User Participation Agreement

This User Participation Agreement (“Agreement”) is entered into by and between Bande Fitness LLC, a Delaware limited liability company, for itself and its subsidiaries and affiliates (“BANDE”), and the other party identified below (“You” or “Your”). If You agree to this Agreement on behalf of a business, you represent and warrant that you have authority to bind that business to this Agreement, and references to “You” and “Your” herein refer to that business. By signing below, You agree to the terms and conditions of this Agreement. This Agreement governs Your participation in BANDE user experience activities, including but not limited to participating in surveys, use and evaluation of products or services, and/or other activities in which You will provide information about Your experiences to BANDE (“Participation”.)

  1. In connection with Your Participation, You may receive certain Confidential Information (as defined below) of BANDE and/or BANDE’s partners. BANDE provides such Confidential Information to You only subject to the terms set forth in this Agreement.
  2. “Confidential Information” means all non-public technical and non-technical information of BANDE and/or its licensors or partners (including but not limited to software, including Platform as defined below , hardware, product information, plans and pricing, financials, marketing plans, business strategies, customer information, data, research and development, APIs, specifications, designs, proprietary formulae and proprietary algorithms). You agree to (a) hold the Confidential Information in confidence; (b) use such Confidential Information only for the Survey; and (c) to the extent applicable, not create other works from or disassemble any such Confidential Information unless otherwise specified in writing by BANDE. Your obligations hereunder will continue until all Confidential Information falls within the public domain.
  3. The restrictions in Section B above will not apply to Confidential Information to the extent that You can provide written documentation to show it (a) was in the public domain at the time of disclosure; (b) became publicly available after disclosure to You without breach of this Agreement; (c) was lawfully received by You from a third party without such restrictions; (d) was known to You prior to Your receipt from BANDE; (e) was independently developed by You without reference to such Confidential Information; or (f) is required to be disclosed by You pursuant to judicial order or other compulsion of law, provided that You will provide to BANDE prompt notice of such order and comply with any protective order imposed on such disclosure.
  4. You acknowledge and agree that BANDE is not required to disclose any particular information to You and any disclosure pursuant to this Agreement is entirely voluntary and does not, in itself: (a) create warranties or representations of any kind; (b) create a commitment as to any product, service, or prospective business relationship; (c) constitute solicitation of any business or the incurring of any obligation not specified herein; or (d) constitute a license or transfer of ownership under any intellectual property rights of BANDE or its licensors. In addition, the terms of this Agreement are Confidential Information and as such, may not be disclosed by You without BANDE’s prior written consent.
  5. In the course of Your Participation, You may be requested to provide comments, feedback, ideas, reports, suggestions, data or other information to BANDE (collectively “Feedback”). By submitting Feedback to BANDE, You acknowledge and agree that: (a) Your Feedback does not contain confidential or proprietary information; (b) BANDE is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) BANDE shall be entitled to use or disclose (or choose not to use or disclose) such Feedback for any purpose, in any way, in any media worldwide; (d) BANDE may have something similar to the Feedback already under consideration or in development; (e) Your Feedback automatically becomes the property of BANDE without any obligation of BANDE to You; and (f) You are not entitled to any compensation or reimbursement of any kind from BANDE under any circumstances. You further acknowledge and agree that all quotations, photos, and/or video that may contain Your likeness are the exclusive property of BANDE and may be used by BANDE in BANDE’s sole discretion for any reason without any compensation or reimbursement of any kind from BANDE to You under any circumstances.
  6. Except as otherwise provided by this Agreement, any personally identifiable data collected by BANDE during the study shall be used by BANDE in accordance with BANDE’s general privacy policy (available at www.bande.com/privacy-policy ) incorporated into this Agreement by reference.
  7. Platform Software, Applications and Services. If BANDE provides You with software, mobile applications, or services which are made available, or otherwise not publicly available, and which may include associated media, printed materials, and online or electronic documentation (“Platform”), You agree that, in addition to the other terms in this Agreement, the following terms will govern Your use of such Platform:
    1. License. During the term of this license and subject to Your compliance with the terms and conditions of this Agreement, BANDE grants You a non-exclusive, non-transferable, non-sublicensable, royalty-free license to install and use the Platform only: (a) in object code form; (b) for internal use; and (c) to evaluate the Platform and to provide Feedback to BANDE.
    2. Restrictions. The license granted in Section G.1 above is granted solely to You and not to any parent, subsidiary or affiliate of Yours. You acknowledge that the Platform and its structure, sequence, organization and source code contain valuable trade secrets of BANDE and its suppliers. Accordingly, You agree that You will not, nor will You permit anyone else to: (a) modify, adapt, alter, translate or create derivative works from the Platform; (b) merge the Platform with other software; (c) sublicense, lease, rent, loan or act as a service provider using the Platform, or otherwise transfer the Platform to any third party; (d) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Platform; (e) remove, obscure or alter BANDE’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the Platform; or (f) otherwise exercise rights to the Platform except as expressly allowed under Section G.1 above. You are responsible for any use of the Platform under the credentials supplied by BANDE and You agree to protect such credentials and to notify BANDE immediately of any unauthorized use. You acknowledge and agree that the Platform is Confidential Information of BANDE as defined herein.
    3. Ownership. The Platform, and all worldwide intellectual property rights and proprietary rights relating thereto or embodied therein, are the exclusive property of BANDE and its suppliers. BANDE reserves all rights in and to the Platform not expressly granted to You in Section G.1, and no licenses or rights are granted by implication, estoppel or otherwise.
    4. Platform may contain links to or enable access to third party content, services and/or websites (“Third Party Materials”). You acknowledge and agree that BANDE bears no responsibility or liability to You for any Third Party Materials.
    5. In addition to Feedback which You provide to BANDE as described in Section E above, BANDE may automatically collect certain data from You about Your use of the Platform. You acknowledge and agree that any such data collected constitutes “Feedback” as defined in Section E.
    6. Updates. The terms of this Agreement will govern any upgrades or updates provided by BANDE to any Platform, provided such upgrades or updates are also Platform as defined herein.
    7. BANDE has no obligation under this Agreement to provide any technical support for the Platform.
    8. Termination. BANDE may terminate this license as to the Platform at any time upon written notice to You. In addition, if this Agreement is terminated by either BANDE or You, this license will automatically terminate.
    9. BANDE reserves the right to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability, documentation or any other characteristics of any future commercial release of a Platform update.
    10. You acknowledge and agree that the Platform may contain bugs, errors and other problems that could cause system failures and other damages. Consequently, the Platform is provided “AS IS” and with all faults. BANDE, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE PLATFORM, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. THE PLATFORM IS NOT INTENDED FOR ANY PRODUCTIVE USE INCLUDING, WITHOUT LIMITATION, ANY USE IN CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT OR MEDICAL APPLICATION OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE OR MASS DESTRUCTION, AND LICENSEE AGREES THAT BANDE AND ITS SUPPLIERS SHALL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE PLATFORM.
    11. Platform is not available in all languages or in all countries. BANDE makes no representation that Platform is appropriate or available for use in any location, nor that the Platform is available for use by individuals with certain disabilities.
    12. You shall comply with all laws, regulations, rules, ordinances and orders applicable to use of the Platform. Without limiting the foregoing, You shall comply with the relevant export administration and control laws and regulations, as may be amended from time to time, including, without limitation, the United States Export Administration Act, to ensure that the Platform is not shipped, transferred or exported (directly or indirectly) in violation of U.S. law.
    13. The Platform is a “commercial item” 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Platform with only those rights set forth therein.
    14. If the Platform is accompanied by a separate license agreement, the terms of this Agreement shall supersede such accompanying terms to the extent of any inconsistency.
  8. IN NO EVENT WILL BANDE OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE PLATFORM OR THIS AGREEMENT, EVEN IF BANDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BANDE’S AND ITS SUPPLIERS’ TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). YOU ACKNOWLEDGE THAT THE LICENSE FEES (OR LACK THEREOF) FOR THE PLATFORM, IF ANY, REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT BANDE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
  9. This Agreement is the parties’ entire agreement on this topic, superseding any prior or contemporaneous agreements. Any amendments must be in writing. You may not assign or delegate, directly or indirectly, by operation of law, change of control or otherwise, this Agreement or any of its rights or obligations under this Agreement to any third party, and any attempt to do so will be void and of no effect.
  10. You agree that BANDE has no obligation about any forward-looking statement made during the term of this Agreement. Forward-looking statements are statements regarding future BANDE events, product offerings, product performance, customer uses, or the expected financial performance of BANDE. Any such statements reflect current expectations and estimates based on factors currently known and actual events or results could differ materially. BANDE does not assume any obligation to update any forward-looking statements made during the term of this Agreement. In addition, any information about BANDE’s roadmap outlines BANDE’s general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment.
  11. As already noted, You are not entitled to any compensation for your Participation; notwithstanding the foregoing, BANDE reserves the right from time to time in its sole and absolute discretion to provide a participant with a gratuity for Participation. Where BANDE elects to do so, any taxes due thereon or for any Platform provided to it shall be Your responsibility, including but not limited to sales, use, value added, excise or similar tax attributable to this Agreement, exclusive of taxes based on BANDE’s net income.
  12. This Agreement cannot be cancelled, assigned or modified except by the written agreement of both parties. This Agreement will be governed and construed using Delaware law, without giving effect to Delaware conflict of law provisions or to constructive presumptions favoring either party. Failure to enforce any of provisions of this Agreement will not constitute a waiver. All actions arising out of or relating to this Agreement will be heard and determined exclusively by the U.S. District Court located in the State of Delaware.
  13. You acknowledge that unauthorized disclosure of Confidential Information will diminish the value of the proprietary interests that are the subject of this Agreement. Accordingly, in addition to any other remedies and damages available at law or equity, You acknowledge and agree that BANDE may immediately seek enforcement of this Agreement by means of specific performance or injunction, without any requirement to post a bond or other security.
  14. This Agreement is effective as of the date accepted by BASNDE. This Agreement may be terminated immediately by either party upon written notice to the other party, provided however that the provisions of Sections B, C, D, E, G2 – G14, H, I, J, K, L, M, and N will continue to apply regardless of such termination.