGA Best Practices do not express or imply an endorsement by either organization of the other or its programs. While GSA’s certification requirements for excavators currently require compliance with CGA Best Practices, CGA, itself, does not maintain such a requirement.