END USER LICENSE AGREEMENT - iOS
THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU AND SAUCONY, INC. (“WE”, “US”, OR “SAUCONY”) REGARDING YOUR USE OF THE SAUCONY STRIDE LAB APP (TOGETHER WITH ANY CONTENT MADE AVAILABLE VIA THE APP, THE “LICENSED APPLICATION”). BY ACCEPTING THIS EULA, OR OTHERWISE USING THE LICENSED APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU ARE NOT ENTITLED TO USE THE LICENSED APPLICATION AND MUST DE-INSTALL THE LICENSED APPLICATION FROM ALL OF YOUR DEVICES.
1. ACKNOWLEDGEMENT. You acknowledge that this EULA is concluded between you and Saucony only, and not with Apple. Saucony, and not Apple, is solely responsible for the Licensed Application and the content thereof.
2. SCOPE OF LICENSE. Subject to the terms of this EULA, Saucony hereby grants you a non-exclusive, non-assignable, non-transferable, limited license, without the right to sublicense, to install and use the Licensed Application on any iPhone or iPod touch that you own or control (the “License”) and as permitted by the Usage Rules set forth in the Apple App Store Terms and Conditions (the “Usage Rules”). This license does not allow you to use the Licensed Application on any iPhone, iPod touch, or other device that you do not own or control, and you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. This License does not grant any rights to obtaining future upgrades, updates, enhancements, or supplements of the Licensed Application. If upgrades, updates, enhancements, or supplements of the Licensed Application are obtained, however, the use of such upgrades or updates is governed by this EULA and any amendments to it unless other terms accompany the upgrades, updates or supplements in which case those terms apply. The Licensed Application is licensed, and not sold, to you under this EULA. You have no ownership rights in the Licensed Application or any related documentation. Saucony, and, as applicable, its third-party licensors, retains all right, title, and interest in and to the Licensed Application (including any changes, modifications, or corrections thereto) and any related documentation.
3. RESTRICTIONS. The Licensed Application and any related documentation is protected by copyright law and international treaty provisions. You may not copy, modify, adapt, translate into any other language, distribute, or create derivative works based on the Licensed Application without the prior written consent of Saucony. You may not assign this EULA or any of the rights or licenses granted under this EULA or rent, lease, or lend the Licensed Application to any person or entity. Any attempted sublicense, transfer, or assignment in violation of this EULA is void. You acknowledge that the Licensed Application may contain proprietary trade secrets of Saucony. You agree that you will not, and will not allow any other person, to decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Licensed Application by any means whatsoever, except to the extent the foregoing restriction is prohibited by applicable law. You agree not to remove, disturb, hide, or obscure any copyright or trademark notices embedded within the Licensed Application. You further agree not to tamper with, remove, or otherwise attempt to defeat any security system used by Saucony in the Licensed Application to prevent the unauthorized copying of the Licensed Application.
4. CONSENT TO USE OF DATA. You agree that Saucony may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of Licensed Application updates, and product support related to the Licensed Application. Saucony may use this information and may share this information with third parties, in each case so long as it is in a form that does not personally identify you, to understand our users preferences and to improve Saucony’s products and services.
6. MAINTENANCE AND SUPPORT. You and Saucony acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with regard to the Licensed Application.
7. UPDATES. Saucony may, but is not obligated, to provide upgrades, error corrections, updates, or other modifications to the Licensed Application (collectively “Updates”), including automatically installing Updates to the Licensed Application. You agree that Saucony may modify the Licensed Application, even after it has been installed, with or without your knowledge. You consent to the automatic installation of the Updates, and agree that you will only use the most recent, updated version of the Licensed Application provided to you by Saucony.
8. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SAUCONY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SAUCONY MAKES NO REPRESENTATION OR WARRANTY, AND EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO CONTENT AVAILABLE ON OR THROUGH THE LICENSED APPLICATION. YOU ASSUME FULL RESPONSIBILITY FOR ANY DECISION OR ACTION TAKEN IN RELIANCE ON CONTENT MADE AVAILABLE THROUGH THE LICENSED APPLICATION AND THE RESULTS OF THE SAME. SAUCONY DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SAUCONY OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
9. NO MEDICAL ADVICE. The Licensed Application, and the content, information, feedback, and training regimens made available through the Licensed Application, is provided for informational purposes only and does not contain or constitute, nor should it be interpreted as, medical advice or opinion. Saucony is not a medical professional, and does not provide medical services or render medical advice. The Licensed Application and its content is not a substitute for the advice of a medical professional, and the information made available on or through the Licensed Application should not be relied upon when making medical decisions, or used to diagnose or treat a medical or health condition. YOUR USE OF THE LICENSED APPLICATION DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND SAUCONY.
YOU HEREBY AGREE THAT, BEFORE USING THE LICENSED APPLICATION, YOU SHALL CONSULT YOUR PHYSICIAN TO ENSURE YOU ARE HEALTHY ENOUGH TO BEGIN AN EXERCISE/TRAINING REGIMEN, PARTICULARLY IF YOU ARE AT RISK FOR PROBLEMS RESULTING FROM EXERCISE, TRAINING, OR CHANGES IN YOUR DIET.
10. FUNCTIONING. You acknowledge that the Licensed Application, and your use of the Licensed Application, may be interrupted from time to time. You further acknowledge that the Licensed Application is not error free. Saucony cannot accept any responsibility under this EULA for the functioning of your wireless device with respect to the Licensed Application. Saucony will be entitled, on reasonable grounds, including the reasonable belief of fraud or illegal activity by any user in their use of the Licensed Application, to suspend access by you to the Licensed Application. You understand that Saucony may be required by law enforcement agencies to disclose information regarding your use of the Licensed Application and that Saucony will comply with such requests. In the event of any failure of the Licensed Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Licensed Application to you. To the maximum extent permitted by applicable law, Apple has and will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Saucony’s sole responsibility.
11. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL SAUCONY, ITS AFFILIATES (INCLUDING ANY ENTITY THAT OWNS OR CONTROLS, IS OWNED OR CONTROLLED BY, OR IS UNDER COMMON OWNERSHIP OR CONTROL WITH SAUCONY) OR LICENSORS, BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SAUCONY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Saucony’s total liability to you for all damages exceed the amount of five dollars ($5.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
12. THIRD-PARTY CLAIMS. Saucony, and not Apple, is responsible for addressing any claims made by you or a third party relating to the Licensed Application or your possession and/or use of the Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claims that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Saucony acknowledge that, in the event of any third-party claim that the Licensed Application or your possession and use of the Licensed Application infringes that third-party’s intellectual property rights, Saucony, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
13. INDEMNIFICATION. You undertake to indemnify and hold Saucony, its licensors, successors, and affiliates, and, collectively, their respective partners, directors, officers, employees or agents, or anyone else who has been involved in the creation, production or delivery of the Licensed Application (collectively the “Indemnified Parties”) harmless from and against all damages, costs, claims and liabilities (including reasonable attorney’s fees) suffered or incurred by the Indemnified Parties as a consequence of any claims or proceedings made or brought against the Indemnified Parties by any person in connection with your use of the Licensed Application, including, without limitation, any claim that, if true, would cause you to be in breach of Section 5.
14. TERMINATION. This EULA is effective until it is terminated. You may terminate this EULA at any time by discontinuing your use of the Licensed Application and destroying all copies of the Licensed Application and related documentation in your possession or under your control. Saucony may immediately terminate this EULA if you violate any of its terms and conditions. Upon termination of this EULA, all license rights granted to you shall immediately terminate and all rights to use the terminated Licensed Application cease. You must delete any Licensed Application supplied and, if requested by Saucony, certify to Saucony that such deletion occurred.
15. SURVIVAL. Sections 3, 4, 5, 8, 9, 11, 13-22 and 24 of this EULA shall survive the termination of this EULA.
16. DISPUTE RESOLUTION. You and Saucony each agree that any and all disputes, claims, causes of action, or controversies arising out of or in connection with this Agreement, the Licensed Application, or your use of or inability to use the Licensed Application (“Claims”), shall be resolved through binding arbitration pursuant to the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes. YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT AND LITIGATE ANY CLAIM AND THAT OTHER RIGHTS THAT YOU MIGHT HAVE IF YOU LITIGATED A CLAIM IN COURT MAY NOT BE AVAILABLE TO YOU IN ARBITRATION. THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. ALL CLAIMS MUST BE BROUGHT ON AN INDIVIDUAL BASIS WITH NO CLASS RELIEF. The arbitrator may not consolidate more than one person's Claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator's authority to resolve Claims is limited to Claims between you and Saucony alone, and Claims brought by either party against the other may not be joined or consolidated in arbitration with Claims brought by or against any third party, unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding anything to the contrary in this Agreement, and without waiving either party's right to appeal such decision, should any portion of this Section 16 be deemed invalid or unenforceable, then the entirety of this Section 16 (other than this sentence) shall be null and void.
17. NO CLASS ACTION. ALL CLAIMS MUST BE BROUGHT ON AN INDIVIDUAL BASIS, AND EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO PURSUE A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY.
18. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR COUNTERCLAIM. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
19. CONTROLLING LAW AND VENUE. This EULA will be governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflict of law principles. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The forum for any Claim shall be in Grand Rapids, Michigan, and in the event a Claim is not subject to binding arbitration, you agree to the jurisdiction of the state and federal courts located in or nearest to Grand Rapids, Michigan, regarding any disputes arising under this Agreement.
20. SEVERABILITY. If any provision or portion thereof of this EULA is found by a court of competent jurisdiction to be unenforceable, that provision or portion thereof shall be severed from this EULA, and the remainder of this EULA shall continue in full force and effect.
21. COMPLETE AGREEMENT. This EULA constitutes the entire agreement between the parties with respect to the use of the Licensed Application licensed hereunder and supersedes all prior or contemporaneous understandings between you and us regarding the subject matter hereof. No amendment to or modification of this EULA will be binding unless in writing and signed by Saucony. Any translation of this EULA is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this EULA shall govern.
22. EXPORT COMPLIANCE. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
23. DEVELOPER NAME AND ADDRESS. Saucony has a place of business at Suite 200, 500 Totten Pond Rd., Waltham, MA 02451. Any questions, complaints, or claims you may have with regard to the Licensed Application should be directed by mail to the foregoing address, sent to the attention of Vice President, Human Performance.
24. THIRD PARTY BENEFICIARY. You understand and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this EULA. Upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third-party beneficiary hereof.