Terms & Conditions of Use
Welcome to TRKR Labs, an integrated suite of products and services available to elite athletes and their fans through the following:
· TRKR Labs-branded websites (“Site”)
· TRKR Labs-branded mobile applications (“App”)
· Other associated U.S.-based health and fitness related websites, applications, applets, widgets, software development kits, tools, calculators, content, social networking components, products, services, or select promotional offers made available by TRKR Labs (“Other”)
Collectively, all of the above are referred to hereinafter as the “Services.” The Services are provided by and made available to you (“you,” and collectively, “Users”) by River Cities Technology, LLC. (“RCT”).
Your use of the Services is governed by these terms and conditions (this “Agreement”) which may be modified from time to time without prior notice to you. By using the Services, you agree to be bound by this Agreement, whether you are a visitor, which means that you simply browse the Services or any of its applications, or you are a user with a registered account (“Registered User”). RCT may at any time in its sole discretion (i) modify this Agreement and such modification shall be effective once posted to the Services, (ii) change the Services, including eliminating or discontinuing any Services or other feature of the Services; and/or (iii) deny or terminate your use of and/or access to the Services.
You agree to be bound to any changes to this Agreement when you use the Services or access the Services immediately after any modification to this Agreement has been posted. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
The term “User” refers to any visitor to the Services or Registered User, unless provided otherwise. You are only authorized to use the Services if you agree to abide by all applicable laws and this Agreement, wherever applicable. Please read this Agreement carefully and save it. If you do not agree with it, you should leave the Services and discontinue use of the Services immediately. If you wish to become a Registered User, communicate with other Users, and make full use of the Services, you must read this Agreement and indicate your acceptance during the registration process.
Additional and/or different terms and conditions of use may apply to services or products provided through one or more of our hardware partners, advertisers, or business associates, and you should refer to such terms and conditions before accessing, purchasing, using, or subscribing to such services or products.
Use of Services is void where prohibited. By using the Services, you represent to us that (a) any registration information that you submit is truthful, accurate and otherwise owned by (or licensed to) you; and (b) your use of the Services does not violate any applicable law or regulation.
The Services are not intended or designed for children under 13 years of age. By using the Services, you represent and warrant that you are at least 18 years of age and have reviewed and now consent to the Terms, or, if you are under 18 years of age (but 13 years of age or older), then you affirm that you possess the legal consent of your parent or guardian to access and use the Services.
If you are a parent or guardian agreeing to the Terms for the benefit of a child over 13, then you represent and warrant that you have reviewed and now consent to the Terms and accept full responsibility for your child’s use of the Services, including all financial charges and legal liability that such child may incur in connection with the use of the Services.
The Services may include features that promote physical activity and fitness. By using the Services, you agree, represent, and warrant that you have received consent from your physician to participate in health and fitness programs, workouts, exercises, or any other related activities made available through or enhanced by the Services.
Browsing of the Services’ public pages is provided free of charge to any person. However, access to certain functionalities of the Services will require you to register with and/or provide certain information to us. We reserve the right to decline to provide Services to any person for any or no reason. When you sign up to become a Registered User, you will be asked to create a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another User at any time or disclose your password to any third party. You agree to notify us immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all uses of your account.
In order to participate in certain Services, you may be notified that you are required to download software or content and/or agree to additional terms and conditions. Any such additional terms are hereby incorporated by reference into this Agreement.
3. LIMITED LICENSE.
The Services are owned and operated by RCT. All content on the Services (except for User Content as that term is defined below), including but not limited to text, software, scripts, code, designs, graphics, photos, sounds, music, videos, applications, interactive features, patents, copyrights, trademarks, trade dress, service marks, and other intellectual property (collectively, “RCT Content”) is owned by RCT. You acknowledge and agree that the Services, any necessary software used in connection with the Services (if any), and any RCT Content contain proprietary and confidential information that is protected by applicable intellectual property and other laws.
You may not sell or modify the RCT Content or reproduce, republish, display, publicly perform, distribute, or otherwise use the RCT Content in any way for any public or commercial purpose other than through the Services. Unauthorized use of the Services for any other purpose is prohibited. You may not decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from the Services. Nor may you use any network monitoring or discovery software to determine the architecture, or extract information about usage or users. You may not use any robot, spider, other automatic device, or manual process to monitor or copy our Services or its content without our prior written permission. Failure to abide by these conditions will immediately terminate this permission and may result in the infringement of the copyrights and/or trademarks and other proprietary rights of RCT or others.
4. ACCOUNT INFORMATION.
Registered Users are provided a gateway to access and use the Services. To use the Services, you must create an account (“Account”). Your Account will automatically provide you access and means to use any new Services that are made available through RCT, subject to the payment of any applicable fees.
User Data. Account creation requires you to provide an email address and password and certain other personal information, as that term is used in our Privacy Statement; additionally, you may furnish other information such as your height, weight, and gender (collectively, “User Data”) as part of your use of particular Services. You should: (a) provide true, accurate, current, and complete information about yourself as prompted during the Account creation/registration process, and (b) maintain and promptly update the User Data to keep it accurate and current. You agree that we may use your User Data to provide the Services and for other Service-related purposes. If you provide any information that is inaccurate or not current, some of our Services may not operate correctly. Additionally, if you provide any information for the purposes of fraudulent or criminal activities, or we have reasonable grounds to suspect that such information has been provided, we have the right to suspend or terminate your Account and refuse any and all current or future use of the Services.
User Content. Except as provided in this Agreement, RCT does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials (collectively, “Content”) that you post or upload through the Services (“User Generated Content”).
You are solely responsible for any third party Content in your User Generated Content and for the use of the User Generated Content, including through the Services. We reserve the right to remove such Content, your User Generated Content and/or any other content in our sole and absolute discretion.
In addition, the Services may contain Content, under license to RCT from one or more third parties, in which you are featured and/or visible or which includes your name, sobriquet, professional name, image, likenesses, other identifications, and biographical material (“User Featured Content” and together, with User Generated Content, “User Content”).
You hereby grant to us and our licensees, distributors, agents, independent contractors, representatives and other authorized users (collectively, the “RCT Entities”), a perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such User Content, in whole or in part, in all media formats and channels now known or hereafter devised (including, without limitation, through the Services or any related or affiliated services, on third party web sites, cable networks and stations, broadband and wireless platforms, and or on any other products and services) for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the “Content License”). You appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm, fully utilize, or enforce the grant of rights, consents, agreements, assignments and waivers set forth in this Agreement.
You represent and warrant to us that:
· (i) you own the User Generated Content or otherwise have the legal right to post or transmit the User Generated Content in accordance with the terms of this Agreement,
· (ii) the posting or other transmission of the User Generated Content on or through the Services or otherwise by RCT or the RCT Entities does not violate the privacy rights, publicity rights, intellectual property rights (copyrights, patents, trademarks), contract rights or any other rights of any person or entity,
· (iii) without limiting this Agreement, you have provided your consent to the use of User Featured Content to your school and/or applicable athletic organization from which RCT has obtained, directly or indirectly, such User Feature Content. To the extent that any of the User Content on the Site and/or Services features a child of User under the age of 18, User is deemed to have consented to the Content License on such child’s behalf and the foregoing representations with regard to such Content, and such child shall also be deemed to be a User for purposes of this Agreement.;
· (iv) you have no agreement with or obligations to any third party with respect to the rights herein granted which conflict or interfere with or adversely affect any of the provisions of this Agreement or the use or enjoyment by us of any of the rights herein granted You have secured and will maintain all rights necessary for us to use and enjoy the rights herein granted. You have not sold, assigned, transferred or conveyed, and will not sell, assign, transfer, or convey, to any party any right, title, or interest in and to the rights herein granted or any part thereof, adverse to or in derogation of the rights herein granted to us; and
· (v) If you are under eighteen (18) years of age, you further warrant and represent that you either: (I) are an emancipated minor, or (II) possess legal parental or guardian consent to enter into this agreement and use the site and services.
· (vi) To the extent any “moral rights,” “ancillary rights,” or similar rights in or to the User Content exist and are not exclusively owned by us, you agree not to enforce any such rights as to us or the RCT Entities, and you shall procure the same agreement not to enforce from any others who may possess such rights. You agree to pay for all royalties, fees, and any other monies owing to any person or entity by reason of any User Content posted by you to or through the Services.
Third Party Services and Logins. You may enable or log in to the Services via various online third party services, such as social media and social networking services like Facebook or Twitter (“Social Networking Services”). By logging in or directly integrating these Social Networking Services into the Services, we make your online and mobile experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for, or log into Social Networking Services on the websites of their respective providers. As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to them, and we will use, store, and disclose such information in accordance with our Privacy Statement. Please remember that the manner in which Social Networking Services use, store, and disclose your information is governed solely by the policies of such third parties, and we have no liability or responsibility for the privacy practices or other actions of any third party website or service that may be enabled within the Services. In addition, we are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available in connection with Social Networking Services. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Social Networking Services. We enable these features merely as a convenience to our Users.
Third Party Applications and Content. You may be able to access certain third party applications or content (“Third Party Applications”) via your Account. If you choose to access these Third Party Applications, you may be requested to log-in and sync your Account with such applications. You are in no way obligated to use any Third Party Applications, and your access and use of such applications is entirely and solely at your own risk. If you opt to use Third Party Applications via your Account, they will gain access to certain information that you have provided to us, including personal information, and they will use, store, and disclose such information in accordance with their individual privacy policies. The manner in which Third Party Applications use, store, and disclose your information is governed solely by their individual privacy policies and terms and conditions. We have no liability or responsibility for the privacy and information security practices or other actions of any Third Party Applications that you choose to access through your Account. In addition, we are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available by any Third Party Applications. As such, we are not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third Party Applications.
5. PASSWORD AND SECURITY DISCLAIMER
When you create an Account, you will be asked to create a password to protect your Account. Because you will be responsible for all activities that generate from your Account, and you can only access your Account upon the transmission of your password, you should keep your password strictly confidential at all times. We reserve the right to suspend your Account and/or require that you alter your password if we believe for any reason that your password is no longer secure. YOU MAY NOT SHARE YOUR ACCOUNT PASSWORD WITH ANY OTHER PERSON FOR ANY REASON.
RCT tries to use reasonable security measures to protect against unauthorized access to your Account. We cannot, however, guarantee absolute security of your Account, your User Data, or the personal information or location information you provide, and we cannot promise that our security measures will prevent third-party “hackers” from illegally accessing the Services or its contents. You agree to immediately notify RCT of any unauthorized or suspected unauthorized use of your Account or password or any other breach of security, and to accept all risks of unauthorized access to your Account, User Data, or any other information you provide in connection with your use of the Services.
Acknowledgment of Our Data Access and Usage Rights. You acknowledge, consent, and agree that we may access, preserve, retain, and disclose your User Data, payment method, and other User Content as permitted by this Agreement and our Privacy Statement, if we have your consent, or if we are required to do so by law or in a good faith belief that such access, preservation, retention, and/or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Terms; (c) respond to claims that any User Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of RCT, their respective affiliates, Users, and the general public. Subject to the foregoing, we will endeavor to use reasonable security measures to maintain the confidentiality of your User Data and payment method information.
6. THIRD PARTY CONTENT & EQUIPMENT DISCLAIMER
You understand that use of certain features of the Services may require you to purchase third party equipment or materials (e.g., GPS and/or mobile devices). While we may recommend, promote, or market the equipment or materials of certain third party suppliers, we have no responsibility for your acquisition or use of any third party equipment or materials, and we do not guarantee that third party equipment or materials will function with the Services or will be error-free.
Certain content displayed on or linked to via the Services (collectively “Third Party Content”) is developed by individuals or merchants over whom we exercise no direct control. We do not endorse any Third Party Content, or the information, material, products, or services associated with Third Party Content. Furthermore, some Users may find some Third Party Content to be objectionable, inappropriate, or offensive. We therefore do not make any express or implied warranties with regard to the nature of the information, material, products, or services that are displayed or linked by any Third Party Content. In addition, your contacts or business dealings with, or participation in the promotions of, individuals or merchants found on or linked by any Third Party Content exist solely and operate independently as between you and such individuals or merchants. You therefore agree that we are not responsible for or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the placement of, or linkage to such Third Party Content.
The Services may provide, or third parties may provide, links to other websites, applications, services, offers, and/or other resources (collectively, the “Third Party Resources”). Because we have no control over such Third Party Resources, you acknowledge and agree that we are not responsible for the availability of such Third Party Resources and that we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such Third Party Resources.
8. MOBILE APPLICATIONS
Wireless Carrier Considerations. To use or otherwise access the Services, in particular the App, you must have a mobile device that is compatible with the Services and the App. We do not warrant that the App will be compatible with your mobile device. We do not charge for use of some basic Apps; however, you may be obligated to pay some fees for use of certain premium Apps. Further, a wireless carrier’s normal messaging, data, and other rates and fees will still apply. You should therefore check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using the App may be prohibited or restricted by your carrier, and not all Apps may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Apps are available for your mobile device, and what restrictions, if any, may be applicable to your use of the Apps.
Text and Mobile Messaging Express Consents. By using the App, you expressly agree that we may communicate with you regarding the Services by SMS, MMS, text message, or other electronic means directed to your mobile device and that certain information about your usage of the App may be communicated to us.
In the event you change or deactivate your mobile device telephone number, you agree to promptly update your Account information to ensure that messages are not sent to the person that acquires your old number.
User End Licenses. We hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of a given App downloaded directly from a legitimate marketplace (such as Apple’s iTunes store), solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control with your Account. An Account is comprised of the shared resources accessible by one Registered User on one mobile device owned or leased solely by you for your personal use.
You may not:
· modify, disassemble, decompile or reverse engineer the App, except to the extent that such restriction is expressly prohibited by law;
· rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the App to any third party or use the App to provide time sharing or similar services for any third party;
· make any copies of the App;
· remove, circumvent, disable, damage, or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or
· delete the copyright and other proprietary rights notices on the App.
You acknowledge and agree that we may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you employ on your mobile device. You expressly consent to such automatic upgrading on your mobile device, and agree that the Agreement (and any additional modifications of the same) will apply to all such upgrades. With respect to any open source or third-party code that may be incorporated in the App, such open source code is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code.
The foregoing license grant is not a sale of the App or any copy thereof, and we retain all rights, title, and interest in the App (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in the Terms is void.
9. INFRINGING CONTENT; DIGITAL MILLENNIUM COPYRIGHT ACT
We reserve the right to remove any User Content that is alleged to infringe the copyright of a third party or otherwise violates any third party rights and/or to suspend or terminate a User’s access privileges in the event of repeat infringement by a User.
If you are a copyright owner or authorized agent and believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, or if you believe that your rights have otherwise been violated by the Services, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
· (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest or the person whose rights have been violated;
· (ii) a description of the copyrighted work that you claim has been infringed or the particular rights violated;
· (iii) if applicable, a description of where the material that you claim is infringing is located on the Site;
· (iv) your address, telephone number, and email address;
· (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law or with regard to the rights violated; and
· (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate.
Our designated (“Copyright Agent”) to receive notifications of claimed infringement is as follows:
c/o River Cities Technology, LLC
6405 NW 36th Street, Suite 109
Miami, FL 33166
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your User Content, you may send a counter-notice pursuant to the DMCA containing the following information to the Copyright Agent:
· (i) your physical or electronic signature;
· (ii) identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
· (iii) a statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and
· (iv) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Nebraska, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, RCT may, in its sole discretion, send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the User Content provider, member or user, the removed User Content may be replaced, or access to it restored.
10. INTELLECTUAL PROPERTY.
The Services, as well as certain Content available therein (together, “RCT Intellectual Property”), are protected by copyright, trademark, patent, trade secret and other intellectual property laws in the United States and other countries, and RCT owns and retains all such rights in the RCT Intellectual Property.
Without limiting the foregoing, RCT, TRKR, the TRKR Labs logo, are trademarks of RCT, protected under international law, the laws of the United States and other countries. Other parties’ trademarks used, depicted or identified on this Site are the property of their respective owners, used here by permission, and may be registered in one or more countries. Use on this Site of the trademark(s) (including, but not limited to, names and logos) of any other party is not intended to imply RCT’s affiliation with or endorsement of that party, or that party’s sponsorship or endorsement of RCT and their products or services.
11. USER CONDUCT.
You agree not to use the Services to take any action(s) that, (and your continued use of the Services are conditioned on not taking any action(s) that):
· patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; harasses or advocates harassment of another person or group; exploits people in a sexual or violent manner; or contains nudity, violence, or offensive subject matter or contains a link to an adult website;
· solicits personal information; provides any User telephone numbers, street addresses, last names, URLs or email addresses; involves the transmission of “junk mail,” “chain letters,” or “unsolicited mass mailing”, “instant messaging”, “phishing”, “spimming” or “spamming”; contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
· promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or video or links to pirated files;
· furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
· involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
· are contrary to RCT’s public image, goodwill, or reputation;
· infringe on our or any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
· express or imply that any of your statements, activities or causes are endorsed by us, without our prior written consent in each instance;
· transmit any trade secret or other material, non-public information about any person, company or entity without the authorization to do so;
· “frame” or “mirror” any part of the Services without our prior written authorization;
· distribute any virus, worm or other similar or deleterious files, scripts or programming routines;
· interfere with or disrupt any services or equipment with the intent of causing an excessive or disproportionate load on the infrastructure of RCT or its licensors or suppliers;
· forge headers or otherwise manipulate identifiers in order to disguise the origin of any submission; and/or
· execute any form of network monitoring or run a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Website’s servers or any data not intended for you.
Further, you agree not to use the Services to participate in:
· criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or violation of the privacy or publicity rights of third parties;
· advertising to, or solicitation of, any User to buy or sell any products or services through the Services. You may not transmit any chain letters or junk email to other Users. It is also a violation of these rules to use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent. In order to protect our Users from such advertising or solicitation, RCT reserves the right to restrict the number of emails that a User may send to other Users;
You agree not to attempt to impersonate another User or other individual, and you acknowledge that the Services are for public and not private communications and that you have no expectation of privacy with regard to any User Content. We cannot guarantee the security of any information you disclose; you make such disclosures at your own risk. Also, you should be skeptical about information provided by others, and you acknowledge that the use of any User Content through the Services is at your own risk.
If you become aware of misuse of the Services by any person, please contact RCT at email@example.com. RCT reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the Services at any time, for any or no reason, with or without prior notice, and without liability.
You agree to indemnify and hold RCT, the RCT Entities, and their subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Site and Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above and/or if any User Content posted on the Site or through the Services causes RCT to be liable to another third party or User.
13. LINKS TO OTHER SITES.
The Services contain links to web sites not operated or maintained by RCT. These links are provided solely as a convenience to you and not as an endorsement by RCT of the contents of such third party web sites. RCT is not responsible for the content of the sites of others and makes no representation regarding the content or accuracy of materials on such sites. If you decide to access linked third-party web sites, you do so at your own risk, and waive any and all claims against RCT regarding the inclusion of links to outside web sites or your use of those web sites.
DISCLAIMERS OF WARRANTIES: RCT DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE OR THAT ITS SERVERS ARE FREE OF COMPUTER VIRUSES AND/OR OTHER HARMFUL MATERIALS. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, RCT IS NOT RESPONSIBLE FOR THOSE COSTS. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. RCT, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. RCT MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE SERVICES.
DISCLAIMER OF CONSEQUENTIAL DAMAGES: EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER RCT NOR THE RCT ENTITIES OR THEIR DIRECTORS, EMPLOYEES, LICENSORS, CONTENT PROVIDERS, AFFILIATES OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND EXEMPLARY DAMAGES, ARISING FROM THE USE OF THESE SERVICES, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU EXPRESSLY AGREE THAT WE ARE NOT PROVIDING MEDICAL ADVICE VIA THE SERVICES. ALL CONTENT PROVIDED THROUGH THE SERVICES, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER USERS OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (a) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (b) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (c) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. SHOULD YOU HAVE ANY HEALTH RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY.
YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON OR VIA THE SERVICES, AND YOU SHOULD NOT USE THE SERVICES OR ANY CONTENT AVAILABLE THROUGH OR VIA THE SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF ANY CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL, OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND RCT.
YOU EXPRESSLY AGREE THAT YOUR ATHLETIC ACTIVITIES, WHICH GENERATE THE USER CONTENT YOU POST OR SEEK TO POST ON OR VIA THE SERVICES (INCLUDING BUT NOT LIMITED TO RUNNING, WALKING, CYCLING, HIKING, TRIATHLON RELATED ACTIVITIES) CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY, OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES, EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION, OR NEGLIGENCE OF THE UA PARTIES OR BY THE ACTION, INACTION, OR NEGLIGENCE OF OTHERS. YOU ALSO EXPRESSLY AGREE THAT RCT ASSUMES RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, PREPARATION, OR CONDUCT OF ANY RACE, CONTEST, GROUP ATHLETIC ACTIVITY, OR EVENT THAT UTILIZES THE SERVICES.
YOU EXPRESSLY AGREE TO RELEASE RCT FROM ANY AND ALL LIABILITY CONNECTED WITH YOUR USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO YOUR PARTICIPATION IN OR ANY ATHLETIC ACTIVITIES), AND PROMISE NOT TO SUE RCT FOR ANY CLAIMS, ACTIONS, INJURIES, DEATH, DAMAGES, OR LOSSES ASSOCIATED WITH YOUR USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO YOUR PARTICIPATION IN OR ANY ATHLETIC ACTIVITIES). YOU ALSO AGREE THAT IN NO EVENT WILL RCT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (a) YOUR USE OR MISUSE OF THE SERVICES, (b) YOUR USE OR MISUSE OF EQUIPMENT OR PROGRAMS CREATED, SOLD, OR LICENSED BY US WHILE ENGAGED IN ATHLETIC ACTIVITIES, (c) YOUR DEALINGS WITH THIRD PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICES, (d) ANY DELAY OR INABILITY TO USE THE SERVICES EXPERIENCED BY YOU, (e) ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES, OR CONTENT OBTAINED THROUGH THE SERVICES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF RCT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH CASE, THE LIABILITY OF RCT WILL BE LIMITED TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
REMEDY: IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR EXCLUSIVE REMEDY SHALL BE TO CEASE USING THE SERVICES.
Some U.S. states and foreign countries do not permit the exclusion or limitation of implied warranties or liability for certain categories of damages. Therefore, some or all of the limitations above may not apply to you to the extent they are prohibited or superseded by state or national provisions. RCT makes no representation of any kind with respect to the applicability and enforceability of laws or policies of countries other than the United States over the content of this site and the provisions of this Agreement.
You agree to indemnify and hold RCT harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out: (a) the User Content you share through the Services; (b) your use of the Services, (c) your athletic activities which generate the User Content you share or seek to share via the Services (including, but not limited to, athletic activities in connection with any contests, races, group activities, or other events which we may sponsor, organize, participate in, or where the Services are employed), (d) your connection to the Services, (e) your violation of the Terms, (f) your use or misuse of any User’s personal information and location information, (g) any violation of the rights of any other person or entity by you, or (h) your employment of the Services to meet another User in-person or to locate and attend any offline place or event. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under the Terms, and you agree to cooperate with our defense of these claims.
16. LIMITATION OF LIABILITY AND DAMAGES
YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WILL RCT (INCLUDING WITHOUT LIMITATION OUR THIRD-PARTY WIRELESS CARRIER PARTNERS) OR SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF A USER’S PERSONAL INFORMATION AND/OR LOCATION INFORMATION; (B) YOUR USE OF THE SERVICES OR THE ABILITY OR INABILITY TO USE THE SERVICES; (C) THE SERVICES GENERALLY, INCLUDING THE NETWORKS AND SYSTEMS THAT MAKE THE SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH US OR ANY OTHER USER OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL ALSO APPLIES WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED WITH THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN CONNECTION WITH THE SERVICES. THIS LIMITATION ALSO APPLIES, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION FURTHER APPIES WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO THE SERVICES. SUCH LIMITATION APPLIES NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Without limiting the foregoing, under no circumstances will RCT be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond their reasonable control, including, without limitation, Internet failures, computer equipment or security failures, telecommunication equipment failures, other equipment failures, hacking, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
IN NO EVENT WILL RCT (INCLUDING WITHOUT LIMITATION OUR THIRD-PARTY WIRELESS CARRIER PARTNERS) OR SUPPLIERS’ TOTAL LIABILITY (IN THE AGGREGATE) TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR EMPLOYMENT OF THE SERVICES WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR ONE THOUSAND DOLLARS ($1000.00), WHICHEVER IS GREATER.
YOU FURTHER AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDNIGLY, THE EXCLUSIONS, AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY IN THEIR ENTIRETY TO YOU. YOU AGREE, HOWEVER, THAT OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree that we may, under certain circumstances and without prior notice, immediately terminate your Account and/or access to the Services. Cause for such termination includes, but is not limited to, (a) real or suspected breaches or violations of the Terms, other incorporated agreements, guidelines, and/or additional terms, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated Account deletions), (d) discontinuance or material modification to the Services (or any portion thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of your Account may include (x) removal of access to all offerings within the Services, (y) deletion of your User Data, personal information, files and User Content associated with or inside your Account, and (z) barring of further use of the Services. Further, you agree that all terminations for cause will be made in our sole discretion and that we are not liable to you or any third party for any termination of your Account or access to the Services.
18. APPLICABLE LAWS, ARBITRATION, CLASS ACTION WAIVER AND SURVIVAL
U.S. Usage, Consent, and Export Controls. We control and operate the Services from our offices within the United States of America. We do not make any representation that User Content, RCT Content, or the Services are appropriate or available for use in other locations, and access to them from territories where the content or use of the Services is illegal is prohibited. Those who choose to access the Services from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. If you use the Services outside the United States, you expressly agree to the transfer and processing of any information we collect wherever we may have operations. You may not use or export the RCT Content or User Content in violation of U.S. export laws and regulations.
Dispute Resolution and Class Action Waiver. Any and all disputes, claims and causes of action arousing out of or relating to the Services, RCT Content, User Content, usage of User Data, personal information, or location information, or the Terms will be resolved individually, without resort to any form of class action, and will be arbitrated and governed by Florida law and controlling U.S. federal law as applicable, without regard to conflicts of laws as set forth more fully below.
Governing Law. The Terms and the relationship between you and us is be governed by the laws of the state of Florida, and federal law as applicable, without regard to the conflict of law provisions of the state of Florida.
Individual, Confidential Arbitration. You and we agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the Service under the rules of the American Arbitration Association. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration,
Any such arbitration between you and us, to the extent necessary, will be conducted in Miami, Florida, and you waive any right to claim that such location is an inconvenient forum. You covenant not to sue us in any other forum.
The arbitration will be conducted in the English language. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association, as modified herein. You and we agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (a) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (b) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim.
You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the Services:
· YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;
· YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND
· YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.
Only if this arbitration provision is deemed to be null and void, then all disputes arising between you and us under the Terms will be subject to the exclusive jurisdiction of the state and federal courts located in or having jurisdiction over Miami, Florida, and you and we hereby submit to the personal jurisdiction and venue of these courts.
19. OTHER MISCELLANEOUS TERMS.
Should any clause of this Agreement be found unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect. RCT’s failure to expressly enforce any provision of this Agreement does not waive its rights to enforce that or any other provision. RCT may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder (in whole or in part) in its sole discretion.
20. NCAA REGULATIONS / OTHER REGULATIONS.
RCT is in no way affiliated with or sponsored by the NCAA. You are responsible for your own activities in connection with the Services, including your use of the Services. Accordingly, you are responsible for knowing and complying with the NCAA’s rules, regulations, and laws or other similar rules, regulations, and laws (collectively, “NCAA Regulations”). RCT is not responsible if you do not abide by NCAA Regulations (or any other similar rules or regulations) in connection with your use of the Services. If you act in violation of the NCAA Regulations, RCT may take reasonable steps in response, including, but not limited to, termination of your access to and use of the Services and/or reporting of such conduct to the NCAA, the authorities, or other appropriate entity. RCT does not knowingly promote any violations of NCAA Regulations (or any other similar rules or regulations).
Updated December 10, 2015