TERMS AND CONDITIONS OF USE
Welcome to FIT Radio! FIT Radio is an online hosting service by FIT RADIO LLC, a Georgia limited liability company, which provides, at the discretion of its users, for the storage and sharing of online content, including music and other digital media. The FIT Radio services include the website www.fitradio.com, FIT Radio mobile applications, and related players, widgets, tools, software, social features, personalized content, and other applications, and any other services now known or later developed by FIT Radio (the "FIT Radio Platforms").
Changes to the FIT Radio Platforms: FIT Radio may change, restrict access to, suspend or discontinue the FIT Radio Platforms, or any portion of the FIT Radio Platforms, at any time in its sole discretion. From time to time, FIT Radio may establish general practices, limits, or restrictions concerning the use of the FIT Radio Platforms and the posting of materials by users of the FIT Radio Platforms.
Accounts: To use the FIT Radio Platforms, you must be a registered user. You may register for either a Primary User or Secondary User account ("Accounts"). In general, and without restriction or limitation, Primary Users may upload and access content stored on the FIT Radio Platforms and Secondary Users, on either a free or premium basis, may access (but not upload) content stored on the FIT Radio Platforms. Click here for a description of the current features, including fees, associated with each type of Account. FIT Radio may add, remove, or change the features of any type of Account, may withdraw or introduce new types of Accounts at any time and for any reason, and may change the prices charged for any of its Accounts from time to time. In the event of any change(s) to the pricing or features of any Account to which you have subscribed, you will be notified of such change(s) and you will have a reasonable opportunity to modify, cancel, or renew your Account.
Fees and Payments: Certain features of the FIT Radio Platforms are only available to users who register and pay for a Primary User Account or premium Secondary User Account. Your payment will be charged at the time of registration, and then in advance at the beginning of every month thereafter unless you cancel your subscription with FIT Radio's billing provider (Apple App Store, Google Play Store or Amazon Payments) at least 24 hours prior to the billing date. You may upgrade your Account at any time. Your fit radio subscription covers up to 40 hours of usage per month. After 40 hours of listening, additional charges may apply. If you wish to downgrade or terminate your Account, you may do so effective at the end of the last month for which you have paid. FIT Radio will charge fees due in accordance with the payment method you have chosen for your Account. If you are paying by credit or debit card, by designating a card to be billed, you confirm that you are authorized to make such purchase and that you are the holder of such card (i.e. that the card is issued in your name). All sales are final and are not subject to refunds.
Third-Party Material: Certain Content on the FIT Radio Platform, in in particular, User Submissions (defined below), include content, products, resources, and services from third parties. FIT Radio may provide links, solicitations, advertisements, data, or information related to third parties and their materials. FIT Radio has no control over such third parties and their materials, and, as such, you agree that FIT Radio does not endorse and is not responsible or liable for any content, accuracy, quality, advertising, products, or other materials from such third parties. You agree that you assume full responsibility when you choose to access third party material or follow any links that lead you to third party websites.
Objectionable Material: You understand that by using the FIT Radio Platform, you may encounter material that you may deem to be offensive, indecent, or explicit. Nevertheless, you agree to use the FIT Radio Platform at your sole risk and you agree that FIT Radio has no liability to you for material that may be found to be offensive, indecent, or objectionable.
Fit Radio pricing: 5.99/month includes all features in the Fit Radio app. User may proceed to use Music Only option for 1.99/month, capped at 10 hours of listening. The Fit Radio 5.99 membership includes the $4.00 monthly fee for coaching and motivation.
Linking: You may include links to FIT Radio Platforms provided that (1) you do not replicate the Content, (2) you do not imply that FIT Radio is endorsing or sponsoring your website or products, (3) you do not present false information about FIT Radio or FIT Radio Platforms, (4) your website does not contain illegal content or support, endorse, or encourage piracy or the unauthorized exploitation of intellectual property rights. Notwithstanding the foregoing, FIT Radio reserve the right to deny permission to link to FIT Radio Platforms for any reason in its sole and absolute discretion.
Representations and Warranties: In addition to the general restrictions on your use of the FIT Radio Platforms above, for each of your User Submissions and without limitation, you agree, represent, and/or warrant that:
Its DMCA Agent: If you are a copyright holder who believes that any of the products, services or Content which are directly available via the FIT Radio Platforms contains infringing copies of your work, please notify FIT Radio. Pursuant to The Digital Millennium Copyright Act, 17 United States Code 512(c)(3) ("DMCA"), a notice of alleged copyright infringement should be sent to FIT Radio's designated copyright agent at the following address ("FIT Radio's Agent"):
FIT Radio LLC
1080 Peachtree Street, Unit 2210
Atlanta, Georgia 30309
DMCA Notification: A notification of claimed copyright infringement ("DMCA Notification") must be addressed to FIT Radio's Agent and must include the following:
DMCA Counter Notification: The user who uploaded the material that is the subject of a DMCA Notification may file a counter notification. Counter-notifications should be sent to FIT Radio's Agent and must include the following:
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material was removed or disabled by mistake or misidentification may be subject to liability.
Once FIT Radio receives a counter notification, FIT Radio will forward it to the party who submitted the original claim of infringement. Please understand that your personal information will be included. You consent to having your information forwarded in this way by submitting a counter notification. After FIT Radio send the counter notification, the original claimant must notify FIT Radio within 10 days that they have filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the FIT Radio Platforms. If FIT Radio receives such notification FIT Radio will be unable to restore the material. If FIT Radio does not receive such notification, FIT Radio may reinstate the material in its sole discretion.
YOUR USE OF, OR INABILITY TO USE, THE FIT RADIO PLATFORMS IS AT YOUR SOLE RISK. THE FIT RADIO PLATFORMS ARE PROVIDED ON AN "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE" BASIS.
FIT RADIO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND IN CONNECTION WITH THE FIT RADIO PLATFORMS AND YOUR USE THEREOF, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WITHOUT LIMITATION FIT RADIO MAKES NO REPRESENTATION OR WARRANTIES WITH RESPECT TO AND ASSUMES NO LIBILITY FOR (1) ERROR, MISTAKES, OR INACCURACIES OF CONTENT; (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE FIT RADIO PLATFORMS; (3) ANY UNAUTHORIZED ACCESS TO ITS USE OF ITS SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANICAL INFORMATION STORED THEREIN; (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE FIT RADIO PLATFORMS; (5) ANY BUGS, VIRUSES, TORGAN HORSES, OR THE LIKE WITH MAY BE TRANSMITTED TO ITS THROUGH THE FIT RADIO PLATFORMS BY ANY THIRD PARTY; (6) ANY ERROR OR OMISSION IN ANY CONTENT OR FORAN LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVALIABLE VIA THE FIT RADIO PLATFORMS.
FIT RADIO IS NOT RESPONSIBLE FOR EXAMINING OR EVALUATING THE CONTENT OR ACCURACY OF THE THIRD PARTY MATERIAL, INCLUDING USER SUBMISSIONS AND ADVERTISING, FOR ANY REASON WHATSOEVER. YOU AGREE THAT FIT RADIO WILL NOT BE LIABLE FOR YOUR RELIANCE ON, ACCESS TO, USE OF, OR DOWNLOADING OF MATERIAL AVAILABLE FROM, BY, OR THROUGH A THIRD PARTY.
IN NO CASE SHALL FIT RADIO, ITS PARENT ENTITY, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, AGENTS, CONTRACTORS, LICENSEES, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL; DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FIT RADIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE USE OR THE INABILITY TO USE THE SERVICE; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR ACCOUNT; ANY ERRORS OR OMISSIONS IN ANY CONTENT; STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR ANY OTHER MATTER RELATING TO THE SERVICE, FIT RADIO, AND CONTENT.
FIT RADIO SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE FIT RADIO PLATFORMS, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND FIT RADIO HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
Dispute Resolution: You agree to provide FIT Radio with written notice of any dispute, claim, or controversy, of any sort or nature, arising out of the use of FIT Radio or the FIT Radio Platforms, within 30 days after any such claim, dispute, or controversy arises. You must provide written notice via certified mail, return receipt requested, to:
FIT Radio LLC
1080 Peachtree Street, Unit 2210
Atlanta, Georgia 30309
Any failure to strictly follow the procedures delineated in this section shall constitute an unconditional waiver of any dispute, claims, or controversy that may exist or you may have against FIT Radio, its affiliates, subsidiaries, parent entity, licensors, licensees, officers, directors, employees, contracts, agents, suppliers, and programmers. You agree to pay FIT Radio's reasonable attorneys' fees for defending a lawsuit in which the dispute resolution procedure, as defined in this paragraph, has not been strictly followed.
Disputes With Other Users: If there is a dispute between persons who are users of FIT Radio Platforms, or between a FIT Radio Platform user and any third party, you understand and agree that FIT Radio are under no obligation to become involved in any respect. In the event that you have a dispute with one or more other FIT Radio Platform users, you release FIT Radio and, its officers, employees, agents, representatives and successors from any and all claims, demands and damages of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the FIT Radio Platforms.
Dated: December 14, 2011