TERMS OF SERVICE
Last Revised: December 10th, 2013
By using the Service, you represent and warrant that you are at least eighteen (18) years of age and that you have the legal right and capacity to enter into these Terms in your jurisdiction.
To use the Service, you will need to create an account with your email address and password (your “Credentials”) and complete our membership registration form. You agree to (a) provide true, accurate, current and complete information about yourself as prompted by our membership registration form (“User Data”) and (b) maintain and promptly update the User Data to keep it accurate and current. You agree that TRSP may use your User Data to provide the services for which you have expressed interest. If you provide any information that is inaccurate or not current, or TRSP has reasonable grounds to suspect that such information is inaccurate or not current, TRSP has the right to suspend or terminate your account and refuse any and all current or future use of the Service.
You are solely responsible for the activity that occurs on your account, whether authorized by you or not. You must notify TRSP immediately of any breach of security or unauthorized use of your account. We will not be liable for any losses due to any unauthorized use of your account.
If you are using the Service from a country other than the country in which our servers are located, your communications with us may result in the transfer of information (including your account information) across international boundaries. By registering with us, you consent to such transfers.
2. Use of the Service and Third Party Websites.
Linking your TRSP account to a Third Party Account is optional and if you do not want TRSP to have access to the foregoing information, simply refrain from linking Third Party Accounts.
Please be aware that when you access Third Party Websites, you do so at your own risk. You hereby represent and warrant that you have read and agree to be bound by all applicable policies of any Third Party Websites and that you will act in accordance with those policies, in addition to your obligations under these Terms. TRSP has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of any Third Party Websites. In addition, TRSP will not and cannot monitor, verify, censor or edit the content of any Third Party Website. Any information contained in the content or data from a Third Party Website may be inaccurate or misleading and should not be relied upon. This content and data may become temporarily or permanently unavailable and/or may be subject to change without notice. By using the Service, you expressly release and hold harmless TRSP from any and all liability arising from your use of any Third Party Website.
3. Location Based Services.
We may offer features that are based on the location of users and which may report on those users’ current locations (the “Location-Based Services”). The use of Location-Based Services is solely at your discretion. Should you use Location-Based Services, you consent to collection and dissemination of your location information through the Service. Under no circumstances shall we be liable for claims or for any damages therefrom, arising out of your informed decision to disseminate your location information together with your profile information through the Service.
4. Proprietary Rights.
The Service and the VDOT O2 training application, including all text, graphics, photographs, images, and illustrations (“Content”), is protected by copyright, trade secret and other intellectual property laws and TRSP and our licensors own all title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Service and all copies of the Service. This Agreement does not grant you any rights to TRSP trademarks or service marks. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. TRSP reserves all rights not expressly granted to you in this Agreement.
5. Grant of Limited License.
Subject to these Terms and for the sole and limited purpose of facilitating your use of the Service, we grant to you a limited, revocable, personal, non-commercial, non-sublicensable, non-exclusive license to access and use the website, the VDOT O2 training application and other aspects of the Service (including our Content contained therein) for non-commercial uses.
6. User Content; User Conduct.
You acknowledge and agree that if you contribute any content to the Service including, without limitation, through (i) personal communications, including commentary, with other users through the Service, (ii) uploading any photographs or other digital content (iii) sharing of any personal information in a user profile, or (iv) any other content you contribute to the Service (“User Content”), you hereby do and shall grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sublicensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display that User Content throughout the world in any media in order to provide and promote the Service and our business. You retain all rights in your User Content, subject to the rights granted to TRSP in this Agreement.
By accessing the Service, you agree that you will not contribute any content or otherwise use the Service in a manner that: (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without TRSP’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of TRSP; (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vii) uses any manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Service or (viii) attempts to decompile, reverse engineer, or otherwise attempt to obtain the source code of the Service.
7. Copyright Infringement.
TRSP has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (“DMCA”). You are hereby informed that TRSP has adopted and reasonably implemented a policy that provides for the termination of access, in appropriate circumstances, to users who are repeat copyright infringers. TRSP may, in appropriate circumstances and at its discretion, disable and/or terminate access to users who may be infringing the intellectual property of a third party. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide TRSP’s Copyright Agent the following information (to be effective, the notification must be in writing and provided to our Copyright Agent):
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
c. identification of the 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 a description of where the material that you claim is infringing is located;
d. your address, telephone number, and, if available, email address;
e. a 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; and
f. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
TRSP’s agent for notice of claims of copyright or other intellectual property infringement can be reached via mail at the following address:
Attention: Copyright Agent
310 W 99th Street, #405
New York, NY 10025
8. Termination of Account.
By User. You may terminate your access to the Service at any time, for any reason, by accessing your user account settings.
By TRSP. TRSP may remove any item of User Content and/or terminate a user’s account for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by TRSP in its sole and absolute discretion), at any time and without prior notice. TRSP may also terminate a User’s account if TRSP has reason to believe the User is a repeat offender. If TRSP terminates your account, TRSP may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
You will indemnify, defend, and hold us harmless (and our respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our policies; (b) your wrongful or improper use of the Service; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any other party’s access and/or use of the Service with your Credentials.
10. No Warranties.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TRSP OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, TRSP, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
TRSP DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND TRSP WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
TRSP DOES NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND TRSP SPECIFICALLY DISCLAIMS SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS.
BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
11. Limitation of Liability and Damages.
YOU AGREE THAT TRSP IS NOT PROVIDING MEDICAL ADVICE VIA THE SERVICE OR VDOT O2 APPLICATION. THE CONTENT PROVIDED THROUGH THE SERVICE, WHETHER PROVIDED BY US OR BY OTHER ACCOUNT HOLDERS (IE. USER CONTENT) 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 THE WEBSITE OR THROUGH THE SERVICE, AND YOU SHOULD NOT USE THE SERVICE OR ANY CONTENT ON THE SERVCE FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF OUR 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 TRSP.
YOU EXPRESSLY AGREE THAT OUR TRAINING PACES AND YOUR ATHLETIC ACTIVITIES, WHICH GENERATE THE CONTENT YOU POST OR SEEK TO POST ON THE WEBSITE OR THROUGH THE SERVICE 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 TRSP OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS.
YOU EXPRESSLY AGREE TO RELEASE TRSP, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, PARTNERS AND LICENSORS (THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY CONNECTED WITH YOUR ATHLETIC ACTIVITIES, AND PROMISE NOT TO SUE THE RELEASED PARTIES FOR ANY CLAIMS, ACTIONS, INJURIES, DAMAGES, OR LOSSES ASSOCIATED WITH YOUR ATHLETIC ACTIVITIES. YOU ALSO AGREE THAT IN NO EVENT SHALL THE RELEASED PARTIES 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 WEBSITE OR SERVICE, (b) YOUR USE OF PROGRAMS CREATED BY TRSP WHILE ENGAGED IN ATHLETIC ACTIVITIES, (c) YOUR DEALINGS WITH THIRD PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE WEBSITE OR SERVICE, (d) ANY DELAY OR INABILITY TO USE THE WEBSITE OR SERVICE EXPERIENCED BY YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL TRSP BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE, YOUR ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RELEASED PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL TRSP, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $500.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF TRSP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
12. Governing Law.
If a Dispute (as defined below) of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact us in the event of any Dispute. If we cannot resolve your concerns, we agree to an informal and inexpensive dispute resolution process requiring individual arbitration. For the purpose of this Agreement “Disputes” include any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and TRSP including but not limited to any claims relating in any way to this Agreement (including its breach, termination, or interpretation), any other aspect of our relationship, TRSP advertising, and any use of TRSP software or services. “Disputes” also include any claims that arose before this Agreement and that may arise after termination of this Agreement.
You and TRSP agree to arbitrate all Disputes. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST TRSP. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) or JAMS (www.jamsadr.org) according to this provision and the applicable arbitration rules for that forum. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. Unless otherwise required by law, any arbitration hearing will occur in New York, New York. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For any Dispute, TRSP will pay all the arbitration fees. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may recover those fees from the arbitrator. For any claim where you are seeking relief, TRSP will not seek to have you pay its attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and TRSP also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of TRSP services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of New York, New York, or federal court for the Southern District of New York.
14. Right to Amend Terms and the Service.
TRSP may modify these Terms, change, suspend or discontinue the Service at any time, including the availability of any feature, database, or Content at any time, for any reason or for no reason at all. TRSP may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. Any use of the Service after our publication of any such changes shall constitute your acceptance of this Agreement as modified. However, any Dispute that arose before the modification shall be governed by the Agreement (including the binding individual arbitration clause) that was in place when the Dispute arose.
Our failure to enforce any part of these Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms. Waiver of compliance in any particular instance does not mean that we will do so in the future. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver, provided by one of our authorized representatives.
The Agreement does not limit any rights that TRSP may have under trade secret, copyright, patent, or other laws. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by TRSP without restriction.
You agree that, except as otherwise expressly provided in these Terms there shall be no third party beneficiaries. You and we are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these Terms.
If you have any questions, complaints, or claims with respect to the Service or any of the TRSP agreements, you may contact us at firstname.lastname@example.org.
Copyright © 2013. The Run SMART Project, LLC. All Rights Reserved.