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FIT RADIO

TERMS AND CONDITIONS OF USE

IMPORTANT! THESE TERMS AND CONDITIONS OF USE ("TERMS OF USE") ARE A LEGAL AGREEMENT THAT GOVERN YOUR USE OF FITRADIO.COM AND OTHER FIT RADIO PLATFORMS (DEFINED BELOW). BY ACCESSING OR USING FITRADIO.COM OR ANY FIT RADIO PLATFORM, YOU ARE INDICATING YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THESE TERMS OF USE.

Welcome to FIT Radio! FIT Radio is an online hosting service by FIT RADIO LLC, a Georgia limited liability company, which provides, at the discretion of its users, for the storage and sharing of online content, including music and other digital media. The FIT Radio services include the website www.fitradio.com, FIT Radio mobile applications, and related players, widgets, tools, software, social features, personalized content, and other applications, and any other services now known or later developed by FIT Radio (the "FIT Radio Platforms").

Your Acceptance

Agreement: By using the FIT Radio Platforms, you agree to abide by these Terms of Use, the FIT Radio Privacy Policy, and any additional terms, rules, regulations, or guidelines posted on the FIT Radio Platforms (all of which are incorporated herein and collectively referred to as, these "Terms of Use"). These documents are legally binding agreements between you and FIT Radio-please read them carefully. If you do not agree to these Terms of Use, please do not use the FIT Radio Platforms.

Authority and Age Restriction: You represent and warrant that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and that you are fully able and competent and otherwise possess the legal right and ability to enter into these Terms of Use and use the FIT Radio Platforms in accordance with these Terms of Use. In either case, you represent and warrant that you are at least 13 years of age. The FIT Radio Platforms are not intended for children under 13.

Changes to the Terms of Use: FIT Radio may, in its sole discretion, change the Terms of Use at any time, in which case FIT Radio will post the revised Terms of Use on the FIT Radio Platforms. By continuing to use the FIT Radio Platforms after FIT Radio posts any such changes, you accept the Terms of Use as modified.

Changes to the FIT Radio Platforms: FIT Radio may change, restrict access to, suspend or discontinue the FIT Radio Platforms, or any portion of the FIT Radio Platforms, at any time in its sole discretion. From time to time, FIT Radio may establish general practices, limits, or restrictions concerning the use of the FIT Radio Platforms and the posting of materials by users of the FIT Radio Platforms.

User Accounts

Accounts: To use the FIT Radio Platforms, you must be a registered user. You may register for either a Primary User or Secondary User account ("Accounts"). In general, and without restriction or limitation, Primary Users may upload and access content stored on the FIT Radio Platforms and Secondary Users, on either a free or premium basis, may access (but not upload) content stored on the FIT Radio Platforms. Click here for a description of the current features, including fees, associated with each type of Account. FIT Radio may add, remove, or change the features of any type of Account, may withdraw or introduce new types of Accounts at any time and for any reason, and may change the prices charged for any of its Accounts from time to time. In the event of any change(s) to the pricing or features of any Account to which you have subscribed, you will be notified of such change(s) and you will have a reasonable opportunity to modify, cancel, or renew your Account.

Fees and Payments: Certain features of the FIT Radio Platforms are only available to users who register and pay for a Primary User Account or premium Secondary User Account. Your payment will be charged at the time of registration, and then in advance at the beginning of every month thereafter unless you notify FIT Radio that you wish to terminate your Account. You may upgrade your Account at any time. If you wish to downgrade or terminate your Account, you may do so effective at the end of the last month for which you have paid. FIT Radio will charge fees due in accordance with the payment method you have chosen for your Account. If you are paying by credit or debit card, by designating a card to be billed, you confirm that you are authorized to make such purchase and that you are the holder of such card (i.e. that the card is issued in your name).

Registration and Personal Information: You agree to provide FIT Radio with accurate and complete information when you register for an Account, and you agree to update your information to keep it accurate and complete. Your Account will require a unique username and password. You are responsible for all activities that occur under your username and password. You should not provide your username and password to anyone and you have the obligation to protect your username and password from unauthorized use. You must immediately notify FIT Radio of any security breach of your Account. FIT Radio is not responsible for any losses arising out of the unauthorized use of your Account. Personal information you provide to FIT Radio when you create your Account is governed by FIT Radio's Privacy Policy. FIT Radio reserves the right to take steps it believes are reasonably necessary or appropriate to enforce and verify compliance with any part of these Terms of Use. You agree that FIT Radio has the right to disclose any Account information to law enforcement authorities, government officials, and third parties, as FIT Radio believes is reasonably necessary or appropriate to enforce and verify compliance with any part of these Terms of Use.

Termination: If you fail, or FIT Radio suspects that you have failed, to comply with any of the provisions of these Terms of Use, FIT Radio, in its sole discretion, without notice to you, may terminate your Account and disable or prohibit your access to the FIT Radio Platforms. You may terminate your Account at any time and FIT Radio will stop charging you fees for your Account effective on the first day of the month following its receipt of notice of termination from you. You will not receive a refund for any partial month. Once your Account has been terminated, FIT Radio will irretrievably delete any and all content residing in your Account or pertaining to activity from your Account.

Content on the FIT Radio Platforms

Content: All content used on and in the FIT Radio Platforms and the functionality thereof, including without limitation, the text, software, scripts, source code, graphics, photos, domain names, interactive features and the like, and the trade secrets, trademarks, trade names, service marks and logos contained therein ("Content"), are owned by or licensed to FIT Radio and are proprietary and protected by applicable intellectual property law. Except as explicitly permitted by the Terms of Use or the functionality of the FIT Radio Platforms, Content may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, modified, adapted, sideloaded, used in derivative works, or otherwise exploited for any other purposes whatsoever without FIT Radio's prior written consent. FIT Radio may change the Content on the FIT Radio Platforms without notice.

Third-Party Material: Certain Content on the FIT Radio Platform, in in particular, User Submissions (defined below), include content, products, resources, and services from third parties. FIT Radio may provide links, solicitations, advertisements, data, or information related to third parties and their materials. FIT Radio has no control over such third parties and their materials, and, as such, you agree that FIT Radio does not endorse and is not responsible or liable for any content, accuracy, quality, advertising, products, or other materials from such third parties. You agree that you assume full responsibility when you choose to access third party material or follow any links that lead you to third party websites.

Objectionable Material: You understand that by using the FIT Radio Platform, you may encounter material that you may deem to be offensive, indecent, or explicit. Nevertheless, you agree to use the FIT Radio Platform at your sole risk and you agree that FIT Radio has no liability to you for material that may be found to be offensive, indecent, or objectionable.

Use of FIT Radio Platforms

License for Your Use: Subject to these Terms of Use and only to the extent permitted by your Account and the functionality of the FIT Radio Platforms, you are granted a limited, personal, non-commercial, non-exclusive, revocable, non-assignable and non-transferable right to use the FIT Radio Platforms in order to access and interact with content on the FIT Radio Platform, upload or post User Submissions to the FIT Radio Platform, and participate in community areas and interact with other users of the FIT Radio Platform.

Restrictions on Your Use: You may not use FIT Radio for any illegal purpose or in any manner inconsistent with these Terms of Use. FIT Radio reserves the right to restrict or terminate your access to FIT Radio for any reason at any time, with or without notice to you, as determined by FIT Radio in its sole and absolute discretion. Without limitation you agree, represent, and/or warrant that:

  • You will use the FIT Radio Platforms only for personal, private, non-commercial purposes.
  • You shall not interfere with or damage the FIT Radio Platforms in any way whatsoever, including, but not limited to, by trespass, burdening network capacity, repeatedly posing the same or similar content, or uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.
  • You may not decompile, disassemble, reverse-engineer or otherwise attempt to discover any source code contained in or on the FIT Radio Platforms.
  • You agree not to tamper with or modify the FIT Radio Platforms in any manner and for any purpose including but not limited to obtaining unauthorized access to the FIT Radio Platforms.
  • You agree not to circumvent, disable or otherwise interfere with security related features of the FIT Radio Platforms or features that prevent or restrict use or copying of any Content or enforce limitations on use of the FIT Radio Platforms.
  • You agree not to obtain or attempt to obtain any materials or information though any means not intentionally made available through the FIT Radio Platforms.
  • You will not use any automated means, including bots, botnets, robots, spiders, scrapers, data mining tools, automated scripts, or the like to download, access, aggregate, repurpose, or otherwise make use of the Content for any purposes. Notwithstanding the foregoing, FIT Radio grants the operators of public search engines permission to use spiders to copy materials from FIT Radio Platforms for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. FIT Radio reserve the right to revoke these exceptions either generally or in specific cases.
  • You will not make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the FIT Radio Platforms.
  • You may not copy, re-skin, re-package, reproduce, recompile, distribute, publish, display, perform, or in any way exploit any part of the Content except as expressly permitted by the functionality of the FIT Radio Platforms;
  • You may not use any Content in any way that is designed to create a separate content service or that replicates any part of the FIT Radio Platforms.
  • You agree not to defame, harass, abuse, threaten, stalk, defraud, or attempt to collect personal information about FIT Radio or users of the FIT Radio Platform.
  • You agree to notify FIT Radio in writing promptly upon becoming aware of any unauthorized access or use of the FIT Radio Platforms by any party.

Linking: You may include links to FIT Radio Platforms provided that (1) you do not replicate the Content, (2) you do not imply that FIT Radio is endorsing or sponsoring your website or products, (3) you do not present false information about FIT Radio or FIT Radio Platforms, (4) your website does not contain illegal content or support, endorse, or encourage piracy or the unauthorized exploitation of intellectual property rights. Notwithstanding the foregoing, FIT Radio reserve the right to deny permission to link to FIT Radio Platforms for any reason in its sole and absolute discretion.

User Submissions

General: Subject to Account limitations and these Terms of Use, certain users of FIT Radio may upload and/or post to the FIT Radio Platforms digital media as may be permitted from time to time by the FIT Radio Platforms, which may include music, audio, text, photos, press kits, user profile information, ratings, commentary, and other digital content, data or information supplied by you and other users ("User Submissions"). By uploading or posting User Submissions, you acknowledge that FIT Radio will store User Submissions on its servers through an automatic process for use in the FIT Radio Platforms and that FIT Radio does not review, approve, or otherwise assist in the creation of User Submissions. You are solely responsible for your User Submissions and for the consequences of uploading or posting. You understand that FIT Radio does not guarantee any confidentiality with respect to any User Submissions. FIT Radio assumes no responsibility or liability for the deletion, corruption, or loss of any User Submissions or its failure to receive or store User Submissions for any reason, including, without limitation, malfunctioning of any network, hardware or software. Removal of User Submissions from your Account or profile will not automatically result in the deletion of the relevant files from FIT Radio's systems and servers. Once a User Submission is uploaded to the FIT Radio Platforms, FIT Radio is not obligated to ensure the deletion of the content from any servers or systems operated by FIT Radio, or to require that any user delete any specific material.

Rights: You retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to FIT Radio, you grant FIT Radio a worldwide, non-exclusive, royalty-free, sublicenseable, transferable, perpetual, and irrevocable license to use, reproduce, distribute, prepare derivative works of, display, and perform your User Submissions for any purpose whatsoever in connection with the FIT Radio Platforms, including without limitation for promoting and redistributing part or all of the FIT Radio Platforms (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the FIT Radio Platforms a non-exclusive license to access your User Submissions through the FIT Radio Platforms, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the FIT Radio Platforms and under these Terms of Use.

Representations and Warranties: In addition to the general restrictions on your use of the FIT Radio Platforms above, for each of your User Submissions and without limitation, you agree, represent, and/or warrant that:

  • Each of your User Submissions, and each and every part thereof, is an original work by you, or you have all of the full and necessary legal rights and authority, including but not limited to, copyrights, rights of attribution, rights to credit, neighboring rights, moral rights, or any other intellectual property or proprietary rights, in order to use and to authorize FIT Radio to use, or, where relevant, to grant FIT Radio the licenses in and to the content, pursuant to these Terms of Use, on behalf of yourself and any composers, publishers, authors, or other third parties.
  • Each of your User Submissions does not and will not infringe upon or violate the rights of an third party, including, without limitation, intellectual property rights, performers' rights, rights of privacy or publicity, or rights in confidential information.
  • You have obtained any and all necessary consents, permissions, licenses, and/or releases from any and all persons appearing in your User Submissions in order to include their name, voice, performance, composition, or likeness in the content and to publish and distribute the same on the FIT Radio Platforms.
  • FIT Radio is free to use your User Submissions in accordance with the terms of these Terms of Use and any such use of your User Submissions will not violate any laws or the rights of any person.
  • FIT Radio shall not be required to make any payments with respect to your User Submissions.

  • You hereby irrevocably and unconditionally waive any and all moral and like rights that you may have in your User Submissions and hereby agree not to make any claim based on such moral or like rights with respect to FIT Radio's use of your User Submissions in accordance with the terms of these Terms of Use.
  • You are solely responsible for all of your User Submissions posted, uploaded, published, made available or displayed through your Account, including any messages, and for your interactions with other users, and you shall be solely responsible for your User Submissions and the consequences of uploading or posting.
  • You will not use any bots, botnets, automated scripts or other automated or electronic means to artificially increase the play count, add followers, or otherwise to misrepresent the popularly of your User Submissions.
  • Your User Submissions do not contain falsehoods, misrepresentations, or deceptive matter that could damage the FIT Radio Platforms, FIT Radio, or any third party.
  • Your User Submissions do not contain material that is unlawful, obscene, patently offensive, defamatory, libelous, threatening, sexually explicit, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable in its reasonable discretion.
  • Your User Submissions do not contain any unsolicited or unauthorized advertising, promotional messages, mass email, spam or any other form of solicitation involving commercial activities and/or sales without FIT Radio's prior written consent such as contests, sweepstakes, advertising, or pyramid schemes.
  • Your User Submissions do not contain any virus, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which might overburden, impair or disrupt the FIT Radio Platforms or servers or networks forming part of, or connected to, the FIT Radio Platforms, or which does or might restrict or inhibit any other user's use and enjoyment of the FIT Radio Platforms.
  • Your User Submissions do not provide material support or resources (or conceals or disguises the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act or any other relevant statute, regulation, or policy.

Infringement and Repeat Infringer Policy: FIT Radio do not permit copyright infringing activities or infringement of intellectual property rights on the FIT Radio Platforms, and FIT Radio will remove all User Submissions if properly notified that such User Submission infringes on another's intellectual property rights. FIT Radio will also terminate a user's access to the FIT Radio Platforms, if FIT Radio determine, in its sole discretion, that the user is a repeat infringer. A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had a User Submission removed from the FIT Radio Platforms more than twice. FIT Radio also reserve the right to decide whether a User Submission is appropriate and complies with these Terms of Use for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornographic, obscene or defamatory material, or excessive length. FIT Radio may remove such User Submissions and/or terminate a user's access for uploading such material in violation of these Terms of Use at any time, without prior notice and at its sole discretion. FIT Radio reserves the right to monitor, investigate, and take appropriate action in its sole discretion against anyone who violates these Terms of Use.

DMCA Copyright Agent

Its DMCA Agent: If you are a copyright holder who believes that any of the products, services or Content which are directly available via the FIT Radio Platforms contains infringing copies of your work, please notify FIT Radio. Pursuant to The Digital Millennium Copyright Act, 17 United States Code 512(c)(3) ("DMCA"), a notice of alleged copyright infringement should be sent to FIT Radio's designated copyright agent at the following address ("FIT Radio's Agent"):

DMCA Agent

FIT Radio LLC

1080 Peachtree Street, Unit 2210

Atlanta, Georgia 30309

E-Mail: DMCA@FITRadio.com

DMCA Notification: A notification of claimed copyright infringement ("DMCA Notification") must be addressed to FIT Radio's Agent and must include the following:

  • A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of the copyright that is allegedly infringed;
  • Specific identification of each copyrighted work claimed to have been infringed;
  • A description of where the material believed to be infringed is located on the FIT Radio Platforms (please be as detailed as possible and provide a URL if possible to help FIT Radio locate the material you are reporting);
  • Contact information for the complaining party, including your complete name, address, telephone number, and email address;
  • A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of 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.

DMCA Counter Notification: The user who uploaded the material that is the subject of a DMCA Notification may file a counter notification. Counter-notifications should be sent to FIT Radio's Agent and must include the following:

  • A physical or electronic signature of the subscriber;
  • Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
  • A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
  • The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material was removed or disabled by mistake or misidentification may be subject to liability.

Once FIT Radio receives a counter notification, FIT Radio will forward it to the party who submitted the original claim of infringement. Please understand that your personal information will be included. You consent to having your information forwarded in this way by submitting a counter notification. After FIT Radio send the counter notification, the original claimant must notify FIT Radio within 10 days that they have filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the FIT Radio Platforms. If FIT Radio receives such notification FIT Radio will be unable to restore the material. If FIT Radio does not receive such notification, FIT Radio may reinstate the material in its sole discretion.

Disclaimer of Warranties

YOUR USE OF, OR INABILITY TO USE, THE FIT RADIO PLATFORMS IS AT YOUR SOLE RISK. THE FIT RADIO PLATFORMS ARE PROVIDED ON AN "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE" BASIS.

FIT RADIO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND IN CONNECTION WITH THE FIT RADIO PLATFORMS AND YOUR USE THEREOF, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

WITHOUT LIMITATION FIT RADIO MAKES NO REPRESENTATION OR WARRANTIES WITH RESPECT TO AND ASSUMES NO LIBILITY FOR (1) ERROR, MISTAKES, OR INACCURACIES OF CONTENT; (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE FIT RADIO PLATFORMS; (3) ANY UNAUTHORIZED ACCESS TO ITS USE OF ITS SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANICAL INFORMATION STORED THEREIN; (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE FIT RADIO PLATFORMS; (5) ANY BUGS, VIRUSES, TORGAN HORSES, OR THE LIKE WITH MAY BE TRANSMITTED TO ITS THROUGH THE FIT RADIO PLATFORMS BY ANY THIRD PARTY; (6) ANY ERROR OR OMISSION IN ANY CONTENT OR FORAN LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVALIABLE VIA THE FIT RADIO PLATFORMS.

FIT RADIO IS NOT RESPONSIBLE FOR EXAMINING OR EVALUATING THE CONTENT OR ACCURACY OF THE THIRD PARTY MATERIAL, INCLUDING USER SUBMISSIONS AND ADVERTISING, FOR ANY REASON WHATSOEVER. YOU AGREE THAT FIT RADIO WILL NOT BE LIABLE FOR YOUR RELIANCE ON, ACCESS TO, USE OF, OR DOWNLOADING OF MATERIAL AVAILABLE FROM, BY, OR THROUGH A THIRD PARTY.

Limitation of Liability

IN NO CASE SHALL FIT RADIO, ITS PARENT ENTITY, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, AGENTS, CONTRACTORS, LICENSEES, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL; DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FIT RADIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE USE OR THE INABILITY TO USE THE SERVICE; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR ACCOUNT; ANY ERRORS OR OMISSIONS IN ANY CONTENT; STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR ANY OTHER MATTER RELATING TO THE SERVICE, FIT RADIO, AND CONTENT.

FIT RADIO SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE FIT RADIO PLATFORMS, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND FIT RADIO HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.

IN NO EVENT WILL THE AGGREGATE OF EACH OF FIT RADIO, ITS PARENT ENTITY, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, LICENSEES, AND LICENSORS' LIABILITY FOR ANY AND ALL OF YOUR CLAIMS, OR ANY THIRD PARTY CLAIMS, AGAINST FIT RADIO, ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, THE PERFORMANCE OR NONPERFORMANCE PURSUANT TO THESE TERMS OF USE OR BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF FIT RADIO, OR YOUR ACCESS TO OR USE OF OR INABILITY TO USE THE SERVICE, EXCEED THE PRICE PAID BY YOU TO FIT RADIO FOR THE MOST RECENT SIX MONTHS OF SERVICE IMMEDIATELY PRIOR TO THE SPECIFIC EVENT WHICH GAVE RISE TO THE APPLICABLE DAMAGE OR LOSS. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN ARE A FUNDAMENTAL ELEMENT OF THESE TERMS.

Indemnity and Waiver

You agree to indemnify and hold FIT Radio, its parent entity, subsidiaries, affiliates, directors, officers, employees, agents, contractors, licensees, and licensors harmless with respect to any claims, costs, demands, liabilities, judgments, settlements, and expenses (including attorneys' fees) arising out of your breach of these Terms of Use, your use of the FIT Radio platforms, your violation of any third party right, including without limitation any copyright, property, or privacy right, any claim that your User Submissions caused damage to a third party, or any action taken by FIT Radio as part of its investigation of a suspected violation of these terms of use or as a result of its finding or decision that a violation of these terms of use has occurred. This means that you cannot sue or recover any damages from FIT Radio, its parent entity, directors, officers, employees, affiliates, subsidiaries, agents, contractors, licensees, and licensors as a result of its decision or indecision to remove any information or content, to warn you, to suspend or terminate your access to the service, to take any action, or the failure to take any action, including but not limited to during the investigation of a suspected violation or as a result of FIT Radio's conclusion that a violation of these terms of use has occurred.

Miscellaneous

Sole Remedy: Your sole remedy as a result of any breach or alleged breach of the Terms of Use is limited to your ability to cancel any agreement you entered into with FIT Radio. By entering these Terms of Use, you waive any and all claims you may have against FIT Radio, its officers, directors, employees, contracts, agents, suppliers, and programmers, which currently exist or accrue anytime hereafter.

Dispute Resolution: You agree to provide FIT Radio with written notice of any dispute, claim, or controversy, of any sort or nature, arising out of the use of FIT Radio or the FIT Radio Platforms, within 30 days after any such claim, dispute, or controversy arises. You must provide written notice via certified mail, return receipt requested, to:

FIT Radio LLC

1080 Peachtree Street, Unit 2210

Atlanta, Georgia 30309

Any failure to strictly follow the procedures delineated in this section shall constitute an unconditional waiver of any dispute, claims, or controversy that may exist or you may have against FIT Radio, its affiliates, subsidiaries, parent entity, licensors, licensees, officers, directors, employees, contracts, agents, suppliers, and programmers. You agree to pay FIT Radio's reasonable attorneys' fees for defending a lawsuit in which the dispute resolution procedure, as defined in this paragraph, has not been strictly followed.

Disputes With Other Users: If there is a dispute between persons who are users of FIT Radio Platforms, or between a FIT Radio Platform user and any third party, you understand and agree that FIT Radio are under no obligation to become involved in any respect. In the event that you have a dispute with one or more other FIT Radio Platform users, you release FIT Radio and, its officers, employees, agents, representatives and successors from any and all claims, demands and damages of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the FIT Radio Platforms.

Arbitration: Any and all questions, differences, controversies, claims, or disputes arising out of or in connection with the FIT Radio Platforms or these Terms of Use shall be finally settled in accordance with the rules then enforced of the CPR Institute Rules for Non-Administered Arbitration of Business Disputes (the "CPR Rules") by three (3) independent and impartial arbitrators. Any judgment upon any award rendered by the arbitrators may be entered in any state or federal court located in Fulton County, Georgia. The party desiring arbitration shall so notify the other party, in writing, in accordance with the aforesaid rules and such notice shall be accompanied by the name of the arbitrator selected by the party serving such notice. A second arbitrator shall be chosen by the other party, and the third arbitrator, who shall serve as the chair of the arbitration panel, shall be appointed in accordance with the CPR Rules. If a party fails to select an arbitrator and to advise the other party of its selection, in writing, within seven (7) days after receipt by such party of the written notice of intent to arbitrate, the second arbitrator will be selected in accordance with the CPR Rules. All arbitration proceedings and hearings shall be held in Atlanta, Georgia in the United States. Arbitration is the sole exclusive remedy of the parties of any controversy hereunder, and this arbitration clause shall be construed in accordance with the laws of the State of Georgia in the United States., without reference to choice of law principles, and shall be deemed to be a mandatory submission to arbitration under the provisions of said laws. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs and reasonably attorney's fees.

Controlling Law: The FIT Radio Platforms are operated by FIT Radio from its offices in Atlanta, Georgia in the United States. The validity, construction, and performance of these Terms of Use shall be governed by and construed in accordance with the laws of the State of Georgia, without reference to choice of law principles. Access to the FIT Radio Platforms from territories where access to or use thereof illegal is strictly prohibited. FIT Radio makes no representation that the FIT Radio Platforms are appropriate or available outside of the United States. Those who access or use the FIT Radio Platforms from other jurisdictions do so at their own volition and are responsible for compliance with local law. You expressly agree that exclusive jurisdiction for any claim or dispute with Fit Radio, the Terms of Use, or relating in any way to your use of the FIT Radio Platforms resides in the federal and state courts located in Fulton County, Georgia. You agree to and consent to jurisdiction and venue in the Superior Court of Fulton County. You agree to waive any defense pertaining to jurisdiction and venue. In the event any provision hereof shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of these Terms of Use shall remain in full force and effect.

General: These Terms of Use constitute the entire agreement between you and FIT Radio with respect to your use of the FIT Radio Platforms, and replaces and supersedes all other agreements or understandings between you and FIT Radio. Failure by FIT Radio to enforce any provision of these Terms of Use shall not be construed as a waiver of any provision or right. Nothing in these Terms of Use shall be deemed to confer any third-party rights or benefits. These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by FIT Radio without restriction. If any provision of these Terms of Use, or any portion thereof, is held to be invalid and unenforceable, then the remainder of these Terms of Use shall nevertheless remain in full force and effect.

Dated: December 14, 2011