Terms of Use Welcome to https://tcrproductions.com/, the official website of TCR PRODUCTIONS, LLC. We may refer to ourselves on this page, as: “TCR “we,” “our,” or “us.” We refer to you as “you” or “your.” These Terms of Use (“Terms”) govern our website located at https://tcrproductions.com/ and any of TCR other registered domains, mobile apps, or social networking pages, profiles or feeds that post a link to these Terms (collectively, the “Services”). Please read these Terms carefully before using the Services. By using the Services, you accept these Terms and consent to the practices in our Privacy Policy located at tcr@tcrproductions.com. If you do not agree, do not use the Services. Any breach of these Terms immediately terminates your rights with respect to the Services. These Terms shall supersede and replace all previous versions thereof. TCR reserves the right to change the information, features, policies, promotions, disclosures and disclaimers of the Services at any time in our sole discretion without prior notice. Changes to these Terms will be posted on the Services as they occur. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable additional Terms. You can tell that the Terms have been updated by checking the last revised date posted on the top of this page. Please check these Terms periodically to determine if any changes were made to it since you last visited the Services. Your continued use of the Services following the posting of changes to these Terms means that you have accepted and agreed to such changes. You agree that when you click on “I agree” or another similarly worded “button” or entry field with your mouse, keystroke or other device, if any, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature. 1) Content The Services are owned by TCR. Unless otherwise indicated, all materials and content contained on the Services or provided through the Services (including any form of media on or through which any portion of the Services is provided to you), including, but not limited to, text, graphics, data, photographic images, moving images, sound, illustrations, material, technology, software, URLs, interactive features and the selection and arrangement thereof (“Content”), are the copyrighted property of TCR, its affiliated entities and/or third parties. All elements of the Services, including Content, are protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property. No Content from the Services may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that we grant you a limited, non-exclusive, revocable, non-assignable, and non-transferable license to download, display, view, use, play the Content on a personal computer, browser, laptop, tablet, mobile phone or other Internet-enabled device and/or print one copy of the Content as it is displayed to you for your personal, non-commercial use only, provided that: (i) you keep intact all copyright and other proprietary notices, (ii) you do not reverse engineer or make any modifications to the Content or Services, (iii) you do not use the Content in a manner that suggests any association with any of our products, services, or brands or the products, services or brands of any other person, and (iv) you do not harvest information from the Services, (v) you do not interfere with the proper operation of or any security measure used by the Content or Services, and (iv) you do not download any of the Content to a database that can be used to avoid future access to the Services for access to such downloaded materials. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. All rights not expressly granted to you are reserved by TCR and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of any Content or the Services for any purpose is prohibited. 2) Trademark The Content, and all TCR trademarks, service marks, brands, trade dress, logos, characters and trade names, including, but not limited to the marks TCR®. 3) Registration A. Registration Data: If you opt to register for any portion of the Services (including, but limited to TCR), you agree to provide TCR with accurate, complete, and updated information to your account (“Account”). Failure to do so will constitute a breach of these Terms, which, in TCR sole discretion, may result in the immediate termination of your right to use the Account. You acknowledge and agree that TCR may rely on the contact information in your Account to send you important information and notices regarding your Account and the Services. You acknowledge and agree that TCR shall have no liability associated with or arising from your failure to maintain accurate information in your Account, including, but not limited to, your failure to receive critical information about the Services or your Account. You further agree that TCR is authorized to verify any information in your Account. B. Username and Password: Any user (“User”) that opts to create an Account on the Services and becomes a member (“Member”) shall select a password and user name (“User Name”) in order to establish an Account. You may not: (i) select or use a User Name of another person with the intent to impersonate that person, (ii) use a User Name subject to the rights of any other person without authorization, or (iii) use a User Name that TCR, in our sole discretion, deems inappropriate or offensive. You authorize TCR to process any and all Account transactions initiated through the use of your User Name and password. You are solely responsible for maintaining the confidentiality of your User Name and password and must immediately notify TCR of any unauthorized use of your User Name and password or of any other breach of security. You acknowledge and agree that you are responsible for any unauthorized activities, charges and/or liabilities made through the use of your User Name and password. In no event will TCR be liable for the unauthorized use or misuse of your User Name and/or password. TCR reserves the right to change User Names if the need should arise. You will be informed if TCR makes such a change. TCR collects and uses your User Name, password and other information associated with your Account in accordance with its Privacy Policy. C. A User may register a profile on the Services to establish a group account with sub-accounts for such User’s students, family members, team members or other people associated with such User. In this case, the primary User shall be considered the Member for the purposes of these Terms and shall be responsible for the sub-accounts such User establishes, and the term “Account,” as it is used herein, shall refer to both the primary User Account as well as any sub-Accounts. D. Children under the age of 13 are not permitted to use or register with the Services. To the extent that a child under the age of 13 wants to participate in an event, that child’s parent or legal guardian must register the child under the parent or legal guardian’s account and give consent to TCR to collect and use the child’s personal information in compliance with COPPA. See our Privacy Policy for further details on how we treat children’s information. E. The Services may provide you with access to some products and services without you having to register as a User. In each such case your identification is based on means of identification that the TCR deems appropriate. 4) Electronic Communications and Customer Support When you use TCR, or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices, disclosures, and other communications. Any communication that we provide to you electronically satisfies any legal requirement that such communication be in writing. If you have any questions, please send an e-mail to us at tcr@tcrproductions.com You acknowledge that the provision of support is at TCR sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: TCR Productions, LLC PO Box 25671, Albuquerque, New Mexico 87125. 5) Membership Requirements A. Fees and Payment; Renewal; Cancellation: If you opt to be a Member, you agree to pay all charges relating to your Account, including applicable taxes, in accordance with any billing terms that may apply to a particular transaction. You must provide TCR with valid credit card information throughout the time that the Account is open. We will charge the Member’s credit card either after the trial period expires, or on the date the Member subscribes to the Services if no trial period is offered. Thereafter, we will automatically renew and charge the Member’s Account. Your Account may be suspended for non-payment, and you may be responsible for any and all bank or service charges incurred in connection with payment of charges to your Account, and for any costs of collection including reasonable attorneys’ fees. B. Notice: As the Member, you must provide us with your correct and valid email address, and you further agree to update us of any changes in your email address or other Account information. We may give a notice to a Member by means of a general notice on the Services, email to the Member’s email address on record in the Account information provided by the Member, or by written communication sent by mail to the Member’s address on record in such Account information. You may give notice to us by electronic mail at the following email address, tcr@tcrproductions.com. All notices will be deemed given when delivered or, in the case of notices posted on the Services, as of the time of first use of the Account following such posting. 6) Postings and Other On-Services Communications “Common Area” means a chat room, message board, personalized page, photo log or photo page, publicly viewable site, or other similar function which may be offered as part of the Services. If you participate in any Common Area within the Services, you must not, and the Member is responsible for ensuring that no one using the Account shall: defame, abuse, harass or threaten others; make any bigoted, hateful or racially offensive statements (as determined in TCR sole discretion), restrict or inhibit any other User from using and enjoying the Services; advocate illegal activity or discuss illegal activities with the intent to commit them; post or distribute any material that infringes and/or violates any right of a third party (including, without limitation, any intellectual property right) or any law; post or distribute any vulgar, obscene, discourteous or indecent language or images (as determined in TCR sole discretion); advertise or sell to, or solicit to others; use the Common Area for commercial purposes of any kind; post or distribute any software or other materials which contain a virus or other harmful component; or post material or make statements that do not generally pertain to the designated topic or theme of the respective Common Area. TCR reserves the right to review, remove, or edit content from any Common Area at any time and for any reason. TCR shall have the sole discretion to terminate your access to the Services if a violation is found, or for any other reason. Please be advised that TCR will fully cooperate with any law enforcement authorities or court order requesting or directing TCR to disclose personal information of anyone who submits a message (“Message”) that violates the foregoing terms in accordance with the Privacy Policy. Although TCR may from time to time monitor or review Messages submitted in the Common Area, TCR is under no obligation to do so and assumes no responsibility or liability arising from the contents of any Message, nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger or inaccuracy contained therein. Display of any Message on the Services does not constitute approval of or endorsement by the TCR. Uploaded materials to any Common Area and/or submissions of any materials to TCR, are, and will be treated as, non-confidential and non-proprietary. By uploading materials to TCR you acknowledge that any information disclosed by you therein: (i) may be used by any third party, (ii) is not confidential and may be read or intercepted by others, and (iii) creates no confidential, fiduciary, contractually implied or other relationship between you and us other than pursuant to these Terms. Any California residents under the age of eighteen (18) who have registered to use the Services and how have posted content or information on the Services, can request that such information be removed from the Services by contacting us at tcr@tcrproductions.com. Requests must state that the user personally posted such content or information and detail where the content or information is posted. We will make reasonably good faith efforts to remove the post from prospective public view. 7) Submissions A. Rights of Use: By transmitting any Message or submitting creative ideas, concepts, know-how, techniques, suggestions, picture postings, postings to chat areas, boards, opinions, votes or materials, customer service, or any other form submission (collectively “Submissions”), you are granting TCR a perpetual, royalty-free, non-exclusive, unrestricted, transferable, worldwide and irrevocable right and license to use, reproduce, modify, sell, re-sell, sublicense, publish, translate, prepare derivative works based upon, distribute, perform or display such Messages and Submissions, in whole or in part, in any form, media or technology now known or hereafter developed for any purpose, including, but not limited to, advertising and promotional purposes, and to sublicense such rights to others (collectively, “Rights”). All Submissions, whether solicited or unsolicited, shall become and remain the property of the TCR. This means that anything submitted by you to the Services may be used by TCR for any purpose, now or in the future, without any payment to, or further authorization by, you. TCR also has the right, but not the obligation, to use your name in connection with the broadcast, print, online or other use or publication of your Submission. You agree that your Submissions will not: (i) promote any political or commercial purpose; (ii) defame, abuse, harass, stalk, or threaten others; (iii) use racially or ethnically offensive language; (iv) discuss or incite illegal activity; or (v) infringe any intellectual property or other right of any third party. B. Solicited Submissions: At times, TCR may solicit Submissions from visitors to the Services including, but not limited to, information, ideas, artwork or other materials. For information on how solicited Submissions will be used, please review any notices of planned use posted where we solicit the Submission. Your provision of information in response to such solicitation is a grant by you to TCR of the Rights described above. C. Unsolicited Submissions: We value your feedback on the Services. However, when submitting unsolicited Submissions to us, we cannot assure the protection of any proprietary rights you may assert in any such Submission. As such, we ask that you not send us any unsolicited Submissions. TCR assumes no responsibility for reviewing such unsolicited Submissions and we will not incur any liability as a result of any similarities between your Submissions, solicited or unsolicited and future TCR products or programs. 8) Links and Linkage Restrictions The following restrictions apply to all links to the Services: A. Any service created by, licensed by or substantially associated with any entity that regularly promotes any product, brand, or commercial service (a “Commercial Site”) may not link to the Services without the written permission of TCR, even if the page/area where the link originates does not promote a product, brand or service. B. Any service other than a Commercial Site (for example, fan sites, chamber of commerce sites, search engines, widely available Internet browsers) (“Permissible Sites”) has a limited, non-commercial, non-exclusive, revocable, non-assignable, and non-transferable license to link to the Services without written permission of the TCR if such link is: (i) a “word” (as opposed to a “logo”) link, and (ii) spatially separated from, and not otherwise associated with, any sponsorship advertising, or other commercial text or graphics that may be associated with, any sponsorship advertising, or other commercial text or graphics that may be on the page/area containing such word link. C. The Services logos or any other logo of the TCR or its affiliates (a “logo” link) may not be used to link to the Services without the written permission of TCR. D. No link to the Services may be “framed” by the Permissible Services where the link originated if such “frame” contains any sponsorship, advertising or other commercial text or graphics. E. All links to the Services from a Permissible Services must be to the Services’ home page. Links to internal pages within the Services are not permitted without prior written consent of TCR. F. The posting or creation of any link to the Services signifies that you have read these Linkage Restrictions and agree to abide by their terms. TCR may provide links to other web sites. However, we are not responsible for the information collection, use and disclosure practices of those other web sites, and we advise you to check the privacy policies of each such other web site before using it, to understand how your personal information will be handled on each such other web site. Our Terms do not apply to any of the other web sites to which our Services link. 9) Race Statistics TCR may make available on the Services statistics, including biometric data, geo-location data, and other statistics generated and/or calculated by the TCR using proprietary calculations and analyses, relating to or arising out of the performance of runners during or in connection with a TCR race (“TCR Statistics”). If you use such TCR Statistics, You agree that: (i) any use, display or publication of the TCR Statistics shall include a prominent attribution to the Services in connection with such use, display or publication, (2) the TCR Statistics may only be used, displayed or published for legitimate news reporting or private, non-commercial purposes, (3) the TCR Statistics may not be used in connection with any sponsorship or commercial identification, (4) the TCR Statistics may not be used or referred to in connection with any gambling activity (including legal gambling activity), (5) the TCR Statistics may not be used in connection with any commercial product or service, (6) the TCR Statistics may not be used in connection with any product or service that presents a live, near-live or other real-time or archived play-by-play account or depiction of any TCR race, and (7) the TCR Statistics may not be used in connection with any web site, product or service that features a database (in any medium or format) of a comprehensive, regularly updated statistics from any TCR competition or event without the TCR express prior written consent. 10) Claims of Copyright Infringement and DMCA Policy The Digital Millennium Copyright Act of 1988 (“DCMA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under United States copyright law. If you believe, in good faith, that materials hosted by TCR infringe upon your copyright, you (or your agent) may request that material be removed, or access to it blocked. Requests, in this respect, should be sent to: TCR PRODUCTIONS, LLC. PO Box 25671, Albuquerque, New Mexico 87125 Email: tcr@tcrproductions.com Telephone: 505 485 7621 To be effective, the notification must be a written communication that includes the following: A. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; B. Identification of the material that is claimed to be infringed upon or to be the subject of infringing activity and that you are seeking to have removed or access to which is to be disabled, and information reasonably sufficient to permit TCR to locate the material; C. Information reasonably sufficient to permit TCR to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; D. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and E. A statement that the information in the notification is accurate, and under penalty of perjury, that you are or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon. We will respond to notices of claimed copyright infringement in accordance with the DMCA. It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers. 11) Third Parties The Services may contain or may interact with third party content that is not owned, controlled or operated by TCR (collectively, “Third Party Services”). We may also host our content on Third Party Services. TCR neither endorses nor controls such Third-Party Services, and you acknowledge and agree that we are not responsible or liable for the information, content, products, or services on or available from such Third-Party Services, or for the results to be obtained from using them. If you choose to access any such Third-Party Services, you do so at your own risk. Any interactions, transactions, and other dealings that you have with any third parties found on or through the Services are solely between you and the third party. 12) Service Features A. Wireless Features. The Services may offer features that are available to you via your wireless device including the ability to access the Services’ features and upload content to the Services, and receive messages from the Services (collectively, “Wireless Features”). By using the Services, you agree that TCR may collect information related to your use of the Wireless Features as described in our Privacy Policy, and may change, alter, or modify the settings or configurations on your device in order to allow for or optimize your use of the Services. Data rates and other carrier fees may apply. B. E-mails and Push Notifications. You can opt out of receiving certain promotional communications (e-mails and push notifications) from us at any time (i) for e-mails, follow the instructions as provided in e-mails to click on the unsubscribe link or send an e-mail to us at tcr@tcrproductions.com with the word UNSUBSCRIBE in the subject field of the e-mail; (ii) for push notifications or in-app messages, adjust the permissions in your mobile device. Please note that you opt-out is limited to the e-mail address, phone number, or device used and will not affect subsequent subscriptions or non-promotional communications, such as those about your account, transactions, servicing, or TCR ongoing business relations. C. Text Messages, Call Alerts. If you participate in TCR Events and agree by to receive text messages and call alerts by signing the General Liability Waiver and Release (and not opting out), TCR may send you ongoing text message and prerecorded call alerts (including by automatic dialing systems) regarding date or time changes, weather or route updates, your location and placement in a race and other race related information for any Events in which you participate. Your consent is not required to participate in any Event or a condition of any purchase, and you may withdraw your consent at any time for text message and prerecorded call alerts by sending an email to TCR Runner Services at tcr@tcrproductions.com stating that you no longer wish to receive text message alerts and prerecorded call alerts. Your withdrawal will be put into effect no later than 24 hours from the time your email is received by TCR. Standard message, data and other fees may be charged by your carrier and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Not all phone and/or carriers are supported. You may contact your carrier for further details. D. Location-Based Features. If you have location-based features on your wireless device, you acknowledge that your device location will be tracked and shared consistent with the Privacy Policy. In addition, if you participate in TCR races, classes, expos, or other events (“Events”) and agree to have your geolocation information tracked by signing the General Liability Waiver and Release (and not opting out), you acknowledge that TCR will use a radio-frequency identification (“RFID”) tag in your race bib to track your geographic location during the Events, and that such geolocation information will allow anyone, including the general public, to determine your geographic location during the race and to tie your location during the Events to connect it to your name, gender, age, distance run, net time, pace per mile, overall place, gender place, age place, age-graded time, age-graded performance percentage and/or, if applicable, race-day photos (collectively “Race Results). You can terminate location tracking by us on your device, by adjusting the permissions in your mobile device or uninstalling our mobile app. If during Events you do not want TCR to publish your geolocation information, you may opt-out by sending an email to tcr@tcrproductions.com no later than five (5) business days before the Events. Your official Race Results will still be published after the Events on TCR website and/or applications. Please note that termination will only affect subsequent tracking by us. Location-based features are used at your own risk and location data may not be accurate. 13) Agreement to Arbitrate Disputes and Choice of Law. PLEASE READ THIS SECTION CAREFULLY—IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. WE BOTH AGREE TO ARBITRATE: You and TCR agree to resolve any claims relating to these Terms through final and binding arbitration, except that, to the extent you have in any manner violated or threatened to violate TCR intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances TCR may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. WHAT IS ARBITRATION: Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced. ARBITRATION PROCEDURES: The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in this TOU, the rules set forth in this TOU will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at tcr@tcrproductions.com or 1-800-352-5267. To initiate arbitration, you or TCR must do the following things: (1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at https://www.jamsadr.com/. (2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111 (3) Send one copy of the Demand for Arbitration to the other party. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to New Mexico is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and, in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement shall be held in the United States in New Mexico, NY under New Mexico law without regard to its conflict of law’s provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. AUTHORITY OF ARBITRATOR: The arbitrator will decide the rights and liabilities, if any, of you and TCR, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and TCR. NO CLASS ACTIONS: You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. WAIVER OF JURY TRIAL: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and TCR in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND TCR WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE. Choice of Law/Forum Selection In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the State of New Mexico, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in New Mexico, NY. 14) Your Representations and Warranties You represent, warrant, and covenant that: (i) neither you nor any other person who uses your Account will use your Account to perform, suggest or encourage any fraudulent, illegal, untruthful or inappropriate activity, and (ii) that you and all other persons who use your Account will fully comply with these Terms. 15) Indemnification You hereby agree to indemnify, defend, and hold TCR, its affiliated companies, sponsors, partners and all of its and their officers, directors, employees, owners, agents, information providers, affiliates, licensors, and licensees (collectively, the “Indemnified Parties”) harmless from and against any and all liability and costs, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any claim or cause of action arising out of the use of (i) your breach or alleged breach of these Terms; (ii) your Submissions; (iii) your misuse of the Services or any use of the Services ; (iv) any activities accessed by, through, because of or related to the Services; (v) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (vi) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; or (vii) any misrepresentation made by you. This provision does not require you to indemnify the Indemnified Parties for any unconscionable commercial practice by such Indemnified Parties or for such Indemnified Parties’ fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder. You will, and will cause all other persons who use your Account to, cooperate with us in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter that may be subject to indemnification hereunder. You will not in any event settle any claim without the prior written consent of TCR. We make no representation, warranty or endorsement as to the accuracy or reliability of any statement, advice, opinion, content, materials or information contained in, and/or displayed, uploaded, or distributed by or through the Services. You acknowledge that any reliance upon any such information will be at your sole risk. We will have the right, in our sole discretion, to enforce the Terms, or correct any errors or omissions in any portion of the Services, but we have no obligation or duty whatsoever to do so, including any obligation to monitor the Services for such errors or omissions or for violations of this Terms. 16) Disclaimers THE MATERIALS ON THE SERVICES (EXPRESSLY INCLUDING ANY FORM OF MEDIA ON OR THROUGH WHICH ANY PORTION OF THE SERVICES IS PROVIDED TO YOU) ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. WE DISCLAIM IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND THE ABSENSE OF INACCURACIES IN INFORMATIONAL CONTENT. WE DO NOT WARRANT THAT THE SERVICES OR THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE a) UNINTERRUPTED, SECURE, TIMELY OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED; c) THAT THE SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; d) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND E) THAT THE QUALITY OF ANY SERVICES WILL MEET YOUR EXPECTATIONS. YOU (AND NOT WE) ASSUME THE ENTIRE RESPONSIBIITY AND COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN CONNECTION WITH YOUR USE OF THE SERVICES. NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY HEREIN, DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM TCR INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE. YOU EXPRESSLY AGREE THAT TCR IS NOT A HEALTH CARE OR MEDICAL PROVIDER AND IS NOT PROVIDING MEDICAL ADVICE VIA THE SERVICES. THE SERVICES, INCLUDING ALL FEATURES, FUNCTIONALITIES, AND CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY ADVICE, INFORMATION, WORKOUTS, EXERCISES, REGIMENS, NUTRITIONAL ADVICE OR PLANS, RECIPES OR OTHER MATERIALS ARE FOR GENERAL INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF a) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS AFTER CONSULTATION WITH THAT PHYSICIAN OR THOSE MEDICAL PROFESSIONALS. SHOULD YOU HAVE ANY HEALTH-RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. IF YOU EXPERIENCE ANY PAIN, DIFFICULTY, DIZZINESS, ILLNESS, OR DISCOMFORT, WHEN USING ANY OF THE SERVICES, STOP AND CONSULT YOUR PHYSICIAN OR SEEK EMERGENCY MEDICAL ATTENTION IMMEDIATELY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON THE SERVICES, AND YOU SHOULD NOT USE THE SERVICES OR ANY CONTENT ON THE SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF TCR CONTENT ON THE SERVICES, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND TCR. YOU EXPRESSLY AGREE THAT YOUR ACTIVITIES RELATED TO THE SERVICES OR CONTENT PROVIDED THROUGH THE SERVICES (INCLUDING BUT NOT LIMITED TO RUNNING, STRETCHING, OR FOLLOWING A TRAINING PLAN OR EXERCISE REGIMEN/ACTIVITIES) CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES EVEN IF CAUSED IN WHOLE OR IN PART BY THE ACTION, INACTION OR NEGLIGENCE OF TCR OR BY THE ACTION, IN ACTION OR NEGLIGENCE OF OTHERS. YOU ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO RELY ON AND/OR USE ANY OF THE SERVICES IS AT YOUR SOLE RISK, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TCR WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY AND DEATH, ARISING OUT OF OR IN CONNECTION WITH YOUR RELIANCE ON OR USE OF ANY PART OR ASPECT OF THE SERVICES. 17) Release and Limitation of Liability YOU EXPRESSLY AGREE TO RELEASE TCR, ITS AFFILIATED COMPANIES, SPONSORS, PARTNERS AND ALL OF ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, OWNERS, AGENTS, INFORMATION PROVIDERS, AFFILIATES, LICENSORS, AND LICENSEES (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY IN CONNECT WITH YOUR ACTIVITIES AND/OR USE OF THE SERVICES INCLUDING BUT NOT LIMITED TO ANY WEBSITES, MOBILE APPLICATIONS, CONTENT, TRAINING PLANS, EXERCISE REGIMENS OR ACTIVITIES) AND PROMISE NOT TO SUE THE RELEASED PARTIES FOR ANY CLAIMS, ACTIONS, INJURIES, DAMAGE OR LOSSES ASSOCIATED WITH SUCH USE. TCR and its affiliates, officers, agents, partners and employees shall not be liable for any direct, indirect, incidental, special or consequential damages, resulting from the use of or inability to use the Services or resulting from any information or services obtained or messages received or transactions entered into through the Services or resulting from unauthorized access to or alteration of Your transmissions of data, including but not limited to, damage for loss of profits, use, data or other intangibles, even if we have been advised of the possibility of such damages. NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY HEREIN, DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM TCR INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES, SO SOME OF THE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF, PURSUANT TO APPLICABLE STATE LAW, THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IS NOT PERMITTED, THE LIABILITY OF TCR SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN ENTERING INTO THIS RELEASE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE THE BENEFITS OF, SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, (AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY), WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUSH HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” If you are dissatisfied with any portion of the Services, or with any of these terms of use, your sole and exclusive remedy is to discontinue using the Services. 18) Waiver of Injunctive or Other Equitable Relief YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY TCR OR A LICENSOR OF TCR. 19) Termination of Services TCR may change, suspend or discontinue any aspect of the Services at any time, including the availability of any Services features and services or restrict your access to parts or the entire Services without notice or liability at any time in TCR exclusive discretion, without prejudice to any legal or equitable remedies available to TCR, for any reason or purpose, including, but not limited to, conduct that TCR believes violates this Terms or other policies or guidelines posted on the Services or conduct which TCR believes is harmful to other Users, to TCR business, or to other information providers. Upon any termination of these Terms, you shall immediately discontinue your use and access of the Services and destroy all materials obtained from it. 20) Services Directed at United States Visitors The Services are targeted at and intended for Users residing in the United States. Given the global nature of the Internet, the Services may be accessed by Users residing outside of the United States. We make no representations or warranties that the Services is appropriate or available for use in countries outside of the United States. Users who choose to access the Services from outside of the United States do so at their own initiative and are responsible for compliance with any and all local laws and regulations that may apply to such access. If you are located outside of the United States, any information you provide will be transferred to the United States. By accessing our Services and by submitting your information, you consent to its transfer and storage in the United States and its use as provided for in our Privacy Policy. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Services. Software related to or made available by the Services may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions. 21) Transfer of Information to Third Parties Upon a Sale or Change of Control We retain the right to transfer or assign all information contained on the Services pursuant to a merger, consolidation or other transaction relating to New Mexico Road Runners as provided for in our Privacy Policy. 22) Our Administration of the Services We may impose limits on certain features or restrict your access to parts, or all of the Services without any notice or liability of any kind. We reserve the right to change prospectively the amount of, or basis for determining, any fees or charges for the Services, and to institute new fees or charges for access to portions of the Services effective upon prior notice to Members by posting such changes on the Services or by sending emails to Members. You hereby agree to pay all charges to your Account, including applicable taxes, in accordance with billing terms in effect at the time the fee or charge becomes payable. 23) General Provisions A. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. B. You may not modify these Terms. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the remainder of the provisions contained herein and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between us and you relating to the subject matter herein, superseding all prior oral or written agreements, and shall not be modified except as provided for herein. C. No consent or approval may be deemed to have been granted by TCR without being in writing and signed by an officer of TCR. D. If there is a conflict between these Terms and a subsequent additional Terms, the subsequent additional Terms will control for that conflict. E. These Terms control the relationship between TCR and you. It does not create any third-party beneficiary rights. F. If you do not comply with these Terms, and we do not take immediate action, we are not waiving any rights that we may have, such as taking future action. G. If you are using the Services on behalf of a business, that business accepts these Terms. E. TCR may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of TCR. F. TCR reserves the right to investigate and prosecute any suspected breaches of these Terms or the Services. TCR may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. G. Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112 Sacramento, California 95834, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov. H. The sections on Indemnification, Limitation of Liability, and Disclaimers do not apply to New Jersey residents. 24) Terms Applicable for Apple iOS If you are using the Services through an Apple device, the following terms apply: (i) To the extent that you are accessing the Services through an Apple device, you acknowledge that these Terms are entered into between you and TCR and, that Apple, Inc. (“Apple”) is not a party to these Terms other than as third-party beneficiary as contemplated below. (ii) The license granted to you in these Terms is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third-party terms of agreement applicable to the Services. (iii) You acknowledge that TCR, and not Apple, is responsible for providing the Services and Content thereof. (iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Services. (v) To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services. (vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and TCR, TCR, and not Apple is responsible for addressing any claims you may have relating to the Services, or your possession and/or use thereof, including, but not limited, to: (a) product liability claims; (b) any claim that the Services fail to confirm to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. (vii) Further, you agree that if the Services, or your possession and use of the Services, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims. (viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. (ix) When using the Services, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Services.
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