Software License Agreement
WARNING: EVERYONE, REGARDLESS OF THE SHAPE THEY ARE IN, SHOULD CONSULT A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER BEFORE STARTING AN EXERCISE PROGRAM. A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER CAN DETERMINE WHAT TYPE OF EXERCISE, THE FREQUENCY, AND THE INTENSITY THAT IS APPROPRIATE FOR EACH INDIVIDUAL. OF COURSE, ALWAYS USE COMMON SENSE WHEN EXERCISING. STOP EXERCISING IMMEDIATELY IF YOU EXPERIENCE SHORTNESS OF BREATH, DIZZINESS, DISCOMFORT OR PAIN.
This Software License Agreement (“Agreement”) is made and entered into by and between you (“You” and “Your” includes a person and/or an individual entity) and Pear Sports LLC (“Pear Sports”) concerning the specified version of the Pear Sports software product provided to You (“Software”). The Software includes all component parts and any “online” or electronic documentation, as applicable. By accessing, installing, copying or otherwise using the Software, You agree to be bound by the terms of this Agreement. If You do not agree to the terms of this Agreement, Pear Sports is unwilling to license the Software to You and You may not access, use or copy the Software. Children 14 years of age and older (other than emancipated minors) may only use the Software if (a) their parent or legal guardian has agreed to this Agreement; and (b) their use is permitted and actively supervised by their parent or legal guardian. In consideration of the mutual conditions and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Software License Grant. Subject to the payment of all applicable license fees, and the terms and conditions of this Agreement, Pear Sports hereby grants to You a limited, royalty-free, non-sublicensable, non-exclusive, non-transferable right to install and run the Software and to use any accompanying documentation, solely for Your individual use and solely for use with the Pear Sports fitness product You have purchased. This Agreement authorizes You to make one copy of the Software solely for backup or archival purposes, provided that the copy You make contains all of the proprietary notices set forth in or on the original version of the Software. The Software is licensed, not sold.
- No Obligation to Support Software. Pear Sports provides the Software to You without any maintenance or support whatsoever, including without limitation, upgrades, updates, bug fixes, and modifications.
- Restrictions. You shall not use the Software for any purposes beyond the scope of the license granted in this Agreement. Without limiting the generality of the foregoing, except as set forth in the Agreement or as may otherwise be agreed to by the parties in writing, You will not (i) market or distribute access to the Software or any portion thereof; (ii) assign, sublicense, sell, lease or otherwise transfer or convey Your rights under the license granted herein; (iii) use the Software or any portion thereof in any time-sharing or service bureau arrangement; (iv) modify or create any derivative works of the Software or any portion thereof; or (vi) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code or any component of the Software, and You hereby acknowledges that nothing in this Agreement shall be construed to grant You any right to obtain or use such source code. All rights not expressly set forth hereunder are reserved by Pear Sports.
2. TERM AND TERMINATION
Regardless of the location of the Software, You are responsible for strict compliance with all of the terms and conditions of this Agreement. This Agreement will terminate automatically without notice from Pear Sports if You fail to comply with any of the terms or conditions or other requirements described in this Agreement, and such termination shall be in addition to and not in lieu of any criminal, civil or other remedies available to Pear Sports. When this Agreement terminates, You must immediately cease using the Software and destroy all copies of the Software. Sections 1(b), 1(c) and 2 through 10 shall survive any termination of this Agreement.
- Software. The Software, and any changes, modifications, enhancements, and corrections thereto, are protected by some combination of patent, copyright, trademark, trade secret, and other intellectual property laws, and international treaty provisions. Pear Sports and its third party licensors, if any, retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (i) the Software, including, but not limited to, all copies, versions, customizations, compilations, derivative works thereof (by whomever produced), and any images, photographs, animations, video, audio, music, text, and applets incorporated into the Software; (ii) the Pear Sports trademarks, service marks, trade dress, trade names, icons and logos; (iii) any and all copyright rights, patent rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing; and (iv) all Confidential Information (as defined in Section 4 below). You acknowledge that Your possession, installation, or use of the Software does not transfer to You any ownership, title, or registrable interest of any kind to any intellectual property in the Software, and that You will not acquire, or attempt to acquire, any rights to the Software except as expressly set forth in this Agreement. You agree that all backup, archival, or any other type of copies of the Software will contain the same proprietary notices that appear on and in the Software.
- Submissions. For any information gained as a result of Your use and evaluation of the Software, including without limitation, any materials You submit to Pear Sports via electronic mail, through or to any Pear Sports website, or otherwise, whether as an evaluation report, feedback, data, questions, comments, ideas, concepts, techniques, suggestions, or the like, You agree that such submissions are unrestricted and shall be deemed non-confidential upon submission. You grant Pear Sports and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, use, copy, transmit, distribute, create derivative works from, commercialize, display, and perform such submissions.
You acknowledge that the Software contains valuable trade secrets and confidential information owned by Pear Sports, including but not limited to the development status of the Software, the functionality of the Software, the appearance, content, and flow of the Software’s screens, the method and pattern of user interaction with the Software, and the content of the Software’s documentation (“Confidential Information”). Confidential Information does not include information that is in the public domain through no wrongful act by You. You shall retain all Confidential Information in strict confidence, with at least with the same amount of diligence that You exercise in preserving the secrecy of Your most valuable information, but in no event less than reasonable diligence.
5. WARRANTY DISCLAIMER
To the maximum extent permitted by applicable law, and except for the limited warranty set forth herein, THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND SOLE RESPONSIBILITY FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM THE SOFTWARE. PEAR SPORTS MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE, FREE FROM INTERRUPTIONS OR OTHER FAILURES, SECURE, SAFE FROM HACKERS OR THAT THE SOFTWARE WILL SATISFY YOUR SPECIFIC REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PEAR SPORTS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY, COMPLETENESS OF RESPONSES, RESULTS, LACK OF NEGLIGENCE, OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SOFTWARE. PEAR SPORTS MAKES NO WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT. PEAR SPORTS DOES NOT WARRANT THAT BUGS OR DEFECTS IN THE PEAR SPORTS SOFTWARE WILL BE CORRECTED. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL PEAR SPORTS, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS OR LICENSORS, BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY CHARACTER WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT, CONFIDENTIAL OR OTHER INFORMATION, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, FOR BUSINESS INTERRUPTION, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, INCLUDING A DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED THE USE OR INABILITY TO USE THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY BY PEAR SPORTS, AND EVEN IF PEAR SPORTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PEAR SPORTS HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY. YOU SHALL NOT BE ENTITLED UNDER LOCAL LAW OR OTHERWISE TO RECEIVE ANY PAYMENT FROM PEAR SPORTS, WHETHER FOR ACTUAL, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, COSTS OR EXPENSES AS A RESULT OF USE, EXPIRATION OR TERMINATION OF THIS AGREEMENT OR TERMINATION OF YOUR ACCESS TO THE SOFTWARE, ALL OF WHICH YOU EXPRESSLY WAIVE. YOU ACKNOWLEDGE THAT YOUR ACCEPTANCE OF THIS SECTION HAS MATERIALLY INDUCED PEAR SPORTS TO ENTER INTO THE AGREEMENT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO CASE SHALL PEAR SOFTWARE’S LIABILITY EXCEED THE AMOUNT OF FORTY ($40.00) UNITED STATES DOLLARS.
YOU ACKNOWLEDGE THAT ANY DATA, INCLUDING WITHOUT LIMITATION, PEAR SPORTS FITNESS PRODUCT DATA, DATA ENTRY, CONVERSION, STORAGE, TRANSFER OR UPLOADING, IS SUBJECT TO THE LIKELIHOOD OF HUMAN AND MACHINE ERRORS, MALICIOUS MANIPULATION, OMISSIONS, DELAYS, AND LOSSES, INCLUDING, BUT NOT LIMITED TO, INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA THAT MAY RESULT IN LOSS OR DAMAGE TO YOU AND/OR YOUR PROPERTY, AND/OR YOUR DETRIMENTAL RELIANCE ON MALICIOUSLY MANIPULATED DATA. PEAR SPORTS SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. YOU ARE RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO LIMIT THE IMPACT OF SUCH PROBLEMS, INCLUDING BACKING UP DATA, ADOPTING PROCEDURES TO ENSURE THE ACCURACY OF INPUT DATA, EXAMINING AND CONFIRMING RESULTS PRIOR TO USE, ADOPTING PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND OMISSIONS, REPLACING LOST OR DAMAGED MEDIA, AND RECONSTRUCTING DATA. YOU ARE ALSO RESPONSIBLE FOR COMPLYING WITH ALL LOCAL, STATE, AND FEDERAL LAWS PERTAINING TO THE USE AND DISCLOSURE OF ANY DATA.
You agree to defend, indemnify and hold harmless Pear Sports and its directors, officers, employees, affiliates, sublicensees, and agents from and against all claims, defense costs (including reasonable experts’ and attorneys' fees), judgments and other expenses arising out of or on account of Your failure to comply with this Agreement.
9. EXPORT LAWS
You shall comply with all export and import laws and regulations of the United States and such other governments as are applicable to the Software. You hereby certify that You will not directly or indirectly, export, re-export, or transship the Software or related documentation, information, or media in violation of United States laws and regulations.
10. DISPUTES; CHOICE OF LAW
This Agreement is governed exclusively by the laws of the State of California, without reference to its conflicts of law principles, and without regard to the United Nations Convention on the International Sale of Goods. The parties hereby submit to the exclusive personal jurisdiction of, and agree that any controversy, claim or legal proceeding with respect to or arising under the Agreement shall be brought in, the United States District Court for the Central District of California or the California state courts located in Orange County. You further irrevocably consent to the service of process in any such action or proceeding by the delivery of a copy of such process to You at the address set forth herein. You agree that any claim or cause of action arising out of or related to use of the Software or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The prevailing party in any claim or proceeding shall be entitled to reimbursement of reasonable attorneys’ and experts’ fees and costs. You hereby acknowledge that a breach of this Agreement may cause irreparable harm and significant injury to Pear Sports that may be difficult to ascertain, and that a remedy at law may be inadequate. Accordingly, You agree that Pear Sports shall be entitled, without waiving any additional rights or remedies otherwise available to Pear Sports at law or in equity and without the necessity of posting bond, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach by You. Notwithstanding anything to the contrary, Pear Sports shall be entitled to seek and obtain injunctive relief in any court of competent jurisdiction.
This Agreement (i) supersedes and cancels all prior negotiations, communications, understandings and agreements between Pear Sports and You regarding the subject matter hereof and (ii) may only be modified in a writing signed by an authorized representative of each party. Notices hereunder shall be in writing and shall be deemed to have been fully given and received when properly addressed to: (a) Pear Sports at its principal address listed on its website; (b) You at the mailing address set forth in Your registration data; or (c) such other address as a party may give notice in the same manner set forth herein; and are delivered by: (i) nationally recognized overnight courier; (ii) registered or certified mail, return receipt requested, postage prepaid; or (iii) email, if to You. The parties are independent contractors. This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between the parties. Neither party will have the right to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever. You may not assign this Agreement without the prior written consent of Pear Sports. This Agreement is for the sole benefit of the parties hereto and does not create any third-party beneficiaries, whether intended or incidental. The failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held void or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions will remain in full force and effect. The Software is electronically delivered by Pear Sports to You in California upon electronic transmission Your use of or access to the Software or the Pear Sports website shall not be construed as Pear Sports’ purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California. This Agreement has been executed by both parties in California and is intended to be performed in California. This Agreement shall be construed as if both parties jointly wrote it. This Agreement shall be binding on, inure to the benefit of, and be enforceable by the parties and their respective permitted successors and valid assigns. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.