Rev. January 23, 2017
This End User License Agreement (this "EULA") is a binding legal agreement between you and New Balance Athletics, Inc. ("New Balance"). By downloading, installing, or using this mobile application for Android, iOS or any other mobile platform in which it is made available (the "Software"), you agree to be bound by the terms of this EULA. If you do not agree to this EULA, do not check the box accepting and agreeing to be bound by this EULA and do not use the Software. You agree that the installation or use of the Software signifies that you have read, understood, and agree to be bound by this EULA.
The Software is provided to you under this EULA solely for your private, non-commercial use. When using the Software or the New Balance content, information, membership functionality, MyNB features or any other services (collectively, the “New Balance Service”), you will be subject to any additional terms applicable to such services that may be posted on https://www.newbalance.com from time to time, including, without limitation, the MyNB Terms located at https://www.newbalance.com/loyalty_terms_conditions.html, which incorporates by reference
The Level and Reward Page located at https://www.newbalance.com/id/loyalty-info.html;
The New Balance Terms and Conditions located at www.newbalance.com/terms.html; and
All such terms are hereby incorporated by reference into this EULA.
1. Description of Software
The Software is a downloadable software application that enables you to access New Balance functionality directly from your Android, iPhone, iPad or other mobile device supported by New Balance (each, a “Device”). You may download the Software whether or not you use the New Balance Service, but you must associate it with your New Balance account to enable its full
2. Description of Software
Subject to the terms and conditions of this EULA, New Balance hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, personal license to:
Use the Software for your own personal use;
Install the Software on only one Device; and
Make one copy of the Software in any machine readable form solely for back-up purposes, provided you reproduce the Software in its original form and with all proprietary notices on the back-up copy.
For clarity, the foregoing is not intended to prohibit you from installing and backing up the Software for another Device on which you also agreed to this EULA. Each instance of this EULA that you agree to grants you the aforementioned rights in connection with the installation, use and back-up of one copy of the Software on one Device.
Title, ownership and all rights (including, without limitation, all intellectual property rights) in and to the Software and the New Balance Service shall remain with New Balance. Except for those rights expressly granted in this EULA, no other rights are granted, whether express or implied.
You understand and agree that you shall only use the Software in a manner that complies with any and all applicable laws in the jurisdictions in which you use the Software. Your use shall be in accordance with applicable restrictions concerning privacy and intellectual property rights.
You will not:
Create derivative works based on the Software;
Use the Software for any purpose except as described herein;
Copy or reproduce the Software except as described herein;
Sell, assign, license, disclose, distribute or otherwise transfer or make available the Software or any copies of the Software in any form to any third parties;
Alter, translate, decompile, reverse assemble or reverse engineer the Software, or attempt to do any of the foregoing, except to the extent this prohibition is not permitted under an applicable law; or
Remove or alter any proprietary notices or marks on the Software.
If you are under 13 years of age, you are not authorized to use the Software or the New Balance Service, with or without registering. In addition, if you are under 18 years old, you may use the Software or New Balance Service, with or without registering, only with the approval of your parent or guardian.
5. Personal Information and Privacy
6. Apple- and Google-Related Terms
New Balance and you acknowledge that this EULA is concluded between New Balance and you only, and not with Apple Inc. or third parties that operate using the Android operating system, which is owned by Google Inc. (collectively, the “Marketplace Provider”), and that as between New Balance and the Marketplace Provider, New Balance, not the Marketplace Provider, is solely responsible for the Software and the New Balance Service.
You may not use the Software in any manner that is in violation of or inconsistent with the usage rules set forth for the Software in, or otherwise be in conflict with, the applicable market place terms of service (the “App Store Terms of Service”).
Your license to use the Software is limited to a non-transferable license to use the Software on an iOS product or Android-based product, as applicable, that you own or control, as permitted by the usage rules set forth in the App Store Terms of Service. The Marketplace Provider has no obligation whatsoever to provide any maintenance or support services with respect to the Software. If you have any questions, complaints or claims with respect to the Software, they should be directed to the Customer Care Center at 1-800-595-9138 or CustomerCare@newbalance.com.
The Marketplace Provider is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Software on an iOS product to conform to any applicable warranty, you may notify Apple Inc., and Apple Inc. will refund the purchase price for such Software to you, if any; and, to the maximum extent permitted by applicable law, Apple Inc. will have no other warranty obligation whatsoever with respect to such Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be New Balance’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
New Balance and you acknowledge that New Balance, not the Marketplace Provider, is responsible for addressing any claims of you or any third party relating to the Software or your possession and/or use of the Software, including, but not limited to: (a) product liability claims; (b) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Software or the end-user’s possession and use of the Software infringes that third party’s intellectual property rights, as between New Balance and the Marketplace Provider, New Balance, not the Marketplace Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
New Balance and you acknowledge and agree that Apple Inc., and Apple Inc.’s subsidiaries, are third party beneficiaries of this EULA with respect to the Software, and that, upon your acceptance of the terms and conditions of this EULA, Apple Inc. will have the right (and will be deemed to have accepted the right) to enforce this EULA against you with respect to the Software as a third party beneficiary thereof.
The Google Play marketplace is owned and operated by Google. Your use of Google Play is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/TOS) and the Google Play Terms of Service (found at https://play.google.com/intl/en-US_us/about/play-terms.html). In addition, your use of Google Play is subject to the Google Play Business and Program Policies (http://play.google.com/about/androiddeveloper-policies.html). The Google Play Terms of Service, Google Play Business and Program Policies, and Google Terms of Service will take precedence in that order in the event of a conflict between them, to the extent of such conflict.
7. No Warranty
NEW BALANCE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED MANNER, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FULLY COMPATIBLE WITH ANY PARTICULAR PLATFORM. THE SOFTWARE IS OFFERED ON AN "AS-IS" BASIS AND NO WARRANTY, EITHER EXPRESS OR IMPLIED, IS GIVEN. NEW BALANCE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.
8. Right to Terminate or Modify Software
New Balance reserves the right to change or modify portions of this EULA at any time. If New Balance does so, New Balance will indicate at the top of the page the date this EULA was last revised. New Balance will also notify you of any material changes in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the New Balance Service or changes made for legal reasons may become effective immediately. Your continued use of the Software after any such changes or modifications become effective constitutes acceptance of such changes or modifications. If you do not agree to abide by these or any future EULA, do not use or access (or continue to use or access) the Software. New Balance may terminate your use of the Software, this EULA or the New Balance Service at any time, with or without notice.
9. U.S. Government Restricted Rights
The Software and accompanying documentation are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Software) or subparagraphs(c)(1) and (2) of 48 CFR 52.227-19 (the Commercial Computer Software - Restricted Rights), as applicable.
10. Open Source
The Software may contain or be provided together with open source software. Each item of open source software is subject to its own applicable license terms, which can be found at https://www.newbalance.com/loyalty_open_source.html and/or in the Software documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein.
By accepting this EULA, you agree to indemnify and otherwise hold harmless New Balance Athletics, Inc., its officers, employers, agents, subsidiaries, affiliates and other partners from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from your use of the Software or any other matter relating to the Software.
12. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEW BALANCE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NEW BALANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL NEW BALANCE'S AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT YOU HAVE PAID NEW BALANCE IN THE LAST SIX (6) MONTHS OR, IF GREATER, ONE HUNDRED DOLLARS ($100). THESE LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF DAMAGES AND/OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
13. Export Restrictions
This EULA is expressly made subject to any laws, regulations, orders or other restrictions on the export from the United States of America of the Software or information about such Software which may be imposed from time to time by the government of the United States of America. You shall not export the Software or information about the Software without consent of New Balance and compliance with such laws, regulations, orders or other restrictions. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
14. Class Action Waiver
Any proceedings to resolve or litigate any dispute in any forum with respect to this EULA and/or the New Balance Service will be conducted solely on an individual basis. Neither you nor New Balance will seek to have any such dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. If this class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then this section will not apply to those parts.
This EULA constitutes the entire agreement between you and New Balance and governs your use of the Software on one Device, superseding any prior agreements between you and New Balance with respect to the Software on such Device. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. This EULA will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. You and New Balance agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Boston, Massachusetts. The failure of New Balance to exercise or enforce any right or provision of this EULA will not constitute a waiver of such right or provision. If any provision of this EULA is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this EULA remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the New Balance Service or this EULA must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this EULA without the prior written consent of New Balance, but New Balance may assign or transfer this EULA, in whole or in part, without restriction. The section titles in this EULA are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail.