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Software Developer License Agreement
NOTICE TO USER: PLEASE READ THIS LICENSE AGREEMENT CAREFULLY.
BY USING ALL OR ANY PART OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE RESTRICTIONS ON: USE AND TRANSFERABILITY CONTAINED IN CLAUSE 2; WARRANTY IN CLAUSE 5; LIABILITY IN CLAUSE 6. YOU ACCEPT THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT DULY SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE PROMPTLY CANCEL THE DOWNLOADING, INSTALLATION AND STOP IMMEDIATELY USE OF THE SOFTWARE.
1. DefinitionsIn this Agreement, unless the context requires otherwise, the following words and phrases shall have the following meanings:
"Agreement" shall mean this developer license agreement."Developer" shall mean developer of software product compatible with POLAR heart rate products."Developer Software" shall mean software compatible with POLAR products developed and/or licensed by the Developer."End-User" shall mean an end-user who has obtained Developer Software for use with POLAR products."Intellectual Property Rights" shall mean any and all patent, copyright, trademark, design right, petty patent, chip topography, service mark, domain-name or any other right or trade secret whether registered or not."Parties/ Party" shall mean POLAR and the Developer, or either of them."POLAR" shall mean Polar Electro Oy."Software" shall mean Polar SW Platform files for Windows protocol and any version and update thereof, which enables data transfer between POLAR products and a personal computer.
2. Grant of License2.1 POLAR grants to the Developer a worldwide, royalty-free, non-exclusive, non-transferable limited license to use, copy and distribute the Software together with Developer Software to End-User solely for purpose of enabling data transfer between POLAR product and personal computer.2.2 The Developer shall not, unless expressly provided in the applicable legislation (including without limitation)
2.2.1 reverse engineer, decompile, disassemble, analyse or otherwise examine or attempt to examine the Software or any part thereof:2.2.2 modify, adapt, translate or create derivate works based on the Software or any part thereof;2.2.3 rent, lease, loan or resell the Software or any copy of it;2.2.4 remove, obliterate, deface or in way alter the notice of POLAR or third parties' proprietary rights related to the Software;2.2.5 grant sublicenses to the Software or assign its rights or obligations under this Agreement to a third party.
3. Intellectual Property Rights3.1 All Intellectual Property Rights in and to the Software are and shall at all times remain the sole and exclusive property of POLAR.3.2 Developer may not use POLAR, Polar logo, POLAR's product names or any other trademarks or trade names, whether registered or not, of POLAR, or any similar mark or name, as a Developer Software trademark or trade name or for its marketing or advertising purposes. However, the Developer may refer to POLAR and its products to indicate interoperability between Developer Software and POLAR products.3.3 Developer will not at any time do or cause to be done any such act or thing which in any way impairs, or intends to impair, any right, title, interest or any Intellectual Property Right of POLAR or it's licensors. Developer shall not in any manner represent that it has any ownership of any kind in any of the above mentioned Intellectual Property Rights.
4. Term and termination4.1 This Agreement and the licenses granted under this Agreement become effective as of downloading the Software starts.4.2 Either Party may terminate this Agreement at any time, with or without cause, upon thirty (30) days prior written notice to the other Party. For purposes of this provision, POLAR posting of notice of termination on its developer website or other website shall constitute adequate notice of termination of this Agreement and such as is deemed completely communicated to the Developer.4.3 The license to use, and distribute the Software prior to termination or expiration of this Agreement shall survive termination or expiration of this Agreement.4.4 POLAR has the right, in addition and without prejudice to any other rights or remedies, to terminate this Agreement immediately as follows:
4.4.1 should the Developer Software not meet quality standards of POLAR;4.4.2 for any material breach of Agreement, that is not cured within seven (7) days of receipt by the Developer in default of a written notice specifying the breach and requiring its cure;4.4.3 upon receiving a written notice, if (a) all or a substantial portion of that the assets of the Developer are transferred to an assignee for the benefit of creditors, or to a receiver or a trustee in bankruptcy, (b) a proceeding is commenced by or against the Developer for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days, or (c) the Developer is adjudged bankrupt.
4.5 If and when this Agreement is terminated due to any reason or cause whatsoever, then Developer shall cease the use of Software and any of its rights under Clause 2, and destroy and delete all copies of the Software.4.6 Provisions of the Agreement which, by their nature, are intended to survive its termination or expiration, shall survive its termination or expiration.
5. WarrantiesTHE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICAPLE LAW. EXCEPT AS EXPRESSLY PROVIDED IN THIS CLAUSE, NO WARRANTY, CONDITION, UNDERTAKING, LIABILITY OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO CONDITION, QUALITY, PERFORMANCE, FUNCTIONALITY, INFRINGEMENT, MERCHANTABILITY, DURABILITY OR FITNESS FOR PURPOSE, IS GIVEN OR ASSUMED BY POLAR ELECTRO OR ITS LICENSORS AND ALL SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED.
6. Limitation of LiabilityPOLAR WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS, DAMAGE, COST OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED (INCLUDING BUSINESS INTERRUPTION, OR ANY LOSS OF BUSINESS, ANTICIPATED SAVINGS, REVENUE, GOODWILL, MANAGEMENT TIME, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME, LOSS OF REPUTATION OR OF DATA) INCLUDING NEGLIGENCE, WHETHER IN CONTRACT OR TORT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY. DEVELOPER WILL USE REASONABLE EFFORTS TO MITIGATE THEIR LOSS SUFFERED.
7. No updates, versions, maintenance or supportPOLAR does not provide any updates or new versions of the Software, nor maintenance or support for the Software.
8. Miscellaneous8.1 No WaiverThe failure of POLAR to exercise any of its rights under this Agreement or to require the performance of any term or provision of this Agreement, or the waiver by either Party of such breach of this Agreement, shall not prevent a subsequent exercise or enforcement of such right or be deemed a waiver of any subsequent breach of the same or any other term or provision of this Agreement. Any waiver of the performance of any of the terms or conditions of this Agreement shall be effective only if in writing and signed by the Party against such waiver is to be enforced.
8.2 HeadingsThe headings in this Agreement are for the convenience of the Parties only, and are not intended to define or limit the scope or interpretation of the Agreement or any provision hereof.
8.3 SeverabilityIf any term of this Agreement is invalid or unenforceable, such terms or provisions shall not invalidate the rest of the Agreement which shall remain in full force and effect as if such invalidated or unenforceable terms or conditions had not been made a part of this Agreement. In the event this section (Severability) becomes operative, Parties agree to attempt to negotiate settlement that carries out the economic intent of the terms or provisions found invalid or unenforceable.
8.4 Export ControlThe Software may be subject to import and export controls in other countries. Developer agrees to strictly comply with all applicable import and export regulations and acknowledge that the Developer has the responsibility to obtain licenses export, re-export, transfer or import the Software.
8.5 Entire Agreement and AssignmentAgreement sets forth the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior proposals and representations, whether written or oral. Neither party shall have the right to assign this Agreement to a third party without the prior written consent of the other party. However, POLAR shall have the right to assign this Agreement and all of the rights and obligations contained therein to a company belonging to the same group of companies as POLAR, and also to a third party to which the business of POLAR is transferred.
8.6 Applicable law and settlement of disputesThis Agreement and its terms and conditions shall be governed exclusively by and construed according to the laws of Finland. The official text of the Agreement or any notices given or accounts or statements required hereby shall be in English.
Any dispute or controversy or claim arising out of or relating to this Agreement involving the Parties, shall be resolved by final and binding arbitration in accordance with the Arbitration Rules of the Finnish Central Chamber of Commerce by one (1) arbitrator appointed according to the aforementioned rules. The arbitration shall be conducted in Oulu, Finland in the English language. This Agreement is governed by Finnish Law.