TERMS OF SERVICE
Effective Date: June 1st, 2021
The full language of the Terms are below. In an effort to provide a more accessible customer relationship, we have summarized key aspects of the Terms. While all aspects of the Terms are binding on your acceptance of the Terms, happens when you use the Services, and we suggest you review all Terms, we hope this summary allows you to quickly review and find key terms.
Anyone using the Services is a User and has an Account. Users may be responsible for fees for their personal User Accounts.
An Account represents the User on the Services including Personally Identifiable Information, data, and analytics linked to a User and to an Organization if the User is a Member of the Organization.
Users may interact on the Services as part of Organizations (Teams, Private, or Public Groups). A User joins an Organization as a Member. A User may be a member of multiple Organizations.
A User can create an Organization (Teams, Private, or Public Groups) that they wish other Users to join as Members of their Organization. This User is the Organization Owner and is responsible for subscription fees for an Organization and for the Organization itself. A User can be the Owner of multiple Organizations and can participate in multiple Organizations.
A Member is a User that has joined an Organization by invite from an Organization Owner or a Member of an Organization with the permissions to invite a User to an Organization.
Acceptance of Terms
When you make an Account, you agree to the Terms. If we update Terms, we will let you know, and you can review the Terms before they are effective. If you sign up for an Organization on behalf of any entity, you are representing you are authorized to do so.
Registration and Account
These services are for Users age 13 and above. You are responsible for providing us accurate information about yourself, keeping your login and access to the Services secure, and informing us if you believe someone else is using your Account. If you link your Account to a third-party site, like Facebook, you agree to abide by the rules of that site, and allow us to provide information to that site. We have security measures, but cannot guarantee this site is incapable of being “hacked” or corrupted by hostile third parties. If you register on behalf of a group, organization, or team, you agree that you are authorized to do so, and accept responsibility for any damages based on that misrepresentation.
Payments and Fees
All Users have Accounts. Organization Owners will be responsible for fees for Organizations, and Users may be responsible for fees for their personal User Accounts; these fees can be paid through the Apple App Store, Google Play Store, or other payment method made available by FOS. Organization Owners will pay fees based on the payment plan they select, including applicable taxes; plans will auto-renew, but you can cancel with required notice.
Content and Conduct
You own the Content you provide to the site, like pictures, race times, and other data you provide to the site, but FOS has the right to use that Content for the Services. FOS also has the right to aggregate de-identified data, which cannot be traced to you, for analytical purposes. If you delete your Account, the ability for FOS to use your Content, other than de-identified data, ends. You are responsible for your Content, the specifics (language, images) of your Content, and the protection of your Content, including the accuracy of race times and results. FOS cannot guarantee that third parties will not have the ability to access Content; please do not post any Content you wish to stay confidential. You agree to not abuse or misuse the Services, including attempting to reverse-engineer. FOS is not responsible for any data charges, which are between you and your service provider.
FOS is not responsible for your interactions with other Members or Organization Owners. We do not verify the accuracy of Content. If you have an issue with another Member, contact your Organization’s Owner. If you have an issue with your Organization’s Owner, contact FOS. FOS may refer you to third parties for products or services, but we are not responsible for any purchases or interactions between you and third parties. If you or FOS use a third party site, product, or application in relation to the Services, you agree to comply with the terms of such third party, including map and other location tracking services.
Warranty, Liability, Indemnity, and Dispute Resolution
You agree that FOS is not providing any warranty or guarantee regarding the Services. FOS IS NOT PROVIDING MEDICAL ADVICE THROUGH THE SERVICES. If you have any medical issues, any medically-related issues regarding advice provided by the Services, or if an Organization Owner is providing advice you believe is a potential medical issue, please contact FOS and your health care provider immediately. You understand that FOS does not operate races, meets, practices, or other events, and FOS does not guarantee the safety of any course, meet, event, or practice. You agree that the maximum liability by FOS to a User is the greater of fifty dollars or the payments made by the User in the previous twelve-month period. If your Content damages a third party, you agree to indemnify FOS for any damages to that third party paid by FOS.
In the event of a dispute, you agree to engage in binding arbitration with FOS. You have thirty days from acceptance to opt out of the class action and arbitration waivers in these Terms. You agree to bring any claims against FOS within one year of the date the claim arises. You agree that the Terms and your relationship with FOS is governed by the laws and courts in Champaign, Illinois, United States.
FOS owns the Services, trademarks and copyrights related to the term “Flats or Spikes”, and other related intellectual property related to the Services. If you believe your intellectual property rights are being violated in relation to the Content you provide, please contact FOS. If you have other comments regarding the services, please don’t hesitate to contact FOS. FOS reserves the right to terminate your access to the Services for specifically stated reasons, or any reason at all, in the sole discretion of FOS. We have the right to investigate breaches of these Terms and take appropriate measures to prevent abuse of the Services.
ACCEPTANCE OF TERMS
When you start using the Services, you will create an Account. When you sign up for the Account, you will be linked to these Terms of Service, and asked to accept them. By accepting the Terms and establishing your Account, you agree to the Terms, and agree to abide by the Terms while you use the Services. The Terms are in English; if you need the Terms in an alternative language, please let FOS know by contacting customer support.
In the event we add supplemental Terms or otherwise update our Terms (“Additional Terms”), we will provide a notification to you through the FOS Application to your Account (the “Update”). You agree that the Additional Terms will be incorporated into these Terms ten (10) days after the Update, unless you provide FOS notice you object to any such terms; if that is the case, please let FOS know.
If you access or use the Services on behalf of a company or other entity, like a team or school, in creating an Account in that name you are representing that you have authority to bind such entity and its affiliates to these Terms and that it is fully binding on them. In such case, the term “you” will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Services, and you may be responsible for any damage to FOS or the entity you represent based on this misrepresentation. These Terms contain disclaimers of warranties and limitations on liability that may be applicable to you.
REGISTRATION AND ACCOUNTS
The Services are intended solely for persons who are 13 years old or any older age required in your country to use the Services.
To use the Services, you must register by creating an Account. You agree, in creating your Account, to: (a) provide true, accurate, current and complete information about yourself (“Member Data”) and (b) maintain and promptly update the Member Data. You agree that FOS may use your Member Data to provide Services that you access or use and as otherwise set forth in these Terms. If you provide any Member Data that is inaccurate or not current, or FOS has reasonable grounds to suspect that such Member Data is inaccurate or not current, FOS has the right to suspend or terminate your Account and refuse current or future use of the Services. In consideration of your use of the Services, you represent that you are not a person barred from receiving services under the laws of any applicable jurisdiction.
You are solely responsible for maintaining the confidentiality of your Account and for restricting access to your Account, computer and mobile device while logged into your Account. You accept responsibility for all activities that occur under your Account or from your computer and mobile devices. We endeavor to use reasonable security measures to protect against unauthorized access to your Account. We cannot, however, guarantee absolute security of your Account, your Content (as defined below) or the personal information you provide, and we cannot promise that our security measures will prevent third-party “hackers” from illegally accessing the Services or its contents. You agree to immediately notify FOS of any unauthorized use of your Account, or any other breach of security, and confirm that you understand all risks of unauthorized access to Member Data and any other information or content you provide to FOS.
FOS may allow you to register for or log-in to your Account via a third-party network, such as Facebook or Google. If you do so, you hereby authorize FOS to pre-populate the registration and other relevant information fields of your Account and/or to use such third-party credentials to log you into your Account. If you connect your Account to a third-party network, you agree to comply with the terms and conditions and policies applicable to such third party.
PAYMENTS AND FEES
As part of the Services, there are Users with Accounts and Organizations with Organization Owners for the Services. Organization Owners invite User Accounts to their Organization(s). Organization Owners set up a group of Users in a collective information system, with access to the information and data of others, called an Organization, and once you have signed up for an Organization, you are considered a Member of that Organization. Users that sign up their Accounts to manage an Organization, including the financial responsibilities included with the Organization, are Organization Owners. Organization Owners are responsible for managing the Organization, monitoring Organization activity, and assuring the accuracy of Organization data.
Organization Owners will be responsible for all payments to FOS for themselves and their Members for their Organization. If you are an Organization Owner you must designate and provide information about your preferred payment method from the payment methods available through the Services (e.g., credit card, online payment service, a third party, like Apple App Store or Google Play, or any other payment method made available by FOS) (the “Payment Method”). If you provide your payment information, you authorize us and certain third-party service providers, payment card networks and payment processors to receive, store and encrypt your payment information. You may switch to a different Payment Method or update your information by visiting a Payment Info Page, if alternative payment methods are available. If you paid through the Google Play or Apple App store, you may change your Payment Method through the corresponding store Account. No refunds or credits will be provided by FOS, other than as set forth in these Terms. If your payment provider determines that there are fraudulent charges on your Account resulting from use of your Payment Method at the Services, please contact us immediately.
Each Organization Owner is responsible for paying fees related to their Organization (“Organization Fees”). Organization Fees, along with any required taxes, may be paid on a monthly, seasonal or annual basis, depending on the plan chosen by the Organization Owner. All Organization Fees are payable in advance. Organization Owners changing from monthly to annual Account memberships will have the annual rates take effect at the beginning of the next renewal date. If you upgrade your membership or add new categories of service to your Account, such changes may result in a new billing date. Each Organization Owner agrees to pay the Organization Fees, and other charges you incur in connection with your FOS Account, whether on a one-time or subscription basis. FOS reserves the right to increase Organization Fees, any associated taxes, or to institute new fees at any time upon reasonable advance notice.
In the event fees are not paid by an Organization Owner, FOS will contact the Organization Owner and request payment immediately. In the event the Organization Owner does not provide payment within five (5) days notice from FOS of non-payment, FOS may (a) suspend access to the Organization to the Organization Owner and/or Members and/or (b) notify Members of the lack of payment by the Organization Owner.
Membership and other recurring fees will be billed automatically at the start of the monthly or annual period, as applicable. These fees will auto-renew until your membership(s) is modified or terminated, either directly or through the Apple App Store or Google Play. Your membership(s) fee will be the same as your initial charges unless you are otherwise notified in advance. You may cancel your membership(s) at any time, as described below, and allowed via the Apple App Store or Google Play.
Cancellation of Membership(s)
If you signed up on FOS sites and/or apps you may cancel your status as an Organization Owner by updating your Account information; the cancellation will take place on the next renewal period. If you signed up through the Google Play or Apple App store, you may cancel your membership(s) by downgrading through the corresponding store. When your Organization Owner status ends, your Account will remain, and you will be able to access your Account data. You can renew your subscription(s) at any time without opening a new Account, although the Organization Fees may have increased. You can delete your Account at any time by visiting your Account section or contacting customer support.
In the event you cancel your status as an Organization Owner without designating a new Organization Owner, the Organization will be placed on an inactive status by FOS, with the Content retained by FOS to allow for a new Organization Owner, which is facilitated by a new Organization Owner agreeing to pay the applicable Organization Fees.
An Organization and your Organization Owner Account, may start with a free trial. The free trial period for any Organization will last for the period of time specified when you signed up. If you begin your Organization with a free trial, we will begin billing your Payment Method for monthly Organization Fees at the end of the free trial period of your subscription unless you cancel your membership prior to the end of the free trial period. Your Payment Method will be authorized as soon as you register for a free trial. In some instances, your available balance or credit limit may be reduced to reflect the authorization; however, no charges will be made against the Payment Method unless you do not cancel prior to the end of your free trial period.
Organization Owners agree that any applicable sales, use, or other taxes due to any city, state, or federal government based on the Services provided to you, and your location of jurisdiction, will be added to the Organization Fees and paid with other regular payments.
CONTENT AND CONDUCT
You own the information, data, text, software, sound, photographs, graphics, video, messages, posts, tags, race times, schedules, or other materials you make available in connection with the Services (“Content”), whether publicly posted, privately transmitted, submitted through a third-party API (e.g. a photograph submitted via Instagram), or assigned to your Account by an Organization Owner. You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display any Content and any name, username or likeness that you post on or in connection with the Services in all media formats and channels now known or later developed without compensation to you. You further grant the right for FOS to use de-identified data (data that cannot be linked to your personal information and thus unable to be linked to you, “DID”) to conduct analysis of multi-Member Content, including aggregate and comparison purposes. In the event FOS desires to share any of your Content, including DID, with a third party for analysis, FOS will provide a notice to you in your Account (the “DID Notice”). You agree that FOS may share DID derived from your Content within ten (10) days after the Third Party Notice, unless you provide FOS notice you object to any such terms; if that is the case, please let FOS know. DID expressly excludes personally identifying information, such as a name, address, phone number, or email, which is not included in the definition of Content.
In the event you terminate your Account, the license to use your Content, other than DID data, will expire. FOS will retain the ability to use DID based on your Content after the expiration of this Agreement between
you and FOS.
You understand that you, and not FOS, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Services. FOS does not proactively and routinely screen or monitor the Content posted to the Services by others and, as such, does not guarantee the accuracy, integrity or quality of such Content. FOS may, in its sole discretion, screen, monitor, refuse or remove any Content, or remove any Content that violates the Terms or is otherwise objectionable. You understand that by using the Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will FOS be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content made available on the Services. You agree to bear all risks associated with the use of any Content available in connection with the Services, including any reliance on the accuracy, completeness, or usefulness of such Content.
You agree, to the extent you are able, to post accurate Content, in the event the Content contains race time data, race results, condition data (such as weather) or other data related to your performance as a Member of the Organization.
The Services are for your personal and noncommercial, non-political use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell for any commercial purposes any portion of the Services, use of the Services or access to Content. You may not use the Services, or assist or encourage any other party, to engage in any of the following Prohibited Activities:
Copying, framing, scraping or mirroring any part of the Services;
Accessing the Services to monitor its availability, performance or functionality;
Permitting any third party to access the Services;
Using, copying, modifying, creating a derivative work of, reverse engineering, decompiling or otherwise attempting to extract the source code of the software underlying the Services or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to FOS;
Publishing, transmitting, distributing or storing content, material, information or data that: (1) is illegal, obscene, defamatory, threatening, harassing, abusive, or hateful or that advocates violence; (2) is harmful to or interferes with the Services or any third party’s networks, equipment, applications, services or websites (e.g., viruses, worms, Trojan horses, etc.); (3) infringes, dilutes, misappropriates or otherwise violates any privacy, intellectual property, publicity or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets or other proprietary information (including unauthorized use of domain names); or (4) is fraudulent or contains false, deceptive or misleading statements, claims or representations (such as “phishing”);
Attempting to disrupt, degrade, impair or violate the integrity or security of the Services or the computers, services, Accounts or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of FOS internet protocol space;
Avoiding payment of charges or fees payable by you with respect to the Services;
Committing any act that may be harmful to minors;
Distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”;
Using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Services;
Using the system in any manner that spam messages other Users, Organization Owners, Organizations, Members, or anyone else;
Taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
Collecting or harvesting any information relating to an identified or identifiable individual, including Account names and information about Users of the Services, from the Services;
Using the Services for any inappropriate commercial solicitation purposes;
Accessing any content on the Services through any technology or means other than those provided or authorized by the Services;
Submitting to the Services or to FOS any personally identifiable information, except as necessary for the establishment and operation of your Account;
Submitting to the Services or to FOS any information that may be protected from disclosure by applicable law;
Bypassing the measures we may use to prevent or restrict access to the Services, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein;
Violating any applicable law, statute, ordinance or regulation, or encouraging any conduct that could constitute a criminal offense or give rise to civil liability;
Removing any copyright, trademark or other proprietary rights notices contained in or on the Services; or
Executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Service’s servers or any data not intended for you.
You are granted a limited, non-exclusive right to create a text hyperlink or otherwise shares referrals to the Services or Content on the Services for non-commercial use only, provided such link does not portray FOS or any of its products or services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any pornographic, illegal, offensive, harassing or otherwise objectionable material. We reserve the right to revoke these licenses generally, at any time, with or
You understand that use of certain features of the Services may require you to purchase third party equipment or materials (e.g., smartphone, GPS systems, etc.). While FOS may recommend the equipment or materials of certain third-party suppliers, FOS shall have no responsibility for your acquisition or use of any third-party equipment or materials and does not guarantee that third party equipment or materials will function with the Services or will be error-free.
You understand that you are responsible for any charges associated with sending communications via your device in the use of the Services that are charged by a third-party data provider, such as Verizon, Comcast,
You represent and warrant that: (i) you are authorized to create your Account, whether individually or on behalf of an organization; (ii) you own the Content posted by you on or through the Services or otherwise have the right to grant the rights and licenses set forth in these Terms; (iii) the posting and use of your Content on or through the Services does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy and data protection rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (iv) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Services.
You agree that in the event you have engaged in conduct that is in violation of this Conduct section, or otherwise in breach of the terms of this Agreement, you agree that FOS may inform your Organization’s Owner of
FOS may immediately suspend or terminate the availability of the Services and Content (and any elements and features of them) in whole or in part for any reason, in FOS sole discretion, and without advance
notice or liability.
Interactions with Members
Everyone signing up for the Services has an Account and is a User. The Services function as a venue to connect Members of an Organization and Organization Owners in a virtual information place. As a neutral facilitator, FOS is not directly involved in the actual interactions between Users of the Services, and relies on Organization Owners to monitor the activity of an Organization. As a result, FOS has no control over the truth, accuracy, quality, legality, or safety of postings made by Members of an Organization or Organization Owners. FOS shall have no responsibility to confirm the identity of Users. FOS shall also have no responsibility to confirm or verify the qualifications, background, or abilities of Users of the Services. You shall at all time exercise common sense and good judgment when dealing with any User of the Services, and rely on the Organization Owners to verify the accuracy of data related to an Organization.
In the event you have an issue with another Organization Member or your Organization, please notify your Organization Owner. If you have an issue with your Organization Owner’s use of the Services, or the conduct of your Organization Owner, generally, please contact FOS immediately and directly.
Interactions with Third Parties
Third party products and services made available on the Services are made and offered directly by the applicable third party. When you pursue or purchase any such product or service, you acknowledge that you are contracting directly with such third party and not with FOS. Your interaction with, or participation in promotions of, third parties found on or through the Services, including payment and delivery of goods or services, and any other terms, are solely between you and such third party. You are not obligated to use or transact business with any third party that appears on the Services. YOU AGREE THAT FOS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND INCURRED BY YOU AS THE RESULT OF ANY OF YOUR DEALINGS WITH THIRD PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICES. FOS may, in the event it provides a referral for third-party equipment or materials, accept a fee from such third-party suppliers related to your purchase.
The Services may also contain other links to sites that are controlled by third parties (“Linked Sites”). Those Linked Sites are not controlled by FOS, and Users acknowledge that FOS is not responsible for the content of any such Linked Site or any link contained in a Linked Site. FOS provides such links only as a convenience, and the inclusion of any link does not imply endorsement by FOS of any Linked Site. FOS does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, FOS is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Sites. Finally, FOS will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Sites.
The Services may provide you with the ability to send or post messages to posts or forums or chat rooms or direct message, speak via internet voice connections or send similar messages and communications to third party service providers, advertisers, your personal contacts, other Users and/or FOS. You agree to use communication methods available on the Services only to send communications and materials related to the subject matter for which FOS provided the communication method, and you further agree that all such communications by you shall be deemed your Content and shall be subject to and governed by the Terms and applicable law (including laws regulating direct marketing communications with which you will need to comply with, as applicable). By using communications methods available on the Services, you agree that (a) all communications methods constitute public, and not private, means of communication between you and the other party or parties, (b) communications sent to or received from third party service providers, advertisers or other third parties are not be endorsed, sponsored or approved by FOS (unless expressly stated otherwise by FOS) and (c) communications are not routinely pre-reviewed, post-reviewed, screened, archived or otherwise monitored by FOS in any manner, though FOS reserves the right to do so at any time at its sole discretion. You agree that all notices, disclosures and other communications that we provide to you electronically shall satisfy any legal requirement that such communications be in writing.
WARRANTY, LIABILITY, INDEMNITY, AND DISPUTE RESOLUTION
Disclaimer of warranty and liability
THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY. FOS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES WITH REGARD TO SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. FOS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT: (a) THE SERVICE WILL MEET YOUR REQUIREMENTS; (b) YOUR CONTENT WILL BE AVAILABLE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (e) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
YOU EXPRESSLY AGREE THAT FOS IS NOT PROVIDING MEDICAL ADVICE VIA THE SERVICES. THE CONTENT PROVIDED THROUGH THE SERVICES, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, RESULTS, LOGS, RANKINGS, VIDEO AND AUDIO-VIDEO CLIPS, RACE DATA, ADVICE, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER ACCOUNT HOLDERS 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 SERVICES, AND YOU SHOULD NOT USE THE SERVICES OR ANY CONTENT ON THE SERVICES 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 FOS.
IF YOU BELIEVE THAT EITHER FOS OR YOUR ORGANIZATION’S ORGANIZATION OWNER IS PROVIDING ADVICE THAT IS POTENTIALLY DETRIMENTAL TO YOUR HEALTH, PLEASE CONTACT FOS AND YOUR PHYSICIAN IMMEDIATELY.
YOU EXPRESSLY AGREE THAT YOUR FOS ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, TRACK & FIELD, CROSS COUNTRY, RUNNING, WALKING, OR FOLLOWING A FOS TRAINING PLAN OFFERED ON THE SERVICES) 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 FOS OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS. FOS DOES NOT CLAIM THAT ANY INFORMATION PROVIDED BY FOS CAN IN ANY WAY MITIGATE ANY RISK OF DAMAGE OR DEATH.
YOU EXPRESSLY AGREE THAT FOS DOES NOT ASSUME RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, PREPARATION, OR CONDUCT OF ANY RACE, CONTEST, MEET, CHALLENGE, OR GROUP/TEAM/CLUB ACTIVITY THAT UTILIZES THE SERVICES, INCLUDING ANY THAT ARE ORGANIZED BY AN ORGANIZATION OR ORGANIZATION OWNER.
YOU EXPRESSLY AGREE TO RELEASE FOS, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, REPRESENTATIVES, SHAREHOLDERS, EMPLOYEES, PARTNERS AND LICENSORS (THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY IN CONNECTION WITH YOUR FOS ACTIVITIES AND/OR USE OF THE FOS WEBSITES, MOBILE APPLICATIONS, CONTENT, SERVICES OR PRODUCTS (INCLUDING, WITHOUT LIMITATION, ANY FOS TRAINING PLAN), AND PROMISE NOT TO SUE THE RELEASED PARTIES FOR ANY CLAIMS, ACTIONS, INJURIES, DAMAGES, OR LOSSES ASSOCIATED WITH SUCH USE. 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 SERVICES, (b) YOUR USE OR MISUSE OF EQUIPMENT OR PROGRAMS CREATED OR LICENSED BY FOS (INCLUDING, WITHOUT LIMITATION, ANY FOS TRAINING PLAN) WHILE ENGAGED IN FOS ACTIVITIES, (c) YOUR DEALINGS WITH THIRD-PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICES, OR ANY PRODUCTS PROVIDED BY THIRD PARTIES, INCLUDING THOSE REFERRED BY FOS; (d) ANY DELAY OR INABILITY TO USE THE SERVICES EXPERIENCED BY YOU, OR (e) ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES OR CONTENT OBTAINED THROUGH THE SERVICES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF FOS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS OF LIABILITY ABOVE, SUCH AS EXCLUSIONS FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ENTERING INTO THIS RELEASE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE THE BENEFITS OF, SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, (AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY), WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
FOS DOES NOT ENDORSE YOUR CONTENT OR ANY OTHER USER’S CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT ON
THE COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU PURSUANT TO THESE TERMS SHALL NOT EXCEED THE GREATER OF EITHER (a) FIFTY DOLLARS ($50) OR (b) THE AMOUNT OF FEES PAID BY YOU TO FOS IN THE 12-MONTHS PRIOR TO DATE THE CLAIM.
IF YOU ARE A CONSUMER RESIDING IN THE EUROPEAN UNION, YOU HAVE LEGAL REMEDIES IF WE CAUSE YOU LOSS BY OUR BREACH OR NON-PERFORMANCE OF OUR LEGAL OBLIGATIONS, OR BY OUR NEGLIGENCE, AND THESE TERMS DO NOT AFFECT THOSE STATUTORY REMEDIES.
ANY CONTEST, SWEEPSTAKES, OR OTHER PROMOTION OFFERED THROUGH THE SERVICES OR OTHERWISE FROM FOS WILL BE GOVERNED BY SEPARATE OFFICIAL RULES THAT WILL BE PROVIDED AT THE TIME OF SUCH EVENT.
You agree to indemnify and hold FOS and its subsidiaries, affiliates, officers, agents, representatives, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit or otherwise seek to make available through the Services, your use of the Services, your FOS activities which generate the Content you post or seek to post on the Services (including, but not limited to, FOS activities in connection with any contests, races, group rides, or other events which FOS sponsors, organizes, participates in, or whose Services are used in connection with), your connection to the Services, your violation of the Terms, your violation of any data protection or privacy laws, or your violation of any rights of another person or entity. Your rights with respect to FOS are not modified by the foregoing indemnification if the laws of your country of residence, applicable as a result of your use of our Services, do not permit it.
Notice for California members
Under California Civil Code Section 1789.3, California Services Users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
FOS and You agree to use best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. This means that, at a minimum, you agree to inform FOS of the issue via a written email and allow FOS five (5) days to respond and rectify the complaint to your reasonable satisfaction. In the event FOS has not provided a reasonably satisfactory solution to the stated issue, except for disputes relating to the FOS’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this Agreement and your use of the Services shall be finally settled by binding arbitration administered by JAMS (an arbitration service) in accordance with its provisions and procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You and FOS hereby expressly waive trial by jury. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s Account, if FOS is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. This provision does not apply to Users who live in the European Union.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception - Litigation of Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Thirty-day Right to Opt Out
You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: Troglia Kaplan, LLC, 1765 N. Elston, Suite 211, Chicago, IL Attn: Flats or Spikes, Inc. The notice must be sent within 30 days of registering an Account to use the Services; otherwise, you shall be bound to arbitrate disputes in accordance with these Terms. If you opt out of these arbitration provisions, FOS also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, FOS may terminate your use of the Services.
Time limitation on claims
You agree that any claim you may have arising out of or related to your relationship with FOS and these Terms must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
Choice of Law and Forum
Any action related to the Terms, Content, the Services, and your relationship with the FOS shall be governed by, and construed and interpreted in accordance with, the laws of the State of Illinois without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to the Section entitled “Dispute Resolution”, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts embracing Champaign, Illinois and you consent to the exclusive jurisdiction of the federal or state courts embracing Champaign, Illinois. If any party hereto brings any suit or action against another for relief, declaratory or otherwise, arising out of these Terms, the prevailing party will have and recover against the other party, in addition to all court costs and disbursements, such sum as the court may adjudge to be reasonable attorneys’ fees. Except to the extent prohibited by applicable law, the parties agree that any claim or cause of action arising out of or related to use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. This paragraph does not apply to Users who reside in the European Union.
If you are a User based in the European Union, then Irish law shall apply to these Terms and the Irish courts shall have exclusive jurisdiction to hear disputes arising in relation to the Terms. Despite this, your local laws in your European Union Member State may allow you to take legal action against FOS in your Member State and to invoke certain local laws against FOS.
United States Operation
These Services are controlled by FOS from its offices within the United States of America. FOS makes no representation that the Content or the Services are appropriate or available for use in other locations. Access to or use of the Content or the Services from territories where such access or use is illegal is prohibited. Those who choose to access the Services from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Content in violation of U.S. export laws and regulations.
You acknowledge and agree that the Services, any necessary software used in connection with the Services (if any), any aggregated data based on Content on the Services, including DID, and any Content available or made available on the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly permitted by applicable law or authorized by FOS or applicable third-party service providers or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, the software or Content available on the Services (other than Content that you may submit), in whole or in part.
FOS grants you a personal, revocable, non-transferable, non-sublicensable and non-exclusive right and license to access and use the Services; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Services, except where permitted by law. You agree not to access the Services by any means other than through the interfaces that are provided by FOS.
The term “Flats or Spikes”, the FOS logo and other FOS owned logos and product and service names, including trade dress, are the exclusive trademarks and trade dress of, and are owned by FOS. You may not use or display such trademarks in any manner without FOS’s prior written permission, other than in sharing Content, emails, or other media generated through the Services, in a manner that does demean or criticize FOS without first addressing the issue related to the criticism with FOS. Any third-party trademarks or service marks displayed on the Services are the property of their respective owners.
FOS reserves all rights not expressly granted hereunder.
The Digital Millennium Copyright Act (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the internet infringes their rights under U.S. copyright law. FOS also reviews claims of trademark infringement. If you believe in good faith that materials hosted by FOS infringe your copyright or trademark rights, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work or trademark claimed to have been infringed (or, if multiple copyrighted works or trademarks located on the Services are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow FOS to locate the material on the Services; (d) the name, address, telephone number, and e-mail address (if available) of the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright or trademark owner, its agent, or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please be advised that FOS will not respond to complaints that do not meet these requirements. If FOS determines that the materials alleged to infringe your copyright or trademark rights do not require removal, FOS will remove those materials only pursuant to a court order declaring the content or use of the materials unlawful.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Counter-notices must include the following information: (a) your name, address, and telephone number; (b) the source of the content that was removed; (c) a statement under penalty of perjury that you have a good-faith belief that the content was removed in error; (d) a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located; or, if your address is outside of the United States, for any judicial district in which FOS may be found, and that you will accept service of process from the person who provided the original complaint; and (e) a physical or electronic signature (for example, typing your full name).
Notices and counter-notices with respect to the Services must meet the then-current statutory requirements imposed by the DMCA and should be sent to the agent identified below. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there may be penalties for false claims under the DMCA.
Agent to Receive Notices of Claimed Infringement:
Troglia Kaplan, LLC
1765 N. Elston, Suite 211
Chicago, IL 60642
We welcome your comments, feedback, suggestions, and other communications regarding the Services and the information and services we make available through the Services (collectively, “Feedback”). If you provide Feedback, you hereby grant to FOS a worldwide, non-exclusive, transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free license to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback. For this reason, we ask that you not send FOS any Feedback that you do not wish to license to us as set forth above.
You agree that FOS may, in its sole discretion, immediately terminate your Account and/or access to the Services. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the Terms or other incorporated agreements, policies or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated Account deletions), (d) discontinuance or material modification to the Services (or any portion thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) if a false age was used to create an Account, (h) if you are not 13 years old or such older age required in your country to use the Services, (i) nonpayment of any fees owed by you or your Organization Owner in connection with the Services. Termination of your Account may include (x) removal of access to all offerings within the Services, (y) deletion of your information, files and Content associated with your Account, and (z) barring of further use of the Services. Further, you agree that all terminations for cause shall be made in FOS’s sole discretion and that FOS shall not be liable to you or any third party for any termination of your Account or access to the Services. The following Sections shall survive termination of your Account and/or the Terms: User Content Submitted to the Services, Proprietary Rights, Your Feedback, Disclaimer of Warranties and Liability, Indemnity, Applicable Laws and General.
You agree that no joint venture, partnership, joint controllership, employment or agency relationship exists between you and FOS as a result of the Terms or your use of the Services. The Terms constitute the entire agreement between you and FOS with respect to your use of the Services. The failure of FOS to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. You may not assign, delegate or otherwise transfer your Account or your obligations under these Terms without the prior written consent of FOS. FOS has the right, in its sole discretion, to transfer or assign all or any part of its rights under these Terms and will have the right to delegate or use third party contractors to fulfill its duties and obligations under these Terms and in connection with the Services. FOS’s notice to you via email, regular mail or notices, posts, or links on the Services shall constitute acceptable notice to you under the Terms. A printed version of the Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Section titles and headings in the Terms are for convenience only and have no legal or contractual effect. Any rights not expressly granted herein are reserved.
FOS reserves the right, without any limitation, to: (i) investigate any suspected breaches of its site’s security or its information technology or other systems or networks; (ii) investigate any suspected breaches of these Terms; (iii) investigate any information obtained by us in connection with reviewing law enforcement databases or complying with criminal laws; (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; (v) prosecute violators of these Terms; and (vi) discontinue the Services, in whole or in part, or, except as may be expressly set forth in the Terms, suspend or terminate your access to it, in whole or in part, including any Account or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to us under these Terms or any Additional Terms. Upon suspension or termination of your access to the Program, or upon notice from us, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Program. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to us in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
Modification of the Terms and Services
Certain provisions of the Terms may be supplemented or superseded by expressly designated legal notices or terms located on particular pages on the Services. FOS reserves the right to update the Terms at any time and for any reason in its sole discretion. FOS will notify you of any material changes to the Terms or to any service or other features of the Services, and such modifications will be effective ten (10) days after such notice, unless you provide written notice of objection. By continuing to access or use the Services after we have provided you with notice of a modification, you are agreeing to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.
FOS and its third-party service providers may make improvements and/or changes in the Services, products, services, mobile applications, features, programs, and prices described at any time and for any reason in its sole discretion. The mobile application may download and install upgrades, updates and additional features in order to improve, enhance, and further develop the Services. FOS reserves the right at any time to modify or discontinue, temporarily or permanently, the Services or any portion thereof with or without notice. You agree that FOS shall not be liable to you or to any third party for any modification, suspension or discontinuance
of the Services.