- Definitions. Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
Account Types. We designate various types of accounts (each, an "Account") that provide different functionality to different users of the Site. You may choose your Account type when you first submit a registration for the Services or the Site (your “Registration”).
- A “Free Athlete Account” allow you limited access to view and download your Content (as defined below) through the Account, but does not have many of the features and functions available to you if you register for one of the other Account types below.
- An “Paid Athlete Account” allows only you greater access to view and download your Content and to additional features and functions not available with a Free Athlete Account.
- A “Coach Account” allows the Coach you have designated in your Registration or through the Site (our you if another user has designated you as their Coach) to access the Account for the purpose of providing Coaching Services. .
- A “Coached Athlete Account” allows you to access the Account as designated by your Coach and is linked to the Coach Account for the Coach you have designated in your Registration or through the Site as your Coach.
A “Sponsored Account” is a Paid Athlete Account, Coach Account, or Coached Athlete Account that is maintained by us under a separate agreement with your Sponsor through which you have registered for your Account.
Account Registration; Account Settings; Passwords.
- Age Restrictions. You may not create an Account unless you are 13 years of age or older. If You are a parent or guardian of a child under 13, then You may create an Account and allow Your child to access that Account and the Services under Your direct supervision. You will be solely responsible for all access to and use of the Services and that Account by Your child. If You are 13 or older but younger than 18, then You may establish Your own Account only if Your parent or guardian accepts this Agreement on Your behalf. If you are a parent or guardian entering this Agreement for the benefit of a child age 13 or older but under 18, then You agree You will be solely responsible for all access to and use of the Services and that Account by Your child.
- Your Account Information. By submitting a Registration form or creating a password on the Site, you represent to us that: (1) you meet any age restrictions for the Site, and (2) the information you have provided on your Registration ("Account Information") is true, accurate, current and complete. You will maintain and promptly update your Account Information using the functionality provided through the Site to keep it true, accurate, current and complete.
- Passwords for Coach Accounts and Paid Athlete Accounts. If you have a Paid Athlete Account, you are responsible for maintaining the confidentiality of your password and you are not permitted to share or disclose your password to anyone else. You will be solely responsible for the activities of anyone accessing the Site using any password assigned to you, even if the individual is not, in fact authorized by you. If you have reason to believe that your password has been compromised or used without authorization, you must promptly change it, using the functionality provided on the applicable Site, and notify us at email@example.com.
- Passwords for Coached Athlete Accounts and Sponsored Accounts. If your Account is designated as a Coached Athlete Account, the Coach to whom your Account is linked will have access your Account, including the ability to set and reset your password and to view or modify the Content in your Account. If you have a Sponsored Account, the Sponsor of your Account may also have the ability to set and reset your password and view or modify the Content in your Account.
- Permitted Uses. Use of Paid Athlete Accounts and Coached Athlete Accounts is limited to your own personal, noncommercial use only. If you have a Coach Account, you may use the Site as a tool to assist you in providing coaching or training services to individual users who have a Coached Athlete Account that is linked to your Account. For Sponsored Accounts, please refer to your Sponsor Agreement and any Additional Terms that may be presented to you during registration for your Sponsored Account.
Payment; Termination by You.
- Paid Athlete Accounts and Coach Accounts. You are required to pay the fees for your Paid Athlete Account or Coach Account for the term of the plan selected in your Registration prior to obtaining access to your Account. All fees will be payable in advance, unless otherwise specified in your Registration of on the Site. All plans automatically renew unless you terminate your Account within the time specified in your Registration or on the Site for your plan before your plan is scheduled to renew. You are free to terminate your Paid Athlete Account or Coach Account at any time. Peaksware will not provide any refund upon termination, but you will continue to have access to your Account after you have terminated your Paid Athlete Account or Coach Account until the expiration of your plan's current term.
- Coached Athlete Account. If you have a Coached Athlete Account, the responsibility for payment of the fees, if any, for your access to your Account will be as specified by the terms of your applicable Coaching Agreement
- Sponsored Account. If you have a Sponsored Account, your Sponsor will pay the fees, if any, for your access to your Account. Please refer to the terms of your Sponsor Agreement regarding payment for and termination of your Account.
Term; Termination by Peaksware.
- Termination by You. If you notify us that you wish to terminate your Account, regardless of the type of Account you have, we will promptly take such action as is necessary to terminate your Account. Upon such termination, we may also choose to delete your Account Information or remove Content you have posted or uploaded to the Site or your Account. We will not provide any refund if your Account is terminated under this Section.
- Other Termination or Modification. In addition to the termination rights above, we have the right to terminate the Services at any time or to modify or change the Services to eliminate any or all of the Services.
- No Medical Advice. THE CONTENT WE PROVIDE THROUGH THE SITE, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER USERS 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. OUR CONTENT DOES NOT CONSTITUTE MEDICAL ADVICE. SHOULD YOU HAVE ANY HEALTHCARE 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 THIS SITE, AND YOU SHOULD NOT USE OUR CONTENT 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 US. PEAKSWARE IS NOT A HEALTHCARE PROVIDER OR BUSINESS ASSOCIATE OF A HEALTHCARE PROVIDER AND IS NOT SUBJECT TO THE PRIVACY RULE OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA).
Prohibited Content. You may not post Content on or through the Site that:
- is patently offensive and/or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person;
- exploits people in a sexual or violent manner;
- contains nudity, violence, or offensive subject matter;
- provides any telephone numbers, street addresses, last names or email addresses of anyone except yourself;
- promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- violates any intellectual property or other proprietary right of any third party, including Content that promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
- involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging or "spamming";
- contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
- furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
- solicits passwords or personal identifying information for commercial or unlawful purposes from other members;
- involves commercial activities and/or sales without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or
- includes a photograph of another person that you have posted without that person's consent or, in the case of children under the age of thirteen (13), parental consent, or otherwise constitutes an invasion of an individual's privacy or infringement of publicity rights; or contains a virus or other harmful component.
- Responsibility for User Content. You are responsible for all Content you post to your Account and the Site and for adjusting the Account settings that permit you to display your Content on the Site, where applicable. Posting Content via the Internet inherently poses the risk of unintended disclosure and access by third parties to your Content. We will make reasonable efforts to prevent your Content from disclosure beyond the settings you select, but we cannot guarantee these settings will prevent your Content from being viewed or accessed by unintended third parties and we will not be liable for such disclosures. We are not responsible for and do not control User Content, and, therefore, we do not guarantee the accuracy, integrity or quality of any User Content. You understand that by using pages of the Site on which users may post User Content, you may be exposed to User Content that you deem offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, settings viewing errors, or any loss or damage of any kind incurred as a result of the use of any User Content posted on or through the Site.
- Ownership of Your Content. We do not claim ownership rights in your Content. Subject to the non-exclusive license contained in the following paragraph, and the rights of Coaches and Sponsors, if applicable, you own and will retain any and all intellectual property rights that you may have in your Content.
- Special Notice to Holders of Coached Athlete Accounts and Sponsored Accounts. If you have a Coached Athlete Account or a Sponsored Account, or if you convert your Paid Athlete Account to a Coached Athlete Account or a Sponsored Account, then the Coach or Sponsor linked with your Account has the right to access, view, modify, add, and delete your Content. By registering for a Coached Athlete Account or a Sponsored Account, or by converting your Paid Athlete Account to a Coached Athlete Account or a Sponsored Account, the rights you grant to us include the right to allow the Coach or Sponsor with whom your Account is linked a license to copy, modify, view, add and delete your Content.
- Access to Your Training Content Following Termination. If you terminate your Paid Athlete Account, we will convert your Account to a Free Athlete Account. Please refer to Sections 8.c above regarding the status of your Account if you have a Coached Athlete Account or a Sponsored Account and your Coach’s Coach Account or Sponsor’s Sponsor Account is terminated.
- Your Warranties Regarding Your Content. By posting your Content via the Site, you represent and warrant that (1) you own all right, title and interest in your Content, or otherwise have the right to grant the license set forth in preceding paragraph, and (2) the posting of your Content on or through the Site does not violate the intellectual property right, privacy rights, publicity rights, or any other rights of any third party.
Ownership of Site and Content.
- User Content. The Site and Content we and others provide are protected under applicable intellectual property laws. In addition, the Content is a collective work under U.S. and international copyright laws and treaties, and while you retain ownership of your Content, we own the copyright in the selection, coordination, and arrangement of the Content on the Site.
- Software. Unless otherwise expressly stated in a license or other agreement separate from this Agreement that You may have entered into (or may enter into) with us relating to any software, code, or APIs available on or accessible through the Site or Services (collectively, “Software”) (each such license or other agreement, a “Software License Agreement”), we grant you a personal, limited, non-exclusive right and license to download, install, and execute the Software in accordance with any instructions we provide to you, solely for your own business purposes in connection with your access to and use of the Site and Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), you are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any intellectual property rights therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without our prior written permission. Except as set forth in this Agreement, any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement.
- Claims of Copyright Infringement. If you have reason to believe any part of the Content of the Site infringes the copyrights of others, please notify our Copyright Agent immediately using the contact information provided below. It is our policy to investigate any allegations of copyright infringement brought to our attention. We reserve the right in our sole discretion to immediately suspend and/or terminate access to any Site by any user who is alleged to have posted infringing materials or a link to infringing materials on the Site and to immediately remove or disable the allegedly infringing Content or link.
Notice of Claim of Copyright Infringement. If you are the copyright owner (or are authorized to act on behalf of the copyright owner), please notify our Copyright Agent immediately if you believe that (1) any Content displayed on the Site infringes your copyright or (2) any link posted on the Site links to materials that infringe your copyright. As soon as we receive your notice of claimed infringement, in the form described below, we will promptly remove or disable access to the materials that are claimed to be infringing (or the subject of infringing activity). Your notice must be in writing and must include the following:
- a description of the copyrighted work you believe has been infringed (or if you believe multiple copyrighted works have been infringed, a representative list);
- a description of the material you believe is infringing or the subject of infringing activity, together with enough information to permit us to locate the material on the applicable Site; enough information to permit us to contact you, such as, your name, address, telephone number and, if available, e-mail address;
- a statement that you have a good faith belief that the allegedly infringing use of the material was not authorized by the owner of the exclusive right that is allegedly infringed (the "copyright owner"), an agent for the copyright owner, or by law;
- a statement that all of the information you have provided is accurate; and
- a statement, made under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the copyright owner.
Your Notice. Your notice must be signed (physically or electronically) and must be addressed as follows:
- Chief Operating Officer Peaksware LLC 7007 Winchester Circle, Suite 200 Boulder, CO 80301 Phone: (720) 406-1839 Fax: (303) 926-1680 E-mail: firstname.lastname@example.org
- Ownership of Trademarks. The trademarks and service marks used or displayed on the Site ("Trademarks") are registered and unregistered trademarks of Peaksware and its licensors or affiliates. Your access to the Site does not constitute a license to use any Trademarks and you may not use any Trademarks displayed on the Site without the prior express written permission of Peaksware or the trademark owner.
- Your Feedback. We welcome your comments, feedback, suggestions, and other communications regarding the Site and the information and services we make available through the Site (collectively, "Feedback"). The Feedback you provide to us through the Site will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.
- Links to the Site and RSS Feeds. We grant you permission to create hyperlinks to the home page of public pages within the Site, provided that the hyperlink accurately describes the content as it appears on the applicable page of the Site. You are further granted a right to implement the RSS feeds located on the Site at www.trainingpeaks.com for your personal, non-commercial use, solely as described on the Site. We reserve the right to revoke these licenses generally, or your right to use specific links or RSS feeds, at any time, with or without cause. If you wish to obtain a license to use, distribute, or otherwise feature our RSS feeds for commercial purposes, please contact us at email@example.com and request a license for commercial use. Under no circumstances may you "frame" the Site or any of its Content or copy portions of the Site to a server, except as part of an Internet service provider's incidental caching of pages. When a page of the Site is accessed from a link (including RSS feeds) featured on your web site, each page within the Site must be displayed in full, without any accompanying frame, border, margin, design, branding, trademark, advertising, or promotional materials not originally displayed on the applicable page within the Site. If you wish to link to any Site other than as described herein, you must execute a separate agreement with Peaksware. Please contact us at firstname.lastname@example.org.
- Third Party Sites. The Site may contain links to websites operated by other entities. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. We make no warranty or representation regarding, and does not endorse, any linked websites or the information appearing thereon or any of the products or services described thereon.
- We may provide you with support for your Account ("Support") via the following methods, which may include, without limitation: online self-help support center ; forums ; the Site; email; and voicemail. For current information regarding Support, please visit the following site: http://support.trainingpeaks.com.
- We will use commercially reasonable efforts to respond to Support requests within 48 hours after the request is placed. Support is available from 9:00 a.m. to 5:00 p.m. Mountain Standard Time on Monday through Friday, excluding USA holidays, provided that we do not guaranty any level of Support and may change our Support practices at any time.
- EXCEPT AS EXPRESSLY PROVIDED HEREIN, PEAKSWARE HEREBY EXPRESSLY DISCLAIMS, AND YOU DISCLAIM ANY RELIANCE ON, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, OUR CONTENT, AND ALL SOFTWARE, PRODUCTS OR SERVICES DESCRIBED ON OR AVAILABLE THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE ARE NOT RESPONSIBLE FOR ANY ACTION BY A COACH OR SPONSOR RELATING TO YOUR USE OF THE SITE. YOU WILL NOT ASSERT ANY CLAIMS THAT YOU MAY HAVE AGAINST A SPONSOR OR A COACH AGAINST PEAKSWARE.
Limitation of Liability.
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS WE, ON BEHALF OF OURSELVES AND OUR EMPLOYEES, AGENTS, COACHES, SUPPLIERS, SPONSORS AND CONTRACTORS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PEAKSWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES AND THE SITE, OR OTHERWISE RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE SERVICES OR THE SITE; (2) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY GOODS, CONTENT, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (5) ANY OTHER MATTER RELATING TO THE SITE. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS.
- Compliance with Laws. You agree to use the Site in compliance with all applicable laws. If you access the Site from outside the United States, you will comply with all local laws regarding your use of the Site.
- Attorneys' fees. If any party hereto will bring any suit or action against another for relief, declaratory or otherwise, arising out of this agreement, 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.
- Waiver. Failure to insist upon strict compliance with any of the terms, covenants and conditions hereof will not be deemed a waiver of such terms, covenants and conditions, nor will any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. No waiver will be valid unless in writing and signed by an authorized officer of Peaksware.