HANDELSBETINGELSER – WEXER
Wexer is responsible for providing Licensee with Players, including Software for each such Player, and support necessary to run the Program. This includes:
Preparing each Player so that it is ready for playing theDigital Media Files on delivery. This includes setting up Software and creating Administrative user profile(s) for the Licensee; uploading Digital Media Files; and education in setting up the first virtual exercise schedule.
Support (via telephone, Skype, Google+ or equivalent) necessary to assist Licensee with the process of initially setting up Players in its facilities.
Training (via telephone, Skype, Google+ or equivalent) to help Licensee become proficient in the use and operation of Players and their software on day-to-day basis.
Support after the initial installation and training referenced above: See Appendix 3.
Delivering and ensuring that the Licensee has free access to all of the Wexer Digital Media Files including third-party Digital Media Files from Wexer Partners for which Licensee has paid Licensee fees.
The Program includes the Wexer Collection Content.The Wexer Collection Content may change from time-to-time at Wexer’s discretion. Wexer also may offer premium content from time-to-time at an additional fee.
ANY Agreement concerning a WEXER product sold by PEDAN will remain in effect for a minimum of four (4) consecutive calendar quarters from the date of this agreement. Thereafter, either Party may terminate this Agreement effective at the end of third full calendar month after the month in which such notice is given. Thus, for example, if notice were provided on May 15 of a given year, the termination would be effective as of August 31.
Each License that Licensee purchases under this Agreement will remain in effect for a minimum of four (4) consecutive calendar quarters from the first date where the License Fee is commenced for each Player. Thereafter, either Party may terminate such sublicense effective at the end of third full calendar month after the month in which such notice is given.
3. HARDWARE PURCHASE
All hardware purchases are made separate to the License Agreement and follow the last updated price list that Wexer will provide upon request. The Basic Player shall be warranted to operate correctly for a period of one (1) year from the date it is received by Licensee (the “Warranty Period”)
The On-Demand Player shall be warranted to operate correctly for a period of two (2) years from the date it is received by Licensee (the “Warranty Period”).
4. LICENSEE´S OBLIGATIONS
If screen and/or projector are not purchased from Wexer, Licensee is responsible for having correctly installed the screen and/or projector by the projected start date. The screen and/or projector used to display the Digital Media Filess must support a 16:9 format and a 1280×720 resolution.Licensee must ensure that the player has continuous access to the Internet, as changes and updates are provided online. If there is no access to the Internet, operating stability cannot be guaranteed and support cannot be provided. In daily operation, the Internet download speed is recommended to be at least 5 Megabits per second. Licensee is responsible for revising schedules as desired after the initial schedule is prepared, including when new Digital Media Files become available. Licensee shall be responsible for all acts and omissions of Administrative Users, and any act or omission by such Administrative Users, which, if undertaken by Licensee, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Licensee. Licensee shall take all reasonable steps to protect Wexer and its Partners from unauthorized access or use of the Program. Licensee shall use the Program in compliance with applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the parties and Program.
NOTE: Licensee’s failure to fulfill its Obligations above shall not relieve it of its obligation to pay any invoice.
5. PRODUCTS USAGE DATA
As between Wexer and Licensee, all right, title and interest in and to the Product Usage Data shall remain exclusively with Licensee. Notwithstanding the foregoing, Licensee hereby grants Wexer a worldwide, royalty-free, non-exclusive, non-transferable, non-sublicenseable right to: (i) use and disclose Product Usage Data as necessary to provide the Program to Licensees, including for purposes of billing and providing reports to Licensee and Wexer Partners; and (ii) use and disclose Product Usage Data, provided that such Product Usage Data is aggregated with that of Wexers other Licensees in a manner that does not identify a particular Licensee. Wexer will employ commercially reasonable measures to ensure that access to Product Usage Data is not provided to any third party unless such person: (a) has a need to know in order for Wexer to perform its obligations under this Agreement; and (b) has been advised of the restrictions on the use and disclosure of the Product Usage Data.
6. INTELLECTUAL PROPERTY RIGHTS
Licensee acquires a license/right of use to the Program for each Player purchased. Licensee does not receive any ownership rights to Wexer’s Digital Media Files, third-party Digital Media Files from Wexer Partners, or its Software. The License, i.e. the right to use Wexer’s Digital Media Files and Software, exists only during the period(s) for which the License Fee is paid. Nothing in this Agreement shall be construed to give Licensee a right to use, or otherwise obtain access to, any source code for the Software and related services. The physical location of each Player is at all times to be installed at Licensee’s Health and Fitness Facilities and never in a private/home setting without Wexer’s written consent. Neither the Digital Media Files, the Software nor Documentation may be copied, distributed, modified, adapted, altered, translated or create derivative works hereof without Wexer’s written permission. Wexer shall have the right to immediately suspend access to any Digital Media Files Wexer deems reasonably to prevent any harm to Wexer or a third party, or their businesses. Trailers are prepared for each exercise video. Licensee may use these when marketing the virtual training, for instance on the Internet. Trailers can be obtained from Wexer.
Licensee is responsible for paying any fees related to music rights in regards to Licensee’s use of the Digital Media Files at their Health and Fitness Facilities. Wexer cannot be held liable for the music rights payments in any way, and licensee will protect, indemnify, defend, save and hold harmless Wexer and its partners, officers, directors, employees, agents and representatives against all claims, liabilities, and costs to music rights. If Licensee uploads Own content or software to the Player, Licensee is solely responsible for acquiring the rights to use Own content as well as paying for royalty payments to any such right holder. Own content or software are defined as any content or software other than Wexer’s Digital Media Files, Software or third-party Digital Media Files from Wexer Partners.
Wexer cannot be held liable for the Licensee’s use of Own content or software in any way. If Licensee make use of Own content or software, Licensee will protect, indemnify, defend, save and hold harmless Wexer and its officers, directors, employees, agents and representatives against all claims, liabilities, losses, damages, government charges, and costs arising out of, caused by, or related to claims of infringement of any patents, trademarks, copyrights, or other intellectual property rights owned by a third party.
7. ASSIGNMENT AND TERMINATION
Licensee may not assign this Agreement or the rights therein to a third party without Wexer’s written consent. If either Party fails to perform its obligations under this Agreement, and fails to cure such breach within thirty (30) days after written notice of such breach, with the exception of force majeure events, the other Party may terminate this Agreement immediately. Wexer may, by written notice to Licensee, terminate the Agreement and declare all sums due and to become due thereunder immediately payable if: (i) Licensee breaches the Agreement, and fails to cure such breach within thirty (30) days after Wexer gives Licensee written notice of such breach, including without limitation failure to pay any Fees due pursuant to the Agreement; (ii) Licensee engages in any wilful unauthorized access, disclosure or use of Wexer’s Program or Wexer’s Confidential Information; or (iii) Licensee terminates its business activities or becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
Upon termination of the Agreement, Licensee will cease using the Program, including without limitation disabling any links on Licensee’s Website related to Wexer and its Program and Wexer shall no longer provide Licensee with access to the Program.
8. FORCE MAJURE
Neither Party shall be responsible to the other Party for non-compliance with this Agreement when that failure to comply is due to force majeure. Force majeure includes, but is not limited to natural disasters, fire, war, hostilities, invasion, acts of public enemies, riots, revolutions, prohibition, terrorism, epidemics, floods and typhoons, major technical and computer-related crashes, rules, orders or instructions from Government authorities or other causes, that the Party claiming force majeure has no control over. The Party affected by force majeure shall promptly notify the other Party on the details, including the expected duration and extension of the force majeure, and resume its obligations as soon as possible after the force majeure event has ceased. If the force majeure continues for more than one (1) month both Parties may terminate the Agreement immediately upon written notice to the other party.
Licensee shall indemnify Wexer, including its directors, officers, agents and employees (the “Indemnified Parties”) against any claim by any customer, client, or member of any of Licensee’s Health and Fitness Facilities (a “User”), against an Indemnified Party for personal or bodily injury arising out of or relating to such User’s viewing or use of Wexer’s Digital Media Files. Such indemnity obligation shall include reasonable attorneys’ fees incurred by Wexer in defending any such claim. Without limitation of the foregoing obligation to indemnify, Licensee shall use its reasonable best efforts to obtain, in advance, a written waiver of liability from each User expressly releasing Licensee and Wexer from any liability to such User for personal or bodily injury arising out of or relating to User’s viewing or use of Digital Media Files.
10. GOVERNING LAW AND JURISDICTION
Any dispute between the parties under this Agreement is governed by the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction for all matters arising under it.
11. SUPPORT DEFINITION
Wexer Holding, LLC, provides technical support for the Wexer Software. In the first instance, technical support is provided via e-mail. Where additional assistance is needed, technical support may be provided via telephone, Skype or a Skype equivalent. All support will be conducted in English, unless otherwise agreed in writing.
“Support” includes 1st, 2nd and 3rd level support. It is intended to assist Licensee with issues related to the Wexer Software and malfunction of hardware delivered by Wexer.
Wexer will first determine whether the Licensee’s issue is related to the Wexer Software, the hardware or third-party software/equipment. Only issues relating to the Wexer Software and the malfunction of hardware delivered by Wexer are covered. If it is determined that the issue is not related to the Wexer Software or malfunction of hardware delivered by Wexer, Wexer will notify Licensee. If Licensee still wishes for Wexer to provide support after this notification, it will result in additional charges from Wexer that are the responsibility of Licensee. Examples include installation, network configuration, Windows Operating System configuration, technical guidance and support regarding Licensee’s Own Software, third-party hardware and equipment setup. The rate for support that is not included under this agreement and it is calculated in increments of 15 minutes, or any portion thereof.
Licensee must assign one or more individuals who have been trained in the use and maintenance of the Wexer Software as Support Liaisons. Except under extraordinary circumstances, all requests for technical support must be made by a Support Liaison.
When contacting Wexer for technical support, the Support Liaison must ensure that the Wexer Virtual system is powered on and has access to the Internet. Before contacting Wexer, a system reboot should be performed.
If it is not possible to fix an issue via Level 1 support, Wexer will escalate the issue to Level 2 support. As part of this level of support, all issues are handled by an Wexer software support expert. Most common problems can be solved via either Level 1 or Level 2 support. However in some cases, the Level 2 support expert may determine that the problem is a systematic software error. It may also be that the software expert cannot definitively classify the problem as a software error, however they cannot fix it. In these cases, the issue is escalated to Level 3 support.
In the event of a Wexer Player failure during its Warranty Period, Wexer will ship new Player(s). It shall be Licensees obligation to ship the defective hardware to Wexer at its own expense as well as new hardware is shipped at the Licensees expense. This warranty applies only if the Player is treated properly and not subjected to vandalism or neglect. If: (1) the Player is not returned within ten business days; (2) it is determined that the Player failure was caused by vandalism or neglect; or (3) the Player is older than the Warranty Period, Wexer will invoice Licensee for any replacement Player it provides.
User education and any questions about using the Wexer Software are not included in the support agreement.