Last Updated: July 15, 2020
THE SERVICE CONTAINS FITNESS AND HEALTH ORIENTED INFORMATION, PRODUCTS AND SERVICES. AS SUCH, EVERYONE, REGARDLESS OF THE SHAPE THEY ARE IN, SHOULD CONSULT A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER BEFORE STARTING OR MODIFYING ANY EXERCISE PROGRAM. A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER CAN HELP DETERMINE WHAT TYPE OF EXERCISE, THE FREQUENCY, AND THE INTENSITY THAT IS APPROPRIATE FOR EACH INDIVIDUAL. OF COURSE, ALWAYS USE COMMON SENSE WHEN EXERCISING. STOP EXERCISING IMMEDIATELY IF YOU EXPERIENCE SHORTNESS OF BREATH, DIZZINESS, DISCOMFORT OR PAIN.
IT IS YOUR SOLE RESPONSIBILITY TO USE THE SERVICE PRUDENTLY, TO VISUALLY VERIFY STREETS, ROADS, ROAD SIGNS AND DIRECTIONS, TO AT ALL TIMES REMAIN AWARE OF YOUR SURROUNDINGS, TO BE ATTENTIVE FOR POTENTIALLY UNFORESEEN OBSTACLES, TO NOT BECOME DISTRACTED WHILE USING THE SERVICE, TO ENSURE THAT THE VOLUME ON THE DEVICE USED WITH THE SERVICE IS NOT RAISED TO SUCH A LEVEL THAT IT BLOCKS OUT YOUR SURROUNDINGS OR DAMAGES YOUR HEARING.
1. SERVICE ACCESS
2. REGISTRATION, USER ACCOUNT, PASSWORD AND SECURITY
In consideration of your use of the Service, you represent and agree that you: (i) are of legally sufficient capacity to form a binding contract; (ii) are at least 18 years of age; and (iii) you will comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Service. Children 14 years of age and older may only use the Service if (a) their parent or legal guardian has agreed to these Terms, and (b) their use is permitted and supervised by their parent or legal guardian. If you open an account to enhance your use of the Service, you must: (x) complete the registration process by providing true, accurate and complete information requested on the registration form (“Registration Data”); (y) maintain the accuracy of the Registration Data; and (z) provide a user name and password. You are entirely responsible for the confidentiality and use of your user name and password. You may not use the account, username, or password of someone else at any time. You are responsible for all electronic communications, including account registration and other account holder information, email, financial and other content (“Electronic Communications”) entered through or under your user name and password. Company will act as though any Electronic Communications it receives under your user name and password will have been authorized by you. You agree to notify Company immediately of any unauthorized use of your account, user name, or password.
3. INTEGRATED THIRD PARTY WEBSITES
4. SERVICE INFORMATION
5. PAYMENT TERMS; INTEREST; ORDERS
All orders placed through the Service are subject to Company’s acceptance. Terms of payment are within the Company’s sole discretion, and unless otherwise agreed to by the Company, payment must be received by the Company prior to the Company’s acceptance of an order. Payment for product orders will be accepted via certain payment methods accepted by our third party payment processing service. Your order is subject to cancellation by Company at Company’s sole discretion. All amounts due are payable in U.S. dollars. Any amount not paid when due will be subject to a finance charge of one and one-half percent (1-1/2%) per month, or the maximum amount allowed by law if lower, for the unpaid balance due. You shall be responsible for any expenses and/or fees (including but not limited to attorneys’ fees), incurred by the Company in collecting past due amounts from you.
7. USE OF SOFTWARE
Company may make certain software available to you from the Service in addition to the Mobile Software. If you download software from the Service (excluding Mobile Software that is governed by these Terms), the software, including all files and images contained in or generated by the software, and accompanying data (collectively, “Software”) are deemed to be licensed to you by Company under the terms of the MSLA unless such software comes with a separate license agreement, in which case the latter shall control. For more information, the MSLA may be viewed on our website. Downloading or using the Software is at your sole risk.
8. USE RESTRICTIONS
Company imposes certain restrictions on your permissible use of the Service, which includes the Mobile Software. You represent, warrant and agree that you will not:
You further agree that you will not create links from any web site or web page to the Service, except that you are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Service (“Homepage”); provided that (i) the link does not portray Company, or its products or services in a false, misleading, derogatory, or otherwise offensive matter; (ii) except as provided herein, you may not use any Company logo or other proprietary graphic or trademark as part of the link without express written permission; and (iii) the link to the Homepage must be accompanied by a clear and prominent attribution at the point of origin indicating that the link is connected to the Homepage. For example, prominently positioning the Pear Sports™ trademark such that there is clear association between the trademark and the destination of the link would be acceptable. You agree that you will not juxtapose the Pear Sports™ trademark and the link with your name or any other material(s) in a manner which might create any confusion that there is any affiliation or association between Company, and you or any other person or entity. If Company, for any reason in its sole and absolute discretion, requests in writing that you remove any link or links to the Homepage, you agree to promptly comply. You agree that if you create any link to the Homepage that you will not employ any technology that results in the placement of content from the Service in a frame and/or a reduced pop-up window and/or any other display mechanism which changes the Service content from how it normally appears in a browser.
Company reserves the right to investigate suspected violations of these Terms. If Company becomes aware of a possible violation, Company may initiate an investigation which may include gathering information from you or companies involved and the complaining party. If Company believes, in its sole discretion, that a violation of these Terms has occurred, it may take responsive action. Such action may include, but is not limited to, temporary or permanent blocking of your access to the Service and/or deleting any materials from Company’s system. Company, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of these Terms could also subject you to criminal or civil liability. Company reserves the right to release the contact information of users involved in violations of system security to system administrators at other sites, in order to assist them in resolving security incidents. Company intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms or of any applicable laws.
If you breach these Terms and send unsolicited bulk email, instant messages or other unsolicited communications of any kind through the Service, you acknowledge that you will have caused substantial harm to Company, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay Company $50.00 for each such unsolicited email or other unsolicited communication you send through the Service.
9. USER CONTENT
You retain all of your ownership rights in your User Content (as defined below). However, by submitting, posting, downloading, displaying, performing, transmitting, or otherwise distributing data, information or other content (“User Content”) to an area of the Service that is intended by Company to be publicly accessible, including without limitation any bulletin boards, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to exchange thoughts and opinions with other members of the public, you are: (i) granting Company, and its affiliates, a worldwide, royalty-free, perpetual, sublicensable, transferable, non-exclusive license to use the User Content in connection with the operation of Company, and its affiliates, including without limitation, a right to use, host, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content; (ii) representing and warranting that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content. You will not be compensated for any User Content. All User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such content originated.
You are solely responsible for all User Content that you upload or otherwise transmit via the Service, and for confirming the sufficiency and reliability of any User Content posted by others that you may use or rely upon. Company does not control or endorse any User Content, or any opinion, recommendation, or advice expressed therein, uploaded or otherwise transmitted by you or other users via the Service and, as such, does not guarantee the accuracy, integrity or quality of such User Content. Company expressly disclaims any liability in connection with User Content. Company and its designees shall have the right (but not the obligation) in their sole discretion to refuse or to remove any User Content contained on the Service at any time for any reason with or without notice. Always use caution when posting any personally identifying information about yourself or your children on the Service.
YOU UNDERSTAND THAT WHEN USING THE SERVICE, YOU MAY BE EXPOSED TO USER CONTENT FROM A VARIETY OF SOURCES, AND THAT COMPANY IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, SAFETY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH USER CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO USER CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST COMPANY WITH RESPECT THERETO, AND AGREE TO INDEMNIFY AND HOLD COMPANY, ITS PARENT, SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS, HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR USE OF THE SERVICE. You hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
10. USER SUBMISSIONS
Any comments, feedback, suggestions and ideas disclosed, submitted or offered to Company in connection with your use of the Service (collectively “Submissions”) shall be owned exclusively by Company. You agree that Company shall: (i) not be under any obligation of confidentiality, express or implied, with respect to the Submissions; (ii) be entitled to use or disclose Submissions for any purpose, without restriction worldwide; and (iii) not owe you any compensation or reimbursement of any kind under any circumstances for use or disclosure of Submissions.
11. THIRD PARTY SERVICES AND SITES
The Service may provide links to other web sites or resources. Your business dealings with any third party, third party web site or third party content (collectively “Third Party”) whether found on or through the Service or not, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations, associated with such dealings, are solely between you and such Third Party. Company makes no endorsement or guarantee about the content, goods or services provided by any Third Party. Company shall not be responsible for any loss or damage of any sort incurred as the result of: (i) any dealings or transaction between you and any Third Party or as the result of the presence of such Third Party on the Service; (ii) any insufficiency of or problems with any such Third Party’s background, insurance, credit or licensing; or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that you have a dispute with any such third party, you release Company, its parent, subsidiaries, affiliates, directors, officers, employees, agents, partners and licensors, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Unless expressly provided otherwise, these Terms govern your use of any and all third party content. You hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
12. STORAGE AND ACCESS
Company may, in its sole discretion: (i) limit the duration and frequency of your access to the Service; and (ii) delete accounts that are inactive for an extended period of time. Company shall have no responsibility or liability for the deletion or failure to store any account, messages, postings, communications or other content maintained or transmitted by the Service.
Company may, in its sole discretion and without prior notice, (i) revise these Terms; (ii) modify the Service; and (iii) discontinue the Service, or any of its constituent parts, including, without limitation, any products and/or services featured on the Service, at any time. Company shall post any revision to these Terms, and the revised Terms shall be effective immediately on such posting. You agree to review these Terms and other online policies posted on the Service periodically to be aware of any revisions. Your continued use of any of the Service shall constitute your acceptance of the revised Terms. If you do not agree to any of such changes, you may terminate these Terms and immediately cease all access and use of the Service. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to these Terms.
You acknowledge and agree that Company may at any time in its sole discretion terminate your access to and use of the Service, or any part thereof, with or without notice and without any liability to you or any third party. You agree that upon termination Company may delete all files and information related to your account, if any, and may bar your access to your account, if any, and the Service, and that you will immediately destroy any Company software in your possession or control.
15. PROPRIETARY RIGHTS
The design of the Service, Training Programs and all text, graphics, information, content, and other material displayed on or that can be downloaded from the Service are protected by copyright, trademark and other laws and may not be used except as permitted in these Terms or with prior written permission of the owner of such material. The software, technology components and contents of the Service are copyrighted. All rights not expressly granted hereunder are reserved. You agree that as between the parties, Company is the exclusive owner of the Service, Software, Training Programs and all constituent parts, including without limitation, all software code, all photographs, videos and any other content on the Service (excluding User Content), HTML scripts, the uniform resource locators (URL’s) for the Service, the organization and layout of the Service, all Company trademarks (including without limitation BETTER THAN NOW™, PEAR™, the PEAR™ logo, PEAR PORTAL™, PEAR SPORTS™, PEAR SQUARE ONE™, PEAR STRIDE EARPHONES™, POWERED BY PEAR™, POWERED BY PEAR SPORTS™ and TRAINING INTELLIGENCE™), trade names, service marks, trade dress and logos, all enhancements and improvements thereto, and derivatives thereof, and all patent, copyright, trademark, trade secret, trade dress and other intellectual property rights therein throughout the world (collectively the “Company IP”). Any goodwill attached to, or generated by, such Company IP is owned exclusively by Company, or its licensors, and shall inure solely to the benefit of Company, or its licensors. Nothing contained herein or on the Service should be understood as granting you any right or license to any of the Company IP, except as expressly granted herein. All rights not expressly granted herein are reserved by Company, or its licensors. Company, or its licensors, retains full and complete title to the Company IP. You shall not: (i) use or copy the Company IP in any manner not specifically set forth herein; (ii) include Company IP in your corporate name, within a domain name or within any part of URL’s; (iii) obtain, use, register, or otherwise acquire any trade names, trademarks, service marks, and/or trade dress that are confusingly similar to Company IP; (iv) have any claim of ownership in the Company IP; or (v) sell, redistribute, transfer, sublicense or reproduce the Company IP, nor may you decompile, reverse-engineer, disassemble, or otherwise convert any of the Company IP to a human-perceivable form. These Terms do not limit any rights that Company may have under trade secret, copyright, patent, trademark or other laws. You acknowledge and agree that the Service contains proprietary information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in any sponsor advertisements or information that may have been presented to you through the Service or its advertisers, if any, may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Other trademarks that appear on the Services are the property of their respective owners. Any images of persons or personalities contained on or accessible through the Service are not an indication or endorsement of Company or the Services, unless otherwise indicated.
16. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE AND THE PRODUCTS AVAILABLE THEREIN ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU TO THE FULLEST EXTENT PERMITTED BY LAW. THE SERVICE AND THE PRODUCTS AVAILABLE THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED ON THE SERVICE MAY INCLUDE INACCURACIES, ERRORS AND OMISSIONS. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS: (A) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY WARRANTY ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING; (B) MAKE NO WARRANTY THAT (I) THE SERVICE OR THE PRODUCTS AVAILABLE THEREIN WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) ANY PRODUCT, SERVICE OR INFORMATION OBTAINED FROM THE SERVICE WILL BE ACCURATE, APPROPRIATE, COMPLETE, CORRECT, RELIABLE, SUFFICIENT OR TIMELY, (IV) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SERVICE WILL BE FIXED; AND (C) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS OR THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. ANY CONTENT OR MATERIAL DOWNLOADED OR UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL OR THE USE OF THE SERVICE. COMPANY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS, SO THE FOREGOING EXCLUSIONS AND LIMITATIONS ONLY APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
17. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY, ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE FOR AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL ACTUAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, LOSS OF PROFITS, INTERRUPTION OF BUSINESS, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICE OR OTHER WEB SITE(S) YOU MAY ACCESS THROUGH THE SERVICE (IF ANY), CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, GOODWILL, USE, CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SERVICE; (II) ANY INFORMATION, PRODUCTS AND SERVICES OBTAINED THROUGH OR FROM THE SERVICE, OR OTHERWISE ARISING OUT OF OR RELATED TO THE USE OF THE SERVICE; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ERROR OR INADEQUACY OF ANY GOODS, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (VI) PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY REGULATIONS OR CODES, OR MISAPPROPRIATION; (VII) INJURY TO PERSON OR PROPERTY ARISING FROM OR RELATED TO YOUR ACCESS TO AND USE OF THE SERVICE OR ANY PRODUCT; (VIII) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IX) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (X) ANY BUGS, VIRUSES, TROJAN HORSES, OR OTHER ACTUALLY OR POTENTIALLY HARMFUL CODE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE; AND/OR (XI) ANY OTHER MATTER RELATING TO THE SERVICE AND/OR THE PRODUCTS. IN NO EVENT SHALL COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS, LIABILITY TO YOU OR TO ANY THIRD PARTY EXCEED FIFTY DOLLARS ($50.00).
YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS AND LICENSORS, SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
IN NO EVENT SHALL COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS, HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY IN EXCESS OF FIFTY DOLLARS ($50.00). YOU SHALL NOT BE ENTITLED UNDER LOCAL LAW OR OTHERWISE TO RECEIVE ANY PAYMENT FROM COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS AND LICENSORS, WHETHER FOR ACTUAL, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, COSTS OR EXPENSES AS A RESULT OF EXPIRATION OR TERMINATION OF THESE TERMS OR TERMINATION OF YOUR ACCESS TO THE SERVICE, ALL OF WHICH YOU EXPRESSLY WAIVE. YOU ACKNOWLEDGE THAT YOUR ACCEPTANCE OF THIS SECTION HAS MATERIALLY INDUCED COMPANY TO ENTER INTO THESE TERMS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, COMPANY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE FOREGOING LIMITATIONS APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to defend, indemnify and hold Company, its parent, subsidiaries, affiliates, directors, officers, employees, agents, partners and licensors, harmless from and against any and all claims, demands, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from your User Content, your use of the Service, your connection to the Service, your violation of the terms of these Terms, or your violation of any third party’s rights, including but not limited to infringement of any intellectual property right, violation of any proprietary right and invasion of any privacy rights. This indemnification obligation will survive the termination of your account, your access to the Service and/or these Terms.
19. CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
Company has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Service. Company has adopted a policy that provides for the immediate suspension and/or termination of any Service user who is found, in Company’s sole discretion, to have potentially infringed on the rights of Company or of a third party, or otherwise potentially violated any intellectual property laws or regulations. Company’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Company to delete, edit, or disable the material in question, you must provide Company with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material; (d) information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Company’s designated agent at:
Attn.: Copyright Agent
Pear Sports LLC
20371 Irvine Avenue, Suite 120
Newport Beach, California 92660 U.S.A.
20. GENERAL INFORMATION
Entire Agreement; Interpretation
These Terms and any documents referenced herein constitute the entire agreement between you and Company and govern your use of the Service (including, without limitation, all purchases made through the Service), superseding any prior agreements between you and Company (including, but not limited to, any prior versions of these Terms) with respect to its subject matter. You also may be subject to additional terms and conditions that may apply (a) to the specific products you purchase through Company as contained in the product manuals and documentation provided with such products, and (b) when you use affiliate or other Company services or products, third-party content or third-party software. In the event any term contained in these Terms conflicts with any other term contained in any other agreement referenced in these Terms, the terms of this agreement shall control. Except as otherwise provided in these Terms, these Terms may only be modified in a writing signed by an authorized officer of Company. The language in these Terms shall be interpreted as to its fair meaning and not strictly for or against any party.
Consent to Email Communications
You consent to receive communications from Company electronically and agree that we may communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
You may not assign these Terms or any rights granted herein. Any attempt by you to transfer any of the rights, duties or obligations hereunder is void. Company may assign or transfer these Terms or its rights or obligations hereunder without notice and without your prior approval. These Terms are for the sole benefit of the parties hereto and do not create any third-party beneficiaries, whether intended or incidental. These Terms will inure to the benefit of Company and its successors and assigns. The failure of Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. No waiver, express or implied, by either party of any breach of or default under these Terms will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
THE VALIDITY, CONSTRUCTION, INTERPRETATION, AND PERFORMANCE OF THESE TERMS WILL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF CALIFORNIA, EXCEPT AS TO ITS PRINCIPALS OF CONFLICTS OF LAWS, AND WITHOUT REGARD TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. THE PARTIES AGREE THAT THIS CONTRACT IS NOT A CONTRACT FOR THE SALE OF GOODS; THEREFORE, THIS AGREEMENT WILL NOT BE GOVERNED BY ANY CODIFICATION OF ARTICLE 2 OR 2A OF THE UNIFORM COMMERCIAL CODE, OR ANY CODIFICATION OF THE UNIFORM COMPUTER INFORMATION TECHNOLOGY ACT (“UCITA”), OR ANY REFERENCES TO THE UNITED NATIONAL CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
You hereby acknowledge that a breach of these Terms may cause irreparable harm and significant injury to Company that may be difficult to ascertain, and that a remedy at law may be inadequate. Accordingly, you agree that Company shall be entitled, without waiving any additional rights or remedies otherwise available to Company at law or in equity and without the necessity of posting bond, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach by you. Notwithstanding anything to the contrary, Company shall be entitled to seek and obtain injunctive relief in any court of competent jurisdiction.
Except in the case of legal action brought by Company to obtain injunctive or other equitable relief of whatsoever kind, all of which may be brought in any court or other tribunal of competent jurisdiction, ANY CONTROVERSY, CLAIM, DISPUTE OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THEIR SUBJECT MATTER, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, SHALL BE SUBMITTED TO THE OFFICE OF THE AMERICAN ARBITRATION ASSOCIATION LOCATED IN, OR CLOSEST TO, ORANGE COUNTY, CALIFORNIA, AND WILL BE SETTLED BY ARBITRATION TO OCCUR IN ORANGE COUNTY, CALIFORNIA, SAID ARBITRATION TO BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES, IN EFFECT AT THE TIME OF THE ARBITRATION, THE LAWS OF THE STATE OF CALIFORNIA GOVERNING SUCH ARBITRATIONS, AND IN ACCORDANCE WITH THESE TERMS. SUCH ARBITRATION MUST BE FILED WITHIN TWELVE (12) MONTHS OF THE FIRST ACCRUAL OF THE CAUSE OF ACTION, AND THE PARTIES AGREE THAT THE STATUTE OF LIMITATIONS FOR ANY CAUSE OF ACTION BROUGHT PURSUANT TO, IN CONNECTION WITH, OR RELATING TO A DISPUTE WILL BE TWELVE (12) MONTHS FROM THE FIRST ACCRUAL OF THE CAUSE OF ACTION, NOTWITHSTANDING ANY STATUTE TO THE CONTRARY. ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
The arbitration will be heard and decided no later than seven (7) months after the notice of arbitration is filed with the American Arbitration Association by one arbitrator. The arbitrator will 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 arbitrator deems appropriate. No witness or party may be required to waive any privilege recognized under California law. The hearing will not last longer than four (4) days unless all parties agree otherwise, with time to be divided equally between you and Company. The arbitrator will be an attorney, licensed to practice law in the State of California for no less than ten (10) years, with no less than five (5) years’ experience as an arbitrator. The parties and the arbitrator will 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 arbitrator, and the American Arbitration Association. The arbitrator must give full effect to the applicable law and to all of these Terms, and are specifically divested of any power to add to, subtract from, modify or alter any of the terms or conditions of these Terms, or to render decisions in derogation thereof. The arbitrator will 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 A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, 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. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator will issue written findings of fact and conclusions of law, the decisions of the arbitrator will be binding and conclusive upon all parties involved, and judgment upon any decision of the arbitrator may be entered in any federal or state courts with jurisdiction. You are solely responsible for your interactions with other users of the Service. Company reserves the right, but has no obligation, to monitor disputes between you and other users of the Service.
In any litigation, arbitration or other proceeding by which one party either seeks to enforce its rights under these Terms (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under these Terms, in addition to any other relief to which the prevailing party may be entitled, the prevailing party will be entitled to recover its reasonable attorney fees, costs and expenses to resolve the dispute and to enforce the final judgment.
You agree to comply with all local laws and rules regarding use of the Service. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of these Terms. The Service is controlled and operated by Company from its offices in the State of California, in the United States of America. Company makes no representation that any of the Service (including, without limitation, any products or services available on or through the Service) are available or appropriate for use outside of the United States of America. Your use of or access to the Service should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
U.S. Export Laws
This Service and/or products offered on the Service may be subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). Users shall not export or re-export, or allow the export or re-export of, the Service and/or products offered on the Service in violation of any U.S. Export Laws. None of the Service or products offered on the Service may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or any other denied parties lists under U.S. Export Laws. By using the Service, you agree to the foregoing and represent and warrant that you are not a national or resident of, located in, or under the control of, any restricted country; and you are not on any denied parties list; and you agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If you access the Service from other countries or jurisdictions, you do so on your own initiative and you are solely responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, you shall not access the Service. The obligations under this section shall survive any termination or expiration of these Terms or your use of the Service.
All software licensed pursuant to these Terms and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other users pursuant to these Terms.
If any provision(s) of these Terms, including without limitation, the warranty disclaimers and liability limitations set forth above, are found by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that prohibition is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void.
Section Titles; Survival
The section titles in these Terms are for convenience only and have no legal or contractual effect. Sections 3, 4(a), 5 and 9 through 22 of these Terms, as well as any payment obligations to Company, shall survive any termination of your account, your access to the Service, or these Terms.
These Terms and any other electronic documents, policies and guidelines incorporated herein shall be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable against any party hereto as a signed writing; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Any electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding shall, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.