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 notify FIT Radio that you wish to terminate your Account. You may upgrade your Account at any time. 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).
Content on the FIT Radio Platforms
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.
Use of FIT Radio Platforms
- You will use the FIT Radio Platforms only for personal, private, non-commercial purposes.
- You shall not interfere with or damage the FIT Radio Platforms in any way whatsoever, including, but not limited to, by trespass, burdening network capacity, repeatedly posing the same or similar content, or uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.
- You may not decompile, disassemble, reverse-engineer or otherwise attempt to discover any source code contained in or on the FIT Radio Platforms.
- You agree not to tamper with or modify the FIT Radio Platforms in any manner and for any purpose including but not limited to obtaining unauthorized access to the FIT Radio Platforms.
- You agree not to circumvent, disable or otherwise interfere with security related features of the FIT Radio Platforms or features that prevent or restrict use or copying of any Content or enforce limitations on use of the FIT Radio Platforms.
- You agree not to obtain or attempt to obtain any materials or information though any means not intentionally made available through the FIT Radio Platforms.
- You will not use any automated means, including bots, botnets, robots, spiders, scrapers, data mining tools, automated scripts, or the like to download, access, aggregate, repurpose, or otherwise make use of the Content for any purposes. Notwithstanding the foregoing, FIT Radio grants the operators of public search engines permission to use spiders to copy materials from FIT Radio Platforms for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. FIT Radio reserve the right to revoke these exceptions either generally or in specific cases.
- You will not make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the FIT Radio Platforms.
- You may not copy, re-skin, re-package, reproduce, recompile, distribute, publish, display, perform, or in any way exploit any part of the Content except as expressly permitted by the functionality of the FIT Radio Platforms;
- You may not use any Content in any way that is designed to create a separate content service or that replicates any part of the FIT Radio Platforms.
- You agree not to defame, harass, abuse, threaten, stalk, defraud, or attempt to collect personal information about FIT Radio or users of the FIT Radio Platform.
- You agree to notify FIT Radio in writing promptly upon becoming aware of any unauthorized access or use of the FIT Radio Platforms by any party.
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:
- Each of your User Submissions does not and will not infringe upon or violate the rights of an third party, including, without limitation, intellectual property rights, performers' rights, rights of privacy or publicity, or rights in confidential information.
- You have obtained any and all necessary consents, permissions, licenses, and/or releases from any and all persons appearing in your User Submissions in order to include their name, voice, performance, composition, or likeness in the content and to publish and distribute the same on the FIT Radio Platforms.
- FIT Radio shall not be required to make any payments with respect to your User Submissions.
- You are solely responsible for all of your User Submissions posted, uploaded, published, made available or displayed through your Account, including any messages, and for your interactions with other users, and you shall be solely responsible for your User Submissions and the consequences of uploading or posting.
- You will not use any bots, botnets, automated scripts or other automated or electronic means to artificially increase the play count, add followers, or otherwise to misrepresent the popularly of your User Submissions.
- Your User Submissions do not contain falsehoods, misrepresentations, or deceptive matter that could damage the FIT Radio Platforms, FIT Radio, or any third party.
- Your User Submissions do not contain material that is unlawful, obscene, patently offensive, defamatory, libelous, threatening, sexually explicit, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable in its reasonable discretion.
- Your User Submissions do not contain any unsolicited or unauthorized advertising, promotional messages, mass email, spam or any other form of solicitation involving commercial activities and/or sales without FIT Radio's prior written consent such as contests, sweepstakes, advertising, or pyramid schemes.
- Your User Submissions do not contain any virus, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which might overburden, impair or disrupt the FIT Radio Platforms or servers or networks forming part of, or connected to, the FIT Radio Platforms, or which does or might restrict or inhibit any other user's use and enjoyment of the FIT Radio Platforms.
- Your User Submissions do not provide material support or resources (or conceals or disguises the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act or any other relevant statute, regulation, or policy.
DMCA Copyright Agent
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:
- A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of the copyright that is allegedly infringed;
- Specific identification of each copyrighted work claimed to have been infringed;
- A description of where the material believed to be infringed is located on the FIT Radio Platforms (please be as detailed as possible and provide a URL if possible to help FIT Radio locate the material you are reporting);
- Contact information for the complaining party, including your complete name, address, telephone number, and email address;
- A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- 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.
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:
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
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.
Disclaimer of Warranties
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.
Limitation of Liability
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.
Indemnity and Waiver
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