CYCLECAST TERMS OF SERVICE
LAST UPDATED: June 28, 2015
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. CycleCast, LLC ("CycleCast," "we," “our,” or "us") is a fitness-themed internet radio service and an online fitness community made available through the CycleCast mobile application and the CycleCast website (collectively, the "CycleCast Service"). We may refer to you as "listener", “member”, "you", or "your". By registering as a member or by using the CycleCast Service in any way, you accept these Terms of Service ("Agreement"), which forms a binding agreement between you and CycleCast. If you do not wish to be bound by this Agreement, do not use the CycleCast Service.
1. WHO MAY USE THE CYCLECAST SERVICE
AGE REQUIREMENT: You must be at least 18 years old to register with and use the CycleCast Service.
2. LICENSE TO USE THE CYCLECAST SERVICE
LICENSE: CycleCast grants you a limited, non-exclusive license to access and use the CycleCast Service for your own personal, non-commercial purposes. This includes the right to view content available on the CycleCast Service. This license is personal to you and may not be assigned or sublicensed to anyone else.
RESTRICTIONS: Except as expressly permitted by CycleCast in writing, you will not reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the CycleCast Service. Nor will you take any measures to interfere with or damage the CycleCast Service. All rights not expressly granted by CycleCast are reserved.
What information we may collect about you;
What we use that information for; and
With whom we share that information.
4. MEMBERSHIP REQUIREMENTS
REGISTRATION: To make full use the CycleCast Service, you must register as a member of the CycleCast Service and enter into a subscription agreement with CycleCast. You must provide complete and accurate registration information to CycleCast, complete the subscription process and notify us if any of your information changes.
USER NAME: You may not use someone else's name, a name that violates any third party right, or a name that is obscene or otherwise objectionable.
ACCOUNT SECURITY: You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You must not allow others to use your account. You must safeguard the confidentiality of your password. If you become aware of an unauthorized access to your account, you must change your password and notify us immediately at email@example.com.
5. MEMBERSHIP STRUCTURE
CycleCast will provide information on its then-current membership levels and subscription requirements through the CycleCast Service. Features and prices are subject to change.
6. TERM AND TERMINATION; ACCOUNT DELETION
TERM: This Agreement begins on the date you first use the CycleCast Service and continues as long as you have an account with us.
TERMINATION FOR BREACH: CycleCast may suspend, disable, or delete your account (or any part thereof) or block or remove any content you submitted if CycleCast determines that you have violated any provision of this Agreement or that your conduct or content would tend to damage CycleCast’s reputation and goodwill. If CycleCast deletes your account for the foregoing reasons, you may not re-register for the CycleCast Service. CycleCast may block your access to the CycleCast Service to prevent further registration.
EFFECT OF TERMINATION/ACCOUNT DELETION: Upon termination, all licenses granted by CycleCast will terminate. Sections 6 and 11 through 18 shall survive termination. In the event of account deletion for any reason, content that you submitted may no longer be available. CycleCast shall not be responsible for the loss of such content.
7. CONTENT RESTRICTIONS
You may not upload, post, or transmit (collectively, "submit") any video, image, text, audio recording, or other work (collectively, "content") that:
Infringes any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.);
Contains sexually explicit content;
Contains hateful, defamatory, or discriminatory content or incites hatred against any individual or group;
Depicts unlawful acts or extreme violence;
Depicts animal cruelty or extreme violence towards animals;
Promotes fraudulent schemes, multi-level marketing (MLM) schemes, ‘get rich quick’ schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or
Violates any law.
8. CODE OF CONDUCT
In using the CycleCast Service, you must behave in a civil and respectful manner at all times. Further, you will not:
Act in a deceptive manner by, among other things, impersonating any person;
Harass or stalk any other person;
Harm or exploit minors;
Collect information about others; or
Advertise or solicit others to purchase any product or service within the CycleCast Service.
CycleCast has the right, but not the obligation, to monitor all conduct on and content submitted to the CycleCast Service. CycleCast reserves the right to alter, edit, remove, or refuse to post any content, in whole or in part in its sole discretion or to satisfy or comply with applicable laws, regulations and/or legal processes.
You own all content that you submit to the CycleCast Service. You grant CycleCast and its affiliates a worldwide, perpetual, irrevocable, non-exclusive, sub-licensable (through multiple tiers) royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your content (including without limitation, your name and likeness, photographs and testimonials) for any purpose whatsoever commercial or otherwise without compensation to you. In addition, you waive any so-called "moral rights" in your content. You further grant all users of the CycleCast Service permission to view your content for their personal, non-commercial purposes. If you make suggestions to CycleCast on improving or adding new features to the CycleCast Service, CycleCast shall have the right to use your suggestions without any compensation to you.
10. YOUR REPRESENTATIONS AND WARRANTIES
For each piece of content that you submit, you represent and warrant that: (i) you have the right to submit the content to CycleCast and grant the licenses set forth above; (ii) CycleCast will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the content does not infringe any third party's rights, including intellectual property rights and privacy rights; and (iv) the content complies with this Agreement and all applicable laws.
You agree to indemnify, defend, and hold harmless CycleCast and its affiliates, directors, officers, employees, and agents, from and against all claims, damages, losses and costs that: (i) arise from your activities on the CycleCast Service; (ii) assert a violation by you of any term of this Agreement; or (iii) assert that any content you submitted to CycleCast violates any law or infringes any third party right, including any intellectual property or privacy right.
12. THIRD PARTY LINKS AND CONTENT
There may be links presented to you on the CycleCast Service that will let you leave the particular CycleCast Service feature you are accessing in order to access a linked site (the "Linked Sites"). CycleCast neither controls nor endorses these linked sites, nor has CycleCast reviewed or approved the content that appears on the Linked Sites. CycleCast is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any Linked Sites. You acknowledge and agree that CycleCast shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any of the links, content, goods or services available on or through the Linked Sites.
DEALINGS WITH THIRD PARTIES: Your participation, correspondence or business dealings with any third party found on or through the CycleCast Service, regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that CycleCast shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.
CycleCast reserves the right to modify the CycleCast Service. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the CycleCast Service. CycleCast has no obligation to screen or monitor any content and does not guarantee that any content available on the CycleCast Service complies with this Agreement or is suitable for all users.
CycleCast provides the CycleCast Service on an "as is" and "as available" basis. You therefore use the CycleCast Service at your own risk. CycleCast expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, CycleCast makes no representations or warranties:
That the CycleCast Service will be permitted in your jurisdiction;
That the CycleCast Service will be uninterrupted or error-free;
Concerning the accuracy of any fitness data presented by the CycleCast Service, including but not limited to miles biked, average heart rate, or calories burned, as the CycleCast Service does not physically record any of this data, but rather makes an estimation based on predefined algorithms that assume the internet radio features of the CycleCast Service are being used by a listener who is riding a stationary bicycle;
Concerning any content submitted by any member;
Concerning any third party's use of content that you submit;
That the CycleCast Service will meet your personal or professional needs;
That CycleCast will continue to support any particular feature of the CycleCast Service.
Concerning sites and resources outside of the CycleCast Service, even if linked to from the CycleCast Service.
To the extent that a secondary party may have access to or view CycleCast content on your computer or mobile device, you are solely responsible for informing such party of all disclaimers and warnings in this Agreement.
To the extent any disclaimer or limitation of liability does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first used the CycleCast Service, and no warranties shall apply after such period.
14. LIMITATION OF LIABILITY
To the fullest extent permitted by law: (i) CycleCast shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses; and (ii) CycleCast's total liability to you shall not exceed the amounts paid by you to CycleCast over the twelve (12) months preceding your claim(s).
15. PROFESSIONAL ADVICE DISCLAIMER / MEDICAL DISCLAIMER
Professional Advice Disclaimer.
THE CYCLECAST SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE HEARD OR READ THROUGH THE CYCLECAST SERVICE. THE USE OF ANY INFORMATION PROVIDED BY THE CYCLECAST SERVICE IS SOLELY AT YOUR OWN RISK.
NOTHING STATED OR POSTED ON THE CYCLECAST SERVICE OR AVAILABLE THROUGH ANY CYCLECAST SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
THE CYCLECAST SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND CYCLECAST MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE CYCLECAST SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
MEDICAL DISCLAIMER: In becoming a Member of CycleCast with the intent of using the CycleCast Service, you affirm that either (A) all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician has specifically approved of your use of the CycleCast Service.
If applicable, you further affirm that (A) you are not pregnant, breastfeeding or lactating or (B) your physician has specifically approved your use of the CycleCast Service.
CycleCast reserves the right to refuse or cancel your membership if we determine that you have certain medical conditions.
16. INTELLECTUAL PROPERTY
The CycleCast name, logos and affiliated properties, are the exclusive property of CycleCast, LLC and/or its parent, subsidiary or affiliated entities. All other trademarks appearing on the CycleCast Service are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content that they make available through the CycleCast Service. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the CycleCast Service should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
17. COPYRIGHT / DMCA POLICY
CycleCast respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that the materials they upload to the CycleCast Service do not infringe any third party copyright.
CycleCast will promptly remove materials from the CycleCast Service in accordance with the Digital Millennium Copyright Act ("DMCA") if properly notified that the materials infringe a third party's copyright. In addition, CycleCast may, in appropriate circumstances, terminate the accounts of repeat copyright infringers.
Filing a DMCA Notice to Remove Copyrighted Content-for Copyright Holders
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information:
Your name, address, telephone number, and email address (if any).
A description of the copyrighted work that you claim has been infringed.
A description of where in the CycleCast Service the material that you claim is infringing may be found, sufficient for CycleCast to locate the material (e.g., the URL).
A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Your electronic or physical signature.
You may submit this information via:
Offline: CycleCast's Copyright Agent (see contact information below)
CycleCast may disclose any communications concerning DMCA notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.
If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information. If you have questions about the legal requirements of a DMCA counter-notification, please contact an attorney or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for more information.
CycleCast's Copyright Agent
You may send a DMCA notice or any inquiries concerning intellectual property to CycleCast’s Copyright Agent:
33 Village Dr
New Canaan, CT 06840
Attn: Copyright Agent
18. GENERAL PROVISIONS
GOVERNING LAW: This Agreement shall be governed by the laws of the State of New York, United States of America, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
DISPUTES: Any action arising out of or relating to this Agreement or your use of the CycleCast Service must be commenced in the state or federal courts located in New York County, New York, United States of America (and you consent to the jurisdiction of those courts). In any such action, CycleCast and you irrevocably waive any right to a trial by jury.
INTERPRETATION; SEVERABILITY; WAIVER; REMEDIES: Headings are for convenience only and shall not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. No failure or delay by CycleCast in exercising any right hereunder will waive any further exercise of that right. CycleCast's rights and remedies hereunder are cumulative and not exclusive.
SUCCESSORS; ASSIGNMENT; NO THIRD PARTY BENEFICIARIES: This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign this Agreement without CycleCast's prior written consent. No third party shall have any rights hereunder.
NOTICES: You consent to receive all communications including notices, agreements, disclosures, or other information from CycleCast electronically. CycleCast may provide all such communications by email or by posting them on the CycleCast Service. For support-related inquiries, you may send an email to firstname.lastname@example.org or send written communications to:
33 Village Dr
New Canaan, CT 06840
Attn: Listener Support
Nothing herein shall limit CycleCast's right to object to subpoenas, claims, or other demands.
MODIFICATION: This Agreement may not be modified except by a revised Terms of Service posted by CycleCast on the CycleCast Service or a written amendment signed by an authorized representative of CycleCast. A revised Terms of Service will be effective as of the date it is posted on the CycleCast Service.
ENTIRE AGREEMENT: This Agreement incorporates the following legal documents by reference:
This Agreement constitutes the entire understanding between CycleCast and you concerning the subject matter hereof and supersedes all prior agreements and understandings regarding the same.