LEGAL
Early Adopter Agreement
This Early Adopter Addendum (“Addendum”) is entered into between Jonas Fitness, Inc. (“Supplier”), and early adopter participants (“Customer” and together with Supplier, collectively, the “Parties” and individually, each a Party”).
WHEREAS, Supplier and Customer are parties to an existing Member Services Agreement (the “MSA”), which governs Customer’s access to and use of Supplier’s software products and services;
AND WHEREAS, Supplier has developed certain new, pre-release, beta, pilot, experimental, or limited-availability software products, features, or functionalities (collectively, the “Beta Services”) that are not yet generally available to Supplier’s customers;
AND WHEREAS, Supplier desires to provide Customer with limited access to certain Beta Services for evaluation, testing, and feedback purposes, subject to the terms and conditions set forth in this Addendum and the MSA.
AND WHEREAS, Customer desires to participate as an early adopter of such Beta Services in order to evaluate their suitability for Customer’s internal business operations and to provide feedback to Supplier;
AND WHEREAS, the Parties acknowledge and agree that the Beta Services are under development, may contain defects, errors, or incomplete features, may be modified or discontinued at any time, and may not become generally available; and
AND WHEREAS, the Parties intend that this Addendum supplement the MSA solely with respect to Customer’s access to and use of the Beta Services, and that in the event of any conflict between this Addendum and the MSA, the terms of this Addendum shall control solely with respect to the Beta Services.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Parties agree as follows:
1.1. Subject to the terms and conditions of this Agreement, Supplier hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable license during Term (defined herein) to: (a) use the Beta Services in object code format, in production environments for Customer’s internal evaluation purposes and to provide Feedback (as defined herein) to Supplier, and (b) use the Supplier’s user manuals, handbooks, and installation guides relating to the Beta Services provided by the Supplier to Customer either electronically or in hard copy form solely for Customer’s internal evaluation purposes in connection with Customer’s use of the Beta Services. Customer will not use the Beta Services for any purpose other than: (a) to provide Feedback to Customer about the Beta Services; and/or (b) to evaluate and test such Beta Services internally in connection with assessing whether Customer desires to enter into a commercial license agreement with Supplier for the Beta Services. The Parties acknowledge and agree that this Agreement does not provide a commercial license and Customer’s use of the Beta Services after the Term is subject to the Parties’ entering into and executing a separate commercial license agreement.
1.2. Customer agrees to use the Beta Services in accordance with the terms of this Agreement for the purpose of installing, implementing, and testing the release(s), product(s), application(s), modification(s), and/or enhancement(s) specified as Beta Services and validating the results of using the Beta Services in accordance with the instructions and requests received by the Supplier.
1.3. The Customer acknowledges and agrees that the purpose of this Agreement is to enable Supplier, in its sole discretion, to release a version of the Beta Services that is made generally available to Supplier’s customers by Supplier at a future date (the “Purpose”). Customer and Supplier acknowledge and agree that the Beta Services provided under this Agreement are a beta test version that may contain bugs, defects and errors and that the Beta Services are not expected nor warranted to function fully upon installation and upon access being granted to the Customer.
The term of this Agreement will begin as of the Effective Date and continue until terminated in accordance with Section 11 (the “Term”):
3.1. Cooperation by Customer. Customer acknowledges that the success of the Beta Services shall require the active participation and collaboration of Customer and its employees and agents and agrees to act reasonably and co-operate fully with the Supplier to achieve the Purpose.
3.2. Testing and Feeback. Customer agrees that while the Customer continues to use the Beta Services in accordance with the terms of this Agreement that it shall provide the following:
a. Customer agrees to test the Beta Services, report defects, test the fixes and otherwise comply with any other requirements in this Section 5. Customer shall:
i. provide a test environment on which to load the Beta Services and perform all tasks related to testing the Beta Services as set out in any correspondence or discussions with the Supplier.
ii. provide Supplier with written reports/periodic reports as reasonably requested by Supplier (“Feedback”), which fully describe:
1. recommendations for the scope and functionalities of the new features and enhancements.
2. the results of Customer’s use and evaluation of the Beta Services, including any defects found in the Beta Services and any information necessary for Supplier to evaluate such defects.
3. any recommendations for changes or modifications to the Beta Services.
4. any other issues or comments regarding the features, functionality or use of the Beta Services, including but not limited to providing constructive review and feedback of functionality and performance of the Beta Services, training, documentation, and services provided by Supplier.
b. appoint one (1) dedicated contact and a dedicated supporting team to: (A) be available during use of the Beta Services by the Customer and to attend training, including but not limited to the webcasts, conference calls, and other meetings between the Parties, and (B) comply with all other specified reasonable instructions provided by Suppliers at the time of the Beta Services distribution as it pertains to the scope of the Beta Services testing; and
c. comply with (A) all minimum software requirements; and (B) all minimum hardware and operating system requirements as necessary for the purposes of this Agreement or otherwise as provided in any correspondence or discussions with the Supplier.
3.3. Feedback. All Feedback will be provided in a timely manner, but in any event, no later than one week after a request for Feedback is made by the Supplier.
3.4. Access to Beta Services. Customer shall allow Supplier, at mutually agreed upon times, reasonable access to the Beta Services on Customer’s system or in the hosted environment for the purpose of using, testing, modifying, updating, evaluating, demonstrating and correcting the Beta Services.
3.5. No Obligation to Support Beta Services. Except where Supplier elects, in its sole discretion, to provide support with respect to the Beta Services, notwithstanding anything contained in this Agreement Supplier shall have no obligation whatsoever to correct any bugs, defects or errors in the Beta Services or to otherwise support or maintain the Beta Services.
3.6. Users. The Customer is responsible for: (i) the actions of any of its employees, agents or other users (“Users”) who access and use the Beta Services in accordance with this Agreement; (ii) ensuring that Users agree to any further terms and conditions as may be provided by Supplier from time to time for Users; and (iii) informing Supplier of any information about Users’ actions that may affect either the Beta Services or third party data contained in or used by the Beta Services, or Supplier’s ability to provide the Beta Services as contemplated by this Agreement.
3.7. Compliance with Laws. Customer represents and warrants to Supplier that it and its Users will at all times be in compliance with all applicable local, state, provincial, federal and international laws including but not limited to those laws regarding restrictions on exports, defamation, libel, harm to reputation, invasion of privacy, misuse or failure to protect personal information, violation of secrecy, confidentiality, unfair competition and other situations which could generate liability.
4.1. Prohibited Uses. Customer acknowledges and agrees that it will not:
a. reverse engineer, decompile, translate or otherwise attempt to derive, or permit or help others to derive the source code relating to all or any part of the Beta Services, or attempt to otherwise convert or alter the Beta Services into human readable code, except to the extent applicable law expressly prohibits the foregoing restriction.
b. access the Beta Services or permit any agents access to the Beta Services in order to (i) build a competitive product or service; (ii) copy any features, functionality or graphics of the Beta Services; or (iii) knowingly allow access to any competitor of Supplier.
c. transmit, upload, post, distribute, store or otherwise publish, through use of the Beta Services, any data, material or Confidential Information (as defined herein) that: (i) contains a software virus, Trojan horse, worm or other harmful or deleterious computer code, files or programs that may adversely affect any hardware or software, or that intercepts or misappropriates any data or information, and otherwise affects the performance of the third party service provider; (ii) violates the terms of the Agreement or any term incorporated by reference herein; (iii) infringes or otherwise violates any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party; (iv) violates any law, statute, ordinance or regulation; or (v) includes unsolicited bulk e-mails, advertisements or solicitations;
d. interfere with or disrupt services or networks connected to the system used to provide the Beta Services and shall not attempt to gain unauthorized access to the Beta Services or such services or networks connected to the system used to provide the Beta Services; or
e. provide the results of using the Beta Services for the purposes of monitoring its availability, performance, functionality, benchmarking or competitive analysis to any third party.
4.2. Right of Supplier. In addition to and without limiting the foregoing, Supplier reserves the right to refuse to post or to remove in whole or in part any information or materials provided or submitted by or on behalf of Customer in connection with its use of the Beta Services that Supplier determines, in its reasonable discretion, are either in violation of this Agreement or pose any risk of any kind or nature to Supplier or its service provider’s network, business or other customers.
Supplier, its service providers and licensors are and shall at all times remain the owner of all copyright, trademarks, trade secrets, patents and any other intellectual property rights in and to the Beta Services and related documentation, materials, logos, names and other support materials provided pursuant to the terms of this Agreement. Customer shall acquire no right whatsoever to all or any part of the Beta Services, or underlying software except the limited right to access and use the Beta Services in accordance with the terms of this Agreement and Supplier expressly reserves all rights not expressly granted to Customer. Customer must fully reproduce any copyright or other notice marked on any part of the documentation or other materials on all authorized copies and must not alter or remove any such copyright or other notice. Customer hereby grants to Supplier a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Beta Services any Feedback, including any suggestions, ideas, enhancement requests, recommendations or other feedback, provided by Customer relating to the operation of the Beta Services.
As is. The Customer acknowledges and agrees that the Beta Services are being provided on an “As Is” or “As Available” basis. The Beta Services may contain bugs, errors, and other problems. THE CUSTOMER ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH ITS USE OF THE BETA SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF CUSTOMER DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SUPPLIER MAKES NO WARRANTY THAT ANY OF THE SERVICES WILL MEET CUSTOMERS REQUIREMENTS AND/OR THAT THE BETA SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. SUPPLIER DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE BETA SERVICES OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE BETA SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF ANY OF THE BETA SERVICES IS DONE AT THEIR SOLE RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM AND/OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM SUPPLIER OR THROUGH THE BETA SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
7.1. LIMITATION OF LIABILITY. IN NO EVENT SHALL SUPPLIER OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, AND/OR INCIDENTAL LOSS, EXEMPLARY OF OTHER DAMAGES RELATED TO THE BETA SERVICES WHETHER DIRECT OR INDIRECT, INCLUDING (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, AND (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), VIOLATION OF STATUTE, OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER’S MAXIMUM LIABILITY HEREUNDER IS LIMITED TO $100.00.
7.2. Indemnification. Customer agree to hold harmless and indemnify Supplier, and its affiliates and subsidiaries, officers, directors, agents, and employees from and against any third party claim arising from or in any way related to (i) Customer’s breach of this Agreement, (ii) Customer’s use of the Beta Services, or (iii) Customer’s violation of applicable laws, rules or regulations in connection with the Beta Services.
8.1. Confidential Information. Customer acknowledges that, in the course of using the Beta Services and performing its duties under this Agreement, it may obtain information relating to the Beta Services and/or Supplier (“Confidential Information”). Such Confidential Information shall belong solely to Supplier and includes, but is not limited to, the existence of the Beta Services, the features and mode of operation thereof, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. Customer shall not during the term of this Agreement or thereafter, use (except as expressly authorized by this Agreement) or disclose Confidential Information without the prior written consent of Supplier unless such Confidential Information becomes part of the public domain without breach of this Agreement by Customer, its officers, directors, employees or agents. Customer agrees to take reasonable measures to maintain the Confidential Information and Beta Services in strict confidence and to prevent any unauthorized use thereof. Customer will not disclose the Confidential Information to any third parties, except for its employees or agents who require Confidential Information in order to carry out the Customer’s obligations under this Agreement and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Agreement;; Customer is responsible for any noncompliance by its employees and any such noncompliance shall be deemed a breach of this Agreement as though such employees were parties hereto.
8.2. Assignment of Rights. Customer hereby assigns to Supplier any invention, work of authorship, mask work, idea, information, feedback or know-how (whether or not patentable) that is conceived, learned or reduced to practice in the course of performance under this Agreement and any patent rights, copyrights (including moral rights; provided that any non-assignable moral rights are waived to the extent permitted by law), trade secret rights, mask work rights, sui generis database rights and all other intellectual and industrial property rights of any sort with respect thereto. Customer agrees to take any action reasonably requested by Supplier to evidence, perfect, obtain, maintain, enforce or defend the foregoing.
9.1. Termination by Parties. Either Party may terminate this Agreement:
a. at any time, without cause, upon thirty (30) days prior written notice.
b. by written notice to the other Party in the event that (i) such other Party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice; or
c. immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.2. Automatic Termination. Unless terminated in accordance with Section 11.1, this Agreement will apply to the Beta Services until the general release of the Beta Service to the public, or its discontinuation.
9.3. Suspension. Supplier may suspend the Beta Services: (a) if Supplier considers it necessary to prevent or terminate any actual or suspected use of the Beta Services in violation of this Agreement; or (b) if there is a threat to the security and integrity of the hosted environment for the Beta Services. Suspension of the Beta Services will be without prejudice to any rights or liabilities accruing before or during the suspension, including Customer’s obligation to pay fees.
9.4. Effect of Termination. Upon expiration or termination of this Agreement for any reason: (i) any fees, expenses and other amounts accrued and owed to Supplier prior to termination or expiration of this Agreement will be immediately due and payable; (ii) all preferred pricing and discounts on any Beta Services provided by the Supplier to the Customer will terminate; (iii) all Customer access to the Beta Services and licenses granted will immediately terminate and Customer shall no longer use the Beta Services; (iv) Supplier will have no obligation to maintain any Customer content stored on behalf of Customer or to forward any Customer Content to any third party; (v) at Supplier’s written request, Customer shall certify to Supplier the return or destruction of all Confidential Information; (vi) and within a commercially-reasonable time frame, Supplier shall delete any Customer content of Customer stored within the Beta Services.
10.1. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of Canada and the province of Ontario, each as applicable.
10.2. Further Assurances. Each Party shall cooperate with the other Party, both during and after the Term, in the procurement and maintenance of such other party’s rights to intellectual property created hereunder.
10.3. Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either Party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
10.4. Headings. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
10.5. Assignment. Customer may not assign its rights, delegate its duties, or subcontract its rights, duties, and obligations without the prior written consent of Supplier, and any attempted assignment without such consent shall be void. The Parties’ rights and obligations will bind and inure to the benefit of their respective successors and permitted assigns.
10.6. Independent Contractors. The Parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither Party shall have the power to obligate or bind the other Party. In addition, there are no third-party beneficiaries to this Agreement.
10.7. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
10.8. Entire Agreement. This Agreement sets forth the entire understanding and agreement of the Parties and supersedes and terminates any and all oral or written agreements or understanding between the Parties as to the subject matter of this Agreement. This Agreement may be modified or amended only by a writing signed by both Parties. Neither Party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
By agreeing to participate as an early adopter and accessing the Compete Atlas software, AI tools, or other features being tested within the scope of Jonas Fitness, Inc., both the Customer and the Supplier agree to comply with the terms outlined in this Agreement.