Terms and Conditions
END USER LICENSE AGREEMENT AND TERMS OF SERVICE
Effective Date: July 15, 2018
Last Updated: July 8, 2018
This End User License Agreement and Terms of Service (this “EULA”) is a binding contract between you, an individual entering into this EULA on your own behalf (“you”), and Thompson Fitness Solutions, LLC (“TFS,” “we,” “us” or “our”) governing your use of the software application that TFS has made available online (the “Site”) and any websites or other online properties owned or controlled by TFS (together with the Site, the “Service”). The Service provides users (“Users”) with, among other things, a platform to monitor fitness training progress.
BY INSTALLING THE SITE OR OTHERWISE ACCESSING OR USING ANY PORTION OF THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE ANY PORTION OF THE SERVICE.
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
- the Service is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
- the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- we provide the Service to you on an “as is” basis without warranties of any kind and TFS’s liability to you is limited;
- disputes arising between you and TFS will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in Section 10 below, you and TFS are each waiving the right to a trial by jury or to participate in a class action;
- you agree to and acknowledge the “Notice Regarding Apple” below; and
- if you Post (defined in Section 5.a below) any Objectionable Content (defined in Section 5.g below) on the Service, then we may – but have no obligation to – take any remedial action that we, in our sole discretion, deem necessary and/or Appropriate under the circumstances, such as, without limitation, suspending or terminating your Account (defined in Section 3.a below), removing all of your User Content (defined in Section 5.a below) from the Service and/or reporting you to law enforcement authorities, either directly or indirectly.
- General Terms and Conditions.
- Consideration. TFS provides you with access to certain portions of the Service free of charge, but to enjoy the full benefits of the Service, you must purchase subscription-based access to the Service. In return for enjoying free or subscription-based access to the Service, you acknowledge and agree that TFS may generate revenues, increase goodwill or otherwise increase the value of TFS from your use of the Service, and you will have no right to share in any such revenue, goodwill or value whatsoever.
- Subscriptions. If you purchase a subscription to the Service, then the following terms also apply:
- Automatically Renewable Subscriptions. BY PURCHASING A SUBSCRIPTION TO THE SERVICE, YOU AGREE THAT, ONCE YOUR SUBSCRIPTION EXPIRES, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR THE PERIOD CHOSEN AT TIME OF INITIAL SUBSCRIPTION UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION.
- Recurring Charges. YOU AUTHORIZE THE APPLICABLE SERVICE PROVIDER TO PROCESS YOUR PAYMENTS FOR ANY RENEWAL SUBSCRIPTION. SUBSCRIPTION PRICES WILL BE DISPLAYED TO YOU AT THE TIME OF PURCHASE. YOU WILL BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-CURRENT SUBSCRIPTION PRICE PLUS ANY APPLICABLE TAXES. YOUR PAYMENTS WILL BE PROCESSED FOR ANY RENEWAL SUBSCRIPTION USING THE SAME BILLING CYCLE AS YOUR CURRENT SUBSCRIPTION. IN OTHER WORDS, IF YOUR PAYMENT IS PROCESSED FOR YOUR CURRENT SUBSCRIPTION ON THE 20TH OF EACH MONTH, THEN YOUR PAYMENT WILL CONTINUE TO BE PROCESSED ON THAT DAY FOR ANY RENEWAL SUBSCRIPTION. ADDITIONAL TERMS AND CONDITIONS MAY APPLY UPON RENEWAL, AND SUBSCRIPTION FEES MAY CHANGE AT ANY TIME, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
- Cancellation. YOU MAY CONTACT TFS AT INFO@MOBILITYMATTERS.FIT AT ANY TIME TO REQUEST THAT WE CANCEL YOUR SUBSCRIPTION TO THE SERVICE. ANY SUCH CANCELLATION WILL NOT BE DEEMED EFFECTIVE UNTIL WE EXPRESSLY CONFIRM THE CANCELLATION HAS OCCURRED IN WRITING. ONCE WE HAVE CONFIRMED THE CANCELLATION OF YOUR SUBSCRIPTION TO THE SERVICE IN ACCORDANCE WITH THE PRECEDING SENTENCE, YOU WILL NOT BE CHARGED FOR ANY SUBSEQUENT SUBSCRIPTION PERIOD. TFS HAS NO OBLIGATION TO OFFER OR PROVIDE ANY REFUND FOR THE CANCELLATION OF ANY SUBSCRIPTION.
- Changes to this EULA. You understand and agree that we may change this EULA at any time without prior notice; provided that we will endeavor to provide you with prior notice of any material changes that may apply to you, including through the posting of a revised EULA that you may be required to accept in order to continue using the Service. You may read a current, effective copy of this EULA at any time by selecting the Appropriate link on the Service. The revised EULA will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised EULA. If you find any change to this EULA or the Service unacceptable, then your sole remedy is to stop accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates TFS provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.c, no revisions to this EULA will Apply to any dispute between you and TFS that arose prior to the effective date of such revision.
- Jurisdictional Issues. The Service is controlled and operated by TFS from its offices in the State of California. TFS makes no representation that materials on the Service are Appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are Applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
- THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY TFS. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. FURTHERMORE, BY ACCESSING OR USING THE SERVICE, YOU AFFIRM THAT EITHER YOU ARE AT LEAST 18 YEARS OF AGE OR YOU HAVE BEEN AUTHORIZED TO USE THE SERVICE BY YOUR PARENT OR LEGAL GUARDIAN WHO IS AT LEAST 18 YEARS OF AGE.
- YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS INTENDED FOR USE ONLY BY INDIVIDUALS HEALTHY ENOUGH TO PERFORM EXERCISE. IF YOU OR YOUR CLIENTS ARE OLDER THAN EIGHTY-FIVE (85) YEARS OF AGE, OR IF YOU HAVE NOT BEEN PHYSICALLY ACTIVE FOR MORE THAN 1 YEAR, OR IF YOU HAVE ANY MEDICAL HISTORY THAT MAY PUT YOU AT RISK, INCLUDING, WITHOUT LIMITATION, ONE OR MORE THE FOLLOWING CONDITIONS, YOU ARE RECOMMENDED TO SEEK SITEROVAL FROM A QUALIFIED HEALTH CARE PRACTITIONER PRIOR TO USING THE SERVICE: HEART DISEASE, HIGH BLOOD PRESSURE, FAMILY HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, CHEST PAIN CAUSED BY PREVIOUS EXERCISE, DIZZINESS OR LOSS OF CONSCIOUSNESS CAUSED BY PREVIOUS EXERCISE, BONE OR JOINT PROBLEMS, DIABETES, HIGH CHOLESTEROL, OBESITY OR ARTHRITIS.
- Certain Rules.
- YOU ACKNOWLEDGE AND AGREE THAT: (1) TFS IS NOT A MEDICAL ORGANIZATION, AND ITS RECOMMENDED WORKOUT PLANS AND SPECIFIC EXERCISES DO NOT CONSTITUTE MEDICAL ADVICE, PRESCRIPTIONS, OR DIAGNOSES; AND (2) THE SERVICE IS NOT FOR USE IN EMERGENCY OR URGENT SITUATIONS, AND IF YOU THINK YOU OR YOUR CLIENT/PATIENT MAY HAVE A MEDICAL EMERGENCY, YOU WILL CALL 911 IMMEDIATELY.
- YOU SHOULD BE AWARE THAT THERE ARE INHERENT PHYSICAL AND MENTAL HEALTH RISKS TO EXERCISE, INCLUDING RISK OF INJURY OR ILLNESS. BY ACCESSING THE SERVICE, YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU AND YOUR CLIENT/PATIENT’S PERFORMANCE OF ANY AND ALL EXERCISES OR ACTIVITIES RECOMMENDED BY THE SERVICE IS WHOLLY AT YOUR OWN RISK. TFS, ITS EMPLOYEES AND ITS AGENTS, WILL NOT BE LIABLE FOR ANY PHYSICAL OR MENTAL INJURY OR ILLNESS THAT MAY RESULT, WHETHER DIRECTLY OR INDIRECTLY, FROM ANY OF OUR RECOMMENDED WORKOUT PLANS OR EXERCISES. WHILE WE MAY PROVIDE GUIDELINES SUCH AS WRITTEN DESCRIPTIONS, PICTURES, OR VIDEOS DESCRIBING HOW TO PERFORM SPECIFIC EXERCISES OR ACTIVITIES, YOU ASSUME SOLE RESPONSIBILITY FOR PERFORMING THOSE EXERCISES OR ACTIVITIES WITH PROPER FORM, AS RISK OF INJURY OR ILLNESS INCREASES WITH IMPROPER FORM. WE ENCOURAGE YOU TO SEEK MULTIPLE SOURCES OF INFORMATION REGARDING HOW TO PERFORM EACH EXERCISE CORRECTLY AND TO CONSIDER CONSULTING WITH A QUALIFIED COACH, INSTRUCTOR, PERSONAL TRAINER, OR PHYSICAL THERAPIST, ESPECIALLY IF YOU ARE NEW TO ANY OF THE FORMS OF TRAINING OR ACTIVITY YOU OR YOUR CLIENTS/PATIENTS SEEK TO PERFORM. WE HIGHLY RECOMMEND YOU SEEK GUIDANCE FROM A PHYSICAL THERAPIST OR OTHER QUALIFIED HEALTH CARE PRACTITIONER IF YOU OR YOUR CLEINTS/PATIENTS HAVE ANY PREEXISTING INJURIES OR CONDITIONS THAT MAY COMPROMISE THE JOINTS, MUSCLES, OR OTHER TISSUES INVOLVED IN THESE WORKOUTS, OR THAT MIGHT OTHERWISE INTERFERE WITH RECOMMENDED ACTIVITIES.
- YOU MUST DISCONTINUE EXERCISE IN CASES WHERE IT CAUSES YOU OR YOUR CLEINT/PATIENT PAIN OR SEVERE DISCOMFORT, AND SHOULD CONSULT A MEDICAL EXPERT PRIOR TO RETURNING TO EXERCISE IN SUCH CASES. WE RESERVE THE RIGHT TO DENY YOU ACCESS TO THE SERVICE IF WE DETERMINE, IN OUR SOLE DISCRETION, THAT YOU OR YOUR CLIENTS/PATIENTS HAVE CERTAIN MEDICAL CONDITIONS.
- Additional Terms. We also may require you to agree to additional terms and/or policies that we make available to you from time-to-time in connection with your use of the Service (“Additional Terms”). Except as otherwise stated expressly in certain Additional Terms, all Additional Terms are hereby incorporated into and subject to this EULA, and this EULA will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency.
- Mobile Services and Messaging.
- Mobile Services. The Service will be accessible via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data and other rates and fees will Apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be Applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Services and the related Mobile Services must be in accordance with this EULA.
- Messages. You may be able to send messages to others through certain functionality available on the Services (“Messages”). You represent and warrant that: (i) you will only send Messages to others who have given you their prior express consent to receive them; (ii) you, and only you, take all actions necessary to initiate and send all Messages, and we are merely a technology provider that plays no active role whatsoever in initiating and/or sending Messages; and (iii) you will indemnify and hold us harmless from any and all claims and losses arising out of your Messages. Without limiting the foregoing, you are solely responsible for all fees and charges associated with your Messages, including, without limitation, any fees or charges imposed by your Carrier.
- Log-In Credentials. While you may always browse any public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, you must download register an account with us (an “Account”).
- Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify TFS immediately at firstname.lastname@example.org if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. TFS will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying TFS of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Sites (defined in Section 7 below).
- Accuracy of Information. When creating an Account, you will provide true, accurate, current and complete information as TFS requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in Appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of TFS, or violate any Applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then TFS may terminate your Account immediately without notice to you and without any liability to you or any third party.
- Intellectual Property Rights
- License. Subject to your complete and ongoing compliance with this EULA, TFS hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to: (i) download, access and use an object code version of the Site on any device that you own or control; and (ii) access and use all other portions of the Service, in each case, solely for your personal, non-commercial use and solely in strict compliance with the provisions of this EULA. Any third-party code that may be incorporated into the Site is covered by the Applicable open source or third party license, if Applicable. For a list of the open source components included in the Site, please refer to the document located here.
- Content. Except for User Content, the content that TFS provides to Users on or through the Service (including without limitation, any work-out plans, videos, images or other content, and any other text, graphics, photos, software or interactive features) are protected by copyright or other intellectual property rights and owned by TFS or its third party licensors (collectively, the “TFS Content”). Moreover, TFS solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
- Marks. TFS trademarks, service marks and logos (the “TFS Trademarks”) used and displayed on the Service are TFS’s registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with TFS Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage TFS or the Applicable third-party, TFS’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without TFS’s prior express written consent. All goodwill generated from the use of any TFS Trademark will inure solely to TFS’s benefit.
- Restrictions. TFS hereby reserves all rights not expressly granted to you in this Section 4. Accordingly, nothing in this EULA or on the Service will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Service or any TFS Content or Trademarks located or displayed therein.
- User Content.
- Definition. “User Content” means any content that Users upload, post or transmit to or through the Service (collectively, “Post”) (including, without limitation, any work-out related data, and any text, photographs or other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret and copyright laws). For clarity, User Content excludes any and all TFS Content.
- Screening User Content. TFS does not pre-screen any User Content, but reserves the right to remove, disallow, block or delete any User Content in its sole discretion. In addition, we have the right – but not the obligation – in our sole discretion to remove, disallow, block or delete any User Content (i) that we consider to violate this EULA, Applicable law or otherwise constitute Objectionable Content; or (ii) in response to complaints from other Users or licensors of any TFS Content, with or without notice and without any liability to you. Without limiting the preceding sentences of this Section, TFS also has the right – but not the obligation – to take remedial action in connection with any Objectionable Content Posted on the Service as described more fully in Section 5.g below.
- Intellectual Property Rights. YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND SUBMITTING YOUR USER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
- Licenses to User Content. You hereby grant TFS a perpetual, irrevocable, unrestricted, assignable, sublicensable, royalty-free license throughout the universe to: (i) reproduce, distribute, publicly display, publicly perform, create derivative works from, and otherwise exploit and use (collectively, “Use”) all or any part of all User Content you Post to or through the Service, by any means and through any media and formats now known or hereafter developed, to provide and improve the Service and our business; and (ii) use your user name, image, voice and likeness to identify you as the source of any of your User Content. You must not Post any User Content on or through the Service or transmit to TFS any User Content that you consider to be confidential or proprietary. Notwithstanding the foregoing in this Section 5.d, we will not display or disclose publicly any of your User Content that is work-out related data in a manner that would identify you personally without your prior consent.
- You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have all rights necessary to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any party; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
- Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or Siteroval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
- Objectionable Content. You are not permitted to and agree not to Post any User Content to the Service that is or could be interpreted to be, as TFS may determine in its sole discretion, (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar or in violation of any Applicable laws; or (ii) promoting any product, good or service, or bigotry, discrimination, hatred, intolerance, racism or inciting violence ((i) and (ii) collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. You also agree not to use the Service for illegal or unlawful purposes. If you encounter any Objectionable Content on the Service, then please immediately email TFS atsupport@TFSathletic.com.You acknowledge and agree that TFS provides you with the ability to report Objectionable Content as a courtesy, and TFS has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. However, TFS in its sole discretion may take any actions it deems necessary and/or Appropriate against any User who Posts Objectionable Content on the Service, including, but not limited to, warning the User, suspending or terminating the User Account, removing all of the User’s User Content and/or reporting the User to law enforcement authorities, either directly or indirectly.
- No Liability. For the avoidance of doubt, TFS will not be liable for any use or misuse of User Content by any User.
- Restrictions on Use of the Service.
- In addition to any other restrictions set forth in this EULA, and without limiting those restrictions, when using the Service, you agree not to (and not to attempt to):
- delete, alter or make unauthorized copies of any content made available on or through any part of the Service;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up any part of the Service, except to the extent any such restrictions are expressly prohibited by Applicable law;
- rent, lease, loan, resell, sublicense, distribute or otherwise transfer any part of the Service or content thereon to any third party or use any part of the Service for the benefit of any third party;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of any part of the Service, features that prevent or restrict use or copying of any content accessible on any part of the Service, or features that enforce limitations on use of any part of the Service or any content thereon;
- delete any copyright or other proprietary rights notices on any part of the Service;
- provide any false information to TFS or impersonate another person or entity in any way;
- create a new Account with TFS, without TFS’s express written consent, if TFS has previously disabled an Account of yours;
- restrict, discourage or inhibit any person from using the Service or disclose personal information about a third person on the Service or obtained from the Service without the consent of that person;
- use the Service, without TFS’s express written consent, for any commercial purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
- gain unauthorized access to the Service, to other Users’ Accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
- Post any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment or any other aspect of the Service or communications equipment and computers connected to the Service;
- access, tamper or interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers; or
- violate any Applicable federal, state or local laws or regulations or the terms of this EULA.
- External Sites. The Service may contain links to or the ability to share information with third party websites (“External Sites”). TFS does not endorse any External Sites or the content made available on such External Sites. All External Sites and any content thereon is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. TFS is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Sites, purchase any content from External Sites or subscribe to services offered by such External Site, then you do so at your own risk. You agree that TFS will have no liability to you arising from your use, engagement, exposure to or interaction with any External Sites.
- Feedback. While we are continually working to develop and evaluate our own product ideas and features, we know we don’t have all the answers. We therefore welcome your feedback, comments and suggestions. If you choose to contribute by sending TFS or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games or other types of content), promotions, strategies or product/feature names or any related documentation, artwork, computer code, diagrams or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will Apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to TFS, you agree that:
- TFS has no obligation to review, consider or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and TFS is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant TFS perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
- Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
- Respect of Third Party Rights. TFS respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. TFS’s intellectual property policy is to: (i) remove or disable access to material that TFS believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content uploaded to the Service by “repeat infringers.” TFS considers a “repeat infringer” to be any User that has uploaded User Content to or through the Service and for whom TFS has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. TFS has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon TFS’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by TFS with the User alleged to have infringed a right you own or control, and you hereby consent to TFS making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit TFS to locate the material;
- Information reasonably sufficient to permit TFS to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- Designated Agent Contact Information. TFS’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via E-mail: email@example.com
Via U.S. Mail: 785 Augusta Drive, Moraga, CA. 94556
- Counter Notification. If you receive a notification from TFS that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide TFS with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to TFS’s Designated Agent through one of the methods identified in Section 9.d and include substantially the following information:
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The subscriber’s name, address and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which TFS may be found, and that the subscriber will accept service of process from the person who provided notification under Section 9.d above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to TFS in response to a Notification of Claimed Infringement, then TFS will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that TFS will replace the removed User Content or cease disabling access to it in 10 business days, and TFS will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless TFS’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on TFS’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [TFS] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
TFS reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
- Dispute Resolution.
- General. In the interest of resolving disputes between you and TFS in the most expedient and cost effective manner, you and TFS agree that any dispute arising out of or in any way related to this EULA or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND TFS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Notwithstanding Section 10.a above, nothing in this EULA will be deemed to waive, preclude or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the Applicable federal, state or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and TFS will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online atwww.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TFS. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, Applicability or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). TFS’s address for Notice is: 785 Augusta Drive, Moraga, CA 94556, Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or TFS may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or TFS must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by TFS prior to selection of an arbitrator, TFS will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by TFS in settlement of the dispute prior to the arbitrator’s award; or (3) $15,000.
- Fees. If you commence arbitration in accordance with this EULA, TFS will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco, California, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse TFS for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. Notwithstanding anything in this EULA to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 10.
- No Class Actions. YOU AND TFS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and TFS agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if TFS makes any future change to this arbitration provision, other than a change to TFS’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to TFS’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and TFS.
- Enforceability. If Section 10.f above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void.
- Limitation of Liability and Disclaimer of Warranties. THE FOLLOWING TERMS IN THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
- NEITHER TFS NOR ITS AFFILIATES (COLLECTIVELY, THE “TFS PARTIES”) MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE TFS PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
- THE TFS PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO TFS PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
- THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE TFS PARTIES DISCLAIM ALL WARRANTIES THERETO, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS AND FITNESS FOR PARTICULAR PURPOSE.
- IN NO EVENT WILL ANY TFS PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH TFS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TFS’S LIABILITY, AND THE LIABILITY OF ANY OTHER TFS PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF U.S. $100 OR THE TOTAL AMOUNT YOU HAVE PAID TFS FOR SUBSCRIPTION-BASED ACCESS TO THE SERVICE AS OF THE DATE OF THE APPLICABLE CLAIM.
- Third Party Disputes. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE TFS PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless the TFS Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this EULA; (b) your access to, use or misuse of TFS Content or the Service; or (c) your User Content. TFS will provide notice to you of any such claim, suit or proceeding. TFS reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if TFS believes that you are unwilling or incapable of defending TFS’s interests. In such case, you agree to cooperate with any reasonable requests assisting TFS’s defense of such matter at your expense.
- Term and Termination of the EULA.
- Term. As between you and TFS, the term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or TFS.
- Termination. You may terminate this EULA by sending written notification to TFS at firstname.lastname@example.org and terminating all other uses of the Service. If you wish to delete any of your User Content from the Service, then you can ask us to do so for you by contacting us at email@example.com, but no such removal is guaranteed. TFS reserves the right, in its sole discretion, to restrict, suspend or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA or violate the rights of any third party copyright owner, including, without limitation, any such owner of musical works or sound recordings. TFS may further terminate this EULA immediately for any other reason with or without notice to you, using the email address associated with your account credentials. TFS reserves the right to change, suspend or discontinue all or any part of the Service at any time without prior notice or liability.
- Sections 1.a, 1.b, 1.c, 1.e, 1.f, 1.g, 2, 3.b, 4.b, 4.c, 4.d, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18 and all defined terms used therein will survive the termination of this EULA indefinitely.
- Miscellaneous. This EULA is governed by the internal substantive laws of the State of California without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment or agency relationship exists between you and TFS as a result of this EULA or use of the Service. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of TFS to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against TFS unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by TFS and you, this EULA constitutes the entire agreement between you and TFS with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of TFS. TFS may assign this EULA, including all its rights hereunder, without restriction.
- Contact Us. If you would like to contact us in connection with your use of the Service, then please refer to the contact information below: by mail at 785 Augusta Drive, Moraga, CA 94556, and by email at firstname.lastname@example.org.
- Notice Regarding Apple. You acknowledge that this EULA is between you and TFS only, not with Apple, and Apple is not responsible for the Site or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Site. In the event of any failure of the Site to conform to any Applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Site to you; and, to the maximum extent permitted by Applicable law, Apple has no other warranty obligation whatsoever with respect to the Site. Apple is not responsible for addressing any claims by you or any third party relating to the Site or your possession and/or use of the Site, including, but not limited to: (a) product liability claims; (b) any claim that the Site fails to conform to any Applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Site or your possession and use of the Site infringes that third party’s intellectual property rights. You agree to comply with any Applicable third party terms, when using the Site. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If TFS provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version will prevail.