Terms and Conditions
These Terms and Conditions of Use (the “Agreement”) set out the terms on which TheCup, which controlled or operated websites and through TheCup’s mobile device applications including Challenges, and other The Cup controlled mobile device applications (collectively such websites and applications, the “The Cup Services”) to you, a user of the The Cup Services (“You” or “User”), as well as the benefit of this Agreement to any The Cup officer, director, employee or agent of The Cup or corporate entity affiliated with The Cup (each, a “The Cup Affiliate”).
By providing Your email address and creating an account as a User of the The Cup Services, or by otherwise using the The Cup Services, You agree to comply with and be bound by this Agreement, which we may change at any time by posting notice on the The Cup Services. Users bound by this Agreement include both those using The Cup Services for their own goals (sometimes referred to as “Individual Users”) and Brands using The Cup Services to provide challenging services and encourage others (referred to as “Brands”).
We may update this Agreement from time to time. When we change this Agreement in a material way, a notice will be posted on our website along with the updated Agreement. We may also contact you via your contact information on file, for example by email, notification or some other equivalent method. Your continued use of The Cup Services ten days following any changes means that You accept those changes.
PLEASE READ THIS AGREEMENT CAREFULLY, AND PLEASE CHECK THESE TERMS AND CONDITIONS PERIODICALLY FOR CHANGES.
If You do not agree to these terms and conditions, please do not use The Cup Services.
If You register as a User, You represent and warrant to The Cup that: (i) You are of legal age to form a binding contract; (ii) You will provide The Cup with accurate, current and complete registration information; and (iii) Your registration and Your use of the The Cup Services is not prohibited by law. The Cup reserves the right to suspend or terminate Your registration, or Your access to the The Cup Services, with or without notice to You, in the event that You breach any term of this Agreement. Minors. The Cup Services are not directed at Users under the age of 18. If You are under the age of 18, You are not permitted to register as a User or use The Cup Services.
2. Ownership of The Cup Services and Related Intellectual Property
All the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information), data, other content, software and materials displayed on the The Cup Services or used by The Cup to operate the The Cup Services, excluding any User Content (as defined below) is proprietary to us or to third parties. The Cup expressly reserves all rights, including all intellectual property rights, in all of the foregoing, and except as expressly permitted by this Agreement, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other exploitation of them is strictly prohibited.
3. Your Registration and User Content
4. License to Use The Cup Services
Subject to the terms of this Agreement, The Cup authorizes You to use the The Cup Services for Your personal, non-commercial purposes. The Cup Services includes certain premium features and services that The Cup offers for a fee (“Premium Services”); You are only authorized to use Premium Services if You have paid the applicable fees. You may not remove any copyright, trademark or other proprietary notices that have been placed in The Cup Services. Except as expressly permitted above, modification, reproduction, redistribution, republication, uploading, posting, transmitting, distributing or otherwise exploiting in any way the The Cup Services, or any portion of the The Cup Services, is strictly prohibited without the prior written permission of The Cup. The Cup Services are licensed, not sold, and You obtain no rights in any copy of software related to The Cup Services other than the rights described in this paragraph.
You agree, and represent and warrant, that Your use of the The Cup Services, or any portion thereof, will be consistent with the foregoing license, covenants and restrictions and will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties. In addition, You agree that You will comply with all applicable laws, regulations and ordinances relating to the The Cup Services or Your use of the The Cup Services, and You will be solely responsible for Your own individual violations of any of any such laws.
You are solely responsible for obtaining the equipment and telecommunication services necessary to access the The Cup Services, and all fees associated therewith (such as computing devices and Internet service provider and airtime charges).
We retain the right to implement any changes to The Cup Services (whether to unpaid or Premium Services) at any time, with or without notice. You acknowledge that a variety of The Cup actions may impair or prevent You from accessing the The Cup Services at certain times and/or in the same way, for limited periods or permanently, and agree that The Cup has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to You, any content or services.
5.1 Challenge Cup(Fees)
If You purchase any Service in the cup, either on a one-time or subscription basis, You will pay The Cup the applicable fees and any related taxes (other than taxes on The Cup’s income). The Cup may change its fees at any time by publishing written notice on The Cup Services. You authorize The Cup to charge the applicable fees to the payment card that You submit to The Cup, and agree that The Cup and any The Cup Affiliate may store Your payment card information. You will pay all fees and taxes as they become due. Your obligation to pay fees continues through the end of the subscription period during which You cancel Your subscription. If Your payment card issuer or bank does not honor charges You have paid using Your card, You will remain directly liable to The Cup for all unpaid amounts. If You fail to pay applicable fees, The Cup reserves the right to charge interest at the rate of 1.5% per month, or the maximum amount permitted by law (if lower). You may cancel Your Premium Services here. You also acknowledge that Premium Services are subject to this Agreement and any additional terms related to the provision of the Premium Service.
Nonpayment of any fees or other sums due to The Cup or any other party related to Your use of the The Cup Services will result in The Cup Services termination. We may, at our discretion, also appoint an outside debt collection agency to collect amounts owed to us. You agree to reimburse us for all costs that we incur in enforcing our collection of Your unpaid amounts, including debt collection agency fees, reasonable attorneys’ and legal fees and court costs.
All overcharges or billing disputes must be reported within 30 days of the time that the dispute occurred.
If You dispute a charge to Your payment card issuer that, in our reasonable judgment, is a valid charge under the provisions of this Agreement, You agree to pay us an additional charge (“Administration Charge”) to investigate the matter.
We will refund any such Administration Charge if our investigation finds that Your action in disputing the charge to Your card issuer was justified because the charge was not valid under the provisions of this Agreement.
5.2 Automatic Renewal Options
By signing up for certain subscriptions, You agree that Your subscription will be automatically renewed. Unless You cancel Your subscription, You authorize us to charge Your payment method for the renewal term. The period of auto-renewal will be the same as Your initial subscription period unless otherwise disclosed to You at the time of subscription purchase. The renewal rate will be no more than the rate for the immediately prior subscription period, excluding any promotional and discount pricing, unless we notify You of a rate change prior to Your auto-renewal. You must cancel Your subscription in accordance with the cancellation procedures disclosed to You for the particular subscription. We will not refund fees that may have accrued to Your account and will not prorate fees for a cancelled subscription. From time to time, we may offer a free trial subscription for a service. If You register for a free trial subscription, we will begin to bill Your account when the free trial subscription expires, unless You cancel Your subscription before that time.
5.3 Refund Policy
All fees and charges are nonrefundable and there are no refunds or credits for partially used periods. All Premium Services and Your rights to use them expire at the end of the paid period of Your Premium Services account.
6. Forums, Challenges
A number of The Cup Services features, such as the feature allowing You to share diet and/or exercise information with friends and groups, participants and sponsors of challenges, contests and promotions, and any chat areas and blogs, offer opportunities for sharing information with others (the “Interactive Features”). The Cup does not edit or control User Content that You and other Users post to or distribute through the Interactive Features, and will not be in any way responsible or liable for User Content. The Cup does not vet or control the Users or other individuals that use The Cup Services or Interactive Features. The Cup shall not be liable for any loss or damage that any person may suffer as a result of using Interactive Features. All Users use the Interactive Features at their own risk. Users should exercise caution in interacting with unknown persons that they meet using the Interactive Features in the same way that they would exercise caution in the physical world.
No User of any Interactive Feature shall:
use an Interactive Feature in violation of, or in connection with any violation of, any local, state, national or international laws;
impersonate any person or entity, or forge or manipulate headers to disguise the origin of any User Content;
except as otherwise permitted by this Agreement, harvest or otherwise collect information about others, including email addresses, without their consent;
post any material more than once or “spam”; or
engage in any other conduct that restricts or inhibits any other person from using or enjoying any Interactive Feature, User Content, or the The Cup Services, or which, in The Cup’s sole judgment, exposes The Cup or any officer, director, employee or agent of The Cup to any liability or detriment of any type.
7. The Cup Services Restrictions
No User of this The Cup Services shall submit, upload to, distribute through or otherwise post to the The Cup website (including any Interactive Feature) any material that:
is libelous, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or that encourages a criminal offense;
contains any advertising, promotional, solicitation or other commercial material;
contains material from other copyrighted works without the written consent of the owner of such copyrighted material, other than reasonable excerpts permitted under the copyright doctrine of fair use;
infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party;
contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material’s readers or others; or
contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
Neither You nor any other party may, without our prior written permission, deep link to, frame, spider, harvest or scrape the The Cup Services or User Content, or otherwise access the The Cup Services or Content for any purposes, or use any machine, electronic, web-based or similar device to read or extract the The Cup Services or User Content by machine based or automated means.
8. The Cup Rights
The Cup reserves the right (but is not obligated) to do any or all of the following:
record User Content;
Investigate an allegation that User Content or User registration information does not conform to the terms and conditions of this Agreement;
remove User Content or User registration information that is abusive, illegal or disruptive, or that otherwise fails to conform with the terms and conditions of this Agreement;
monitor, edit or disclose any User Content or User registration information, and otherwise generally monitor Your use of the The Cup Services; or
edit or delete any User Content or User registration information, regardless of whether such content violates any terms and conditions of this Agreement.
The Cup and The Cup Affiliates have no liability or responsibility to Users of The Cup Services or any other person or entity for performance or nonperformance of the aforementioned activities
9. Links to Third Party Websites Are Not Endorsements
The Cup website may contain links to third party websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by The Cup. You should make whatever investigation You feel necessary or appropriate before proceeding with any transaction with any of these third parties.
10. Ideas Submitted to The Cup
The Cup is pleased to hear from You and welcomes Your comments about The Cup Services. In the event that You submit ideas or suggestions for The Cup Services (“The Cup Services Comments”), The Cup Services Comments will be deemed, and will remain, the sole property of The Cup. None of the The Cup Services Comments will be subject to any obligation of confidence on the part of The Cup, and The Cup and The Cup Affiliates will not be liable for any use or disclosure of any The Cup Services Comments. Without limiting the foregoing, The Cup will be entitled to unrestricted use and other exploitation of the The Cup Services Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the The Cup Services Comments.
11. Warranty Disclaimers, Limitations of Liability and Indemnity
The Cup Services are a source of information, but it does not provide medical advice. The Cup makes no representation that The Cup is a provider of medical services as defined by federal and state laws and regulations pertaining to medical providers and other health care related matters, or that The Cup has any obligations with respect to (a) the appropriateness of Your engaging in a challenge program; (b) the results (or lack of results) obtained by Your use of the The Cup Services; and (c) any health-related matters arising in connection with Your use of The Cup. In no event shall The Cup be liable for any death or bodily injury that You suffer, or that You cause to any third party, in connection with Your use of the The Cup Services or any diet, exercise or other activity You undertake in connection with Your use of the The Cup Services.
- Challenges If You elect to participate in a challenge, contest or promotion offered through our The Cup Servicess, You do so at Your own risk. Further, challenges, contests and promotions may be subject to additional terms and conditions which you may be required to agree to in order to participate in the challenge, contest or promotion. Such additional terms and conditions shall be deemed to supplement this Agreement and shall not supersede or replace this Agreement nor vary any of the terms and conditions of this Agreement.
Disclaimer of Warranties.
WITHOUT LIMITATION OF THE FOREGOING, The Cup AND The Cup AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE Cup SERVICES OR USER CONTENT.
THE The Cup SERVICES AND USER CONTENT ARE PROVIDED IN “AS-IS” CONDITION, AND The Cup AND The Cup AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED TO THE EXTENT PERMITTED BY LAW, INCLUDING: ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; THAT THE The Cup SERVICES AND USER CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE The Cup SERVICES AND USER CONTENT, AND AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE The Cup SERVICES OR THE USER CONTENT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM The Cup OR ANY The Cup AFFILIATE OR THROUGH THE The Cup SERVICES OR USER CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU USE THE The Cup SERVICES AND USER CONTENT AT YOUR OWN RISK, AND NEITHER The Cup NOR The Cup AFFILIATES WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO ANY OF THEIR OPERATION, USE OR OTHER EXPLOITATION.
Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM The Cup OR The Cup AFFILIATES ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE The Cup SERVICES OR USER CONTENT, EVEN IF The Cup OR The Cup AFFILIATES HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
THE MAXIMUM AGGREGATE LIABILITY OF The Cup AND The Cup AFFILIATES FOR ANY AND ALL DAMAGES ARISING IN CONNECTION WITH YOUR USE OF THE The Cup SERVICES OR THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY YOU TO The Cup IN THE THREE (3) MONTHS BEFORE THE LIABILITY IS ALLEGED TO HAVE ARISEN, OR, IF NO AMOUNTS WERE PAID DURING SUCH PERIOD, THE AMOUNT OF $1. THIS LIMITATION WILL APPLY WHETHER THE DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You shall defend, indemnify and hold harmless The Cup and The Cup Affiliates against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees arising in connection with Your use of the The Cup Services or Your breach of any provision of this Agreement. The Cup reserves the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which You are obliged to provide indemnification hereunder. You will cooperate with The Cup with respect to such defense and settlement.
a description of the copyrighted work or other intellectual property that You claim has been infringed;*
a description of the material that You claim is infringing and where it is located on the website;*
a statement by You that You have a good faith belief that the use of the materials on the website of which You are complaining is not authorized by the copyright owner, its agent, or the law; and*
a statement by You that the above information in Your notice is accurate and that, under penalty of perjury, You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.*