LiveByCycling is a community-driven team. We love our team and want to operate in harmony with our members and fans who are excited about what we do. Please understand that these terms are intended only to be ground rules, that we welcome and encourage you to find new ways to be passionate about LiveByCycling and that we are excited to continue working together to get more women, more active, more often.
These Terms of Service (?Terms?) apply to your access to and use of the online services provided by LiveByCycling. (?LiveByCycling? or ?we?), including the online services we make available via our websites and mobile applications (collectively, the ?Platform?).
- You must be 18 years of age (or the age of legal majority where you live), to use our Platform.
2. USER ACCOUNTS AND ACCOUNT SECURITY
If you register for an account to use our Platform, you must provide accurate account information (except that pseudonyms are permitted for usernames) and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of those users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
3. USER CONTENT
- Our Platform may allow you and other users to create, post, store and share content, including messages, text, photos, audio, videos, software and other materials (collectively, ?User Content?). Except for the license you grant below, you retain all rights in and to your User Content, as between you and LiveByCycling.
- You grant LiveByCycling a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. For clarity, this means we reserve the right to use things like your name, avatar and in-game performance in various materials, including advertising and promotional content and third-party platforms. When you post or otherwise share User Content on or through our Platform, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others.
- You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.
4. PROHIBITED CONDUCT AND CONTENT
- You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort in connection with your use of our Platform, and you are solely responsible for your conduct while using our Platform. Further, you will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user?s account without authorization from that user and LiveByCycling;
- Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Use our Platform other than for its intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Platform or that could damage, disable, overburden or impair the functioning of our Platform in any manner;
- Send, distribute or post spam, unsolicited or bulk solicitations or advertisements, including via chain letters or pyramid schemes;
- Use our Platform (including data, intellectual property, brand or API) for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
- You may not create, post, store or share any User Content that:
- Is confidential or that you do not have all necessary rights to disclose;
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
- Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- Impersonates, or misrepresents your affiliation with, any person or entity;
- Contains any unsolicited promotions, political campaigning, advertising or solicitations;
- Contains any private or personal information of a third party without such third party?s consent;
- Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Platform, or may expose LiveByCycling or others to any harm or liability of any type.
- Enforcement of this Section 5 (which includes the right to work with local or international authorities and other service providers by providing information necessary for investigatory purposes or in adherence with court-ordered legal action) is solely at LiveByCycling’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party or any reasonable expectation that the Platform will not contain any content that is prohibited by this section.
5. TERMS OF SALE
- Product Availability.?All tangible products offered for sale via the Platform are subject to availability and we reserve the right to impose quantity limits on any order or reject all or any part of an order without prior notice.
- Memberships. If you purchase a membership to use the Platform, you acknowledge that your membership will auto renew until you cancel your membership or we terminate it. The membership period (or an indication that the membership will continue until cancelled) and the cost of the membership (during and after any initial promotional period) are disclosed prior to purchase. If you purchase a membership via our Platform, we automatically bill your payment method each month on the calendar day corresponding to the start of the paying portion of your membership (or on the last day of the month if such month does not have a sufficient number of days to include your membership start date (for example, if your membership started on March 31, the billing date in April will be April 30)). You may cancel your LiveByCycling membership at any time, and you will continue to have access through the end of your membership period. You will not have the right to receive any pro-rated refunds if you cancel your membership period early.
- Pricing.?Prices for products or services are subject to change at any time, but changes will not affect any order for products or services you have already placed except that for auto-renewing memberships price changes will take effect when indicated in our email notice to you.
- Taxes.?To the fullest extent permitted by applicable law, you are responsible?for any applicable sales, use, duty, customs or other governmental taxes, levies or fees (?Taxes?) due with respect to your purchase through our Platform. Orders placed outside the U.S. may incur Taxes as determined by the customs agency within the destination country. We will collect applicable Taxes if we determine we have a duty to collect Taxes. We will present an estimate of Taxes we collect at checkout, except where we have clearly stated in writing that a price includes Taxes. For U.S. users, the actual Taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates. You may have a duty to directly report and pay Taxes if we do not collect such Taxes.
- Payment Method.?Only valid payment methods acceptable to us may be used to complete a purchase via the Platform. You represent and warrant that you are authorized to use your designated payment method. You authorize us to charge your designated payment method for the total amount of your purchase (including any applicable taxes and any shipping and handling charges). If any of the products in your order are unavailable, we will only charge the prices, Taxes and other applicable charges associated with the products that are included in the shipment.
- Shipping; Risk of Loss.?You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the changes applicable to you before you make your purchase. Any delivery dates or times shown as part of the checkout process are estimates only and are not guaranteed. Unless we state otherwise in writing via the Platform, risk of loss or damage to a product passes to you upon delivery of the product to our designated carrier.
- Returns.?Please see our Return Policy on our website for information about returning products purchased via our Platform.
- Errors.?In the event of an error, we reserve the right to correct the error and revise your order accordingly (which includes charging the correct price) or to cancel the order and refund any amount charged.
- LiveByCycling Products. LiveByCycling-branded products (?LiveByCycling Products?) are sold ?as is? and ?with all faults.??That means that you bear the entire risk as to the quality and performance of the LiveByCycling Product, and if the LiveByCycling Product has a defect, then you assume the entire cost of any necessary repair or replacement.
- Remedies for Third-Party Products.?Many of the products sold via the Platform are manufactured by or for other companies. The manufacturer may offer its own warranty, but unless otherwise stated on the product page, we do not offer a warranty on those products.?That means they are sold by us ?as is? and ?with all faults.??If the manufacturer offers a limited warranty for the product, it can usually be found on the manufacturer?s website or with the product packaging. For any product sold via the Platform other than a LiveByCycling Product, you agree that your remedy is solely with the product manufacturer and not LiveByCycling.
- No Refunds.?Except to the extent refunds are required by law or as stated in our Return Policy for products purchased via our Platform, payments are nonrefundable and there are no refunds. However, we may, in our sole discretion, provide a refund or discount in certain cases.
6. OWNERSHIP; LIMITED LICENSE
The Platform and all content contained therein, including the text, graphics, images, photographs, videos, illustrations, themes, objects, characters (including names), stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, and audio-visual effects, are owned by LiveByCycling or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Platform are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Platform for your own personal, noncommercial use (unless otherwise pre-approved in writing by LiveByCycling for commercial use). Any use of the Platform other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
?LiveByCycling? and our logos, our product or service names, our slogans and the look and feel of the Platform are trademarks of LiveByCycling and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Platform are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
8. THIRD-PARTY CONTENT
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Platform (collectively, ?Third-Party Content?). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party providing it. LiveByCycling does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless LiveByCycling and its affiliates, and each of our and their respective officers, directors, agents, partners and employees (individually and collectively, the ?LiveByCycling Parties?) from and against any losses, liabilities, claims, demands, damages, expenses or costs (?Claims?) arising out of or related to (a) your access to or use of the Platform; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Platform. You agree to promptly notify LiveByCycling Parties of any third-party Claims, cooperate with LiveByCycling Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys’ fees). You also agree that the LiveByCycling Parties will have control of the defense or settlement, at LiveByCycling’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in any other agreement between you and LiveByCycling or the other LiveByCycling Parties.
10. DISCLAIMERS; ASSUMPTION OF RISK
- Your use of our Platform is at your sole risk. Except as otherwise provided in a writing by us, our Platform and any content therein are provided ?as is? and ?as available? without warranties of any kind, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, LiveByCycling does not represent or warrant that our Platform is accurate, complete, reliable, current or error-free. While LiveByCycling attempts to make your use of our Platform safe, we cannot and do not represent or warrant that our Platform or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Platform.
- You understand that the Platform is intended to be used in connection with cycling activities. You expressly acknowledge that engaging in athletic or fitness activities as part of the Platform carries 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 LiveByCycling or by the action, inaction or negligence of others. You also expressly agree that LiveByCycling does not assume responsibility for the inspection, supervision, preparation, or conduct of any race, competition, contest, group interaction, gathering, or event that utilizes the Platform (whether or not with LiveByCycling‘s permission).
- Please consult your physician before using the Platform in connection with any athletic and fitness activities. This is especially important for persons over age 35 or persons with pre-existing health problems. Discontinue any use of the Platform or engaging in any such athletic or fitness activities that cause you pain, fatigue, discomfort, nausea, dizziness, or shortness of breath and consult a medical expert. Start slowly and at the level that is appropriate for you. Don?t overexert yourself. Take breaks periodically. Stop and rest if your muscles, joints, or eyes become tired or sore. Do not use the service or engage in any such athletic or fitness activities under the influence of drugs or alcohol, and make sure your balance and physical abilities are sufficient for any movements and activities while using the Platform.
11. LIMITATION OF LIABILITY
- To the fullest extent permitted by applicable law, LiveByCycling and the other LiveByCycling Parties will not be liable to you under any theory of liability?whether based in contract, tort, negligence, strict liability, warranty, or otherwise?for any indirect, consequential, incidental, or special damages or lost profits, even if LiveByCycling or the other LiveByCycling Parties have been advised of the possibility of such damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
- The total liability of LiveByCycling and the other LiveByCycling Parties for any claim arising out of or relating to these Terms or our Platform, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Platform the 12 months preceding the claim.
- The limitations set forth in this Section 13 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of LiveByCycling or the other LiveByCycling Parties or for personal injury, death or property damage caused by the Platform or products purchased through the Platform, or for any other matters in which liability cannot be excluded or limited under applicable law.
To the fullest extent permitted by applicable law, you release LiveByCycling and the other LiveByCycling Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code ? 1542, which provides: ?A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.?
13. TRANSFER AND PROCESSING DATA
In order for us to provide our Platform, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
14. DISPUTE RESOLUTION; BINDING ARBITRATION
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with LiveByCycling and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
- No Representative Actions. You and LiveByCycling agree that any dispute arising out of or related to these Terms or our Platform is personal to you and LiveByCycling and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
- Arbitration of Disputes. Except for small claims disputes in which you or LiveByCycling seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or LiveByCycling seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and LiveByCycling waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Platform (collectively, ?Disputes?), including claims related to privacy and data security, resolved in court. Instead, for any Dispute that you have against LiveByCycling, you agree to first contact LiveByCycling and attempt to resolve the claim informally by sending a written notice of your claim (?Notice?) to LiveByCycling by email at email@example.com. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and LiveByCycling cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Albuquerque, New Mexico unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 18, a ?consumer? means a person using the Platform for personal, family or household purposes. You and LiveByCycling agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (?JAMS Rules?). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
- You and LiveByCycling agree that these Terms affect interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. ? 1, et seq. (the ?FAA?), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual?s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
- The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, LiveByCycling, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including all information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
- You and LiveByCycling agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and LiveByCycling will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, LiveByCycling will pay all JAMS fees and costs. You and LiveByCycling agree that the state or federal courts of the State of New Mexico and the United States sitting in Albuquerque, New Mexico have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
- Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and LiveByCycling will not have the right to assert the claim.
- You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 14 by emailing firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 14.
- If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 14 or the parties? ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.
15. GOVERNING LAW AND VENUE
Any dispute arising from these Terms and your use of the Platform will be governed by and construed and enforced in accordance with the laws of New Mexico, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of New Mexico or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of New Mexico and the United States, respectively, sitting in Albuquerque, New Mexico.
16. MODIFYING AND TERMINATING OUR PLATFORM
We reserve the right to modify our Platform or to suspend or stop providing all or portions of our Platform at any time. You also have the right to stop using our Platform at any time. We are not responsible for any loss or harm related to your inability to access or use our Platform.
17. MODIFYING THESE TERMS
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Platform or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Platform after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Platform. Unless material changes are made to the arbitration provision under Section 18, you agree that modification of these Terms does not create a new right to opt out of arbitration.
- The failure of LiveByCycling to exercise or enforce any right or provision of these Terms will not operate as a waiver of that right or provision. If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any references to ?including? will be deemed to mean ?including without limitation.? Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. LiveByCycling will not be liable for any delay or failure of the Platform to the extent caused by circumstances beyond its reasonable control. You agree that communications and transactions between us may be conducted electronically.
- We may supply different or additional terms in relation to some features of our Platform, and those different or additional terms become part of your agreement with us if you use those features. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.