END USER LICENSE AGREEMENT
This is an electronic agreement concerning the limited use right of the “RunRite System” software (the “Software”) offered by RunRite Academy, LLC. (the “Agreement”) is made between you (“You” or the “Customer”) and RunRite Academy, LLC, whose registered address is at 4026 N. Miller Road, Suite 200, Scottsdale, Arizona 85251 (“Runrite”), on the date You accept this Agreement by clicking the “I Accept” button, or when you otherwise start using the Software. RunRite Academy, LLC. is, and shall stay, the owner of the Software, and any and all copies made of it, and You will only be granted under the terms and conditions of this Agreement a limited right to use the Software.
The parties of this Agreement may be referred together as to ”Parties”; or a “Party”, when only one party is referred to.
Read this Agreement carefully before using the Software. By clicking on the "I Accept" button while installing, downloading, and/or using the Software, You agree to the terms and conditions of this Agreement. If You do not agree to all of the terms and conditions of this Agreement, promptly click the "Decline" or "I Do Not Accept" button, and destroy or return the Software and accompanying documentation to RunRite. YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
1. SOFTWARE AND THE RIGHT TO USE IT
1.1 The Software is a tablet or mobile device based based cloud service solution for retail sporting goods and equipment stores, fitness and sports performance facilities, physical therapists, and other professionals who work with individual athletes or customers who desire to offer a running or walking (gait) analysis along with a list of potential exercises for customers to complete at home or in their facility under the supervision of a licensed or certified coach, fitness, or medical professional. The use of the Software requires as the controlling device such as a mobile device or tablet with the windows 8.1 or higher operating system or a mobile device or tablet with the iOS 4.0 operating system, in which the user interface for You is the windows or iOS RunRite System software application and properly functioning RunRite System range of motion sensors for the exercisers. As Software is part of the RunRite System all individual training data is recorded and directly synchronized to the RunRite System web portal on the exerciser’s personal RunRite System account, provided that they have been entered into the system.
1.2 As a pre-requisite for the use of the Software, You must agree to this RunRite System software license.
1.3 By accepting this Agreement, RunRite grants to You non-exclusive, personal, non-transferable right to use the Software to conduct your personal, individual based or group running or walking (gait) analysis and generate a list of suggested exercises for one (1) physical hardware device. RunRite may also provide You with support and maintenance services related to the Software against a payment, if agreed separately. This Agreement does not restrict the rights of RunRite to offer, sell, license or otherwise market the Software to any third parties.
1.4 After the termination of this Agreement, the right to use the Software by You is terminated and the obligation of RunRite to provide the use right to the Software to You shall end.
1.5 This Agreement replaces all prior agreements between the Parties concerning the Software.
2. THE RIGHTS AND OBLIGATIONS OF RUNRITE
2.1 RunRite shall use adequate care and skill, and use professional personnel in maintaining the Software.
2.2 RunRite may provide the Software as it deems appropriate and use subcontractors for provision.
2.3 RunRite shall have the right to monitor the use of the Software. If at any time during the term of the Agreement the Software is actually used in several locations, You agree to pay to RunRite an amount equal to the license fee of the Software that would have been applied to the actual number of locations of the Software. RunRite is authorized to install within the Software tools to monitor the actual number of actual number of locations accessing the Software at any time.
2.4 RunRite shall have the right to further develop the Software independently and make changes to content and technical realization to them, provided that the level in whole does not deteriorate. RunRite aims to notify the You of such changes in advance as soon as reasonably possible, as well as of the dates of any updates
2.5 RunRite shall provide the Software in a reasonable time after the Agreement has been concluded.
2.6 Under this license agreement, RunRite shall be responsible towards You of the usability of the Software up to the interface of the Internet core network. RunRite shall in no circumstances be liable of Your basic IT infrastructure, such as Internet connections, Google, Android, Windows and/or iOS devices, their operating system versions or the functioning of other software and/or RunRite System motion tracking sensors.
2.7 RunRite is only responsible of providing You as the primary user with access to the Software. RunRite support web pages are maintained to include basic of the usage (Getting Started, FAQs and Tips) of the software. Other training and support of Your RunRite System hardware or main users is a separate service and only within the scope presented in this Agreement and against a separate payment.
2.8 RunRite shall create and provide You with user account and pass word (“Access Rights”) as the primary licensed user for a certain period of time. Your main user is the person clicking the “I Accept” button and thus approver of this Agreement on behalf of You. Performance 3D can, at any time, change the Access Rights or withdraw them.
2.9 RunRite may offer the You updates and/or upgrades of the Software. Upgrades of the Software may only be available against a separate fee. Such upgrades include new functionalities or components provided by RunRite or third parties. RunRite shall inform of such possible upgrades, delivery times, their timetables and costs separately.
3. YOUR GENERAL RIGHTS AND OBLIGATIONS
3.1 You are solely responsible and liable for Your own business and of the use of Software, as well of ensuring that You are acting according to the laws, regulations and instructions of the officials, including but not limited to the data protection regulation, for example Personal Data Act.
3.2 In addition to main user, You may choose to appoint side users to the Software, for example as chief trainer, coaches, accountant and group sports trainer.
3.3 You shall pay, by the due date, for the use of the Software, for the costs resulting from the implementation of the Software and the payments for other possible agreed services.
3.4 You shall accept the Software “AS IS”. You are responsible for any costs of possible inspection and testing.
3.5 You shall provide free of charge such information on technical features, interfaces and characteristics of Your network environment that might have an influence on Performance 3D’s performance under this Agreement. You shall perform its duties and obligations under this Agreement in highly professional manner with due skill and care.
3.6 You are not authorized to make, or have made, any changes to the Software.
3.7 You shall assist RunRite in its performance of its obligations under this Agreement and in ensuring the necessary cooperation of third parties. You shall give all the necessary materials, such as production data for the purposes of development and testing of the Software.
3.8 You are responsible for acquiring the internet connections, data equipment, connections, software and other needed additional equipment needed for the use of the Software, including, but not limited to possible new end user equipment, (eg. RunRite System motion tracking sensors). You are responsible for the costs, operation, maintenance and support of all such equipment, connections and software.
3.9 You are fully responsible for all activities or neglects, which occur under Your Access Rights. You shall exercise due care in handling the Access Rights and in a manner that unauthorized access to the Software and the software system is prevented. You may not disclose the Access Rights to any third party and the Access Rights shall be considered as confidential information of Polar.
You shall contact Performance 3D immediately, if You believe that the security of Access Rights has been compromised, if they are lost or they have been misused, or if there are changes regarding the Access Rights or employment changes (including but not limited to the termination of employment) within Your company. You shall compensate RunRite and/or third parties for all damage, cost and expenses caused by misuse of the Access Rights.
4.1 RunRite shall have the right to use Your name and logo in marketing of its services and make reference to the co- operation of the parties during the term of the Agreement in accordance with good manners.
4.2 You are solely responsible of your own marketing.
5 PAYMENTS AND PAYMENT TERMS
5.1 RunRite will charge You periodically as defined in your subscription according the RunRite price list valid at a time, until the service provision is terminated. In case the automatic invoicing process in not successful, RunRite will invoice You, in which case the cost of bank transfer and other expenses related to payment of service fees shall be paid by You..
5.2 RunRite shall have the right to change fees of the Software. RunRite notifies You in writing about changes in fees at least one (1) month prior to the change is effective.
5.3 You are obliged to pay to RunRite the service fees relating to the Software also from the time period Performance 3D has not been able to provide the Software for Your use, or if You have been otherwise prevented to use the Software, if that has been caused by You or Your contractors.
5.4 Any claim against service fee must be made in writing prior due date of the invoicing. Regardless of Your claim, You shall pay any undisputed part of the service fee on the due date. If Your claim is found unjustified, You shall pay the invoice due with accrued interest from the original due date within fourteen (14) days from the date when the claim was found unjustified.
5.5 The interest rate for any late payments is eleven per cent (11 %). In addition You shall compensate RunRite for collection charges and other expenses incurred.
5.6 RunRite shall have the right to suspend Your right to use the Software in case of late payment of fees. In the event that You fail to pay the due fees after Performance 3D’s request to pay, RunRite may terminate this Agreement in whole or in part with immediate effect.
THE SOFTWARE AND POSSIBLE SERVICES ARE PROVIDED “AS IS.” RUNRITE, INC., RUNRITE ACADEMY, LLC. AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SOFTWARE AND/OR SERVICES INCLUDING ANY WARRANTY THAT THE SOFTWARE AND/OR SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, RUNRITE, INC., RUNRITE ACADEMY, LLC. AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
You undertake and agree to keep secret and confidential all materials and information received from RunRite regardless of the form of materials including but not limited to information relating to all data, reports, interpretations, forecast, records, drawings, documentation, samples, know-how, processes, designs, photographs, specifications, instructions, business, commercial, financial and other information, for example relating to the ownership or structure of RunRite, its customers and/or contractors, whether in oral, written, machine readable or any other form. You may not, without prior written agreement between the parties, use such confidential information for any other purpose than purpose relating directly to the purposes of this Agreement. The confidentiality obligations are in force five (5) years from the Effective Date of this Agreement, however, at least three (3) years from the disclosure of such information. The obligations of confidentiality shall remain in force after termination of the Agreement.
8 LIABILITY AND LIMITATION OF LIABILITY
8.1 RUNRITE, INC. RUNRITE ACADEMY, LLC. AND ITS AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER POLAR NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SOFTWARE AND/OR SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SOFTWARE AND/OR SERVICES, (II) OUR DISCONTINUATION OF OR YOUR USE OF OR ACCESS TO THE SOFTWARE AND/OR SERVICES OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SOFTWARE AND/OR SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SOFTWARE AND/OR SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, POLAR’S AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SOFTWARE OR SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
8.2 YOU AGREE THAT RUNRITE, INC., RUNRITE ACADEMY, LLC. AND ITS OFFICERS, DIRECTORS, AGENTS, AFFILLAITES, EMPLOYEES, ETC. SHALL BE HELD HARMLESS BY YOU FOR ANY CLAIMS RELATED TO THE USE OF THE SOFTWARE WITH YOUR CUSTOMERS, CLIENTS, PATIENTS, STUDENTS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, AND/OR CONSULTANTS. YOU AGREE THAT YOU WILL REQUIRE YOUR CLIENTS TO EXECUTE WITH THEIR LEGAL AND BINDING SIGNATURE, AN INFORMED CONSENT AND WAIVER OF LIABILITY FOR ANY INJURIES, CLAIMS, OR LOSSES AS A RESULT OF THEIR USE OF THE SOFTWARE. YOU ALSO AGREE THAT IN THE EVENT, YOUR CLIENTS PURSUE A CLAIM AGAINST YOU OR RUNRITE, INC, OR RUNRITE ACADEMY, LLC. AS RUNRITE RESULT OF THEIR USE OF THE SOFTWARE, THAT YOU SHALL BEAR THE SOLE COST OF DEFENDING SUCH CLAIM IN ANY COURT SO BROUGHT AGAINST YOU OR RUNRITE, UNTIL SUCH TIME THAT THE CLAIM OR LEGAL ACTION HAS BEEN DISMISSED.
YOU AGREE THAT YOUR INFORMED CONSENT MUST INCLUDE THE FOLLOWING LANGUAGE IN ADDITION TO ANY LANGUAGE YOU DESIRE PROVIDED YOUR LANGAUGE DOES NOT REPLACE OR REMOVE ANY OF THE LANGUAGE HEREIN:
I hereby consent to voluntarily engage my client's in general fitness training and/or sports specific performance testing and training utilizing the RunRite, FitRite, or GolfRite system. The tests may include but not be limited to a functional movement screen, sport-specific skills test, cardiovascular test, sprint test, vertical leap, standing broad jump, flexibility test, muscular strength and/or endurance tests, and cardiovascular endurance.
I understand that any cardiovascular exercise test will stress my client's cardiovascular system and that there exists the possibility of certain changes occurring during the test such as abnormal blood pressure, fainting, disorder of the heartbeat, and in rare instances heart attack or death. Every effort will be made to see that the above risks are minimized with screening and supervision of qualified personnel who are trained to deal with unusual situations.
I understand it that the results obtained from this evaluation will assist me in designing a safe and effective training program for me or my clients and that the above mentioned changes may apply during the prescribed training program.
I have had and will provide my clients with an opportunity to ask questions about any aspect of the evaluation and these questions have or will be answered to my satisfaction before I verbally consent to do it any activity. I understand it that my client's permission to participate or any part of the evaluation and training is voluntary and that they are free to deny consent if desired.
I agree to hold harmless RunRite, it's officers's directors, affiliates, employees, etc, including the host, property, campus, landlord, and any owners, agents or representatives of the above mentioned entities for any injuries sustained during my participation in any evaluation, session or sports testing or training program.
I have read this form and understand the procedures that my clients will undergo and the prescribed training program. I consent to participate in the pilot program and evaluations given to me or given by me to others. I agree to consult or advise my clients to consult with a physician before beginning any exercise program, even if recommended by the RunRite, FitRite, or GolfRite software.
9 SUSPENSION OF PROVISION OF USE RIGHT
9.1 RunRite may suspend Your use of Software without any liability in the following events:
(a) You or third party has filed for bankruptcy or liquidation of You or You present public petition for Your creditors or are deemed to be unable to pay Your debts;
(b) RunRite has not been able to charge You according to Your subscription, or You have not paid due fees within fourteen (14) days from RunRite's payment request;
(c) You have caused interference to RunRite’s systems or equipment or to other customers of Performance 3D and have not regardless of RunRite’s written request removed cause of such interference;
(d) Your breach or neglect to fulfill Your obligations under this Agreement regardless of RunRite’s written notification.
9.2 You are obliged to pay to RunRite the fees relating to the use of the Software regardless of the suspension.
10.1 This Agreement shall be in force for ninety (90) to one hundred and eighty (180) days fixed term after which time it may be terminated by either party with a three (3) months prior written notice of termination. When the Agreement is terminated, Your right to use the Software and RunRite’s obligation to provide You with the use right terminates.
10.2.1You may terminate the Agreement in the following events:
(a) RunRite or third party has filed for bankruptcy or liquidation of RunRite or RunRite presents public petition for its creditors or is otherwise deemed to be unable to pay its debts; or
(b) RunRite has materially breached or neglected to fulfill its contractual obligations and fails to rectify its breach or redress its negligence within thirty (30) days from Your written request.
10.2.2 RunRite may terminate this Agreement with immediate effects in whole or in part or suspend fulfillment of its contractual obligations in the following events: if
(a) You or third party has filed for bankruptcy or liquidation of You or You present public petition for Your creditors or are otherwise found to be unable to pay Your debts;
(b) You have not paid due service fees within thirty (30) days from original due date of the invoice;
(c) You materially breach or neglect to fulfill Your obligations under this Agreement and fail to rectify Your breach or redress Your negligence within thirty (30) days from written request of RunRite.
10.3 Notice of termination must be served in writing.
10.4 Your obligation to pay fees based on this Agreement continues after the termination of this Agreement affecting the time prior the termination.
Neither Party shall be liable to the other for any non-performance of its contractual obligations in the event and to the extent that such non-performance is due to an event or condition not reasonably foreseeable at the Effective Date of this Agreement, and which events are not within the control of that party, which effects are not reasonable capable of being avoided or overcame (hereinafter “Force Majeure”). Event of Force Majeure shall include (but is not limited to) war, emergency situations, riot or other crises, provision of emergency information during crises or in disturbances of normal situations, sabotage or threat of sabotage, dangerous epidemic, storm, flood, or other, inclement weather or other natural event (disaster), fire, explosion or other similar accident, strike, lockout, boycott and other industrial actions (including internal strikes of a party), legislative changes, act or omission of authorities, exchange restrictions, restriction of export and import, interruption of general supply of energy, general unavailability of transport facilities, interference of communication networks, defects or delays in transfer connections or other connections or equipment acquired from third parties or in control of third party or other similar reason beyond control of the parties.
GOVERNING LAW AND DISPUTE RESOLUTION
The Agreement will be governed by and construed in accordance with laws of Arizona excluding its choice of law rules.
Any disputes arising out of or in connection with the agreement shall be primarily settled with negotiation between the parties. In the event that the parties cannot settle the dispute within thirty (30) days, the matter shall be finally settled by one (1) arbitrator in accordance with arbitration rules of the American Arbitration Association for expedited arbitration. The arbitration shall take place in the county of Maricopa in the English language.
Notwithstanding the above, disputes relating to collection of receivables of Performance 3D arising out of this Agreement may be settled by District Court in the County of Maricopa.
BY UTILIZING THE SOFTWARE,I HEREBY CONFIRM THAT I HAVE THE AUTHORITY AND RIGHTS TO ACCEPT AND BIND MYSELF INDIVIDUALLY AND/OR THE COMPANY I AM REPRESENTING. NO SIGNATURE IS REQUIRED TO BIND ME TO THIS AGREEMENT OTHER OTHER THAN MY PURCHASE OF RUNRITE'S PRODUCTS