End User License Agreement
END USER LICENSE AGREEMENT
The terms and conditions of the following End User License Agreement (“EULA”) apply to govern your access to and use of software of any kind embedded in your Myx Fitness tablet (“Product Firmware”) made available by Myx Fitness, LLC (“Myx Fitness,” “we,” “our,” or “us”), along with the terms and conditions of the Myx Fitness Terms of Service (https://www.myxfitness.com/terems-of-service) (the “Terms”) applicable to your access and use of the Product Firmware or that are otherwise generally applicable, including, without limitation, the Eligibility, No Sales to Children, Privacy, No Warranty, Safety Warnings, Limitation of Liability and General sections of the Terms. Please read all of these terms and conditions carefully. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR YOUR ACCEPTANCE OF THE TERMS, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS EULA, CONCERNING ANY SOFTWARE THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF MYX FITNESS’S SOFTWARE. AS DESCRIBED BELOW, YOU HEREBY CONSENT TO AUTOMATIC SOFTWARE UPDATES OF THE PRODUCT FIRMWARE. IF YOU DO NOT AGREE TO SUCH UPDATES, YOU SHOULD NOT USE THE PRODUCT FIRMWARE. THE SAFETY WARNINGS SECTION OF THE TERMS DESCRIBES IMPORTANT LIMITATIONS OF THE PRODUCT FIRMWARE AND RELATED SERVICES, PARTICULARLY IN CONNECTION WITH PERSONAL SAFETY. PLEASE READ THESE DISCLOSURES CAREFULLY, AS BY AGREEING TO THE TERMS YOU ARE ACKNOWLEDGING AND ACCEPTING THEM.
Subject to the terms and conditions of this EULA, Myx Fitness grants to you a limited, non-exclusive, revocable, non-transferable, non-sublicenseable, right to access and use one copy of the Product Firmware, in executable form, solely as embedded in your Myx Fitness tablet you own or control, and solely in connection with your Myx Fitness tablet, for your personal, non-commercial use.
You may not use the Product Firmware except as expressly permitted in this EULA. You will not, directly or indirectly:
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Product Firmware or any part thereof or otherwise use (including making any copies of) the Product Firmware beyond the scope of the license granted under Section 1 (License);
- provide any other person, including any subcontractor, independent contractor, affiliate or service provider of yours, with access to or use of the Product Firmware;
- combine the Product Firmware or any part thereof with, or incorporate the Product Firmware or any part thereof in, any other programs;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Product Firmware, including any copy thereof;
- copy the Product Firmware, in whole or in part;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Product Firmware, or any features or functionality of the Product Firmware, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
- use the Product Firmware in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including (A) power generation systems; (B) aircraft navigation or communications systems, air traffic control systems, or any other transport management systems; (C) safety‑critical applications, including medical or life support systems, vehicle operation applications, or any police, fire, or other safety response systems; and (D) military or aerospace applications, weapons systems, or environments;
- use the Product Firmware in violation of any law, regulation, or rule; or
- use the Product Firmware for purposes of competitive analysis on the Product Firmware, the development of a competing software product or service, or any other purpose that is to Myx Fitness's commercial disadvantage.
You acknowledge that the Product Firmware contains trade secrets of Myx Fitness, and, in order to protect such trade secrets, you agree not to disassemble, decompile, decode or reverse engineer, or otherwise attempt to derive or gain access to the source code of the Product Firmware or any part thereof nor permit any third party to do so, except to the extent such restrictions are prohibited by law. You are responsible and liable for all uses of the Product Firmware through access thereto provided by you, either directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Product Firmware by any person to whom you may provide access to or use of the Product Firmware, whether such access or use is permitted by or in violation of this EULA. The Product Firmware may contain technological copy protection or other security features designed to prevent unauthorized use of the Product Firmware, including features to protect against any use of the Product Firmware that is prohibited under this Section. You will not, and will not attempt to remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
- Maintenance and Support
Myx Fitness may from time to time provide maintenance and support services, which will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Myx Fitness makes generally available free of charge to all licensees of the Product Firmware then entitled to maintenance and support services. These Updates may be automatically installed without providing any additional notice or receiving any additional consent. You consent to each such Update. If you do not want an Update, your remedy is to stop using your Myx tablet. If you do not cease using your Myx tablet, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use your Myx tablet and you agree to promptly install all Updates that Myx Fitness makes available. Myx Fitness may develop and provide Updates in its sole discretion, and you agree that Myx Fitness has no obligation to develop any Updates at all or for particular issues. You further agree that all Updates will be deemed Product Firmware, all subject to the terms and conditions of this EULA. Myx Fitness has no obligations to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Product Firmware that Myx Fitness may issue as a separate or new product, and Myx Fitness may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion. Myx Fitness has no obligation to provide maintenance and support services, including Updates:
- for any but the most current version or release of the Product Firmware;
- for any copy of Product Firmware for which all previously issued Updates have not been installed;
- if you are in breach under this EULA; or
- for any Product Firmware that has been modified other than by or with the express authorization of Myx Fitness, or that is being used with any hardware, software, configuration, or operating system not specified in the documentation for the Product Firmware (if any), or expressly authorized by Myx Fitness in writing.
- Intellectual Property
Myx Fitness and its licensors are and will remain the sole and exclusive owners of all copyrights, trade secrets, and all other intellectual property rights and proprietary rights in and to the Product Firmware and any related specifications, instructions, documentation or other materials. You do not and will not have or acquire any ownership of these intellectual property rights or other proprietary rights in or to the Product Firmware. Myx Fitness and its licensors reserve all rights in and to the Product Firmware not expressly granted to you in this EULA. The Product Firmware (and all copies thereof) is licensed to you, and not sold, under this EULA. There are no implied licenses under this EULA.
For purposes of this EULA, “Confidential Information” will mean the Product Firmware and any and all other information disclosed to you that Myx Fitness deems to be confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate:
- is or becomes generally known to the public through no fault of yours;
- is previously known to you or disclosed to you by a third party without restriction on disclosure; or
- was independently developed by you without access to the Confidential Information.
You will protect and maintain the confidentiality of the Confidential Information at all times. You will not disclose, disseminate or otherwise publish or communicate Confidential Information to any person or other third party without the prior written consent of Myx Fitness. You will not use any Confidential Information other than in the course of exercising your license as permitted hereunder. You will notify Myx Fitness in writing immediately upon discovery of any unauthorized access, use, or disclosure of Confidential Information or any other breach of this EULA, and you will reasonably cooperate with Myx Fitness to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally required to disclose any of the Confidential Information, then, prior to such disclosure, you will:
- immediately notify Myx Fitness prior to such disclosure to allow Myx Fitness an opportunity to contest the disclosure;
- assert the privileged and confidential nature of the Confidential Information; and
- cooperate fully with Myx Fitness in protecting any such disclosure and/or obtaining a protective order.
In the event such protection is not obtained, you will disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements. You acknowledge that the Product Firmware contains valuable Confidential Information of Myx Fitness, including, without limitation, trade secrets and other proprietary information, and that any breach of this Section 11 (Confidentiality) of this EULA would constitute immediate, irreparable harm to Myx Fitness for which monetary damages would be an inadequate remedy. In addition to all other remedies, Myx Fitness will be entitled to obtain specific performance and injunctive relief as a remedy for and to protect against any such breach of the EULA. If Myx Fitness should seek an injunction hereunder, you hereby waive any requirement that Myx Fitness submit proof of the economic value of any Confidential Information or post a bond or any other form of security.
- Term and Termination
This EULA and your right to use the Product Firmware may be terminated by you or by Myx Fitness at any time upon written notice. This EULA automatically terminates if you fail to comply with its terms and conditions or if we terminate or suspend your access to the Service pursuant to the Terms. Immediately upon termination, the license granted in this EULA will terminate and you will stop all use of the Product Firmware and return or destroy all copies of the Product Firmware in your possession, custody or control and if requested you will certify to Myx Fitness in writing that such return or destruction has occurred. The terms in Section 2 (Restrictions) through Section 7 (U.S. Government Rights) of this EULA as well as the Limitation of Liability and General sections of the Terms applicable to the Product Firmware will remain in effect after any such termination.
- S. Government Rights
The Product Firmware is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are the U.S. Government or any contractor thereof, you will receive only those rights with respect to the Product Firmware as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.