Last updated: July 18, 2019
These Metro TOU consist of and incorporate by reference the terms and conditions below, the supplemental terms and conditions contained in URLs referenced herein or in the Order Form, as each may be updated from time to time consistent with the terms hereof.
BY ACCESSING OR USING THE STRAVA METRO SERVICE AND THE STRAVA DATA, OR BY INDICATING CONSENT TO THESE METRO TOU, INCLUDING BY CREATING OR HAVING STRAVA CREATE AN ACCOUNT FOR LICENSEE, OR CLICKING “SIGN UP” OR “I ACCEPT” OR ANY OTHER SIMILAR MECHANISM, LICENSEE IS AGREEING TO THESE METRO TOU. IF LICENSEE DOES NOT AGREE TO THESE METRO TOU, LICENSEE MAY NOT ACCESS OR USE THE STRAVA METRO SERVICE OR STRAVA DATA THEREIN. These Metro TOU were written in English. To the extent a translated version of these Metro TOU conflicts with the English version, the English version controls.
- Definitions. Capitalized terms will have the meanings set forth below or otherwise defined in these Metro TOU:
- “Licensee” means collectively and individually:
(a) the entity that is purchasing a paid subscription to the Strava Metro Service pursuant to an Order Form with Strava, which Order Form incorporates by reference these Metro TOU (“Purchasing Licensee”)
(b) an unaffiliated third party that receives access to Licensee Reports from the Purchasing Licensee for such third party’s use as permitted by these Metro TOU (“End User Sublicensee”)
(c) an unaffiliated third party that is a service provider to the Purchasing Licensee that receives access to the Strava Metro Service in connection with the performance of obligations owed to the Purchasing Licensee as permitted by these Metro TOU (“Service Provider Sublicensee”)
(d) an individual employee or contractor of either the Purchasing Licensee, the End User Sublicensee, or the Service Provider Sublicensee who accesses the Strava Metro Service and/or Licensee Reports on behalf of the authorizing entity by clicking “Sign Up”, or “I Agree” or such other similar designation of consent to these Metro TOU prior to accessing the Strava Metro Service (“Authorized User”).
- “Licensee Reports” means summaries, manuscripts, research papers, studies, reports, charts, tables, graphs and other analyses that incorporate, are based on, or are otherwise created using Strava Data licensed pursuant to these Metro TOU.
- “License Term” means the period of Licensees’ authorized access to the Strava Metro Service and Strava Data noted on the Order Form.
- “Order Form” means the written or electronic (online) document between Strava and Purchasing Licensee that references these Metro TOU and identifies the particular subscriptions and/or services, as applicable, being purchased by Purchasing Licensee and/or that will otherwise be provided to Licensees pursuant to these Metro TOU.
- “Project” means the use case (including an initiative, project, pilot, or program) identified in an Order Form, in support of which the Strava Metro Service and Strava Data are being licensed to Licensee and for which Licensee Reports are generated consistent with these Metro TOU.
- “Strava Metro Service” means the cloud-based website and data manipulation software made available by Strava pursuant to these Metro TOU, as updated by Strava from time to time, and any of Strava’s or its providers’ hardware, systems and networks and other tools used to deliver the same.
- “Territory” means the geographic areas noted on the Order Form with respect to which Strava Data will be made available via the Strava Metro Service.
- “Training Materials” means instructional and similar training materials provided by Strava to Licensees that are attendees of Training Services (“Training Materials”)
- “Training Services” means Strava’s training services related to the use or access of the Strava Metro Service and/or associated Strava Data as permitted by these Metro TOU, and as further identified on an Order Form.
- Licensed Rights
- Access to Strava Metro Service. Subject always to the terms and conditions of these Metro TOU, Strava hereby grants the following rights to the applicable Licensees, as follows:
- Purchasing Licensee Rights. If Licensee is a Purchasing Licensee, Purchasing Licensee is granted a limited, revocable, non-exclusive, non-transferable (except in connection with a permitted assignment), non-sublicensable right during the License Term to: (a) access and use the Strava Metro Service and Strava Data therein solely to prepare Licensee Reports consistent with the requirements of Section 2.2 below, (b) use the Licensee Reports for Purchasing Licensee’s (or its affiliates’ or subsidiaries’) benefit solely in connection with the Project (unless Purchasing Licensee is entering into an Order Form in its capacity as a purchasing agent and/or service provider to an End User Sublicensee, in which case this subsection 2.1.(i)(b) shall not apply to Purchasing Licensee), (c) sublicense the End User Sublicensee and/or Service Provider Sublicensee set forth in the Order Form to exercise the express rights noted in subsections 2.1. (ii) and/or (iii) below, as applicable, and (d) sublicense Authorized Users to use the Strava Metro Service solely on Purchasing Licensee’s behalf as permitted in these Metro TOU and subject to the further terms in Section 2.1 (iv) through (vii) below. The terms of this Section 2.1. (i) shall apply notwithstanding any other term, condition, requirement, covenant, warranty, representation, specification or instruction in any Purchasing Licensee document, form, acknowledgment, purchase order, terms of purchase or similar document which Purchasing Licensee may require Strava to execute to process the relevant Order Form.
- End User Sublicensee Rights. If Licensee is an End User Sublicensee, End User Sublicensee is granted a limited, revocable, non-exclusive, non-transferable (except in connection with a permitted assignment), non-sublicensable right during the License Term to (a) access and use the Licensee Reports received from the Purchasing Licensee for End User Licensee’s use solely in connection with the Project and as permitted in these Metro TOU, (b) sublicense Authorized Users to use Licensee Reports solely on End User Sublicensee’s behalf as permitted in these Metro TOU and subject to the terms in Section 2.2 below.
- Service Provider Sublicensee Rights. If Licensee is a Service Provider Sublicensee, Service Provider Sublicensee is granted a limited, revocable, non-exclusive, non-transferable (except in connection with a permitted assignment), non-sublicensable right during the License Term to (a) access and use the Strava Metro Service and Strava Data solely to prepare Licensee Reports for the benefit of the Purchasing Licensee consistent with the requirements of Section 2.2 below, (b) sublicense Authorized Users to use Licensee Reports solely on End User Licensee’s behalf as permitted in these Metro TOU and subject to the further terms in Section 2.1(iv) below. Service Provider Sublicensee shall only engage in the authorized use or dissemination of either the Strava Metro Service, the Strava Data, or any Licensee Report: (1) as part of the Project, (2) solely for the Purchasing Licensee’s benefit (and not for the benefit of any other client, business partner, or third party), (e) for Service Provider Sublicensee’s own business or other use.
- Authorized User Rights. If Licensee is an Authorized User, Authorized User is granted a limited, revocable, non-exclusive, non-transferable, non-sublicensable right during the earlier of the License Term or the period during which Authorized User is involved in performing Project activities for the Licensee, to access and use the Strava Metro Service and Strava Data solely for the benefit of the Licensee granting the Authorized User access to the same. Authorized User agrees to maintain the confidentiality and security of his or her username and password assigned by the relevant Licensee to access the Strava Metro Service, Strava Data, and/or Licensee Reports. Authorized User shall take reasonable precautions to protect against theft, loss or fraudulent use of his or her IDs and passwords to the Strava Metro Service, and will immediately inform Strava and/or the Licensee of any and theft, loss or fraudulent use of the foregoing. Authorized User understands and agrees that each user ID and password to the Strava Metro Service are unique to the assigned individual and may not be shared by an Authorized User with others, including other personnel of Licensee.
- Further Licensee Acknowledgments. If Licensee is either an End User Sublicensee, a Service Provider Sublicensee, or an Authorized User, such Licensee hereby acknowledges and agrees that: (a) Licensee does not obtain any use or other rights or interest in or to the Strava Metro Service or Strava Data except for the limited rights expressly set forth in these Metro TOU for the applicable Licensee type, notwithstanding any term or condition to the contrary entered into by such Licensee and the Purchasing Licensee, (b) Strava will have the right to immediately and without liability to Licensee or anyone else suspend and/or terminate Licensee’s access to or license rights with respect to the Strava Metro Service or Strava Data if Strava reasonably and in good faith knows or suspects that a Licensee is engaged in any conduct that violates these Metro TOU, the rights of third parties, or otherwise constitutes unlawful activity, (c) subject to any limiting terms otherwise set forth in these Metro TOU, Strava may exercise and enforce all of its rights and remedies under these Metro TOU or under law or equity directly against the relevant Licensee.
- Authorized User Class-Action Waiver and Limitation on Claims. If you are an Authorized User, then you hereby expressly acknowledge and agree: (a) to waive your to trial by jury (Strava hereby expressly waives the same right with respect to you as the Authorized User), (b) not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Strava is a party to the proceeding, (c) that any arbitration or similar proceeding as permitted under these Metro TOU shall be conducted in your individual capacity only, and not as a class action or other representative action (provided that if any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth in these Metro TOU shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes); (d) that any claim you may have arising out of or related to your relationship with Strava and these Metro TOU must be filed within one year after such claim arose; otherwise, your claim is permanently barred, except that this provision does not apply if you are based in the European Union, in which case time limitations shall be determined in accordance with governing law for EU users.
- Authorized Users. A Licensee may permit its Authorized Users to exercise the rights granted to Licensee in Section 2.1, Section 2.2, Section 5 and Section 6, as applicable, solely on behalf of Licensee and subject to the limitations set forth herein, provided that Licensee shall remain liable to Strava for any acts or omissions of its Authorized Users in violation of the terms and conditions of this these Metro TOU, the rights of third parties, or applicable laws, including but not limited to any unauthorized use, disclosure, access or dissemination of the Strava Metro Service, Strava Data, Strava Metro Service, Licensee Reports, Training Materials (as defined below), or Strava’s Confidential Information by such Authorized Users.
- Licensee Report Requirements. To the extent that Licensee is authorized pursuant to Section 2.1 above to create Licensee Reports, the terms of this Section will apply.
- Licensee Reports (a) may not contain or display a literal copy of the underlying Strava Data used to generate such Licensee Report, (b) may be generated in combination with third party data lawfully and independently sourced by Licensee, but provided that such combination shall not be a comparison or benchmarking of the Strava Data with such third party data, and that such combination shall not directly or indirectly identify any Strava member (subscriber) and/or any other identifiable natural person(s); (c) may only be provided to and used by the permitted Licensee, and no one else, (d) must include, in each copy of the Licensee Report, the following attribution “All or portion of included data licensed by Strava”.
- Licensee shall submit for Strava’s prior review and approval a copy of, or any portion thereof referencing the Strava Data, of any Licensee Report. If, in Strava’s sole discretion, the Licensee Report or portion thereof damages Strava’s reputation, brand, or goodwill, Strava may request that Licensee revise the Licensee Reports accordingly.
- Subject to compliance with the foregoing, the authorized Licensee of the Licensee Report may reproduce, publicly display and distribute the Licensee Reports solely in connection with the relevant Project. Licensee shall not have the right to access, use, reproduce, disclose, publicly display or perform, commercially exploit, reverse engineer, prepare derivative works of, or distribute the Strava Data other than for the express purposes permitted in these Metro TOU, or as incorporated into a Licensee Report.
- License to Use Training Materials. Strava hereby grants Licensees attending Training Services a non-exclusive, non-transferable, royalty-free right and license to use the Training Materials provided during the Training Services solely during the License Term and in connection with the authorized use of the Strava Metro Service and the Strava Data. Licensee may not: (i) distribute the Training Materials to third parties, or (ii) prepare or deliver training concerning the Strava Data or Strava Metro Service to anyone else, (iii) modify, copy, disclose, translate, or prepare derivative works based on the Training Materials other than for the Training Services attendee’s individual professional use consistent with these Metro TOU.
- Other Use Restrictions. Neither Licensee nor its Authorized Users shall remove, alter, obscure or modify any copyright or other proprietary rights or confidentiality notices contained in, provided or affixed by Strava to the Strava Data, Training Materials, Strava’s Confidential Information, or Strava Metro Service. Licensee shall neither use nor access, nor permit any Authorized User to use or access the Strava Metro Service or any Strava Data to: (i) send viruses, malware, or other deleterious programs that threaten the security or integrity of Strava Metro Service or the systems used to provide the same; (ii) send or store spam or otherwise duplicative or unsolicited messages in violation of applicable laws, infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) knowingly interfere with or disrupt the integrity or performance of Strava Metro Service or the data contained therein; (iv) attempt to gain unauthorized access to Strava Metro Service or Strava Data or Strava’s related systems or networks used to provide Strava Metro Service or the Strava Data; (v) endeavor to directly or indirectly identify a Strava member or subscriber and/or any other identifiable natural person(s). Strava may suspend or terminate Licensee’s or an Authorized User’s access to Strava Metro Service or Strava Data if Strava receives credible legal notice or in its reasonable opinion concludes that Licensee or Authorized Users have materially breached the restrictions in (i) through (v) and that such breach may cause imminent and material harm, liability, or damages to Strava, Licensee, or third parties. Where possible, Strava will provide written notice of the suspension and will attempt to limit any suspension to the affected functionality, users, or time necessary to resolve the issue. Strava will promptly restore access to Strava Metro Service and the Strava Data as soon as it determines that the issue giving rise to the suspension has been resolved.
- Access to Strava Metro Service. Subject always to the terms and conditions of these Metro TOU, Strava hereby grants the following rights to the applicable Licensees, as follows:
- Strava Data Delivery. The Strava Data shall be made available via the Strava Metro Service in accordance with the data specifications and delivery timelines set forth on the applicable Order Form between Strava and the Purchasing Licensee. Purchasing Licensee shall provide Strava with its desired basemap no later than 45 days after the effective date of the applicable Order Form, otherwise Strava shall use open street maps. Any requests for basemap rebuilds shall be set forth in an additional Order Form with Purchasing Licensee and subject to Strava’s then-current pricing for rebuilds.
- Strava Metro Service Access. Access to Strava Metro Service shall be given to Purchasing Licensee following Strava’s receipt of the applicable Order Form. Purchasing Licensee shall be responsible for assigning at least one administrator user within the Strava Metro Service who will be responsible for managing and granting further usernames and passwords to Authorized Users, including any permitted Licensees. If administrative functionality within the Strava Metro Service is unavailable to generate and manage such access, then, at Purchasing Licensee’s request, Strava shall provide such assistance on Purchasing Licensee’s behalf.
- Data Updates. Strava will not have an obligation to provide any updates to the Strava Data or Strava Metro Service, or provide new data otherwise collected by Strava after delivery unless otherwise expressly agreed to in writing by the parties or as set forth in an Order Form.
- Training Services. Strava will provide web-based or on-site Training Services as agreed and described in an Order Form. Strava warrants that the Training Services will be provided in a professional and workmanlike manner by qualified personnel.
- Support. Strava may in its sole discretion provide reasonable ad hoc basic assistance related solely to the Strava Metro Service. Such support shall be provided during Strava’s normal business hours and on an as-available basis, and shall not include database management or GIS software or the performance of training or other services for which Strava normally charges separate fees. Support that is beyond basic assistance shall be subject to Strava’s then-current training pricing and will require the issuance of a further Order Form between Strava and the Purchasing Licensee.
- Proprietary Rights. All right, title and interest in and to the Strava Data, the Training Materials, Strava Metro Service, Strava’s name and/or logo used in required attributions on the Licensee Reports, and any other Confidential Information disclosed by Strava, in any medium, is exclusively owned by, and belongs to, Strava and its licensors. Licensees do not acquire any proprietary or ownership interest in the Strava Data, the Training Materials, Strava Metro Service, or any other Confidential Information disclosed by Strava, including any intellectual property rights relating thereto. Subject to Strava’s retained rights in the Strava Data and all other items owned by Strava or its licensors as noted in these Metro TOU, Strava does not assert further rights in or to the Licensee Reports or any third party data used by Licensees to generate the same as permitted under these Metro TOU, including any intellectual property rights therein, which shall vest in Purchasing Licensee or, if applicable, the End User Subicensees, if so provided for in Purchasing Licensee’s agreement with such End User Sublicensee. Except for the limited use rights provided in these Metro TOU, no license or right is granted to by either party to the other by implication, estoppel or otherwise, to any proprietary information of a party, or under any patent, copyright, trademark or trade secret of a party.
- Fees and Payment. Purchasing Licensee will pay to Strava the fees set forth in each Order Form. Unless otherwise specified in an Order Form, (i) all fees shall be paid in a single installment in advance, (ii) all fees are payable within thirty (30) days of Purchasing Licensee’s receipt of Strava’s invoice, unless the parties are using an electronic Order Form or electronic Payment Method, in which case no invoice will issue and payment will be processed on Purchasing Licensee’s submission of such electronic Order Form, (iii) all fees are non-cancelable, non-refundable, and not subject to offset, and (iv) all fees are payable in U.S. Dollars. Fees are exclusive of sales, use, personal property or other applicable taxes, which Purchasing Licensee is solely responsible for paying or which Strava will add to the relevant invoice or online fee summary where legally required to do so, unless Purchasing Licensee provides Strava with a valid tax exemption certificate authorized by the appropriate taxing authority. An Order Form may permit Purchasing Licensee to designate and provide information about its preferred payment method (e.g., credit card, online payment service, a third party, like iTunes or Google Play, or any other payment method made available by Strava) (the “Payment Method”). If Purchasing Licensee provides such payment information, Purchasing Licensee hereby authorizes Strava and its third party service providers, payment card networks and payment processors to receive, store and encrypt Purchasing Licensee’s payment information. Purchasing Licensee may switch to a different Payment Method or update its information by visiting https://strava.com/account. If Purchasing Licensee’s payment provider determines that there are fraudulent charges on Purchasing Licensee’s account resulting from use of the Payment Method, please contact Strava immediately via https://support.strava.com. Purchasing Licensee will verify that any Payment Method details provided by Purchasing Licensee on an Order Form is correct and accurate.
- Term and Termination.
- These Metro TOU will commence on the Effective Date and continue for the License Term, unless earlier modified as permitted herein, or terminated in accordance with these Metro TOU. Either Strava or the Purchasing Licensee may terminate these Metro TOU, in whole or in part (including as to all Licensees) immediately upon giving written notice of termination to the other party if (i) the other party commits a material breach of these Metro TOU and fails to cure such breach within thirty (30) days after receipt of notice of the breach or (ii) makes a general assignment for the benefit of creditors, is adjudicated bankrupt, enters into bankruptcy proceedings, or applies for or permits the appointment of a receiver, trustee or custodian for any of its property or assets. These Metro TOU shall terminate automatically upon expiration of the License Term or termination of the relevant Order Form.
- Strava may terminate these Metro TOU and any Order Forms immediately upon notice to Licensee if, in Strava’s reasonable opinion, Licensee has acted in a manner which damages the reputation, interests, or goodwill of Strava.
- Upon expiration or termination of these Metro TOU, and except as otherwise set forth in an Order Form, all of the rights and obligations of Strava and the relevant Licensee shall immediately terminate (unless Strava notes termination as being limited to specified Licensees, in which case termination shall be limited to those Licensee parties only) and the parties shall promptly cease all use of the other party’s Confidential Information and shall either return or permanently destroy the same and certify the same in writing at the other party’s request. The provisions of Sections 7 (Proprietary Rights), 8 (Fees and Payment, but with respect to amounts owed only), 10 (Confidentiality), 11 (Warranty Disclaimer), 12 (Limitation of Liability), and 13 (General Provisions), will survive any termination or expiration of these Metro TOU.
- Upon expiration or termination of these Metro TOU, (a) Licensee’s rights to access the Strava Metro Services, or to use the Strava Data, Training Materials, or Strava’s Confidential Information, shall terminate in their entirety (and Strava and/or Purchasing Licensee shall promptly disable further login access to the same), (b) Licensee shall promptly erase or destroy all copies of the Strava Data in its possession or control, provided that copies in Licensee’s back-up systems that cannot be so erased or destroyed shall remain subject to the confidentiality and other restrictions on use set forth in the Agreement, and (c) subject to the terms of (a) and (b), Purchasing Licensee and, if applicable, the End User Sublicensee, may continue to display any Strava Data which is displayed on or contained in Licensee Reports prepared prior to the effective date of termination on a royalty-free, perpetual and irrevocable basis, subject to such Licensees’ continued compliance with the attribution, use limitations, and other obligations contained in the Agreement.
- Confidentiality. “Confidential Information” means all non-public information disclosed by Strava or the relevant Licensee (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. For purposes of these Metro TOU, Authorized Users are deemed agents of the relevant Licensee that is either a Disclosing Party or Receiving Party, but no such Authorized User shall personally be deemed a Disclosing Party hereunder. Confidential Information includes the terms and conditions of these Metro TOU and all Order Forms, information about the Disclosing Party’s employees, providers, business plans, marketing plans, product roadmaps, and technology. Confidential Information of Strava includes, but is not limited to, the Strava Data, the Strava Metro Service, and the Training Materials. Confidential Information of Purchasing Licensee or, if applicable, the End User Sublicensee, includes the Licensee Reports. The Receiving Party agrees not to disclose any Confidential Information to any third party (other than its agents, representatives, contractors or providers who are subject to legal or professional obligations of confidentiality consistent with these Metro TOU), or use such Confidential Information for any purpose other than is necessary to perform its obligations or exercise its rights under these Metro TOU. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by applicable law or court order, provided that the Receiving Party provides the Disclosing Party with prior notice of such compelled disclosure (if possible) and provides reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party seeks to contest or limit the scope of the disclosure. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was lawfully known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to Licensee; or (c) is lawfully received by Licensee from a third party without breach of any obligation owed to Strava.
- WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THESE METRO TOU, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, STRAVA MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE STRAVA METRO SERVICE, STRAVA DATA, THE TRAINING SERVICES, TRAINING MATERIALS, OR THE LICENSEE REPORTS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, OMISSIONS, COMPLETENESS, PERFORMANCE, AND CURRENTNESS. LICENSEE ACKNOWLEDGES AND AGREES THAT THE STRAVA DATA, THE TRAINING MATERIALS AND STRAVA METRO SERVICE ARE ALL PROVIDED SOLELY AND EXCLUSIVELY “AS IS.” STRAVA DOES NOT WARRANT THAT THE STRAVA DATA, THE TRAINING MATERIALS AND THE STRAVA METRO SERVICE, OR ACCESS THERETO WILL BE ERROR FREE, UNINTERRUPTED OR THAT EITHER WILL MEET LICENSEE’S NEEDS OR REQUIREMENTS.
- LIMITATION OF LIABILITY.
- STRAVA WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER IN CONTRACT, TORT, PRIVACY LAW, OTHER LEGAL THEORY, OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE STRAVA DATA, METRO ENTERPRISE, STRAVA METRO SERVICE, THE TRAINING SERVICES AND STRAVA METRO SERVICE, INCLUDING, BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SAME, ANY INTERRUPTION, INACCURACY OR LOSS OF DATA, ERROR OR OMISSION, OR ANY LOST PROFITS, EVEN IF STRAVA IS ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- IN NO EVENT WILL STRAVA OR ITS VENDORS OR AFFILIATES BE LIABLE TO ANY LICENSEE FOR ANY CLAIMS RELATING IN ANY WAY TO LICENSEE’S INABILITY OR FAILURE TO CREATE OR GENERATE ANY LICENSEE REPORTS, OR FOR ANY DECISION MADE OR ACTION TAKEN BY LICENSEE OR AUTHORIZED USER IN RELIANCE UPON ANY PORTION OF THE STRAVA DATA, OR THE PROCURING, COMPILING, INTERPRETING, EDITING, WRITING, REPORTING, OR DELIVERING OF SUCH DATA. LICENSEE’S EXCLUSIVE REMEDY AND STRAVA’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIMS FOR DAMAGES UNDER OR RELATING TO THESE METRO TOU WILL BE LIMITED TO THE GREATER OF THE TOTAL FEES PAID BY PURCHASING LICENSEE UNDER THE ORDER FORM(S) GIVING RISE TO THE CLAIM OR, FOR ALL OTHER LICENSEES, $50.
- General Provisions
- Independent Contractors. Strava and Licensee are and at all times will remain independent contractors as to each other. No joint venture, joint controllership, partnership, agency, ability to bind, or other relationship will be created or implied as a result of these Metro TOU.
- Governing Law. These Metro TOU will be construed in accordance with, and governed in all respects by, the laws of the State of California and any claims related to these Metro TOU will be brought in the State and Federal courts located in San Francisco County.
- Notices. Any consents, requests, demands, communications, and other notices permitted or required to be given shall be in writing, sent to the respective address set forth below or as otherwise agreed, and be deemed validly given (a) upon delivery, if personally delivered with service fees prepaid, (b) upon being sent, if sent via e-mail, with confirmation of transmission, (c) upon delivery, if delivered, with fees prepaid, by reputable overnight courier that provides proof of delivery, or (d) three business days following deposit in the United States mail, first class, postage prepaid, certified or registered, and return receipt requested.
- Publicity. Notwithstanding anything contained herein, neither party shall (i) engage in any activity, marketing or other communication that identifies the other party, or (ii) otherwise use the other party’s or its affiliates’ names, logos, trademarks, trade names, or other intellectual property without the other party’s prior written consent. Upon expiration or termination of these Metro TOU, each party shall cease any and all references or use of the intellectual property belonging to the other party, unless otherwise agreed upon in writing.
- Compliance with Laws. Each party shall comply with all applicable federal, state, and local laws, rules, and regulations in its performance of its obligations under these Metro TOU.
- Assignment. Licensee may not assign these Metro TOU, or any rights under these Metro TOU (whether expressly, by implication or by operation of law), or delegate its performance under these Metro TOU, without Strava’s prior written consent. Any purported transfer, assignment, or delegation without consent will be null and void and of no force or effect. Subject to the foregoing, these Metro TOU will bind and inure to the benefit of the successors and permitted assigns of the parties.
- Force Majeure. Neither party will be liable for any failure to perform due to events or circumstances not within a party’s reasonable control, including, but not limited to acts of God, acts of government, flood, fire, earthquakes, tsunami, civil unrest, computer or malicious attacks through the internet.
- Third Party Beneficiaries. Nothing herein is intended to or shall be construed to confer upon or give any person or entity (including Authorized Users), other than Strava and Licensee, and their respective successors and permitted assigns, any rights or remedies under or by reason of these Metro TOU.
- Entire Agreement and Severability. These Metro TOU sets forth the entire understanding of the parties and supersedes all prior agreements and understandings, oral or written, between the parties relating to the subject matter hereof. If any provision of these Metro TOU is determined to be invalid, unlawful, void or unenforceable to any extent, such provision or any portion thereof will be interpreted to best reflect the parties’ intent, and the remainder of these Metro TOU will continue to be valid and enforceable to the fullest extent permitted by law.
- Waiver. No failure on the part of a party to exercise any power, right, privilege or remedy under these Metro TOU, and no delay on the part of a party in exercising any power, right, privilege or remedy under these Metro TOU, will operate as a waiver thereof. No single or partial exercise of any such power, right, privilege or remedy will preclude any other or further exercise thereof be liable to Licensee or to any third party for any modification, suspension or discontinuance of the Services.
- Modification of these Metro TOU. Certain provisions of these Metro TOU may be supplemented or superseded by expressly designated legal notices or terms located on particular pages on the Strava Metro Service or Strava’s website. Strava reserves the right to update these Metro TOU at any time, but provided that such changes are required for Strava to comply with applicable law, regulations or policies internal to Strava that implement the foregoing. Strava will notify Licensees of any material changes to the Metro TOU. By continuing to access or use the Strava Metro Service after Strava has provided Licensee with notice of a modification, Licensee is agreeing to be bound by the modified Metro TOU. If the modified Metro TOU not acceptable to Licensee, Licensee’s only recourse is to cease using the Strava Metro Service and provide Strava with written notice of its objections to the changes within thirty (30) days of the changes being effective and, if the parties are unable to agree to revised terms, then Licensee may, if it is the Purchasing Licensee, terminate the relevant Order Form and receive a pro-rata refund of remaining fees paid for the remainder of the License Term (except that no such refund or further compensation shall be provided by Strava to any Authorized User, Service Provider Sublicensee or End User Sublicensee).
- Order of Precedence. In the event of any conflict between the terms of these Metro TOU and the terms on an Order Form, it is the express intent of Strava and the Purchasing Licensee that the terms of the Order Form will take precedence over conflicting terms in these Metro TOU, but solely as to the items purchased thereunder. With respect to all other Licensees, any other terms or conditions provided by such Licensees shall not be binding against Strava, and except as provided for in Section 12.10 above (Modification of these Metro TOU), these Metro TOU may not be amended, modified, altered or supplemented by any Licensee except by means of a written instrument executed on behalf of both parties.
- Interpretation. Each party acknowledges that it has had the opportunity to review these Metro TOU with legal counsel of its choice, and there will be no presumption that any ambiguities will be construed or interpreted against the drafter.
- Arbitration. Strava and Licensee shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to the Strava’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents), or as otherwise noted on an Order Form, all claims arising out of or relating to these Metro TOU and Order Forms shall be finally settled by binding arbitration administered by JAMS in accordance with its provisions and procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of these Metro TOU are void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with these Metro TOU. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent a claim is between Strava and an individual Authorized User, the filing fee for the arbitration exceeds the cost of filing a lawsuit, Strava will pay the additional cost. You and Strava hereby expressly waive trial by jury. This dispute resolution provision will be governed by the Federal Arbitration Act. This provision does not apply to users who live in the European Union. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
- Remedies. The parties acknowledge and agree that for any breach by Licensee of these Metro TOU, there may be no adequate remedy at law and that such breach could cause irreparable harm to Strava; therefore, Strava will have the right, in addition to any other remedies available, to seek immediate injunctive relief.
- Counterparts. These Metro TOU may be executed in several counterparts, each of which will constitute an original and all of which, when taken together, will constitute one and the same agreement.