PAFERS HARDWARE API FOR INDOOR FITNESS MACHINES LICENSE AGREEMENT
Thank you for your interest in being licensed to use PAFERS Hardware API for indoor fitness machines (“the API”), which allows you to build Mobile Applications that can be used on PAFERS Supported Indoor Fitness Machines. Because we are committed to protecting our platform and services, we require you to abide by the following terms governing your participation in your use of the API in this PAFERS HARDWARE API FOR INDOOR FITNESS MACHINE LICENSE AGREEMENT (“Agreement”). IF YOU DISAGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, PAFERS DOES NOT GRANT YOU A LICENSE TO use the API. By accepting this Agreement, you are representing and warranting that you have the authority to bind the party being licensed to use the API with the limitation of this Agreement and you and that party are collectively referred to as “you” or “your” in this Agreement.
1.1 The API is a library of functions and classes that allows you to create Mobile Applications to control or interact with PAFERS Supported Indoor Fitness Machines. Being licensed to use the API gives you access to this library and PAFERS Official Support.
1.1.1 Permitted Uses. Your use of the API is permitted only for the purpose of developing Your Mobile Applications. Examples of permitted uses of the API would be to create Your Mobile Applications that are limited to:
1.1.2 Responsibility. You may develop and distribute Your Mobile Applications that solely interact with all PAFERS Supported Indoor Fitness Machines through the API. You agree that you are solely responsible for the performance and stability of Your Mobile Applications.
1.1.3 PAFERS Connect. You agree to integrate PAFERS Connect to make PAFERS ID member system as an alternative member system in Your Mobile Applications by following the instructions in the Guideline and other related PAFERS Content.
2. API License
2.1 As part of your participation in using the API and subject to this Agreement, PAFERS grants you a non-exclusive, non-transferable, and non-sublicensable (except as expressly permitted herein) license to use the API solely to do the following and subject to the restrictions set forth in this Agreement:
2.1.1 Enable Your Mobile Applications to interact and communicate with all PAFERS Supported Fitness Machines to facilitate your own or Your Users’ experiences of exercising.
2.1.2 Make Your Mobile Applications as necessary to perform an activity permitted under this Agreement.
2.1.3 Display any necessary content consistent with this Agreement and API Legal Notice.
2.2 API Legal Notice. PAFERS requires you to display a specific statement as set forth in the “API Legal Notice”, incorporated herein by this reference. You must include the appropriate version of the API Legal Notice in accordance with using the API wherever legal information appears on any form of communications. For Your Mobile Applications, the notice can be placed either in the “about this app” section or other similar page. PAFERS may update the API Legal Notice from time to time, and you must always display the most current API Legal Notice.
2.3 Certification. In its discretion, PAFERS may require or offer Certification for Your Mobile Applications. Certification will consist of confirmation by PAFERS or an independent third party it designates that Your Mobile Applications’ technology complies with a particular set of PAFERS Hardware API Licensee Development Guideline. You will be responsible for all costs associated with Certification and any modifications necessary to meet the Certification criteria and Your Mobile Applications will not be permitted to function in certain cases until Certification is complete. Future modifications of Your Mobile Applications or your use or display of any PAFERS Content are subject to re-Certification, if applicable. If PAFERS requires Certification, failure by you to maintain Certification is cause for immediate termination of this Agreement.
3 PAFERS CONTENT
3.1 PAFERS Content in Your Mobile Applications may not be co-mingled or combined with the content of any third party. All PAFERS Content must be segregated from non-PAFERS content (for example, third-party messages) and visually separated from non-PAFERS Content (for example, a special section in Your Mobile Application).
3.2 Age of Display. Displayed PAFERS Content may not be more than one month older than information displayed on PAFERS Web sites.
3.3 Protecting User Privacy
3.3.1 Collecting and Using Personal Information. Your participation in using the API to create Your Mobile Applications may allow you to collect Personal Information from Your Users. “Personal Information” is any information pertaining to a directly or indirectly identifiable individual. It may include information that you collect directly from users in connection with Your Mobile Applications and information that is included in the PAFERS Content, or that you otherwise receive from PAFERS, about Your Users and their activities.
3.3.2 Compliance with Privacy Laws. At all times, Your Mobile Application and your use of the API and PAFERS Content will comply with all applicable laws, regulations and best practices concerning privacy, data protection and on demand or downloadable content.
3.3.4 Communication. You may communicate with Your Users directly. You will not use Personal Information from PAFERS to send or enable sending of unsolicited communications of any type unless permission is granted by PAFERS.
4 RESTRICTED ACTIVITIES
4.1 You may not use or access (nor facilitate or enable others to use or access) the API or any other PAFERS proprietary content and intellectual properties any way not expressly permitted under this Agreement. For example, you will not facilitate or enable others to:
4.1.1 Distribute, publish, or allow access or use the API or PAFERS Content from any location or source other than Your Mobile Application.
4.1.2 Enable or permit the disclosure of the API, PAFERS Content and any PAFERS proprietary content and intellectual properties other than as authorized under this Agreement.
4.1.3 Commercialize (that is, sell, rent, trade or lease), copy or store the API, PAFERS Content, any PAFERS proprietary content and intellectual properties other than for the intermediate purposes allowed by this Agreement;
4.1.4 Use, copy, distribute or modify the API or PAFERS Content and any PAFERS proprietary content and intellectual properties.
4.1.5 Collect Personal Information other than as provided in this Agreement and from users other than Your Users.
4.1.6 Modify, decompile, reverse engineer or otherwise alter the API, any PAFERS Content, PAFERS proprietary content and intellectual properties.
4.1.7 Knowingly create a Mobile Application that may be used to violate any other PAFERS policy or applicable law.
4.1.8 Have Your Mobile Application or your use of PAFERS Content: (i) be false, inaccurate or misleading; (ii) infringe on any third party's copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy; (iii) violate any law, statute, ordinance, contract, regulation or generally accepted practice in all relevant jurisdictions (including without limitation those governing trade and export, financial services, consumer protection, unfair competition, antidiscrimination or false advertising); (iv) be defamatory, trade libelous, threatening or harassing; (v) contain any viruses or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data; or (vi) create liability for PAFERS.
4.1.9 Provide any data or information to PAFERS unless you represent and warrant that it is accurate and you have all rights necessary to provide such data or information to PAFERS, and for PAFERS to use it.
5 PAFERS POLICIES
You and Your Mobile Application will comply with this Agreement and all applicable PAFERS policies. In the event of a conflict between this Agreement and other PAFERS policies regarding your use of the API, this Agreement will control.
6.1 Modification of the API. PAFERS may modify the API and the permitted uses, any PAFERS Content, any of the benefits and/or features provided in connection with your use of the API under this Agreement at any time with our best attempt to inform you. Modifications may affect Your Mobile Application and may require you to make changes to Your Mobile Application at your own cost to continue to be compatible with or interface with the API.
6.2 Modification of this Agreement. PAFERS may from time to time change the terms of this Agreement. We will send you a notice about the amended terms via email. Except where stated otherwise herein, all amended terms will be effective thirty days after they are posted on any PAFERS website or emailed to you. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT by sending us a formal email. The amendment termination notice will be effective on the date it is received by PAFERS. The most current version of the agreement will supersede all previous versions of the agreement. YOUR USE OF THE API AFTER THE DATE ON WHICH CHANGES BECOME EFFECTIVE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES.
7 MONITORING AND ENFORCEMENT
7.1 Right to Monitor and Audit. You agree that PAFERS may monitor or audit Your Mobile Applications or activities relating to your use of the API. You will not seek to block or otherwise interfere with the monitoring or audit, and PAFERS may use technical means to overcome any methods you may use to block or interfere with such monitoring. Audits may include requests for documents and information and visits to your facilities. Your failure to reasonably comply with PAFERS’ efforts to audit your compliance with this Agreement shall constitute a material breach of this Agreement.
7.2 Remedy for Breach. If PAFERS, in its sole discretion, believes that you have breached this Agreement, or that you or your service providers have engaged in fraudulent activity, PAFERS may take any and all steps it deems appropriate, including issuing a warning, conducting an investigation, or suspending your API license.
7.3 Corrective Action. In addition to any other available remedies, PAFERS may, at its sole discretion, seek specific performance, injunctive relief or attorneys' fees. PAFERS reserves the right to take other corrective action as PAFERS sees fit in the event that PAFERS receives complaints from PAFERS Users and Other Users about Your Mobile Application or your actions.
8 OWNERSHIP AND LICENSING
8.1 Ownership. As between PAFERS and you: (i) PAFERS retains all rights, title and interest in and to all intellectual property rights embodied in or associated with the API, PAFERS Content, PAFERS websites, any and all PAFERS services, and any content PAFERS created or derived therefrom; and (ii) you retain all rights, title and interest in and to all intellectual property rights embodied in or associated with Your Mobile Applications, excluding the aforementioned rights in this Section 8.1(i) above owned by or licensed to PAFERS. There are no implied licenses under this Agreement, and any rights not expressly granted to you hereunder are reserved by PAFERS. You will not take any action inconsistent with PAFERS’ ownership of the API, PAFERS websites, and/or PAFERS Content. Neither party will exceed the scope of the licenses granted hereunder.
8.2 License. You agree that PAFERS may fairly use your trade names, trademarks, service marks, logos, and domain names for the purpose of publicizing your use of the API.
8.3 Competitive or Similar Materials. In no event will PAFERS be precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing or developing for third parties, as well as marketing and distributing, materials which are indirectly or directly competitive with Your Mobile Applications or other products or services provided by you, irrespective of their similarity to your current products or products that you may develop.
9 WORKING WITH THIRD PARTIES
9.1 Third Party App Developers and Service Providers. You may work with App developers or service providers necessary to develop and maintain Your Mobile Applications or to facilitate your performance under this Agreement only if you subject your service providers to all of the conditions and restrictions of this Agreement. You acknowledge and agree that any act or omission by your service provider(s) amounting to a breach of this Agreement will be deemed a breach by you. If such a breach occurs, PAFERS has the right to alter or terminate the Agreement. Additionally, you have the right to choose your Third Party App Developers, but you will only give the API to the actual executing developers after a process of appropriate investigation and evaluation. You will inform PAFERS by email or in writing every time BEFORE you give the API to any third party. You will also inform PAFERS of your developer’s legal identities (i.e. company name, address and phone numbers, as well as contact’s email and phone numbers). PAFERS retains the right at its sole discretion to not provide PAFERS Official Support to a developer if it deems it unnecessary to do so.
9.2 Sublicensing. Except as set forth in this Section 9, all license rights (under any applicable intellectual property right) granted to you by PAFERS are not sublicenseable, transferable or assignable.
9.3 All fees due (if any) for the license of using the API will be paid by you.
9.4 Your Users will have no programmatic control over the API.
9.5 You will enter into a binding agreement with each of Your Users that includes the following terms:
9.5.1 It will bind Your Users to this Agreement
9.5.2 It will require Your Users to acknowledge PAFERS’ rights in the API and any other PAFERS Content and intellectual property as explained but without limitation in this Agreement.
9.5.3 It will make PAFERS a third-party beneficiary to your agreement.
9.5.4 Breach by Your Users. You acknowledge and agree that any act or omission by Your User(s) amounting to a breach of this Agreement will be deemed a breach by you.
10 LICENSED TECHNOLOGIES
10.1 PAFERS technologies supports treadmills, indoor stationary bikes and ellipticals (or cross trainers) in both fixed pin and wireless connections, on different modern mobile platforms such as iOS and Android.
10.2 According to your Application Form and the discussion results between you and PAFERS Tech, you are specifically licensed to use the following options of the API:
10.3 You may only use the specific options you select with the API, and you must seek prior approval from PAFERS if you wish to use a different connection type, machine type or mobile platform not selected on this Agreement.
11 FEES AND PAYMENTS
11.1 To promote using the API, there is no fee for this Agreement. A new Agreement must be reviewed and signed every two years. If there is a fee associated with the new Agreement, it must be paid within 30 days of the signing of the new Agreement has been signed.
11.2 During the period of validity, you can enjoy all PAFERS official support regarding the API (updates, maintenance, fixes).
11.3 PAFERS has right to terminate revoke and take actions to disable Your Mobile Applications at any time if your license is in breach of this Agreement.
11.4 The payment must be made within 30 days of every contract year. PAFERS remains all rights to suspend or stop providing the latest API and all necessary content, even in the period of validity of this Agreement, due to any delay or failure of your payment.
12 App Submissions, Updates and Maintenance
12.1. All app submissions and updates that use PAFERS Hardware API for Indoor Fitness Machines must be submitted to App Store by yourself.
12.2 For the first time you submit any of Your Mobile Applications, you agree to submit the necessary information regarding Your Mobile Applications to PAFERS. This information includes name, bundle id, target markets and feature descriptions. After first-time submission, you agree every time before you submit updates of Your Mobile Application, you agree to officially inform PAFERS first about the information of descriptions of your updates.
12.3 Failure to comply with this Agreement, PAFERS at its own discretion reserves the right to disable the app from functioning normally with the machine even it’s downloadable from app store.
12.4 Keeping Your Mobile Applications updated and functioning properly is your sole responsibility.
13 DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND PAFERS’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
EXCEPT AS EXPRESSLY STATED HEREIN, PAFERS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PAFERS DOES NOT REPRESENT OR WARRANT THAT ANY PAFERS WEBSITE, SERVICES, OR THE API WILL OPERATE SECURELY OR WITHOUT INTERRUPTION. ALL LOGOS, PRODUCTS AND SERVICES PROVIDED BY PAFERS HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. PAFERS WILL HAVE NO DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER LIABILITY WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN THE EVENT THAT THE ABOVE IS NOT ENFORCEABLE, PAFERS' AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO AMOUNTS PAID OR PAYABLE TO PAFERS BY YOU FOR BEING LICENSED TO USE THE API THE MONTH PRECEDING THE CLAIM. IN THE EVENT THAT THE FORMER LIMITATION OF LIABILITY IS HELD UNENFORCEABLE BY A COMPETENT COURT, PAFERS’ AGGREGATE LIABILITY IS IN ANY CASE LIMITED TO USD$25,000 PER EVENT, A SERIES OF EVENTS BEING CONSIDERED AS ONE SINGLE EVENT.
You will indemnify, defend and hold PAFERS, its employees, agents, consultants, subsidiaries, partners, affiliates, and licensors harmless against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals) (collectively, “Claims”) that may arise from or are related to (i) use of the API; or (ii) the development, maintenance, use and contents of Your Mobile Applications, including but not limited to any infringement of any third party proprietary rights ; or (iii) any injuries that may occur with Your Users while using Your Mobile Applications. At PAFERS’ option, you will assume control of the defense and settlement of any Claim subject to indemnification by you (provided that, in such event, PAFERS may at any time thereafter elect to take over control of the defense and settlement of any such Claim, and in any event, you will not settle any such Claim without PAFERS’ prior written consent).
15 TERM AND TERMINATION
15.1 Term. The term of this Agreement will begin on the date on which you fully complete and successfully accept and sign this Agreement as reflected in PAFERS’ records. It will continue until terminated in accordance with this Agreement.
15.2 Termination. This Agreement will terminate automatically without notice if you fail to comply with any of its terms. The license that is granted hereunder is dependent on your compliance with this agreement and terminates automatically if you fail to comply with the terms. PAFERS RESERVES THE RIGHT TO TERMINATE THIS AGREEMENT OR SUSPEND OR DISCONTINUE YOUR ACCESS TO THE API, OR ANY PORTION OR FEATURE THEREOF, FOR ANY OR NO REASON AND AT ANY TIME WITH NOTICE TO YOU AND WITHOUT LIABILITY TO YOU.
15.3 If you wish to terminate this Agreement, you must email a termination notice to CONTACT@PAFERS.COM; any other methods used by you to terminate the Agreement will be void and will not result in a termination. Your termination notice will be effective when it is received by PAFERS.
15.4 Effect of Termination. Upon the termination of this Agreement, your Access Keys will be revoked and all licenses granted hereunder will terminate, and you will pay all past-due fees. You will destroy all your intermediate copies of PAFERS Content within ten days of termination and provide written proof of destruction to PAFERS upon request.
“Confidential Information” will include all information provided by PAFERS to you under this Agreement, including without limitation, the API, PAFERS Content, and Access Keys. You will not use or disclose Confidential Information other than as required to perform under and permitted by this Agreement. Your confidentiality obligations will survive the termination of this Agreement for three years. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized use or disclosure of Confidential Information and that PAFERS will be entitled (without waiving any other rights or remedies) to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction, without obligation to post any bond. Any information provided by you to PAFERS hereunder is considered by PAFERS to be non-confidential. PAFERS has no duty, express or implied, to pay any compensation for the disclosure or use of any such information provided by you to PAFERS. You acknowledge and agree that any information you provide to PAFERS is solely to consider a business relationship under this Agreement and you have no expectation of payment.
You will not make any public statement regarding this Agreement, the terms of this Agreement, any aspect thereof, the API, or the PAFERS Content without PAFERS’ prior written approval which may be withheld in PAFERS’ sole discretion. You permit PAFERS to make public statements about your use of the API.
18 LAW AND VENUE
This Agreement will be construed as if both parties jointly wrote it, governed by the laws of the State of New York, USA. The parties consent to the exclusive jurisdiction of the state and federal courts of the State of California for the purpose of any suit, action or other proceeding arising out of or otherwise related to this Agreement, and expressly waive any and all objections they may have as to venue in any such courts.
You acknowledge and agree that this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and any conflicting or additional terms contained in other documents or oral discussions are void. You may grant approvals, permissions and consents to PAFERS by email, but any modifications by you to this Agreement must be made in a writing (not including email) executed by both parties. PAFERS may refuse to execute any such writings in PAFERS’ sole discretion. Any notices to PAFERS must be sent to our corporate headquarters address as set forth on our website via first class or air mail or overnight courier, and is deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention, and remaining provisions of the Agreement will remain in full effect. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, your consent shall not be required for PAFERS’ assignment or transfer (1) due to operation of law, or (2) to an entity that acquires substantially all of PAFERS’ stock, assets or business, or (3) to a related entity (e.g., parent or subsidiary of parent). You and PAFERS are not legal partners or agents, but are independent contractors. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from the Act.