LAST MODIFIED: [December 11, 2020]
Welcome to Harlem Cycle’s (“Company”, “we”, “us”, or “our”) website. Please read this Website User Agreement (this “Agreement”) carefully before using the Services (as defined below) of the www.harlem-cycle.com website and other Company-owned or controlled websites, including but not limited to, Harlem Cycle’s Vimeo OTT website, https://harlemcycleathome.vhx.tv/cycling (collectively, the “Sites”). THESE TERMS AND CONDITIONS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITES AND THE RELATED SERVICES, CONTENT OFFERED OR ANY PURCHASES YOU MAKE VIA THE SITES, WHETHER WITH RESPECT TO IN-PERSON OR ONLINE CLASSES PROVIDED BY US, AT ANY INDOOR OR OUTDOOR LOCATION (collectively, “Services”).
By accessing or using the Services, (1) you acknowledge that you must read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
Company may update or revise this Agreement from time to time it its sole discretion. All changes are effectively immediately when we post them, and apply to all access to and use of the Sites thereafter. Your continued use of the Sites following the posting of the revised Agreement means that you accept and agree to the changes. You agree to review this Agreement periodically so you are aware of any changes, as they are binding on you. Except as otherwise expressly stated by Company, any use of the Services is subject to the version of this Agreement in effect at the time of use.
Unless otherwise noted, the products and Services on the Sites are intended for personal, non–commercial purposes only. You agree to use the Sites only for lawful, noncommercial purposes and in compliance with all international, federal, state, and local laws.
If you are under 18, you may register and use the Sites only with the involvement of a parent or guardian. Company does not accept the online registration of minors; please do not attempt to register on the Sites if you are under the age of 18. Registration of a minor who is at least 13 years of age is permitted for Company classes only, and must be completed in person at our studio(s) with a parent or guardian. Minors who are at least 13 years of age may sign up for Company classes online if they meet the minimum height requirement of 4’11” and have already submitted a Customer Waiver and Policy Agreement signed by a parent or guardian.
The Sites, and all of their contents, including without limitation, text, photographs, images, illustrations, graphics, video material, audio material, software, logos, titles, characters, names, graphics, and button icons, (collectively, “Proprietary Material”), are or may be protected by copyright, trademark, and other laws of the United States, as well as international conventions and the laws of other countries. The Proprietary Material is owned or controlled by Company or by other parties that have provided rights thereto to Company.
You may not, and agree that you will not, use, publish, reproduce, display, distribute, or modify the Proprietary Material or any portion thereof, for any purpose or by any means, method, or process. Modification of the materials appearing on the Sites or use of such materials for any other purpose is a violation of our copyright and other proprietary rights.
If you believe any materials accessible on or from the Sites infringe your copyright, you may request removal of those materials (or access to them) from the Sites by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA“), the written notice (the “DMCA Notice“) must include substantially the following:
Our designated copyright agent to receive DMCA Notices is:
Harlem Cycle, 2350 Adam Clayton Powell Jr Blvd
New York, NY 10030
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Sites is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
The Sites may contain links to third party sites, such as those for our advertisers and sponsors, that are not owned or operated by Company. We do not control, recommend, or endorse and are not responsible for these sites or their content, products, services or privacy policies, or practices. In no event shall we be liable, directly or indirectly, to you or any other person or entity for any loss or damage arising from or occasioned by the creation or use of the third party sites or the information or material accessed through these third party sites.
You may (but are not required to) create an account with third party sites (e.g., MINDBODY App and/or Mariana Tek) through the Sites (collectively, the “Account”). You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. We ask you not to share your password with anyone. You agree to immediately notify Company of any unauthorized use of your Account or any other breach of security related to your use of the Services.
You own all data you provide to us (“Your Data”), but you also grant us a license to use it for certain purposes, for example, to improve our products and Services. As between you and Company, you own all right, title and interest in Your Data. You hereby grant to Company a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of, and otherwise use Your Data for the purposes of providing, improving, and developing Company’s products and Services. You represent and warrant to Company that you have all rights necessary to grant the licenses in this section, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
You authorize Company to aggregate or anonymize Your Data or other data in connection with this Agreement, and Company will own all such aggregated data (“Aggregated Data”). You agree that nothing in this Agreement will prohibit Company from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you.
We may temporarily suspend your access to the Sites and/or use of the Services for instances such as scheduled maintenance, or if a natural disaster occurs. We may also change or discontinue particular features or functions of our Sites or Services at any time.
We may suspend or terminate your access to the Sites and/or use of the Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of the Sites and/or Services violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to Company or any third party, or (b) that we are required to do so by law.
Class Cancellations: Reservations of Company classes, events, activities, or programs, whether indoors or outdoors and at any location, (each a “Class”, collectively “Classes”) must be canceled at least 6 hours in advance of the start of Class. This includes waitlist cancellations. Once your reservation is cancelled, the Class will be returned to your account to be used at a future date; the Class is not refunded. If you put yourself on the waitlist you need to look out for emails up to 6 hours in advance and check your schedule under your account to see if you’ve gotten in. If you were moved into the Class, we assume you will be coming unless you notify us that you cannot make it. IF YOU HAVE NOT CANCELLED AT LEAST 6 HOURS IN ADVANCE OF THE START OF CLASS, YOUR SCHEDULED CLASS WILL BE CHARGED AGAINST YOUR SERIES.
Reservations: YOU MUST BE PHYSICALLY PRESENT AT THE START OF YOUR SCHEDULED CLASS OR YOUR SPOT MAY BE GIVEN TO A WAITLISTED CUSTOMER WITHOUT ANY CREDIT OR REFUND TO YOU, TO ALLOW OTHERS TO RESERVE OR USE YOUR BIKE FOR A FEE.
Non-Recording of Live Studio/Online Classes: You acknowledge and agree that any type of recording or transmission (video, audio, still photography, streaming, social media posting, etc.) of any live or on-demand Company classes, whether in person or online, is strictly prohibited without Company’s prior written consent. Fitness instructors are not authorized to provide consent. This includes even a temporary recording/transmission of live or online Classes via online platforms such as Snapchat, Zoom, Facebook or Instagram. You are, however, permitted to record and post lawful, non-offensive content related to your participation in an online or studio Class before and/or after a Class with the consent of each participant who is identified in your content.
Any violation of this non-recording agreement is grounds for exclusion from participation in any Classes. You further agree to indemnify, defend, and hold harmless Company, its officers, directors, members, managers, employees, agents, affiliates, representatives and each of their respective successors and assigns (each a “Releasee”, collectively “Releasees”) from and against any claims, lawsuits or other actions, and all resulting loss, damage, or cost of any kind (including reasonable attorneys’ fees), resulting from your violation of this non-recording agreement.
Membership and Class Packages: Members who purchase ANY membership (such as, but not limited to, unlimited memberships or future promotional programs) or Class packages are subjected to a penalty charge for either a late cancel or an absence should they not cancel their reservation within the allotted 6-hour window.
Personal Belongings: You agree that we are in no way responsible for the safekeeping of your personal belongings while you are present in the Company studio or any other Class venue. You assume all risk of loss for any of your personal belongings.
Free Classes: If you are coming in for a free class, please note that the cancellation policy and no show fees still apply. If you do not show up for Class, you will be charged the full price of a single Class.
CONSUMERS’ RIGHT TO CANCELLATION. YOU MAY CANCEL THE COMPANY AGREEMENT WITHOUT ANY PENALTY OR FURTHER OBLIGATION WITHIN THREE (3) BUSINESS DAYS FROM THIS DATE. For purposes of this Agreement, this date means the date of purchase. Your notice of cancellation must be in writing, signed by you, and mailed by registered or certified United States mail to: Harlem Cycle LLC, 2350 Adam Clayton Powell Jr Blvd, New York, NY 10030. Your notice of cancellation must be accompanied by the email you received from Company confirming your purchase. You will receive a refund within 15 business days of receipt of your notice of cancellation.
You may also cancel this contract for any of the following reasons:
All moneys paid pursuant to such contract cancelled for the reasons contained in this subdivision shall be refunded within fifteen days of receipt of such notice of cancellation; provided however that the Company may retain the expenses incurred and the portion of the total price representing the services used or completed, and further provided that the Company may demand the reasonable cost of goods and services which the buyer has consumed or wish to retain after cancellation of the contract. In no instance shall the Company demand more than the full contract price from the buyer. If the buyer has executed any credit or loan agreement to pay for all or part of health club services, any such negotiable instrument executed by the buyer shall also be returned within fifteen days.
COMPANY IS NOT LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER DAMAGES ARISING OUT OF OR RELATED TO THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SITES OR ANY CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SITES. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY OF THE ABOVE CLAIMS OR FOR DISPUTES AGAINST US OR ANY OF OUR AFFILIATES IS TO DISCONTINUE YOUR USE OF THE SITES. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO EXCLUDE OR LIMIT YOUR LIABILITY IN RESPECT OF ANY INDEMNITY GIVEN BY YOU UNDER THIS AGREEMENT.
VISITORS TO THE SITES AGREE THAT THEIR USE OF, AND RELIANCE ON ANY ADVICE OR INFORMATION OBTAINED FROM OR THROUGH, THE SITES IS AT THEIR OWN SOLE RISK. THE SITES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COMPANY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (i) ANY WARRANTIES CONCERNING THE ACCURACY, TIMELINESS, OR COMPLETENESS OF THE CONTENT OF THE SITES; AND (ii) ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT OR GUARANTEE: (1) THAT ANY PORTION OF THE SITES WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES, OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (2) THAT ACCESS TO THE SITES WILL BE UNINTERRUPTED OR ERROR-FREE.
In consideration of you being able to participate in Classes and have access to the Company’s fitness studios, or any premises, facilities, or other venues hosting Classes, whether online or outdoors (collectively, “Facilities”), and use machinery or equipment, including but not limited to indoor exercise bicycles (collectively, “Equipment”), provided by Company, you understand that if you purchase and participate in Classes, your purchase and participation must be in accordance with the terms set forth in Section 1, Section 2, and Section 3 specified herein, in which you expressly assume the risks of participation, waive liability, and agree to the policies and procedures as provided in Section 1, Section 2, and Section 3 herein. For the avoidance of doubt, the Assumption of Risk and Waiver of Liability set forth in Section 1 herein shall apply from and after the date hereof with respect to your participation in all Classes and your use of all Facilities and Equipment.
Section 1. Assumption of Risk and Waiver of Liability
Section 2. Policies and Procedures
Section 3. Special Assumption of Risk and Limitation of Liability During the Coronavirus/COVID-19 Pandemic
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this Agreement, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Company or its personal representatives, successors, and/or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. Unless otherwise agreed upon by the parties in writing, the arbitration will be conducted before one arbitrator and will be governed by the American Arbitration Association’s (AAA) Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes.
To the fullest extent permitted by applicable law, you and Company must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR COMPANY MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (4) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (5) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
We control and operate the Sites from our offices in the State of New York, United States of America. We do not represent that materials on the Sites are appropriate or available for use in other locations. Persons who choose to access the Sites from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
This Agreement is the entire agreement between you and Company with respect to the Sites, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Company with respect to those matters. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither party has any authority of any kind to bind the other in any respect.
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, the remainder of this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
If you have any questions about this Agreement, the practices of Company or its Services, or the Sites, please contact us at: email@example.com.