Last Updated: June 10, 2021
This Pear Sports LLC Master Services and License Agreement (“Agreement”) forms a legally binding contract between Pear Sports LLC, a Delaware limited liability company (“Pear Sports” or “Company”), and the customer accepting this Agreement (“Customer”). This Agreement will be deemed accepted as of the date (“Effective Date”) that Pear Sports and Customer execute a Statement of Work or Purchase Order (defined below) relating to this Agreement.
An individual entering into this Agreement as a Customer on behalf of a legal person (e.g. his or her employer) confirms the authority to bind such legal person in accordance with the terms and conditions of this Agreement. An individual that does not have the necessary authority may neither accept the terms and conditions below, nor use the Technology (defined below), on behalf of the legal person.
WHEREAS, Pear Sports is the developer and owner of the Pear Sports Platform and the Technology incorporated into the Pear Sports Platform (defined below).
WHEREAS, Company and the Customer have executed a Purchase Order or an SOW for the purchase of Company’s Products and/or for the License of the Company’s Technology on the terms set forth herein.
NOW THEREFORE, in consideration of the foregoing, and the mutual promises, covenants and agreements contained herein, the parties hereby agree as follows:
1. Definitions. The following are defined terms used in this Agreement. In the event of an inconsistency between the terms of this Agreement and the terms of an active SOW, the terms of the SOW shall prevail
1.1 “Arbitration Institution” has the meaning given in Section 18.1.
1.2 “Change Order” has the meaning given in Section 7.
1.3 “Company Innovations” has the meaning set forth in Section 9.2.
1.4 “Company IP” has the meaning given in Section 9.1.
1.5 “Company Marks” has the meaning given in Section 4.4.
1.6 “Confidential Information” has the meaning given in Section 13.1.
1.7 “Customer” is identified in the Purchase Order or Statement of Work.
1.8 “Customer Application” means any software application developed by Customer.
(a) using the SDK
(b) using elements of the Pear Sports Platform other than the SDK, or
(c) using the Pear Sports Platform and the SDK.
1.9 “Customer Data” has the meaning given in Section 9.3.
1.10 “Customer Innovations” has the meaning given in Section 9.4.
1.11 “Customer IP” has the meaning given in Section 9.3.
1.12 “Customer Marks” has the meaning given in Section 4.5.
1.13 “Data Services” means any data level services provided that report, analyze, organize, deliver proprietary insights to customer and are delivered by static report, online dashboard, private API (Application Program Interface), or other data delivery interface provided as part of “Pear Sports Platform”.
1.14 “Dispute” has the meaning given in Section 18.1.
1.15 “Effective Date” means the effective date of the Purchase Order or SOW.
1.16 “End User” means any person or entity that uses Pear Sports Products including a Mobile Applications, Web Applications or other products using Pear Sports Technology.
1.17 “License” means a license to use the Company’s Technology.
1.18 “Media Components” means the media files, including audio, video and other media components, of the SDK (defined below).
1.19 “Mobile Applications” means Android or IOS based applications or programs developed by Pear Sports and a component of the “Pear Sports Platform” is delivered as Personal Fitness Coach app or rebranded for the customer, intended to be available for download in the Google Play or Apple App Store(s).
1.20 “Pear Sports Platform” means a training platform developed by Pear Sports that delivers dynamic and interactive workout content, personal coaching, music, biometrics, tracking and such other features as may be added from time to time in Pear Sports sole discretion.
1.21 “Products” means Mobile Applications, Web Applications, SDK or other Pear products offered on the Pear Sports Platform.
1.22 “Purchase Order” means the ordering document executed by Pear Sports and Customer which describes the Products, Services and/or Licenses that Customer is acquiring from Pear Sports.
1.23 “Rules” has the meaning given in Section 18.1.
1.24 “SDK” means a toolbox (including various building blocks) developed by Pear Sports, including the Software Components and Media Components, that enables developers to integrate the Pear Sports Platform into their Customer Applications.
1.25 Services” means services, support and other related functions described in a Purchase Order or Statement of Work.
1.26 “Software Components” means files (for example, static library files such as static frameworks or .a files, dynamic-link library files such as dynamic frameworks or .so files, and asset files such as user interface components, image, audio, and video files), object code or other components of the SDK (and any updates, modifications and/or patches or hot fixes thereto that Pear Sports may make generally available from time to time) that are intended to be reused in a Customer Application.
1.27 “SOW” means the ordering document executed by Pear Sports and Customer which describes the products and services that Customer is purchasing from Pear Sports.
1.28 “Statement of Work” means the SOW.
1.29 “Technology” means collectively, the Pear Sports Platform, the SDK, the Company IP, Web Applications, Mobile Applications, Data Services and any data, documentation or software included with or incorporated therein.
1.30 “Term” is defined in Section 3.1.
1.31 “Territory” means worldwide, unless a different definition is set forth in a SOW.
1.33 “Web Applications” means web-based applications or website solutions developed by Pear Sports and a component of the “Pear Sports Platform” for use by customer to administer, create, manage, distribute features, workouts, profiles and settings of the “Pear Sports Platform”.
2. Terms of this Agreement: Purchase Order; SOW. The Purchase Order or SOW sets forth the Products, Licenses and/or Services, including the terms and conditions thereof, to which this Agreement shall apply. To the extent the scope of a Purchase Order or SOW does not include all of the Products, Services or licensing of Technology provided for herein, this Agreement shall continue in full force and effect and apply to the relevant terms of the Purchase Order or SOW. The terms of the Purchase Order or SOW shall be incorporated herein by reference. Absent the execution of a Purchase Order or SOW, this Agreement does not, in and of itself, represent a commitment by Company to provide any Products, Services or Licenses, nor by Customer to pay any fees.
3. Term and Termination.
3.1 Term. This Agreement shall become effective on the Effective Date and shall continue until terminated in accordance with its terms.
3.2 Termination. This Agreement shall terminate with respect to a Purchase Order or SOW in accordance with the termination provisions set forth therein. Unless the Purchase Order or SOW provides otherwise, the following termination provisions shall apply in addition to the termination provisions in the Purchase Order or SOW.
(a) Termination for Cause. Either party may terminate this Agreement for default or breach by the other party on any material term or condition of this Agreement. The aggrieved party shall give written notice to the other party specifying the claimed default or breach. The party receiving the notice shall have thirty (30) days (ten (10) days for any payment obligation) to cure the breach, or to procure an extension of the time to cure from the party claiming a breach, if the default or breach cannot reasonably be cured within thirty (30) days and so long as reasonable efforts to cure have been initiated within such thirty (30) day period. If the default or breach is not timely cured, or the time period for cure is not extended, then the aggrieved party may terminate this Agreement by sending written notice of termination to the other party. Notwithstanding the foregoing, an act or omission by Customer that adversely affects Company’s Confidential Information or Company IP shall be cured within five (5) days of notice and shall not be subject to extensions of time to cure; provided, however, if such breach cannot reasonably be cured, Company may immediately terminate this Agreement.
(b) Termination for Bankruptcy. In the event that either party terminates or suspends its business, becomes subject to any bankruptcy or insolvency proceeding under Federal, State, Provincial or similar statute, or becomes insolvent or subject to direct control by a trustee, receiver or similar authority, then the other party may in its sole discretion terminate this Agreement by written notice if the same is not dismissed within sixty (60) days of its initiation.
3.3 Continued Services. In the event that there is a continuing need for any Services identified in a Purchase Order or SOW after the termination or expiration of this Agreement and Customer requests in writing that Company complete the Services, upon written acceptance of such request by Company, this Agreement will automatically renew for the period of time that it takes to complete such Services
3.4 Effects of Termination. Upon termination of this Agreement for any reason, all rights and licenses granted hereunder shall terminate and revert to Pear Sports, except as provided below. Any termination of this Agreement, except for termination due to Customer’s breach of contract, shall not affect Customer’s right, subject to Customer´s continued compliance with Customer’s obligations under this Agreement, to continue to distribute versions of the Customer Applications created and first distributed before termination, and any termination of this Agreement shall not affect the right of the End Users to continue using such versions of the Customer Application, both of which rights shall survive termination. Except as necessary for Customer to exercise its rights under this Section with respect to any Customer Application, upon any termination of this Agreement, Customer shall promptly cease using and permanently delete the SDK
3.5 No Refunds. Termination of this Agreement for any reason shall not entitle Customer to the refund, return, credit, or setoff of any fees or charges due hereunder.
4. License Grants
4.1 Technology. Subject to the terms and conditions of this Agreement and the payment of all applicable fees, Company grants to Customer, and Customer accepts, a limited, non-exclusive, non-sublicensable, non-transferable license, during the Term, to use only such parts of the Technology as are required under the Purchase Order or SOW, within the Territory in accordance with the terms of the Purchase Order or SOW, and, solely to the extent described in the scope of Services set forth in the Purchase Order or SOW. Notwithstanding the foregoing, Customer may license the Mobile Application (and all Technology necessary to enable the Mobile Application to function as intended) developed, used, or provided under this Agreement to End Users through Google Play, Apple App Store(s) or from a website.
4.2 Restrictions on Use. All rights granted under this Agreement to Customer are subject to the following conditions precedent: (i) Customer will not, and will not allow any third party to, rent, lend or lease the Technology; (ii) Customer will not, and will not allow any third party to, distribute, resell or license the Technology to any third party; (iii) to the maximum extent permitted under applicable law, Customer will not, and will not allow any third party to, copy, manufacture, rename files of, modify, customize, translate, localize, decompile, disassemble, decrypt, reverse engineer, attempt to derive source code or algorithms from, remove any proprietary notices from, or create any derivative work based on, the Technology; (iv) Customer will not, and will not allow any third party to, use the Technology to provide any facility management or service bureau service; (v) Customer will not, and will not allow any third party to, knowingly take any action whatsoever that would in any way avoid, circumvent or invalidate the licensing mechanism provided with the Technology; (vi) Customer shall, at its expense, be responsible for (a) determining, obtaining, and maintaining all governmental authorizations required to import the Technology into any country outside of the United States of America, if so allowed, and performing its obligations under this Agreement, and (b) complying with all rules and laws applicable to Customer; (vii) use web scraping, web harvesting, or web data extraction methods to extract data from the Pear Sports Platform; (viii) include or use the Technology in, or in connection with, any application, website or other product or service that includes content that is disparaging of Pear Sports, defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, in Pear Sports’ sole discretion;. (ix) use or access the Technology for purposes of monitoring the availability, performance, or functionality of any of Pear Sports’ products and services or for any other benchmarking or competitive purposes; (x) frame, wrap or otherwise reproduce significant portions of the Pear Sports Platform; (xi) use the Technology in any way that would grant someone other than Customer or the End User the right to see any data related to that End User without obtaining the prior express consent of that End User. Customer’s rights in the Technology are limited to those expressly granted in Section 4.1) of this Agreement, and Company reserves all rights and in and to the Technology not expressly granted to Customer herein.
4.3 Company Marks. Subject to all the terms and conditions of this Agreement, Company grants Customer a limited non-transferable, non-sublicensable, royalty-free, revocable and non-exclusive license to (i) use such of Company’s trademarks, service marks, trade names, icons or logos (collectively the “Company Marks”) as are attached to the Technology, or as are provided to Customer by Company, in the Territory for the sole purpose of identifying the Technology in furtherance of this Agreement. The Company Marks may only be used in accordance with the conditions and limitations set forth in this Section. Company reserves the right to change, modify, or replace any of the Company Marks at any time. Customer will cease using any materials containing any of the Company Marks immediately upon this Agreement’s termination, or with respect to the Company Marks, upon written request by Company. Customer agrees that Company may insert or attach a Company Mark for identification purposes on any Products used or acquired by Customer.
4.4 Customer Marks. Subject to all the terms and conditions of this Agreement, Customer grants Company a limited non-transferable, non-sublicensable, royalty-free, revocable and non-exclusive license to use such of Customer’s trademarks, service marks, trade names, icons or logos (collectively the “Customer Marks”) as are necessary for Company to provide the Services, or as are provided to Company by Customer, in the Territory for the sole purpose of providing the Services. The Customer Marks may only be used in accordance with the conditions and limitations set forth in this Section. Customer reserves the right to change, modify, or replace any of the Customer Marks at any time. Company will cease using any materials containing any of the Customer Marks immediately upon this Agreement’s termination, or, with respect to the Customer Marks, upon written request by Customer.
5. Support Obligations for SOW Performance.
5.1 Pear Sports Services Obligations. Pear Sports shall use commercially reasonable efforts to perform the Services in conformity with the Purchase Order or SOW and in accordance with the schedule set forth therein. In the event of a conflict between any term or condition of this Agreement and any Purchase Order or SOW, the applicable term or condition of this Agreement will govern unless and solely to the extent that the Parties state in the applicable Purchase Order or SOW that they intend to override the terms and conditions of this Agreement.
5.2 Customer’s General Obligations. Customer shall use commercially reasonable efforts to commit the resources as set forth in the Purchase Order or SOW necessary to assist Pear Sports in performing its obligations under this Agreement.
5.3 Project Managers; Project Communication. If required under the Purchase Order or SOW, each Party shall designate and identify in writing to the other Party the employee of such Party, including such employee’s name, address, email address and phone number, who will initially manage the relationship between the Parties (and who will have authority to grant any verifications, approvals and rejections called for under this Agreement).
5.4 Services Verification. Customer shall verify the delivery of the Services under the Purchase Order or SOW upon receipt and shall give Pear Sports written notice of any rejection of the Services for failure to conform to the Purchase Order or SOW requirements (“Defect”) within sixty (60) days following Customer’s receipt of the Services (“Acceptance Period”). Such written notice of rejection shall include a detailed description of Company’s basis for asserting the alleged Defect (“Notice of Defect”). If Company fails to provide such Notice of Defect to Pear Sports within the Acceptance Period, the Services shall be deemed accepted by Company and any corresponding milestone completed. If the Services contain a Defect; then Pear Sports shall use commercially reasonable efforts to correct such Defect and redeliver the corrected Services as soon as commercially practicable.
5.5 Defect Dispute. In the event that Pear Sports determines that no Defect exists, it shall provide Customer with written notice of the same within ten (10) business days following receipt of the Notice of Defect (“Notice of Disputed Defect”). The Parties shall use Commercially Reasonable Efforts to resolve such disputes within twenty (20) business days of notice of such dispute, including escalation of such dispute to the corporate officer level of each Party. Any specified times for delivery of deliverables set forth in the Purchase Order or SOW shall be tolled during any such dispute.
5.6 No Support of Customer Application. Pear Sports shall not be responsible for the support of any Customer Application. Customer is solely responsible for providing all customer and technical support and maintenance for its Customer Applications.
6. Fees and Payment Terms.
6.1 Fees. In exchange for the Products to be delivered, the Services to be performed and/or the Licenses granted by Company as set forth in any Purchase Order or SOW, Customer shall compensate Company at the rates set forth therein.
6.2 Payment. All payments for amounts due Company will be made in United States dollars within thirty (30) days of the invoice date. Notwithstanding the foregoing, (i) fees for development services are due upon issuance of the invoice, (ii) commissions are due thirty (30) days after the end of the quarter for which they are payable, and (iii) recurring payments, if any, are payable at the time(s) set forth in a Purchase Order or SOW. Late payments shall be subject to the lesser of a 1.5% per month surcharge or the maximum amount permitted by law.
6.3 Taxes. All amounts payable by Customer to Company under this Agreement shall be paid in full, exclusive of, and without regard to or set off by, any and all taxes, including without limitation, consumption, sales, use, excise, value added, customs duties and other governmental charges of any kind and nature, provided, however, Customer is not responsible for any taxes related to Company’s net revenue or income. In the event that any amount payable by Customer hereunder is subject to any withholding or other similar tax under any applicable laws, the amount payable to Company shall be increased so that the net amount actually received by Company after withholding of such tax is equal to the amount that Company would have received if no such tax had been imposed. Customer shall provide Company, upon written request from Company, with copies of official tax receipts or other evidence of payment of such withholding taxes. To the extent that any withholding tax is payable under applicable law, Customer shall provide Company with any and all assistance reasonably requested by Company to obtain the benefits of any applicable tax treaty between applicable taxing authorities. Customer shall pay all other taxes, levies or similar governmental charges (provided, however, Customer is not responsible for any taxes related to Company’s net revenue or income) or provide Company with a certificate of exemption acceptable to the taxing authority.
6.4 Remedies. In the event Customer fails to make any payment to Company or its assignee when due, which failure continues for more than five (5) days after the date of written notice of such default; in addition to any other rights and remedies available to Company or its assignee, (i) Company may suspend the license rights granted hereunder and the delivery of all Products and Services without Company incurring any liability, (ii) all amounts owed by Customer hereunder shall become immediately due and payable, and (iii) Company or its assignee may recover reasonable attorney’s fees and legal expenses in exercising any of its rights and remedies upon default. Company or such assignee will notify Customer of any failure to receive a payment when due, but Customer’s failure to receive notice will not excuse a default or limit the remedies available to Company or its assignee as described herein.
7. Change Orders. Either party may request a revision to the scope of Services in any Purchase Order or SOW. In such event the parties shall discuss the changes in cost, schedule or other criteria that are affected by the change(s) requested, and upon mutual agreement the parties shall execute a change order (“Change Order”), which shall amend the terms of the Purchase Order or SOW. If the parties do not agree on the scope and cost of the requested changes, Company may complete the project based on the then-current scope of the project, as set forth in any Purchase Order or SOW. Once a Change Order is signed by both parties, it will be incorporated into this Agreement and have the same legal effect as the applicable Purchase Order or SOW.
8. Data Usage and Security.
8.1 Data Protection. Company and Customer shall comply with all applicable state, federal and international data privacy laws in the performance of this Agreement. Customer agrees to use commercially reasonable and appropriate administrative, technical, and physical measures to maintain the security and integrity of any and all data Customer accesses or collects in connection with any Customer Applications, and such measures shall take into account the measures described in Article 32(1) of the General Data Protection Regulation 2016 /679 and the California Consumer Privacy Act of 2018, as applicable. Customer is fully responsible for the security of any data used in connection with Customer Applications or otherwise in Customer’s possession.
8.2 Usage Data; End User
9. Ownership of Intellectual Property . .
9.1 Company IP. “Company IP” means: (i) the Technology (as defined in Section 1.24; (ii) all Confidential Information (as defined in Section 13.1 and/or proprietary information provided to Customer by Company; (iii) the Company Marks (as defined in Section 4.4; (iv) the work product resulting from any Services (excluding any Customer IP contained therein); (vi) any and all related source code, templates, materials, designs, plans, techniques, methods, inventions, application programming interfaces, data models, data structures, forms, formulas, user interfaces and other works of authorship, and any extracts, derivatives, modifications or enhancements to the foregoing (by whomever produced); and (vii) any and all copyright rights (including without limitation moral rights), patent rights, trademark rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing. Company IP does not include any Customer IP (as defined below).
9.2 Company IP Restrictions. The parties acknowledge that: (i) except as expressly and unambiguously licensed herein, Company and its third party licensors, if any, retain all right, title and interest in and to the Company IP; (ii) Customer is restricted from using any Company IP except as expressly licensed in Section 4 herein; (iii) Customer shall not acquire any ownership interest in any Company IP; (iv) Company reserves the right to create new software, services, products and features (“Company Innovations”); provided such Company Innovations do not incorporate any Customer IP; and (v) Customer represents and warrants that it will not dispute Company’s and/or its third party licensors’ ownership of the Company IP.
9.3 Customer IP. “Customer IP” means: (i) any data provided by Customer to Company for use in the Technology (“Customer Data”); (ii) all rights, title and interest in and to the Customer Application (except, for avoidance of doubt, any Software Components and Media Components contained therein) and Customer’s End User Data; (iii) all Confidential Information and/or proprietary information provided to Company by Customer; (iv) the Customer Marks (as defined in Section 4.5 herein; and (v) any and all copyright rights (including without limitation moral rights), patent rights (if any), trademark rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing. Customer IP does not include any Company IP
9.4 Customer IP Restrictions. The parties acknowledge that except as expressly and unambiguously licensed herein: (i) Customer and its third party licensors, if any, retain all right, title and interest in and to the Customer IP; (ii) Company is restricted from using any Customer IP except as necessary to perform its obligations under this Agreement; (iii) Company shall not acquire any ownership interest in any Customer IP; (iv) Company represents and warrants that it will not dispute Customer’s and/or its third party licensors’ ownership of the Customer IP; and (v) Customer reserves the right to create new software, services, products and features (“Customer Innovations”); provided such Customer Innovations do not incorporate any Company IP.
10. No Restrictions on Pear Sports. Customer understands that Pear Sports may currently or in the future develop products and services that may be similar to or compete with Customer Applications. Nothing in this Agreement shall in any way restrict Pear Sports from pursuing any business activities or from entering into any agreement with any other person or company.
11. Customer Feedback. Customer may, on a voluntary basis and at its sole discretion, provide Pear Sports with feedback, suggestions or comments regarding the Technology or the Pear Sports Platform (collectively, “Feedback”). Customer agrees that any Feedback it provides is offered on a non-confidential basis and may be used by Pear Sports for any purpose without obligation to Customer.
12. SDK Changes. Pear Sports reserves the right, in its sole discretion, to change the SDK at any time in order to provide updates, comply with changed laws or fix bugs or defects. Pear Sports shall provide prior notice to Customer of any material changes to the SDK. Customer shall either accept and agree to the revised SDK or, if Customer does not agree to the revisions, cease or terminate the use of the SDK. Customer’s continued use of the SDK after changes to the SDK take effect shall constitute Customer’s acceptance of the changes. If Customer does not agree to a change, Customer must stop using the SDK and terminate this Agreement. For the avoidance of doubt, changed terms do not take retroactive effect with respect to any Customer Application developed before the change or any Customer Application first distributed before the change. Further, Customer acknowledges that Pear Sports has no obligation to ensure that an upgrade of the SDK or the Pear Sports Platform shall be compatible with existing or planned Customer Applications.
13.1 During the term of this Agreement, either party may be given access to or otherwise acquire certain information, data, materials, know-how, methodologies, documentation, and software of the other party that is not generally known by the public and which is confidential and proprietary to the disclosing party (“Confidential Information”). Pear Sports Confidential Information includes, without limitation, the Technology and all Software Components and Company IP.
13.2 Each party shall, during the term of this Agreement and thereafter, (a) use a level of care no less rigorous than that taken to protect its own Confidential Information of a similar nature (but in no event less than a reasonable level of care) to keep confidential, and to prevent any unauthorized disclosure of, any Confidential Information of the other party; (b) use such Confidential Information only in connection with this Agreement; (c) not make any commercial use of such Confidential Information for the benefit of itself or any third party beyond the scope of this Agreement; and (d) except where required by law or by order of any governmental authority, not make any such Confidential Information, or parts thereof, available to any third party. Each party shall reproduce the other party’s Confidential Information only to the extent necessary to permit it to meet its obligations under this Agreement, and shall notify the other party immediately if the other party’s Confidential Information is disclosed in violation of the provisions of this Section or is otherwise lost or unaccounted for.
13.3 Each party, as the receiving party of Confidential Information of the other party, shall have the right to disclose such Confidential Information to its, and its employees, agents and contractors (“Representatives”) who have a need to know such information in connection with the receiving party’s performance of its obligations under this Agreement and who have an obligation of confidentiality to the receiving party; provided that, the receiving party shall be responsible for compliance with the provisions of this Section by its Representatives to whom Confidential Information has been disclosed.
13.4 Notwithstanding anything to the contrary in this Section, if the receiving party of any Confidential Information is required by applicable law to disclose such Confidential Information or any portion thereof, then such receiving party shall (a) as promptly as reasonably possible after determining that it is obligated to make such disclosure, and, if practicable and lawful, prior to making any such disclosure, notify the disclosing party of its obligation to make such disclosure, so that the disclosing party may have an opportunity to object to such disclosure or to obtain a protective order or other appropriate relief; (b) provide such reasonable cooperation and assistance as the disclosing party may reasonably request in any effort by the disclosing party to obtain such relief; and (c) take reasonable steps to limit the amount of Confidential Information so disclosed and to protect its confidentiality.
13.5 Upon any expiration or termination of this Agreement, the receiving party for any Confidential Information shall, upon request of the other party: (a) return immediately to the other party all tangible forms of such Confidential Information which the receiving party has acquired from the other party; (b) use all reasonable efforts to destroy all copies of all materials that incorporate or reflect such Confidential Information, and (c) certify to the disclosing party that such materials have been either returned or destroyed, in each case except for (i) any Confidential Information that the receiving party is required to retain pursuant to any applicable law; and (ii) copies of electronic files which have been created in the ordinary course of business pursuant to the receiving party’s archiving and back-up procedures for computerized records, in which such Confidential Information is inextricably commingled with other information.
13.6 Enforcement. Recognizing that a breach of this Section 13 could result in irreparable harm for which money damages alone would be inadequate, notwithstanding any other provision of this Agreement, (i) the parties will be entitled to equitable remedies, including injunctive relief without the posting of a bond or security therefor, in addition to any other legal or equitable remedies that may be available and (ii) this Section 13 shall survive any termination or expiration of this Agreement.
14. Representations and Warranties. Customer represents and warrants that: (a) Customer shall require all End Users to represent and warrant that they are at least 18 years of age; (b) Customer is eligible to register for and use the Technology and has the right, and ability to enter into and perform under this Agreement; (c) the information Customer submits as part of Customer’s registration is current, accurate, and complete; (d) Customer shall not engage in any unfair, deceptive, or abusive acts or practices when utilizing the Technology or when Customer markets or sells the Customer Application; (e) Customer shall fulfill all of Customer’s obligations to each customer to which Customer provides the Customer Application and shall resolve any customer dispute or complaint directly with such customer; (f) Customer and all transactions effected via the Customer Application shall comply with all federal, state, and local laws, rules, and regulations applicable to Customer’s business, including any applicable tax laws and regulations; (g) Customer shall not use the Technology, Pear Sports Platform, or Customer Application, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner so as to interfere with the normal operation of the Pear Sports Platform; (h) Customer has all rights, including all copyright, trademark and other intellectual property rights, in the Customer Applications necessary to offer the Customer Applications to End Users and to grant the license to Pear Sports in this Agreement; (i) Customer shall comply with and shall continue to comply with all applicable privacy and data protection laws; and (j) Customer has implemented and shall maintain appropriate technical and organizational security measures in accordance with applicable law.
15.1 Customer shall defend, indemnify and hold Pear Sports and its affiliates, officers, directors, employees, subsidiaries and agents harmless from any claim by a third party arising from Customer’s: (a) use of the Technology other than as expressly allowed by this Agreement; (b) breach or alleged breach of any of the terms, conditions and representations under this Agreement; (c) Customer Applications or business; (d) gross negligence or willful misconduct; (d) failure to comply with any applicable laws, or (e) breach of Customer’s obligations under Section 4.6 herein with respect to end user terms applicable to Customer’s Application. Pear Sports shall promptly notify Customer of any claim for indemnification under this Section, and Customer shall have sole control of the defense of such claim and any settlement negotiations, provided Customer will not settle the dispute without the Company’s prior written consent unless Customer obtains a general release in favor of the Company. Pear Sports shall provide Customer, at Customer’s expense, all reasonable assistance, information and cooperation to defend or settle the claim. Pear Sports shall have the right to retain separate counsel and participate in the defense of the action or claim at its own expense.
15.2 Pear Sports shall defend, indemnify and hold Customer and its affiliates, officers, directors, employees, subsidiaries and agents harmless from any claim by a third party alleging that Customer’s authorized use of the Technology violates, misappropriates or infringes upon the patent, copyright, trademark, trade secret, or other proprietary rights (”Intellectual Property Rights”) of any third party. Customer will notify Pear Sports promptly of any claims, suits, and proceedings in writing. Pear Sports will be given full and complete authority and information for the defense of the same. At Pear Sports’ request, Customer will reasonably cooperate with Pear Sports in defending or settling any such action. If the Technology becomes, or Pear Sports reasonably determines that the Technology is likely to become, subject to a claim of infringement for which Pear Sports must indemnify Customer as described above, Pear Sports may at its option (a) procure for Customer the right to continue to access and use the Technology; (b) replace or modify the Technology so that it becomes non-infringing without causing a material negative effect on the functionality provided by the infringing Technology; or (c) if neither of the foregoing options are available, terminate this Agreement.
15.3 The above Pear Sports obligations to defend and indemnify will not apply to any claim to the extent arising from or relating to (a) use of the Technology not in accordance with this Agreement; (b) any modification, alteration or conversion of the Technology not created or approved in writing by Pear Sports, (c) any combination or use of the Technology with any computer, hardware, software, service or data not approved by Pear Sports, where the Technology alone would not give rise to the claim, (d) Pear Sports’ compliance with specifications, requirements or requests of Customer, or (e) Customer’s gross negligence or willful misconduct.
15.4 This Section states the entire liability and obligation of Pear Sports and the exclusive remedy of Customer with respect to any actions or claims of infringement relating to or arising out of the Technology.
16. Disclaimer of Warranties. THE TECHNOLOGY IS PROVIDED “AS IS” AND ON AN “AS-AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, AND Pear SPORTS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NOTWITHSTANDING THE FOREGOING, PEAR SPORTS WARRANTS THAT FOR A PERIOD OF 90 DAYS FROM THE DATE OF DELIVERY, THE MOBILE APPLICATION (EXCLUDING ANY CUSTOMER-PROVIDED CONTENT) WHEN PROPERLY USED WILL OPERATE IN ACCORDANCE WITH THE SPECIFICATIONS CONTAINED IN THE STATEMENT OF WORK OR ANY PUBLISHED SPECIFICATIONS FOR THE MOBILE APPLICATION. SUBJECT TO THE FOREGOING, PEAR SPORTS MAKES NO WARRANTY THAT (A) THE TECHNOLOGY SHALL MEET CUSTOMER’S OR CUSTOMER’S CUSTOMERS’ REQUIREMENTS, (B) CUSTOMER’S USE OF THE TECHNOLOGY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND/OR (C) ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE TECHNOLOGY IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S OR OTHERS’ COMPUTER SYSTEM/NETWORK OR ANY LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR THE USE OF THE TECHNOLOGY.
17. Limitation of Liability. IN NO EVENT WILL A PARTY OR THEIR EMPLOYEES, AGENTS, USERS OR PARTNERS BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF THE TECHNOLOGY, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT PEAR SPORTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. PEAR SPORTS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES CUSTOMER PAID OR PAYABLE TO PEAR SPORTS FOR USE OF THE TECHNOLOGY IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT WHICH GIVES RISE TO THE CLAIM.
18 Dispute Resolution, Arbitration, Governing Law.
18.1 Dispute Resolution. Any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof (a “Dispute”), except for a Dispute arising under Section 13, must be submitted and settled as set forth in this Section 18. The parties hereto shall use their best efforts to amicably settle any Dispute. IF THE PARTIES FAIL TO SETTLE ANY SUCH DISPUTE AMICABLY ON A MUTUALLY ACCEPTABLE BASIS, THEN THE DISPUTE SHALL BE REFERRED (BY EITHER PARTY) TO AND FINALLY RESOLVED BY ARBITRATION UNDER THE COMMERCIAL RULES (“RULES”) OF THE AMERICAN ARBITRATION ASSOCIATION (“Arbitration Institution”), WHICH RULES ARE HEREBY INCORPORATED BY REFERENCE HEREIN. The arbitration shall be conducted in Orange County, California, in accordance with the Rules and in accordance with the terms of this Agreement.
18.2 Arbitration General Rules. Upon either party’s request for arbitration, a panel of three (3) arbitrators shall be selected by mutual agreement of the parties to hear the dispute in accordance with the Rules. If the parties are unable to agree upon the arbitrators, then each party shall select one arbitrator who shall be unaffiliated with such party, and the two arbitrators shall select a third arbitrator. If the two arbitrators are unable to agree upon a third arbitrator, the Arbitration Institution will select the third arbitrator. The decision of a majority of the arbitrators shall control. The language to be used in the arbitral proceedings shall be English. The arbitration shall be heard and decided no later than seven (7) months after the notice of arbitration is filed with the Arbitration Institution. The arbitrators shall hear and determine any preliminary issue of law asserted by a party to be dispositive of any claim, in whole or in part, in the manner of a court hearing a motion to dismiss for failure to state a claim or for summary judgment, pursuant to such terms and procedures as the arbitrators deem appropriate. No witness or party may be required to waive any privilege recognized under applicable law. The arbitrators shall be licensed to practice law in the governing law jurisdiction for no less than ten (10) years, with no less than five (5) years’ experience as an arbitrator and shall be at least reasonably familiar with the software industry. The parties and the arbitrators shall treat all aspects of the arbitration proceedings, including, without limitation, discovery, testimony and other evidence, briefs, and the award, as strictly confidential and not subject to disclosure to any third party or entity, other than to the parties, the arbitrators, and the Arbitration Institution. The arbitrators must give full effect to the applicable law and to all terms of this Agreement and are specifically divested of any power to add to, subtract from, modify or alter any of the terms or conditions of this Agreement, or to render decisions in derogation thereof. The arbitrators shall have no authority to award punitive or other damages not measured by the prevailing party’s actual direct damages, except as may be required by statute. THE PARTIES UNDERSTAND THAT THEY ARE WAIVING THEIR RIGHTS TO: (i) SUBMIT ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT TO A COURT OF ORDINARY JURISDICTION; AND (ii) A JURY TRIAL. The arbitrators shall issue written findings of fact and conclusions of law, the decisions of the arbitrators shall be binding and conclusive upon all parties involved, and judgment upon any decision of the arbitrators may be entered in any court of competent jurisdiction.
18.3 Governing Law. This Agreement (including all non-contractual obligations) shall be exclusively governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
18.4 Attorneys’ Fees. In any litigation, arbitration or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, in addition to any other relief to which the prevailing party may be entitled, the prevailing party shall be entitled to recover its reasonable attorney fees, costs and expenses to resolve the dispute and to enforce the final judgment.
19.1 Waiver; Severability. Except as may be affirmed in writing by the parties, no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver or preclude further exercise thereof. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be enforced to the maximum extent possible, and the remaining provisions of this Agreement shall remain in full force and effect.
19.2 Amendments, Headings. This Agreement sets forth the entire understanding between the parties and supersedes any prior communication or agreement between the parties regarding the right to use the the Technology. Except as set forth in Section 12 above, all amendments to this Agreement must be made in writing. Headings are for convenience only and shall not be considered in interpreting this Agreement.
19.3 Limitation on Claims. Except to the extent prohibited by applicable law, Customer agrees that any claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
19.4 Assignment. . Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this section shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
19.5 Notices. 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 set forth in the SOW; (b) Customer at the mailing address set forth in Customer registration data; or (c) such other address as a party may give notice of 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 Customer.
19.6 Independent Contractors. 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 shall 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.
19.7 No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and does not create any third-party beneficiaries, whether intended or incidental.
19.8 Joint Drafting. 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.
19.9 Printed Versions. 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.
19.10 English Language. This Agreement is drafted in English, and the English version shall govern over any translation in the event of a conflict.
19.11 US Government Rights. If Customer is an agency, department or other division of the US Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Technology is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplements as applied to military agencies. The Technology and Software Components constitutes “commercial items”, “commercial computer software” and “commercial computer software documentation” as defined in such regulations. Any use of the foregoing by the US Government shall be subject to the terms of this Agreement.
19.12 Publicity. Customer may not issue any press release or other announcement regarding Customer Applications that makes any reference to Pear Sports without Pear Sports’ prior written consent.
19.13 Survival of Obligations. The following Sections shall survive termination of this Agreement for any reason: 6, 7, 8, 9, 10, 11, 13, 15, 16, 17, 18 and 19.