CREW BY TRUE ROWING, INC.
Last revised: April 3, 2018
ABOUT THE SERVICES
Crew provides an App for connecting mobile devices with the Concept 2 Performance Monitors. Features of the App include displaying rowing performance statistics over instructional videos and saving those stats in the cloud.
Account Security. You (and your authorized staff, if any) are the sole authorized user of your User Account. You are responsible for maintaining the confidentiality of any password and Account number provided by you or Crew for accessing the Services. You are solely and fully responsible for all activities that occur under your password or Account. Crew has no control over the use of your or any user’s Account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security, you will cease all use and contact Crew immediately by emailing firstname.lastname@example.org.
USE OF THE SERVICES
You agree to protect the Services, and their proprietary content, information and other materials, from any unauthorized access or use, and you agree that you will not use the Services or such proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by Crew. Except as specifically permitted herein or expressly authorized in writing by Crew, you agree that you will not directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (ii) use the Services in any service bureau arrangement; (iii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services, any updates, or any part thereof in any form or manner or by any means; (iv) harvest or scrape any content or data from the Service, or (v) permit any third party to engage in any of the acts described in clauses (i) through (iv).
You further understand and agree that you are not permitted to: (i) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Services; (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services); (iii) use any means to discover the source code of any portion of the Services; or (iv) otherwise circumvent any functionality that controls access to or otherwise protects the Services. Any attempt to do any of the foregoing is a violation of the rights of Crew and its licensors. If you breach these restrictions, you may be subject to prosecution and damages. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Crew is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Services.
Third Party Services and Materials. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that Crew is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Crew does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from the Services are not available in all languages or in all countries. Crew makes no representation that any third party services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such services or Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.
Open Source Software. The Services may contain or make use of certain Open Source Software. Further information is available on our Website at www.truerowing.com.
Ownership OF THE SERVICES
Feedback and Revisions. Any and all (i) suggestions for correction, change and modification to the Services and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to Crew by you (collectively “Feedback”), and all (ii) improvements, updates, modifications or enhancements, whether made, created or developed by Crew or otherwise relating to the Services (collectively, “Revisions”), are and will remain the property of Crew. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of Crew and Crew may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Crew any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At Crew’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
Disclaimer of Warranties AND Limitation of Liability.
Warranty Disclaimer. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, SOFTWARE OR SERVICES) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CREW HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. CREW DOES NOT WARRANT THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (D) DEFECTS IN THE SERVICES CAN OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY CREW OR ITS AUTHORIZED REPRESENTATIVE SHALL BE DEEMED TO CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
NOTICES OF COPYRIGHT INFRINGEMENT.
Anyone who believes that his or her work has been reproduced on the Services in a manner which constitutes copyright infringement may submit a notification to Crew’s copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”) by providing all of the following information in writing: (1) identification of the copyrighted work that is claimed to be infringed; (2) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service; (3) information for Crew’s copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address; (4) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; (5) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and (6) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by indicating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
Notices of copyright infringement claims should be sent by mail to 14 Arrow Street, Cambridge, MA 02138, or by email to email@example.com. Crew will respond expeditiously to claims of copyright infringement that are reported to Crew’s copyright agent in the manner explained above. It is Crew’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
If you believe that any of your content that was removed (or to which access was disabled) after Crew received a notice of copyright infringement is not actually infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may send a counter-notice containing all of the following information to Crew’s copyright agent: (1) your physical or electronic signature (with your full legal name); (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief, under penalty of perjury, that the content was removed or disabled as a result of mistake or a misidentification of the content; (4) your name, address, telephone number, and email address; and (5) a statement that you will accept service of process from the person who provided the original notification of the alleged infringement.
If a counter-notice is received by Crew’s copyright agent, Crew may send a copy of the counter-notice to the original complaining party informing that person that Crew may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) business days or more after receipt of the counter-notice, at Crew’s sole discretion. Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.
Further information on the DMCA can be found in 17 U.S.C. 512 or on the United States Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf.
ARBITRATION AND CLASS ACTION WAIVER
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
Informal Process First. You agree that in the event of any dispute between you and Crew, you will first contact Crew and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
Arbitration Agreement. After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of Crew’s services and/or products, including the Services, or relating in any way to the communications between you and Crew or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Crew. However, this arbitration agreement does not (a) govern any Claim by Crew for infringement of its intellectual property or access to the Service that is unauthorized or exceeds authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases. If you are an individual you may opt out of this arbitration agreement within thirty (30) days of the first of the date you access or use this Service by following the procedure described below.
No Judge or Jury. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Crew are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.
Arbitration Rules. If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to 14 Arrow Street, Cambridge, MA 02138. The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA’s Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
Conduct of the Arbitration. The number of arbitrators will be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If you are an individual and have not accessed or used the Service on behalf of an entity, we will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
Interpretation. The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
Opting-Out. If you do not want to arbitrate disputes with Crew and you are an individual, you may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the first of the date you access or use the Service.
Class Action Waiver. Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration. If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Crew each waive any right to a jury trial.
Export Laws. You agree that you will not export or re-export, directly or indirectly the Services and/or other information or materials provided by Crew hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
U.S. Government Restricted Rights. The Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.