This Nike+ API/Developer Agreement (the “Agreement”) between you and/or your company (“you” or “your ”) and NIKE, Inc. (“Nike”) governs your participation in the Nike+ Developer Program, and your use of any materials made available to you by Nike through the Nike+ Developer Program, including the Nike+ API and Nike+ Data (as defined in Section 12). Your participation in the Nike+ Developer Program is also subject to the Nike+ Technical Guidelines available here: developer.nike.com. Capitalized terms have the meanings set forth in the body of this Agreement or in Section 12.
By submitting your Application and by using the Nike+ Program Materials, you are agreeing to be bound by the terms and conditions of this Agreement. You cannot use your Application or the Nike+ Program Materials if you do not agree with the terms and conditions of this Agreement.
1. Access and Use of Nike+ Developer Program and Application Approval Process.
A. Registration. To participate in the Nike+ Developer Program, you must be approved by Nike as a Nike+ Developer and complete the registration process specified by Nike (“Registration”). You may not share your login credentials or your Nike+ Developer Account with anyone other than Authorized Users and you must ensure that each Authorized User is aware of and complies with the terms and conditions of this Agreement and the Nike+ Technical Guidelines. Nike reserves the right to approve or decline your participation as a Nike+ Developer in its sole discretion.
B. Application Submission. You must receive written approval for your Application from Nike before incorporating any Nike+ Data into your Application. By submitting your Application for approval, you represent and warrant that:
i. Your Application complies with the Application Requirements.
ii. You will not attempt to conceal, misrepresent or obscure any features, content, services or functionality in your Application from Nike’s review or hinder Nike from being able to fully review your Application.
C. Approval Process. Nike may, in its sole discretion: (a) approve your Application and accept you as a Nike+ Developer in the Nike+ Developer Program; (b) determine that your Application does not meet all or any part of the Application Requirements; (c) reject your Application for any reason, even if your Application meets the Application Requirements; or (d) notify you that approval by Nike is not required. Once your Application has been approved by Nike or you have received written notification from Nike that approval is not required, your Application will be an authorized Application and you will have the rights granted in Section 3 and the obligations described in this Agreement. If you make any substantial changes to an Application after submission to Nike for approval pursuant to this Agreement you must notify Nike thirty (30) days prior to release of such modified Application.
2. Your Responsibilities
A. Responsibility for Application. You are solely responsible for all aspects of development and use of your Application, including related documentation, user assistance, product support and warranty. None of Nike’s review, testing, or approval of your Application limits or relieves you of any responsibilities related to your Application.
B. Privacy Requirements.
(a) how you collect, use, store and disclose user data through the Application, including with respect to the Nike+ Data that you receive through the Nike+ API;
(b) that you share user data collected through your Application with Nike, if applicable; and
(c) that any data submitted to the Application is submitted to you and not to Nike and Nike has no responsibility or liability for any such data.
iii. Data Retention. You are not permitted to retain Nike+ Data for longer than needed for the reasonable operation of your Application.
iv. Location Data. Your Application may not allow the use of location-based technology or the release of user data in violation of the Developer Standards. You represent and warrant that your Application does not default to collect location data about users, that users are notified and required to opt in to allow your Application to collect location data, and that you will comply with the most recent version of the CTIA Best Practices and Guidelines for Location-Based Services, as updated or revised from time to time.
v. Other Data Restrictions. Your Application may not: (i) retain any Nike+ Data you receive from Nike concerning a user without the user’s express consent, after a user has revoked consent or asked you to delete such data; or (ii) sell, rent, or transfer (directly or indirectly) any Nike+ Data, even if a user consents to such use.
C. Security; Data. You are solely responsible for the security of Nike+ Data residing on server(s) or systems owned or operated by you, or by a third party designated by you (e.g., a web hosting company, processor, or other service provider). You must maintain, and must require any third party designated by you to to maintain processes and controls to protect and secure Nike+ Data no less than those set forth in Exhibit A attached to this Agreement. In addition, you will comply, and will require any third party designated by you to comply, with all applicable Nike security protocols and requirements, as they may be provided to you. You acknowledge that Nike shall not be liable for any improperly processed or unauthorized transactions or illegal or fraudulent access to your Nike+ Developer Account, your Application or to Program Materials. You must notify us immediately in the event of any unauthorized access (confirmed or suspected) to Program Materials, your Nike+ Developer Account credentials, your authentication key, and/or your Application.
D. Program Support . Nike is under no obligation to provide any updates, upgrades, modifications or new releases of any Program Materials (collectively, “ Updates”), however, if Nike elects to provide Updates, the terms of this Agreement will govern such Updates, unless an Update is accompanied by a separate license, in which case the terms of that license will govern. To the extent any such Update materially impacts your Application, you may terminate this Agreement upon thirty (30) days prior written notice to Nike. Upon termination, you must immediately cease use of the Program Materials.
E. Data Collection by Nike; Privacy. Nike and its Affiliates may collect and use technical and related information, including but not limited to information about you, Authorized Users, your Application, computer system software, other software and peripherals. Nike may use this information, as long as it is in a form that does not personally identify you or any other party, to improve the Nike+ Developer Program, the Nike+ API, or to provide services or technologies to you and other third parties.
3. Ownership and License.
A. Ownership of Program Materials. You acknowledge that Nike owns all right, title and interest, in and to the Nike+ Developer Program, the Nike+ API, and the Program Materials, including without limitation any and all related Intellectual Property Rights, and you shall not acquire any right, title, or interest in or to any of them except as expressly set forth in this Agreement. There are no implied licenses under this Agreement, and any rights not expressly granted to you hereunder are reserved by Nike. You represent you will not take any action inconsistent with Nike’s ownership of the Nike+ Developer Program, the Nike+ API, and/or the Program Materials.
B. License to Program Materials & Nike Trademarks. Upon your acceptance by Nike as a Nike+ Developer and Nike’s approval of your Application, subject to your compliance with the terms and conditions of this Agreement and the Nike+ Technical Guidelines, Nike grants you a personal, nonexclusive, nonsublicensable, nontransferable, revocable, limited and royalty-free license during the Term in any country approved by Nike solely for the limited purpose to: (a) use, reproduce, modify, and create derivative works of the Nike+ API solely for the purpose of developing and testing your Application; (b) distribute, sell or otherwise provide your Application to users; (c) use the Nike+ Developer Program Materials in connection with the foregoing activities; and (d) display the Nike Trademarks solely for the purpose of identifying your Application’s use of Nike+ Data in accordance with this Agreement and Nike’s standards for use of the Nike Trademarks as available on the Nike+ Developer Program website, which Nike has the sole discretion to update or modify at any time.
C. Ownership of Your Application; License to Nike. Nike shall not acquire any ownership interest in or to your Application, subject to Nike’s ownership of the Program Materials (including as incorporated in your Application). You grant Nike a non-exclusive, non-transferable, royalty-free license to use your Application for testing or other related purposes to ensure that it complies with this Agreement. You may revoke that license at any time by providing at least sixty (60) days’ written notice to Nike. If you revoke that license, this Agreement will immediately terminate.
D. License to Your Marks . You grant Nike a revocable, non-exclusive, non-transferable royalty-free license to use your Trademarks in connection with your Application and to publicize your participation in the Nike+ Developer Program and your Application, however Nike is under no obligation to publicize your usage of the Nike+ Developer Program or the Nike+ API.
4. Prohibited Activity; Limitations
You may not: (a) make or distribute copies of the Program Materials, in whole or in part or assist others in doing so, except as expressly permitted pursuant to this Agreement; (b) alter or remove any copyright, trademark, or other proprietary notices appearing on or in your Application or Program Materials; (c) engage in any activity with respect to your Application or Program Materials that interferes with, disrupts, damages, or accesses in an unauthorized manner any Nike platforms, or systems, or those of any of its Affiliates or any third party; (d) modify, adapt, decompile, reverse engineer, disassemble or create derivative works of the Program Materials, except as expressly permitted pursuant to this Agreement; and (e) make any statements that you or your Application are affiliated with, or sponsored, “certified,” or otherwise endorsed by Nike or any of its Affiliates, unless expressly permitted by Nike in writing. You agree that the form and nature of the Program Materials may change without prior notice to you and that future versions of the Program Materials may be incompatible with applications developed on previous versions of the Program Materials. You agree that Nike may stop (permanently or temporarily) providing the Program Materials (or any features within the Program Materials) to you or to users generally at Nike’s general discretion, without prior notice to you.
5. Term and Termination.
A. Term. This Agreement shall commence on the date you indicate your acceptance of the terms and conditions hereof and shall remain in full force and effect until terminated as permitted hereunder (the “Term”).
i. Either party may terminate this Agreement for any reason or no reason with written notice to the other party. In addition, Nike may terminate this Agreement or suspend or disable your access to the Nike+ Developer Program immediately and without advance notice: (a) if you are (or are reasonably suspected to be) in breach or default of any of your obligations set forth in this Agreement; (b) if Nike determines, in its sole discretion, that your business practices or the business practices of your customers are detrimental to any of Nike’s business goals or objectives; (c) if Nike has reason to believe that there is an alleged, potential or actual violation by you or any of your customers of any applicable Laws; (d) if any entity that Nike determines to be a competitor or prospective competitor of Nike or any of its Affiliates acquires the power or ability, directly or indirectly, to exercise any controlling influence over you, your customers or any of your or your customers’ management, operations or policies; or (e) if you enter bankruptcy or otherwise are determined to be financially unstable, as determined in Nike’s sole discretion.
ii. Upon termination of the Agreement for any reason, all rights of the parties under this Agreement shall be extinguished including all license rights, and you shall immediately stop using the Nike+ API and Nike+ Developer Program Materials and return to Nike, or delete and provide certification to Nike, all proprietary information, including all Confidential Information and the Program Materials, and all copies and extracts of the foregoing, together with any and all documents, notes and other materials regarding such information. However, provisions that naturally survive termination of this Agreement shall so survive, including without limitation Sections 6, 7, 8, 9, 10, 11 and 12.
6. Feedback .
If you provide any Feedback to Nike: (a) you grant to Nike a worldwide, non-exclusive, royalty-free, transferable, sublicensable, perpetual and irrevocable license to use and otherwise exploit such Feedback in connection with any Program Materials and other Nike products and services; (b) Nike shall be free to use, disclose, reproduce, distribute and otherwise commercialize all Feedback that you provide without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise; (c) you waive all rights to be compensated or seek compensation for your Feedback; and (d) Feedback, even if marked confidential, shall not create any confidentiality obligations on Nike, unless Nike has otherwise agreed in a signed agreement.
7. Confidential Information.
You shall hold Nike’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties or use such Confidential Information for any purpose other than as necessary to perform under this Agreement. You agree to limit access to the Confidential Information to Authorized Users. All such Authorized Users must have a written confidentiality agreement with you that is no less restrictive than the terms contained herein. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature and with no less than reasonable care. The foregoing restrictions on disclosure shall not apply to Confidential Information that is: (a) already known by you; (b) becomes, through no act or fault of yours, publicly known; (c) received by you from a third party without a restriction on disclosure or use; or (d) independently developed by you without reference to Nike’s Confidential Information.
8. Representations and Warranties.
A. Mutual Warranties. Each party represents and warrants to the other that: (a) it has all necessary right, power and ability to execute, and to perform the obligations contemplated by, this Agreement; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; and (d) such party’s obligations under this Agreement do not violate any Law or breach any other agreement to which such party is bound.
B. Your Warranties. You represent and warrant to Nike that: (a) you are duly licensed to conduct your business under the Laws of all jurisdictions in which you conduct business; (b) you will use the Program Materials only for purposes permitted by (i) this Agreement; (ii) applicable Laws; (iii) generally accepted practices or guidelines in all jurisdictions in which you conduct business; and (iv) Nike’s then-current policies, procedures and guidelines applicable to the Nike+ Developer Program, which Nike may amend, modify or change at any time; (c) you are solely responsible for (and that neither Nike nor its Affiliates have any responsibility to you or to any third party for): (i) any data, content, or resources that you obtain, transmit or display through use of the Program Materials or your Application; and (ii) any breach of your obligations under this Agreement, any applicable third party agreement, or any applicable Laws, and for the consequences of any such breach; (d) any materials you provide, create or develop that are in any way related to this Agreement, or the use thereof, do not and will not infringe any Intellectual Property Rights of any third party; and (e) all information you provide to Nike is true, correct and complete in all respects and you will update Nike with any changes to information you have previously supplied.
C. DISCLAIMER OF WARRANTIES. THE NIKE+ DEVELOPER PROGRAM, PROGRAM MATERIALS AND ALL INFORMATION AND OTHER MATERIALS CONTAINED OR MADE AVAILABLE THEREIN IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, AND YOUR USE OF ANY OF THE FOREGOING IS AT YOUR OWN RISK. NONE OF THE NIKE PARTIES (AS DEFINED IN SECTION 9 BELOW) REPRESENT OR WARRANT THAT THE NIKE+ DEVELOPER PROGRAM, PROGRAM MATERIALS OR ANY INFORMATION OR OTHER MATERIALS CONTAINED OR MADE AVAILABLE THEREIN WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. YOU EXPRESSLY ACKNOWLEDGE THAT COMPUTER NETWORK-BASED SERVICES MAY BE SUBJECT TO OUTAGES, INTERRUPTIONS, ATTACKS BY THIRD PARTIES AND DELAY OCCURRENCES. NIKE SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE. You may have rights that vary from jurisdiction to jurisdiction; however, the above disclaimers apply to the maximum extent permitted by applicable Law.
9. LIMITATIONS OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL: (A) NIKE OR ANY OF ITS CURRENT OR FORMER PARENTS, SUBSIDIARIES, AFFILIATES, OR VENDORS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS OF ANY OF THEM) (COLLECTIVELY, THE “NIKE PARTIES”) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (HOWEVER ARISING), UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE NIKE PARTIES’ TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO THE NIKE+ DEVELOPER PROGRAM, PROGRAM MATERIALS OR ANY OTHER INFORMATION AND OTHER MATERIALS CONTAINED OR MADE AVAILABLE THEREIN, EXCEED $100.
You agree to indemnify, release, hold harmless and, upon request, defend the Nike Parties from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses, whether prior to, at trial or any other proceeding and in any appeal or other post judgment proceeding) incurred by Nike, arising out of or relating to: (a) any breach or alleged breach by you of any representation, warranty, or obligation contained in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by you, any Authorized User, or any of your Affiliates, employees, agents, contractors, suppliers or customers; (c) any contract or agreement between you and a third party; (d) use by any party of your Application, including any claims by any end user; (e) any claims related to the nature or characteristics of your Application, or any of your other products or services; (f) any infringement or alleged infringement of a patent, copyright, trademark or other intellectual property or proprietary right relating to this Agreement; (g) any alleged or actual violation by you of any applicable Laws; or (h) any claims related to your use of Nike+ Data or other data or information collected through your Application in violation of the privacy or other rights of any third party.
11. General Provisions.
A. Publicity. You shall not issue any press release regarding your association with Nike without the express prior written consent of Nike. You shall not include any marketing of Nike’s name or trademark on any communications where the Nike swoosh is larger than twenty percent the size of your company name and logo. Notwithstanding the foregoing, you shall abide by any Nike trademark guidelines provided to you.
B. Independent Development. Nothing in this Agreement will impair Nike’s right to develop, acquire, license, market, promote or distribute any products, software or technologies, including those that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that you may develop, produce, market, sell or distribute.
C. Miscellaneous. You agree that the Nike+ Developer Program and its elements shall be deemed a passive website solely based in Oregon, USA, which does not give rise to personal jurisdiction over Nike in jurisdictions other than Oregon. You agree that this Agreement and any dispute between you and Nike shall be governed in all respects by Oregon law, without regard to choice of law provisions, and not by the 1980 U.N. Convention on contracts for the international sale of goods. This Agreement is further subject to Oregon Revised Statutes Chapter 72, "Sales". Except where prohibited, you agree that all disputes, claims and legal proceedings directly or indirectly arising out of or relating to this Agreement (including but not limited to the use of the Nike+ Developer Platform and/or Nike+ API) shall be resolved individually, without resort to any form of class action, and exclusively in the state or federal courts located in Multnomah County, Oregon. You consent to waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Multnomah County, Oregon. Any cause of action or claim you may have with respect to this Agreement (including but not limited to the use of the Nike+ Developer Program and/or Nike+ API) must be commenced within one (1) year after the claim or cause of action arises. You agree to receive electronic communications from Nike. You agree that any notice, agreement, disclosure or other communication that Nike sends you electronically will satisfy any legal communication requirements, including that such communications be in writing. Nike's failure to insist upon or enforce strict performance of this Agreement shall not be considered a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall modify this Agreement. Nike may assign its rights and duties under this Agreement to any party at any time without notice to you.
D. Amendment; Modifications. Nike reserves the right, in its sole discretion, to modify the terms of this Agreement at any time. You can find the most recent version of this Agreement at https://developer.nike.com/terms. Nike will provide notice to all registered Nike+ Developers of changes to these terms and a link to the most current version of these terms. The most recent modification date will be noted by the “Last Updated” date above. If you do not agree to any modification of this Agreement, you may terminate this Agreement and stop using the Nike+ Developer Program.
E. Costs and Expenses. You are solely responsible for all costs and expenses related to participating in the Nike+ Developer Program, including the development of any Application. Nike does not currently charge for the Nike+ Developer Program or Nike+ Data but may choose to do so at any time upon notice to you. If you do not wish to pay for the Nike+ Developer Program or access to the Nike+ Data at that time, you may terminate this Agreement upon notice to Nike, in which case you agree to immediately cease any further use the Nike+ Developer Program Materials.
F. Severability. If any provision in this Agreement is held invalid, the remainder of this Agreement shall continue to be enforceable. If any provision in this Agreement is deemed unlawful, void or unenforceable, then that provision is deemed severable from this Agreement and the remaining provisions are still valid and enforceable.
G. Assignment. You may not assign, whether by transfer, merger operation of law or otherwise, any of your rights or delegate the performance of any of your obligations under this Agreement without the prior written consent of Nike. Any purported assignment in violation of hereof shall be null and void.
H. Force Majeure. Nike will not be liable to you for any losses arising out of the delay or interruption of Nike’s performance of obligations under the Agreement due to any acts of God, or any other occurrences which are beyond Nike’s reasonable control.
I. Entire Agreement. This Agreement together with all of Nike’s policies referenced herein sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement.
J. Export Restrictions.
You may not use, export, re-export, import, sell or transfer any of the Program Materials (including the Nike+ API or Nike+ Data) except as authorized by United States Law and other applicable Laws in the jurisdiction in which you obtain such Program Materials. You will comply with all Laws that restrict your and/or Nike’s ability to operate in or transact business with certain countries or share certain technologies and data with certain individuals (“Export Restrictions”). Your compliance with the Export Restrictions shall be such that Nike shall not violate any of the Export Restrictions as a result of your acts or omissions.
12. Additional Definitions.
“Affiliate(s)” means any other person or entity that controls, is controlled by, or is under common control with the specified person or entity. As used in the previous sentence, “Control” (as well as “controlled by” and “under common control with”) means the ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding equity interests in an entity.
“Application(s)” means any software programs that you develop to interoperate with the services provided by Nike by using components of the Nike+ Developer Program Materials.
“Application Requirements” means this Agreement, the Nike+ Technical Guidelines then in effect and any additional guidelines that Nike may post on a Nike+ Developer website or otherwise provide to you.
“Authorized Users ” means your employees, agents and contractors who have a need to access and use your Nike+ Developer Account as permitted under this Agreement.
“Confidential Information” means the Nike+ API, the Nike+ Data, the Nike+ Developer Program Materials, the underlying computer code to which you may obtain or receive access, the functional or technical design, logic or other internal routines or workings of the Nike+ API, and any other materials of Nike that Nike designates as confidential or which you should reasonably believe to be confidential.
“Feedback” means any suggestions, comments, feedback or other information or materials you provide to Nike with respect to the Nike+ Developer Program, the Nike+ API, Nike+ Data, or any of Nike’s products or services.
“Intellectual Property Rights” means ideas, inventions, discoveries, improvements, modifications, updates, enhancements, trade secrets, designs, business models, software, derivatives, know-how, processes, methodologies, technical information, data, test results, information, know-how, concepts, and works of authorship, whether patentable or not and whether reduced to practice or not, and all related intellectual property, including, but not limited to, patents and patent applications (including but not limited to all reissues, continuations, continuations-in-part, revisions, extensions, divisionals, designs and reexaminations thereof), copyrights, mask works, trademarks, trade secrets, and other forms of intellectual property protection related thereto, including all applications, certifications and registrations therefor.
“Nike+ API” means software, in object code form, that is licensed to you under this Agreement, that formats, encrypts, and decrypts messages transferred between your systems and Nike’s systems or products.
“Nike+ Data” means any data provided to you as part of the Nike+ Developer Program pertaining to Nike or any Nike+ end users.
“Nike+ Developer” means any developer having gone through the Registration process and been approved by Nike to use the Program Materials.
“Nike+ Developer Account” means the account by which you and/or Authorized Users gain access to the Nike+ Developer Program Materials subject to the terms and conditions of this Agreement.
“Nike+ Developer Program” means the program Nike has developed to enable Nike+ Developers to use Nike+ Developer Program Materials, as such program may be revised from time to time at Nike’s sole discretion.
“Nike+ Developer Program Materials” or “Program Materials” means any materials made available to you by Nike or a Nike Affiliate in connection with the Nike+ Developer Program, at a Nike+ Developer website or otherwise, including the Nike+ API and any Nike+ Data, as well as all tools, documentation and materials, in written or digital form, including software development kits, software, applications, sample code, simulators, tools, libraries, other APIs, data, files and materials, and including any upgrades, modified versions, updates, enhancements, bug fixes, supplements to, revisions, new releases, and/or additions thereto, if any, that may be provided or made available by Nike.
“Nike+ Technical Guidelines” means the Nike+ Technical Guidelines available at developer.nike.com.
“Nike Trademarks ” means all Trademarks owned or licensed to Nike or its Affiliates, and any other Trademarks confusingly similar thereto or likely to cause confusion therewith.
“Trademark(s)” means all means, collectively, all trademarks, service marks, logos, trade dress, trade names and service names, any registrations and applications to register, and all goodwill in, any of the foregoing, and all similar or related rights arising under any of the Laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.
Nike+ Data Requirements
This Exhibit A ("Exhibit") sets forth the protocols that Nike+ Developers must follow withrespect to maintaining the security and privacy of Nike+ Data in connection with the Nike+ Developer Program. All capitalized terms that are not otherwise defined in this Exhibit will have the meanings assigned to those terms in the Agreement.
1. Data Security Requirements.
You acknowledge that in the course of , your participation in the Nike+ Developer Program, you will receive, have access to, and be processing Nike+ Data, and therefore will have obligations under certain laws and regulations relating to the privacy, and protection of such Nike+ Data, including those laws governing data protection in member countries of the European Union. In recognition of the foregoing, you covenant and agree that:
A. Security. You will use such degree of care as is appropriate to avoid unauthorized use or disclosure of the Nike+ Data, including following your own security and privacy policies and procedures, which you represent as complying with applicable Laws and being no less rigorous than accepted practices in the industry. You are required to maintain, at a minimum: (i) the physical security of the facility where paper files, servers, computing equipment and backup systems are maintained; (ii) your network, application (including databases) and platform security; (iii) business systems designed to optimize security; (iv) transmission and storage encryption protection; (v) authentication and access control mechanisms; and (vi) protection against the loss or theft of a personal computer, laptop, desktop or any other storage device, including, without limitation, mobile devices. You acknowledge that your failure to follow such security policies and procedures may place the Nike+ Data, as well as Nike’s operations and business, at risk and you agree to indemnify Nike with respect to any losses, liabilities, penalties, fines, costs, damages and expenses Nike incurs related to such failure.
B. Minimum Security Program Requirements. In connection with the Nike+ Data, you shall implement and maintain commercially reasonable information safeguards that are no less rigorous than accepted industry practices, and which comply with all applicable Laws issued by the Federal Trade Commission and the Safe Harbor framework developed by the U.S. Department of Commerce with respect to the European Commission’s Directive on Data Protection, to protect the Nike+ Data from unauthorized access, destruction, use, modification or disclosure.
C. Security Breaches. Upon execution of the Agreement, you will provide Nike with the name and contact information for your primary security contact who will be available to assist Nike as a contact in resolving obligations associated with a security breach. A "security breach" for purposes of this Exhibit means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of Nike+ Data or interference with system operations in an information system that contains Nike+ Data. The inadvertent unauthorized access of Nike+ Data by your resource performing services under this Agreement is not a security breach so long as the resource ends access as soon as the access is discovered, and the inadvertent access is reported to Nike immediately. You shall notify Nike as soon as possible, and in no case later than twenty-four (24) hours, after you become aware of evidence that would lead you to reasonably conclude that a loss of, or unauthorized and unlawful access to or acquisition of Nike+ Data may have occurred. Upon confirming a security breach affecting Nike+ Data, you will report such breach to Nike, and cooperate with Nike in investigating all confirmed security breaches affecting Nike+ Data. You will take appropriate steps to remedy any such breach, at your expense, in accordance with applicable privacy rights and Laws. You will cooperate with Nike in connection with issuing any notices as may be required by law in connection with any such breach affecting Nike+ Data.
Immediately upon becoming aware of any confirmed security breach affecting Nike+ Data, you will reasonably and consistent with applicable law and regulation, notify your primary contact under this Agreement of a confirmed security breach within forty-eight (48) hours after it becomes aware of any such security breach and take the following steps:
(i) You shall
send a copy of the notice by facsimile to Nike’s Legal Department, facsimile number 503- 646-6926.
(ii) Immediately following such discovery and notification to Nike, you will investigate the security breach.
(iii) You shall take immediate steps to remedy the security breach at your expense in accordance with applicable privacy Laws. You shall reimburse Nike for actual costs incurred in responding to and/or mitigating damages caused by a security breach.
(iv) You will promptly use your best efforts to prevent a recurrence of any such security breach.
Except as may be strictly required by applicable law, you agree that you will not inform any third party of any security breach without first obtaining Nike’s prior written consent, other than to inform a complainant that the matter has been forwarded to Nike’s counsel. Further, you agree that Nike shall have the sole right to determine (i) whether notice of the security breach is to be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies, or others as required by law or regulation, or in Nike’s discretion; and (ii) the contents of such notice, whether any type of remediation may be offered to affected persons, and the nature and extent of any such remediation (including without limitation actual reasonable costs incurred in providing individuals affected by the security breach with complimentary one (1) year credit monitoring services, credit protection services, credit fraud alerts, and/or similar services which Nike in its sole discretion deems necessary to protect such affected individuals). Any such notice or remediation shall be at your sole cost and expense.
You agree to cooperate with NIKE in any litigation or other formal action against third parties deemed necessary to Nike to protect its rights.
D. Return or Destruction. Upon the termination or expiration of this Agreement, you will cease using Nike+ Data and promptly return or securely dispose of or destroy all Nike+ Data in your possession or control related to such terminated Application (unless database storage or other arrangements have been agreed upon by the Parties in writing). You shall extend the protection of this Agreement to Nike+ Data for as long as you maintain Nike+ Data.