INTRODUCTION AND BACKGROUND INFORMATION
Welcome to the TCOYF Applications LLC ("TCOYF Applications") website located at www.cyclisity.com (the "Website"), the mobile software application "Cyclisity" (the "App") accessed via a mobile device interface or Web Portal, and any other Cyclisity online interfaces and properties owned and/or managed by TCOYF Applications (“Sites”). These Terms of Use govern your use of all Sites, all content, data, and information provided on and/or through the Sites, and any products and services offered by Cyclisity and purchased through the Sites (collectively the "Products and Services").
The Products and Services allow users to track their cervical fluid, basal body temperature and other fertility signs to assist in charting their ovulatory and menstrual cycles and to help augment their reproductive health knowledge.
THE PRODUCTS AND SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED AS MEDICAL ADVICE OR AS A SUBSTITUTE FOR THE PROFESSIONAL SERVICES OF A LICENSED PHYSICIAN OR OTHER HEALTH CARE PROVIDER OR PRACTITIONER. CYCLISITY IS NOT AN FDA APPROVED DEVICE OR ALGORITHM, DOES NOT PROVIDE MEDICAL ADVICE AND IS NOT A LICENSED HEALTH CARE PROVIDER. NO GUARANTEE IS MADE ON OR THROUGH THE PRODUCTS AND SERVICES BY TCOYF APPLICATIONS WITH RESPECT TO ANY ISSUE OR MATTER WHATSOEVER, AND YOU USE THE PRODUCT AND SERVICES AT YOUR SOLE RISK AND EXPENSE.
EACH USER OF THE SERVICE (A "USER") USES THE PRODUCTS AND SERVICES AT THE USER'S SOLE RISK. THIS MEANS THAT:
· A USER MAY GET PREGNANT WHEN USING THE PRODUCTS AND SERVICES EVEN IF THE USER'S PURPOSE FOR USING THE PRODUCTS AND SERVICES IS TO AVOID GETTING PREGNANT.
· THERE IS NO GUARANTEE THAT USE OF THE PRODUCTS AND SERVICES WILL ASSIST A USER IN GETTING PREGNANT.
· A USER MAY OR MAY NOT SUCCESSFULLY DISCOVER A PATTERN THAT LEADS TO A DIAGNOSIS OF A POTENTIAL ILLNESS OR DISEASE WITH THE USE OF THE PRODUCTS AND SERVICES.
· ALL INFORMATION IS INPUT BY YOU AND YOU ARE SOLELY RESPONSIBLE FOR THE INTERPRETATION OF YOUR INFORMATION.
· CERTAIN INFORMATION PROVIDED THROUGH THE SERVICE MAY INVOLVE DISCUSSION OF REPRODUCTIVE ANATOMY AND/OR SEXUAL ACTS AND THEREFORE MAY NOT BE APPROPRIATE FOR ALL USERS. IF YOU ARE OFFENDED BY MATERIAL OF A SEXUAL NATURE, INCLUDING INFORMATION ABOUT CONCEIVING OR AVOIDING CONCEIVING A CHILD, OR DISCUSSION OF REPRODUCTIVE ANATOMY THEN YOU SHOULD NOT USE THE PRODUCTS AND SERVICES.
· PLEASE BE AWARE THAT SECTION 21 ("ARBITRATION AGREEMENT") BELOW CONTAINS PROVISIONS GOVERNING HOW DISPUTES BETWEEN YOU AND TCOYF APPLICATIONS WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE TERMS. SECTION 21 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND TCOYF APPLICATIONS BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (1) YOU AND TCOYF APPLICATIONS WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. IN SOME COUNTRIES YOU MAY HAVE ADDITIONAL RIGHTS AND/OR ELEMENTS OF THE ARBITRATION AGREEMENT MAY NOT APPLY TO YOU AS REQUIRED BY LAW.
1. ACCEPTANCE OF TERMS
· These Terms of Use, including the Introduction and Background Information set forth above (the "Terms"), govern your use of the Products and Services, whether the Products and Services are provided through the Website or the App.
· PLEASE READ THESE TERMS CAREFULLY AS THEY CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND TCOYF APPLICATIONS. BY ACCESSING OR USING THE PRODUCTS AND SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS, INCLUDING AS SUCH TERMS MAY BE AMENDED BY TCOYF APPLICATIONS FROM TIME TO TIME, IN ITS SOLE DISCRETION, AS SET FORTH BELOW. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, INCLUDING AS AMENDED OR SUPPLEMENTED BY TCOYF APPLICATIONS, THEN YOU MUST IMMEDIATELY TERMINATE YOUR USE OF THE PRODUCTS AND SERVICES.
· You may receive an additional copy of these Terms of Use by e-mailing us at support@cyclisity.com and identifying the subject line of the e-mail as "Terms of Use."
2. ELIGIBILITY; ACCESS
· You represent and warrant that you are at least the age of majority in the jurisdiction where you are located (which is 18 years of age in most locations in the United States) and fully able, competent and authorized to enter into and be bound by these Terms. You are authorized to use the Products and Services for personal, non-commercial use only. You may not use the Products and Services for any commercial purpose without the express, prior written consent of TCOYF Applications.
· NOTE TO PERSONS UNDER 18 YEARS OF AGE (MINORS): THE SERVICE IS NOT FOR MINORS. If you are under 18 years of age, then you are not permitted to use the Products and Services.
· The Website, the App, and the Products and Services are controlled and offered by TCOYF Applications from its facilities in the United States of America and are offered to residents of the United States. TCOYF Applications makes no representations that the Website, the App or the Service are appropriate or available for use in any other locations. Those who access or use the App, the Website, or the Products and Services from other jurisdictions do so at their own risk and are responsible for compliance with local law.
3. ADDITIONAL TERMS
· 3.1 Privacy Policy. Your privacy is important to TCOYF Applications. The TCOYF Applications Privacy Policy at www.cyclisity.com/privacy-policy is incorporated into these Terms of Use by reference. Please read the Privacy Policy carefully for details relating to the collection, use, and disclosure of information. Importantly, TCOYF Applications will never sell or transfer your data to a third party for commercial use.
· 3.2 Guidelines. While using the Service, you may be subject to additional posted rules and policies ("Guidelines"). Any and all such Guidelines are hereby incorporated by reference into these Terms of Use.
· 3.3 Voluntary Participation in Clinical Studies, Testing and Data Collection. TCOYF Applications may in the future conduct clinical studies (also commonly referred to as clinical trials) at any time based on the Cyclisity app or any other products and services provided by TCOYF Applications. By downloading, using, or purchasing any of TCOYF Applications’ products and/or services, you consent to being contacted by TCOYF Applications as a potential voluntary participant in any clinical study TCOYF Applications plans or may plan to conduct. Participation in a clinical study would require your voluntary consent and we hope you will consider participating at that time. If you choose not to consent at that time then your data would remain unused.
· 3.4 Voluntary Collection of Randomized, De-identified Aggregate Data for Scientific Studies. TCOYF applications may in the future ask users to voluntarily submit randomized, de-identified aggregate data for use in retrospective scientific studies to further the women's health knowledge base for the Fertility Awareness Method or to potentially support eventual FDA approval. There will be no ability to trace back from such aggregate data to individual users. Such aggregate data will never be sold to or transferred to third parties for commercial, non-scientific use. Again, in plain language, no one that sees such data would ever be able to tie it back to you, period. We believe FAM is science-based, and participating in furthering the science of FAM is a benefit to all women and a good thing to do. If you choose not to volunteer to submit such information, your data will remain unused.
· 3.5 Not Approved by Food and Drug Administration (FDA): Cyclisity is intended to help the user track basal temperatures, cervical fluid quality, cervical position and other fertility signs, but is not intended for use in the diagnosis of disease or other conditions, including a determination of the state of health, in order to cure, mitigate, treat, or prevent disease or its sequelae.
4. MODIFICATION OF THE TERMS
· TCOYF Applications reserves the right, in its sole discretion, to change, modify, add, or remove portions of these Terms at any time and from time to time with or without specific notice to you other than through posting such modified Terms on the Website or through the App, or both. The Terms of Use will be identified as of the most recent date of revision and will be effective immediately upon posting unless otherwise specified herein. In the event of a material change to these Terms, we will attempt to notify you directly through a message sent to the e-mail address you provided upon registration or through the use of a pop-up window when you log in to the App. You hereby acknowledge and agree that you will review these Terms periodically for any changes and review the date of last revision at the beginning of these Terms. If you are dissatisfied with the terms of the Service, then you agree that your sole and exclusive remedy is to discontinue any use of the Service. A modification to these Terms made following the commencement of any dispute between you and TCOYF Applications will not apply to such dispute but previous modifications to these Terms shall be binding upon you and/or TCOYF Applications and be applicable as set forth in this Section 4.
5. PRODUCTS AND SERVICES, ORDERS, ONLINE ORDERS, REFUNDS, PRODUCT WARRANTIES
· 5.1 General. The Products and Services are intended to assist women and couples to track fertility information over time. Some Users may use the Products and Services to gain knowledge of their general and reproductive health, and/or to practice the fertility awareness method. The Products and Services will enable a user to input personal information related to health and fertility indicators, including, but not limited to, a woman's date of last period, menstrual flow, waking temperature, time temperature was taken, cervical fluid consistency and amount, cervical feel, cervical position, changes in mood, breast tenderness, intercourse, vaginal sensation, breast self-exam results, ovulation predictor kit results, pregnancy test results, medications taken and such other information as the Products and Services may permit a User to track from time to time (collectively, "Personal Information"). A User may wish to input certain Personal Information on a daily basis. Many of the elements of Personal Information have been recognized in the health & fertility literature as helpful guidelines to gain insight into general health, reproductive health, and/ or for trying to get pregnant, and/ or avoiding pregnancy. All information related to a User is input by the User. The Products and Services may use the information input by a User to provide information back to the User regarding her fertility using the Personal Information. Information provided back to a User compares a User's Personal Information to predictive data sourced from authoritative fertility literature including but not limited to Taking Charge of Your Fertility by Toni Weschler, The Complete Guide to Fertility Awareness by Jane Knight, The Garden of Fertility by Katie Singer, and Natural Birth Control by Barbara Kass-Annese and other sources as may be chosen by TCOYF Applications from time to time, including potentially analyses performed on voluntarily submitted, aggregated, randomized, de-identified (anonymized) data provided by all Users conducted by TCOYF Applications. The information provided back to a User is for information purposes only and not under any circumstances to be interpreted or acted upon as medical advice. TCOYF Applications does not provide medical advice and all users are responsible for obtaining their own medical advice from licensed practitioners they trust.
· 5.2 Communications from TCOYF Applications / Products and Services. The Products and Services may provide information to a User through the User's personal account on the Cyclisity App, Website, or via e-mail.
· 5.3 User License Grant to TCOYF Applications. Subject to the obligation to maintain the confidentiality of personally identifiable information about a User as identified in the Privacy Policy, a User of the Products and Services grants TCOYF Applications and its affiliates, sublicensees, partners, designees, and assignees of the Products and Services (collectively, the "TCOYF Applications Licensees") a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license, throughout the universe, to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, communicate to the public, and otherwise utilize and exploit a User's voluntarily-submitted, anonymous, de-identified, personal information and information about a User's use of the Products and Services (such as error state information) to (a) improve the Products and Services or the functionality of the App or Website; (b) to respond to User inquiries or technological issues or problems; (c) for aggregated research and scientific purposes only using voluntarily submitted material from users, including, but not limited to, scientific research that may be undertaken by third parties who wish to study randomized, de-identified, aggregated data collected by TCOYF Applications. Again, if a user does not provide permission to use their data in scientific research, then it will not be used. TCOYF Applications will never sell or transfer any of your personal information or any randomized, de-identified, aggregated data to commercial third-party firms seeking to sell or market products to Users.
· 5.4 Responsibility for Personal Information; Representations and Warranties. Each User who uploads any Personal Information to the Service is solely responsible for such Personal Information and the consequences of posting such Personal Information to the Service, including if a User authorizes a third party (e.g., a partner) to review such Personal Information. By uploading Personal Information to the Service, you affirm, covenant, represent, and warrant that: (a) you have the right to submit such information to the Service; (b) the information submitted by you is accurate to the best of your knowledge or ability; and (c) you are not violating the rights of any third party by submitting Personal Information to the Service.
· 5.5 Accuracy and Integrity of Information, Colors, Pricing. (a) TCOYF Applications attempts to ensure the accuracy and integrity of the content presented on the Website and in the App, but makes no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the website and content thereon. It is possible the Website, App, and other online and other sources of information could include typographical errors, inaccuracies, or other errors, and that unauthorized deletions, additions, and alterations could be made to the App or Website by third parties. In the event that inaccuracy arises, please inform TCOYF Applications so that it may be corrected. Information on the Website or the App may be changed or updated without notice. Additionally, TCOYF Applications shall have no responsibility or liability for information or content posted to the Website or the App by any non-TCOYF Applications affiliated or affiliated third party. (b) We have made significant efforts to accurately display the colors of our products that appear in the App and on the Website. However, actual colors you see depend on your monitor and we cannot guarantee that your monitor’s display of any color will be accurate or that the colors depicted will be the exact colors that are made available upon delivery. (c) In the event a product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product / service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit or debit card account in the amount of the incorrect price.
· 5.6 Acceptance of Orders. We reserve the right, at our sole discretion, to refuse or cancel any order for any reason, or no reason. Your account may also be restricted or terminated for any reason, or no reason, at our sole discretion. You will be charged at the time you place your order, not when your order is shipped. Some situations that may result in your order being canceled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. We will contact you if all or any portion of your order is canceled or needs to be modified. If your order is canceled or modified after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge or modification.
· 5.7 Referral Rewards. We reserve the right to, at our sole discretion, alter, discontinue, refuse, or cancel referral rewards accrued under the referrals offer as presented with any campaigns related to TCOYF Applications products and services. Rewards will accrue and be redeemable as defined by TCOYF Applications.
· 5.8 Quantity Limits, Wholesale and Dealer Sales. TCOYF Applications reserves the right, at our sole discretion, to limit the quantity of items purchased per person, per household, or per order. These restrictions may be applicable to orders placed by the same account, the same credit card, and also to orders that use the same billing and/or shipping address. We will provide notification to the customer should such limits be applied. Please note that certain orders constitute improper use of Cyclisity and its products and services. We reserve the right, at our sole discretion, to refuse or cancel any order for any reason, or no reason. Your account may also be restricted or terminated for any reason, or no reason, at our sole discretion. TCOYF Applications also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms of Use, reselling shall be defined as purchasing or intending to purchase any product(s) from TCOYF Applications for the purpose of engaging in a commercial sale of that same product(s) with a third party.
· 5.10 Product and service refund requests will be decided and issued at the sole discretion of TCOYF Applications.
· 5.11 We will use reasonable commercial efforts to deliver products and services as described. You understand that some products are under development, and numerous technical, financial, and practical obstacles may interfere with their delivery to you and with their functioning thereafter. THEREFORE, THE PRODUCTS ARE PROVIDED “AS IS” AND THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR ANY OTHER SUBJECT MATTER HEREOF, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY AND ITS PROVIDERS SHALL ALSO HAVE NO LIABILITY OF ANY KIND WITH RESPECT TO THE PRODUCTS. The foregoing disclaimers and limitations shall not apply to bodily injury or as otherwise prohibited by law. In the event that any part of this provision shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this provision shall otherwise remain in full force and effect.
6. FEES FOR SERVICES
· 6.1 General. All or portions of the Products and Services may be provided for free or for a recurring subscription fee, or for a stated product price. You will be notified in advance in the App before signing up for any portion of the Service for which a recurring subscription fee is charged. You will have to manifest your consent to obtain fee-based services by clicking an Accept button. Once you click Accept, you will be subject to the recurring subscription fee that you have accepted for the period of time selected, and you agree to pay in full such amount.
· 6.2 Taxes. All recurring subscription fees are exclusive of any applicable taxes (value added taxes, sales, use, etc.) unless otherwise stated, and you are solely responsible for the payment of any applicable taxes that may be imposed upon you for use of the Service.
· 6.3 Free Trial Period. Certain fee-based portions of the Service may be available for a one-time free trial period (a "Trial Period"). The duration of a Trial Period will be identified for you when you register for the Trial Period. In order to register for a Trial Period, you may be required to provide credit card information in accordance with Section 6.4 and create a User account. When you create a user account that is subject to a Trial Period, you will be notified of the length of the trial period and the date by which you must cancel to avoid having your credit card charged. Unless you terminate your Trial Period prior to the end of such Trial Period, your credit card will be charged the recurring subscription fee applicable at the time you signed up for the Trial Period. If at any time you wish to know how much time is remaining in your trial period, this information is available under the "Account" tab from within the application. You may cancel your account at any time during the Trial Period by clicking the "Account" tab from within the application.
· 6.4 Payment Method. Subscription fees must be paid using a lawfully issued credit card for which you have authorization to make a charge. TCOYF Applications may seek pre-authorization of your credit card prior to permitting you to register for a fee-based aspect of the Service to verify the validity of your credit card. Your credit card issuer may reduce your available balance by any amount pre-authorized against your credit card. You should speak with your credit card issuer to understand their pre-authorization policies. You must maintain a valid credit card on file with TCOYF Applications while receiving fee-based Services. If any charge to your credit card is rejected for any reason, then you agree to provide updated credit card information upon request by TCOYF Applications and to pay any balances due. TCOYF Applications reserves the right to block access to your User account until such time as a valid credit card is provided to cover all charges incurred by you. You are solely responsible for any late fees or other charges incurred by you as a result of your use of a credit card to pay a subscription fee.
· 6.5 Monthly and Annual Subscriptions.(a) Payment Frequency. TCOYF Applications may offer fee-based services on a monthly or annual subscription basis. Both options are auto-renewal, meaning that once you sign up for either the monthly or annual subscription, your credit card will be charged the renewal fee at the end of the period for which you have registered for a subsequent renewal period. The renewal fee charged to your account will be the fee then in effect for the period for which you are renewing. Renewal notices will not be sent to you if you elect a monthly subscription or annual subscription. If you fail to terminate your account prior to any periodic renewal, then your credit card will be charged the full amount for the renewal period. (b) Changes in Subscription Fees. TCOYF Applications may change subscription fees at any time and from time to time. You will be notified of any price changes either via e-mail or through a pop-up window on the Website or the App, or both. Continued use of the Service following a price change constitutes your acceptance of the applicable price change. If you object to any price changes adopted by TCOYF Applications, then your sole remedy is to discontinue use of the Service and terminate your account prior to your credit card being charged a recurring subscription fee at the changed rate. The provisions of this paragraph are subject to all applicable local laws.
· 6.6 Timing of Charges. Renewal fees are charged to your credit card on or about the anniversary of your initial subscription.
· 6.7 Managing Your Account Information. You can manage and update your credit card information for fee-based services by clicking on the "Account" tab in the application.
· 6.8 Cancellation of Subscription Services; No Refunds. You may cancel your subscription to any fee based service offered by TCOYF Applications at any time by clicking on the "Account" tab in the application. However, all payments are final and there are no refunds offered for the early termination of any period for which you have paid a subscription fee (including renewal periods). Local law may vary this policy, in which case your rights under these Terms may differ from those stated herein.
7. OWNERSHIP; PROPRIETARY RIGHTS
· 7.1 The Cyclisity App, the Cyclisity Website and the Products and Services are owned and operated by TCOYF Applications. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, hardware, services, and all other elements of the Website, the App and the Products and Services that are provided by TCOYF Applications (the "TCOYF Applications Materials"), are or may be protected by copyright, trade dress, patent, and trademark laws of the United States, Canada and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights and applicable laws. TCOYF Applications Materials do not include User Personal Information. All TCOYF Applications Materials are the property of TCOYF Applications or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names contained in the TCOYF Applications Materials are proprietary to TCOYF Applications or its affiliates and/or third-party licensors. Except as expressly authorized by TCOYF Applications, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, copy, create derivative works from, or otherwise make unauthorized use of the TCOYF Applications Materials. TCOYF Applications reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the TCOYF Applications Materials, except for the limited rights set forth in these Terms. TCOYF Applications claims no ownership in or to any content or other materials provided by or obtained from third-party websites.
· 7.2 Retention of Rights. A User retains all rights in the User's Personal Information, subject to the grant of rights set forth in these Terms.
8. WARNINGS; USER GENERATED CONTENT; CONTENT DISCLAIMER
· 8.1 Risks of Sexual Activity; Pregnancy. Engaging in sexual activity, including activities described and/or recommended through the Products and Services, may expose one or more partners to sexually transmitted diseases ("STDs"). As between you (a User), on the one hand, and the TCOYF Applications Licensees, on the other hand, you assume complete and sole responsibility for any STDs that may be transmitted to or from you, or any other consequence whether foreseeable or not, arising from any sexual activity engaged in by you. You also assume complete and sole responsibility for any pregnancy or loss of pregnancy that may result from any sexual activity engaged in by you. Reliance upon information provided through the Products and Services can neither guarantee you or your partner of getting pregnant, of avoiding a pregnancy, or of diagnosing any health condition. The Products and Services are intended to assist you and your partner in making informed decisions about your health and your bodies, but no guarantee is made on or through the Products and Services by the TCOYF Applications Licensees with respect to any issue or matter whatsoever, and you use the Products and Services at your sole risk and expense.
· 8.2 Third-Party Content. You understand that when using the Products and Services, whether via the App or the Website, you may be exposed to content from a variety of sources, including, but not limited to, medical and other fertility-related information from third parties ("Third-Party Content"), and that TCOYF Applications is not responsible for the accuracy, integrity, quality, legality, efficacy, usefulness, safety, or intellectual property rights of or relating to such Third-Party Content. You further understand and acknowledge that you may be exposed to Third-Party Content that is inaccurate, false, misleading, unsupported by scientific research, disputable, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against TCOYF Applications with respect thereto. TCOYF Applications does not endorse any Third-Party Content and all Third-Party Content is provided for informational purposes only. Under no circumstances will TCOYF Applications be liable in any way for or in connection with any Third-Party Content, including, but not limited to, for any inaccuracies, errors or omissions in any Third-Party Content, any intellectual property infringement with regard to any Third-Party Content, or for any loss or damage of any kind incurred as a result of the use of any Third-Party Content accessed through the Products and Services, including any unplanned or unwanted pregnancies that may arise from reliance upon such Third-Party Content.
· 8.3 No Medical Advice. TCOYF APPLICATIONS DOES NOT PROVIDE MEDICAL ADVICE AND THE PRODUCTS AND SERVICES ARE NOT INTENDED AS A SUBSTITUTE FOR QUALIFIED MEDICAL ADVICE. YOU ARE ADVISED TO CONSULT WITH A PHYSICIAN BEFORE USING THE PRODUCTS AND SERVICES OR RELYING UPON ANY INFORMATION PROVIDED BY THE PRODUCTS AND SERVICES TO AVOID GETTING PREGNANT, IN AN ATTEMPT TO GET PREGNANT, OR TO DIAGNOSE ANY HEALTH CONDITION. ANY INFORMATION PROVIDED TO YOU VIA THE PRODUCTS AND SERVICES IS BASED UPON THE PREDICTIVE VALUE ASSIGNED BY THIRD PARTIES, AND A USER MUST DRAW THEIR OWN CONCLUSIONS – IN CONSULTATION WITH THEIR DOCTORS – ABOUT THE VALUE OF THE INFORMATION PROVIDED BY THE PRODUCTS AND SERVICES.
· 8.4 Safe and Responsible Use. You are solely responsible for your use of the App, the Website, and the Products and Services, and you should use common sense and exercise good judgment when making choices concerning such use. Without limiting the generality of the preceding sentence, the following are some examples of particular considerations you should keep in mind: (a) you should consult a physician before relying upon any information obtained through the Products and Services or if experiencing any adverse medical symptoms; (b) you should read all instructions and warnings before using any devices that may collect and/or transmit information to the Products and Services (e.g., wireless thermometers); (c) activities that involve prolonged screen viewing time may lead to eye strain; and (d) you should never use the App, the Website, or the Services while driving a motor vehicle or operating other equipment or machinery, or while engaging in other activities that require focused attention to accomplish safely.
· 8.5 Disclosure of Personal Information. You should be judicious and act responsibly and carefully before using the Products and Services. The information you provide to the Products and Services may be sensitive and of a highly personal nature and you should investigate the data storage policies and retention capabilities of any equipment you use to access the Products and Services, including those of any devices used to access the App or the Website. If you are not the exclusive owner or user of a device used to access the Products and Services, then you may want to avoid using such device for accessing the Products and Services. Be aware that many computers provided by employers are subject to policies that may allow remote access and monitoring, and any information you communicate to the Products and Services may be subject to access and monitoring by your employer. Disclosing Personal Information may be embarrassing and subject you to mental and physical harm. All disclosures that you make about yourself on or through the App or the Website for use of the Products and Services are made at your own risk and TCOYF Applications shall not be responsible for any damages, injury or harm, including physical injury, which may arise from any disclosures made by you.
· 8.6 User Generated Content, Reviews, Feedback, Community Discussions, Blog Comments, and other Postings to TCOYF Applications Websites, App, or App Community. If you submit, upload or post any comments, ideas, suggestions, information, files, images or other materials (“User Generated Content”) to us or on our Website, App(s), App Community Feed/Feature, Blog, social media pages, or other online property (“Sites”), you agree not to provide any User Generated Content that (1) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. You agree not to contact other site users through unsolicited e-mail, telephone calls, mailings or any other method of communication. TCOYF Applications shall have a royalty-free, irrevocable, transferable right and license to use the User Generated Content however TCOYF Applications desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such User Generated Content and/or incorporate such User Generated Content into any form, medium or technology throughout the world. TCOYF Applications is and shall be under no obligation (1) to maintain any User Generated Content in confidence; (2) to pay to you any compensation for any User Generated Content; or (3) to respond to any User Generated Content.
· TCOYF Applications does not regularly review posted User Generated Content, but does reserve the right (but not the obligation) to monitor and edit or remove any User Generated Content submitted to the Sites. You grant TCOYF Applications the right to use the name that you submit in connection with any User Generated Content. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any User Generated Content. You are and shall remain solely responsible for the content of any User Generated Content you make. TCOYF Applications and its affiliates take no responsibility and assume no liability for any User Generated Content submitted by you or any third party.
· You agree to defend, indemnify and hold TCOYF Applications harmless from and against all third party claims, damages and expenses (including reasonable attorneys fees) against or incurred by TCOYF Applications arising out of any User Generated Content you post or allow to be posted to the Sites.
9. PROHIBITED USES
· 9.1 As a condition of your use of the Products and Services, you agree not to use the App, the Website or the Service for any purpose that is unlawful or prohibited by these Terms or in any territory where you are located. Access to the App, the Website and the Products and Services from territories where access or use thereof is illegal is strictly prohibited. You are responsible for complying with all local rules, laws, and regulations during your use of the Products and Services.
· 9.2 You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit any portion of the App, the Website or the Services, use of the Services, access to the Services or Third-Party Content obtained through the App, the Website or the Services, for any purpose not expressly authorized in these Terms.
· 9.3 You agree not to intentionally interfere with or damage, impair or disable the operation of the App, the Website or the Products and Services by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious or harmful code.
· 9.4 You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the App, the Website or the Products and Services, features that prevent or restrict the use or copying of any content accessible through the App, the Website or the Products and Services, or features that enforce limitations on the App, the Website or the Products and Services or any Third-Party Content.
· 9.5 You agree not to attempt to gain unauthorized access to the App, the Website, or the Service, or any part of them, other User accounts, computer systems or networks connected to the App or the Website, or any part of them, through hacking, phishing, password mining or any other means or interfere or attempt to interfere with the proper working of the App, the Website or the Products and Services or any activities conducted on or through any of the foregoing.
· 9.6 You may not engage in any activity or effort, either directly or indirectly, to identify other users of the App, the Website or the Products and Services, and any attempt to do so will subject you to all remedies available to TCOYF Applications and such other users, whether at law or in equity.
· 9.7 You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the App, the Website or the Products and Services. You agree not to modify the Website or the App in any manner or form, or to use modified versions of the App, or the Website, including, without limitation, for the purpose of obtaining unauthorized access to the App, the Website or the Products and Services, unless the modifications are expressly permitted by TCOYF Applications.
· 9.8 You agree that you will not use any robot, spider, scraper, or other automated means to access the App or the Website for any purpose without our express written permission, or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the App or to the Website. To create and maintain a user account, you must be a human. Accounts created and/or maintained by bots or other non-human entities are prohibited.
· 9.9 You agree not to utilize framing techniques to enclose any trademark, logo, or other TCOYF Applications materials without our express written consent. You agree not to use any meta tags or any other "hidden text" utilizing the TCOYF Applications or Cyclisity names or trademarks for any purpose without our express written consent.
· 9.10 You will promptly remove any links that TCOYF Applications finds objectionable in its sole discretion. You agree not to use any TCOYF Applications or Cyclisity logos, graphics, or trademarks as part of a link without our express written consent.
· 9.11 You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Products and Services. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
· 9.12 You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the App, the Website or the Products and Services, or any portions thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
· 9.13 You agree not to modify, adapt, translate or create derivative works based upon the App, the Website or the Products and Services except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
· 9.14 You agree that you will not misrepresent your identity, access another User's account, or provide any false or misleading information about yourself or any other User.
10. YOUR PERSONAL ACCOUNT
· 10.1 Account Registration. In order to access portions of the Products and Services you may need to create an account on the Website or through the App. You agree that the information you provide to TCOYF Applications upon registration and, at all other times, will be true, accurate, current, and complete. You acknowledge, consent, and agree that TCOYF Applications may access, preserve, and disclose your account information and your Personal Information if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (1) comply with legal process; (2) enforce these Terms; (3) respond to your requests for customer service; or (4) protect the rights, property, business interests or personal safety of TCOYF Applications, its users or the public.
· 10.2 Password. When you register as a User you will be asked to create a password for your account. As you will be responsible for all activities that occur under your password, including ordering a subscription Service, purchasing and referring products, and entering personal information, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password, and any credit card information submitted thereunder, and for restricting access to your computer or any device on which you use the App, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you are required to immediately notify TCOYF Applications. You may be liable for the losses incurred by TCOYF Applications or others due to any unauthorized use of your account. If you choose to grant another person access to your User account, such as a partner, you are solely responsible for such other User's use of and access to your User account.
11. LINKS AND THIRD-PARTY CONTENT
· 11.1 TCOYF Applications or third parties may provide links on and through the App or the Website to third-party websites ("Reference Sites"). TCOYF Applications has no control over such Reference Sites or Third-Party Content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, efficacy, legality, nature, availability or reliability of Reference Sites or content linked to by the Website or the App. TCOYF Applications provides links to you only as a convenience, and the inclusion of any link on the Website or the App does not imply our affiliation, endorsement or adoption of the Reference Sites or any information therein. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. When you leave the App and Website, our Terms and Privacy Policy no longer govern. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the App or the Website are solely between you and such advertiser. YOU AGREE THAT TCOYF Applications WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE APP OR THE WEBSITE.
· 11.2 Additional Restrictions May Apply. Notwithstanding any rights and licenses granted to you in these Terms, the App and the Website may contain Third-Party Content for certain limited uses, and your right to access, use, and share the Third-Party Content, and any content that contains, incorporates, adapts, or otherwise utilizes such Third-Party Content, may be subject to certain additional restrictions. You agree to abide by all restrictions and limitations of use that apply to such Third-Party Content.
12. AVAILABILITY OF SERVICE
· TCOYF Applications may discontinue or make changes to the App, the Website or the Products and Services at any time with or without notice and without any liability to you. TCOYF Applications makes no guarantees that the Website, the App or the Products and Services will be available at all times or on an uninterrupted basis.
13. TERMS OF USE VIOLATIONS; TERMINATION
· 13.1 Termination By TCOYF Applications. You agree that TCOYF Applications may terminate your account at any time for your violation of any of the provisions of these Terms or your failure to pay subscription fees accepted by you. You agree that any termination of your access to the Service or your User account may be undertaken without prior notice, and you agree that TCOYF Applications shall not be liable to you or any third party for any such termination.
· 13.2 Termination By You. If you are dissatisfied with the TCOYF Applications Properties, please let us know by e-mailing us at support@cyclisity.com. Your input is valuable to us. Your only other remedy with respect to any dissatisfaction with (a) the App or the Website, (b) any term of these Terms, (c) any policy or practice of TCOYF Applications in providing the Products and Services, or (d) any content or information transmitted through the App or the Website, is to terminate these Terms and your account. You may terminate these Terms at any time by cancelling your account within the "Account" tab from within the application, discontinuing your use of any and all parts of the App or the Website, and providing TCOYF Applications notice of termination by e-mailing us at support@cyclisity.com.
· 13.3 Consequences of Termination. Upon the termination of your Account, either by you or TCOYF Applications, your access to your Personal Information shall immediately terminate and you are solely responsible for maintaining copies of any Personal Information you have uploaded through the App or to the Website. TCOYF Applications may retain copies of your Personal Information upon the termination of your User account on backup tapes or other storage media, or as compiled in data analysis performed by or on behalf of TCOYF Applications.
14. INDEMNIFICATION; HOLD HARMLESS
· You agree to indemnify and hold harmless TCOYF Applications, and its subsidiaries, affiliates or any related companies (including those which share substantially common ownership), its suppliers, licensors and partners, and the members, officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney's fees and court costs) arising out of: (1) your use or misuse of the App, the Website or the Products and Services; (2) your violation of these Terms; (3) your violation of the rights of any other person or entity, and (4) your breach of the foregoing representations, warranties, and covenants. TCOYF Applications reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify TCOYF Applications and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of TCOYF Applications. TCOYF Applications will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
15. DISCLAIMERS; NO WARRANTIES
· 15.1 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TCOYF APPLICATIONS, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS WITH RESPECT TO THE APP, THE WEBSITE, AND THE PRODUCTS AND SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TCOYF APPLICATIONS OR THROUGH THE APP, THE WEBSITE OR THE PRODUCTS AND SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 15, THE TERM TCOYF APPLICATIONS INCLUDES TCOYF APPLICATIONS' MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES, AND SUBCONTRACTORS.
· 15.2 "As is" and "As available" and "With All Faults". YOU EXPRESSLY AGREE THAT THE USE OF THE APP, THE WEBSITE, AND THE SERVICE IS AT YOUR SOLE RISK, AND THAT THE FOREGOING ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
· 15.3 Platform Operation and Content. TCOYF APPLICATIONS, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE APP, THE WEBSITE, AND THE SERVICE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, BUGS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU MUST HAVE AN ACTIVE INTERNET CONNECTION IN ORDER TO ACCESS THE APP OR THE WEBSITE IN ORDER TO RECEIVE THE SERVICE.
· 15.4 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE APP, THE WEBSITE OR REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR DEVICE ON WHICH THE APP IS RESIDENT) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR THE INSTALLATION OF THE APP OR ANY INFORMATION PROVIDED BY THE SERVICE.
16. LIMITATION OF LIABILITY AND DAMAGES
· 16.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL TCOYF APPLICATIONS OR ITS AFFILIATES, CONTRACTORS, MEMBERS, DIRECTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE, THE APP, THE WEBSITE, THE PRODUCTS AND SERVICES OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH CYCLISITY, EVEN IF TCOYF APPLICATIONS OR A TCOYF APPLICATIONS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, TCOYF APPLICATIONS' LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
· 16.2 Limitation of Damages. IN NO EVENT SHALL TCOYF APPLICATIONS OR ITS AFFILIATES, CONTRACTORS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR PARTNERS, LICENSORS OR SUPPLIERS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE APP, THE WEBSITE OR THE PRODUCTS AND SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE), AS DETERMINED IN A FINAL NON-APPEALABLE DETERMINATION BY A COURT OF COMPETENT JURISDICTION OR BY AGREEMENT OF YOU AND TCOYF APPLICATIONS, EXCEED THE AMOUNT OF FEES YOU HAVE PAID TCOYF APPLICATIONS IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
· 16.3 Reference Sites. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN TCOYF APPLICATIONS AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE APP, THE WEBSITE, THE PRODUCTS OR SERVICES RECEIVED BY YOU THROUGH ANY REFERENCE SITES.
17. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN
· 17.1 Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
· 17.2 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT TCOYF APPLICATIONS HAS OFFERED THE APP, THE WEBSITE, AND THE PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND TCOYF APPLICATIONS, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND TCOYF APPLICATIONS. YOU ACKNOWLEDGE AND AGREE THAT TCOYF APPLICATIONS WOULD NOT BE ABLE TO PROVIDE THE APP, THE WEBSITE OR THE PRODUCTS AND SERVICE ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
18. UNAUTHORIZED USE OF THIRD-PARTY CONTENT; DIGITAL MILLENNIUM COPYRIGHT ACT
· 18.1 If you own the rights to any intellectual property or are an agent for an owner, and you believe any content made available through the App or on the Website by TCOYF Applications infringes your or your principal's intellectual property rights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing TCOYF Applications’ Designated Copyright Agent with the following information in writing:
· a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
· identification of the intellectual property claimed to have been infringed, or, if multiple works are covered by a single notification, a representative list of such works;
· identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit TCOYF Applications to locate the material;
· information reasonably sufficient to permit TCOYF Applications to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
· 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 intellectual property owner, its agent, or the law (for example, "I am under the good faith belief that the use of the intellectual property that is identified herein 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 (for example, "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.").
· Please consult your legal counsel or see 17 U.S.C. § 512 to confirm these requirements.
· 18.2 Termination of User Accounts for Infringement; Repeat Infringer Policy. TCOYF Applications does not tolerate infringing activities and infringement of intellectual property rights on or through the use of the App or the Website, and TCOYF Applications will remove all content if properly notified that such content infringes on another's intellectual property rights, including copyrights and trademarks. It is TCOYF Applications’ policy to respond promptly to notices of alleged infringement that comply with the DMCA. In addition, TCOYF Applications will promptly terminate without notice the accounts of Users, that are determined by TCOYF Applications to be "repeat infringers." A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had content removed from the App or the Website more than twice.
· 18.3 Designated Agent. TCOYF Applications’ Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows:
· Attention: Copyright Agent Max Nowicki, P.O. BOX 31172, Seattle, WA 98103, USA.
· or by e-mail at support@cyclisity.com. For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to TCOYF Applications customer service through support@cyclisity.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
19. UNITED STATES EXPORT CONTROLS
· You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority when ordering, receiving, or using the App, the Website or the Service, and not to export, or allow the export or re-export of any technical data, software, hardware, or any direct product of any of the foregoing products and services, in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data, hardware, software, and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.
20. Miscellaneous
· 20.1 Notice. TCOYF Applications may provide you with notices, including those regarding changes to these Terms, by postings on the App or the Website, via electronic mail, or by postal delivery. Notice sent via e-mail will be deemed given twenty-four hours after such e-mail is sent, unless TCOYF Applications is notified that the electronic mail address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you. In such case, notice will be deemed given three days after the date of mailing. Notice given via the App or the Website will be deemed given upon the earlier of 5 days following posting on the App or the Website or when first reviewed by you.
· 20.2 Dispute Resolution. These Terms shall be governed in all respects by the laws of the State of Washington and the United States of America. If a dispute arises between you and TCOYF Applications, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and TCOYF Applications agree that we will resolve any claim or controversy at law or equity that arises out of these Terms (a "Claim" or "Dispute") in accordance with Section 21 below ("Arbitration Agreement"). All claims you bring against TCOYF Applications must be resolved in accordance with this Section 20.2 and Section 21. All claims filed or brought contrary to this Section 20.2 or Section 21 shall be considered improperly filed. Should you file a claim contrary to this Section 20.2 or Section 21, TCOYF Applications may recover attorneys' fees and costs up to $5,000, provided that TCOYF Applications has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
· 20.3 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of TCOYF Applications to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
· 20.4 Severability. In the event that the application of any provision of these Terms to any particular facts or circumstances shall be held to be invalid or unenforceable under the law hereof, then: (a) such provision shall be reformed without further action by the Parties to the extent strictly necessary to render such provision valid and enforceable when applied to such particular facts or circumstances; and (b) the validity and enforceability of such provision as applied to any other particular facts or circumstances, and the validity and enforceability of all of the other provisions of these Terms, shall in no way be affected or impaired thereby.
· 20.5 Assignment. The Terms and related Guidelines (if any), and any rights and licenses granted hereunder, may not be transferred or assigned by you, whether by sale, merger, operation of law, or otherwise, without TCOYF Applications’ prior written consent, but may be assigned by TCOYF Applications without restriction. Any assignment attempted to be made in violation of these Terms shall be void. These Terms shall be binding upon and inure to the benefit of the parties hereto, and their permitted successors, heirs, and assigns.
· 20.6 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and TCOYF Applications as a result of these Terms or use of the TCOYF Applications Properties.
· 20.7 Survival. Sections 7 ("Ownership; Proprietary Rights"), 10.2 ("Password"), 14 ("Indemnification; Hold Harmless"), 15 ("Disclaimers; No Warranties"), 16 ("Limitation of Liability and Damages"), 17 ("Limitations by Applicable Law; Basis of the Bargain"), and 19 ("Miscellaneous") will survive any termination of these Terms.
· 20.8 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
· 20.9 Entire Agreement. This is the entire agreement between you and TCOYF Applications relating to the subject matter herein and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing signed by both parties, or by a change to these Terms made by TCOYF Applications as set forth in Section 4 above.
· 20.10 Disclosures. The products and services hereunder are offered by TCOYF Applications LLC. You can contact TCOYF Applications LLC via postal mail at P.O. BOX 31172, Seattle, WA 98103, USA, or by electronic mail at support@cyclisity.com. Depending upon the jurisdiction where you reside, you may have a right to have this same information sent to you via electronic mail by sending a letter to the foregoing address with your electronic mail address and a request for this information.
21. Arbitration Agreement
PLEASE READ THIS SECTION 21 (“ARBITRATION AGREEMENT”) CAREFULLY. PLEASE BE AWARE THAT THIS SECTION CONTAINS PROVISIONS GOVERNING HOW DISPUTES BETWEEN YOU AND TCOYF APPLICATIONS WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 21 INCLUDES AN AGREEMENT TO ARBITRATE, WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND TCOYF APPLICATIONS BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 21 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. IN SOME COUNTRIES YOU MAY HAVE ADDITIONAL RIGHTS AND/OR ELEMENTS OF THIS ARBITRATION AGREEMENT MAY NOT APPLY TO YOU AS REQUIRED BY LAW.
· 21.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and TCOYF Applications agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Products and Services, any communications you receive, or the Terms, including claims and disputes that arose between us before the effective date of the Terms (each, a “Dispute”) will be resolved by binding arbitration, using the English language, rather than in court, except that you and TCOYF Applications may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court. For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of the Terms.
· 21.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and TCOYF Applications. If that occurs, we are committed to working with you to reach a reasonable resolution. You and we agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and we therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to TCOYF Applications that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@cyclisity.com, or by regular mail to the applicable address set forth in Section 20.10. The Notice must include: (1) your name, telephone number, mailing address, email address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The notice must specify a proposed date and time when you are available for an Informal Dispute Resolution Conference; however, you agree to cooperate with TCOYF Applications in scheduling a mutually agreeable date and time if your proposed date and time is not convenient for TCOYF Applications.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section. Failure to appear for the Informal Dispute Resolution Conference without prior notice or extenuating circumstances will be deemed a failure to participate in good faith.
· 21.3 Waiver of Jury Trial. YOU AND TCOYF APPLICATIONS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 21.1 above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
· 21.4 Waiver of Class and Other Non-Individualized Relief. YOU AND TCOYF APPLICATIONS AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 21.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, 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 the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 21.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and TCOYF APPLICATIONS agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated only in the courts provided for under Section 20.2. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or us from participating in a class-wide settlement of claims.
· 21.5 Rules and Forum. The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the informal dispute resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and TCOYF Applications agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by American Arbitration Association (the “AAA”), an established alternative dispute resolution provider, under its rules, including Consumer Arbitration Rules (the “AAA Rules”), then in effect, unless otherwise required by law. AAA’s rules are also available at https://adr.org/consumer. For all actions under the AAA Rules, the proceedings may be filed where your residence is, or in King County, Washington, and any in-person hearings will be conducted at a location which is reasonably convenient to both parties taking into account their ability to travel and other pertinent circumstances. If AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA rules.
If the Parties are not able to resolve the Dispute through the mandatory informal dispute resolution process referenced above, either party may initiate an arbitration proceeding by sending a demand to the other party that describes the nature and basis for the claim and includes all of the information required in the arbitration notice (“Arbitration Notice”). The Party initiating arbitration must include as part of the demand a personally signed certification of compliance with the informal dispute resolution process. The Arbitration Notice must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the informal dispute resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Arbitration Notice shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Arbitration Notice. By signing the Arbitration Notice, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Arbitration Notice is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and we otherwise agree, or the Batch Arbitration process discussed in Section 21.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable AAA rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and TCOYF Applications agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential. During the arbitration, the amount of any settlement offer made by you or TCOYF Applications must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
· 21.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Washington, and will be selected by the parties from the AAA roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Arbitration Notice, then AAA will appoint the arbitrator in accordance with the applicable AAA rules, provided that if the Batch Arbitration process under Section 21.9 is triggered, AAA will appoint the arbitrator for each batch.
· 21.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 21.4, including any claim that all or part of Section 21.4 is unenforceable, illegal, void or voidable, or that Section 21.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 21.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 21.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and TCOYF Applications. Judgment on the arbitration award may be entered in any court having jurisdiction.
· 21.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Arbitration Notice was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or we need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the informal dispute resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
· 21.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and TCOYF Applications agree that in the event that there are twenty-five (25) or more individual Arbitration Notices of a substantially similar nature filed against TCOYF Applications by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period, AAA shall (1) administer the arbitration demands in batches of 100 Arbitration Notices per batch (plus, to the extent there are less than 100 Arbitration Notices left over after the batching described above, a final batch consisting of the remaining Arbitration Notices), or in a single batch if there are fewer than 100 Arbitration Notices in total; (2) appoint one arbitrator for each batch; (3) administer the batches concurrently; (4) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). Arbitration awards in one batch of arbitration demands shall have no precedential effect on subsequently administered batches.
All parties agree that Arbitration Notices are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise AAA, and AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by TCOYF Applications. You and TCOYF Applications agree to cooperate in good faith with AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Arbitration Notices, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
· 21.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the applicable address set forth in Section 20.10, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with TCOYF Applications.
· 21.11 Invalidity, Expiration. Except as provided in Section 21.9, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. For the avoidance of doubt, this means that, if Section 21.9 is found under the law to be invalid or unenforceable to any extent, then you agree that the entire Arbitration Agreement shall be of no force and effect. You further agree that any Dispute that you have with TCOYF Applications as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
· 21.12 Modification. Notwithstanding any provision in the Terms to the contrary, TCOYF Applications agrees that if TCOYF Applications makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to us at the applicable address set forth in Section 20.1, your continued use of the Products and Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Products and Services, the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms) remain in full force and effect. TCOYF Applications will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Terms.