Terms and Conditions
1. Description of Service
Tream GmbH, its affiliates and/or third party information providers (hereinafter collectively referred to as “TREAM”, “WE”, “US” or “OUR”) offers a website at www.tream.com related to fitness, training, working out, dancing, other physical activities and healthy lifestyle featuring videos and still images from external trainers and other third parties presenting or engaging in said activities (hereinafter collectively referred to as “SERVICE”) to private users.
2. Prerequisite of Use of the Service
2.1.
These Terms and Conditions of Use provide the legal framework for using the SERVICE so please read the following Terms and Conditions of Use carefully before using any portion of the SERVICE. Your use of the SERVICE is subject to, and constitutes acceptance of, the conditions included in this notice.
2.2.
TREAM owns and operates the SERVICE and is making it available to you upon these Terms and Conditions of Use and subject to OUR Privacy Policy. These Terms and Conditions of Use constitute a binding agreement. By directly or indirectly using the SERVICE or any services provided in connection with the SERVICE you accept and agree to abide by these Terms and Conditions of Use, as well as OUR Privacy Policy. You must not use the SERVICE if you do not accept and abide by these Terms and Conditions of Use and OUR Privacy Policy.
2.3.
The SERVICE is provided by TREAM for the convenience of its visitors to the SERVICE. Nothing contained within the SERVICE shall be construed as an offer to form a binding contract, or as a grant of any license or transfer of any intellectual property.
2.4.
The SERVICE is available only for use of those individuals that are 18 years of age or older. If you are under 18 years old, you must not use the SERVICE. By using the SERVICE you represent and warrant that you are at least 18 years of age.
2.5.
Unless the SERVICE is used as a registered TRAINER, as defined in these Terms and Conditions of Use, the SERVICE is only available to private customers, for their private use, and not for any commercial use. If you intend to use the SERVICE for any other purpose than as a registered TRAINER or for private use, you must not use the SERVICE. By using the SERVICE you represent and warrant that you either intend to use it and register as a TRAINER or are a private customer.
3. Privacy Policy
TREAM is committed to and respects your privacy and therefore permits you to control the treatment of your personal information. A complete statement of OUR Privacy Policy can be found on the website. OUR Privacy Policy is expressly incorporated into these Terms and Conditions of Use by this reference.
4. Medical Disclaimer
4.1.
You understand that exercise may be a risk to your physical health and safety and, potentially, your life, if not done properly. You further understand that TREAM recommends that you consult a physician prior to using any equipment, engaging in any exercise program or activity, or undertaking any food or diet program, whether or not such program is featured within the SERVICE or otherwise presented by TREAM. You further understand that neither the SERVICE nor the advice or endorsement of any TREAM personnel is a substitute for medical advice.
4.2.
You acknowledge that you have had the prior opportunity to, and/or have consulted a physician before entering into this Agreement.
4.3.
By using the SERVICE and any affiliated websites or software, you agree to hold TREAM, its principals, officers, directors, owners, members, employees, agents, information providers, affiliates, partners, agents, assigns, subsidiaries, licensors, licensees and business partners (hereinafter collectively referred to as “AFFILIATES”) harmless for any action, suit, claim, loss, injury or damage arising from your use of the SERVICE, its links or any goods or services purchased, subscribed to or obtained hereunder, your use or misuse of gym equipment, execution of exercise techniques or for any damage or injury that occurs pursuant to any information received on the SERVICE, or by any other means now used or later developed by TREAM or its AFFILIATES.
5. Types of Services
TREAM offers three types of usage of the SERVICE:
(a)
The free usage of certain features of the SERVICE without registration and subscription
(b)
The paid usage of certain features of the SERVICE only accessible to registered users who have bought a subscription
(c)
The use of the SERVICE as a TRAINER, as stipulated by these Terms and Conditions of Use
6. General Conditions for Use of the Service
6.1.
TREAM grants to the user permission to access and use the SERVICE as set forth in these Terms and Conditions of Use subject to the fulfilment, at any time, of the user’s representations and warranties to TREAM as follows:
(a)
The user has the capacity and authority to agree to these Terms and Conditions of Use and to perform any acts required on the part of the user hereunder.
(b)
All user and other information provided by the user to TREAM is accurate and will be kept current by the user at all times.
(c)
The user will comply with all applicable laws and regulations in using the SERVICE and any content of the SERVICE.
(d)
The user will not use the SERVICE in any illegal manner or for any illegal purpose, in any other manner that could damage, disable, overburden or impair the Service, or in any manner inconsistent with these TOS.
(e)
The user will not defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others.
(f)
The user will not publish, post, upload, email, distribute, or disseminate to or through the SERVICE (collectively, “TRANSMIT”) any inappropriate, profane, libelous, defamatory, infringing, obscene, indecent, or unlawful content or any false or misleading statements.
(g)
The user will not restrict or inhibit any other user from using and enjoying any public area within the SERVICE.
(h)
The user will not impersonate any person or entity, including, but not limited to, a TRAINER or an AFFILIATE of TREAM, or falsely state or otherwise misrepresent its affiliation with another person or entity.
(i)
The user will not forge headers or manipulate identifiers or other data in order to disguise the origin of any content TRANSMITTED through the SERVICE or to manipulate your presence on the SERVICE.
(j)
The user will not use the SERVICE for any commercial purpose, other than as a TRAINER, as stipulated in these Terms and Conditions of Use.
(k)
The user will not advertise or offer to sell any goods or services for any commercial purpose unless TREAM has given its written consent to do so.
(l)
The user will not TRANSMIT surveys, contests, pyramid schemes, spam, unsolicited or unlawful advertising or promotional materials, or chain letters.
(m)
The user will not to access the SERVICE by any means other than through the interface that is provided by TREAM for use in accessing the SERVICE.
(n)
The user will not TRANSMIT files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person’s computer, the SERVICE, any software or hardware, or telecommunications equipment.
(o)
The user will not download any file that he knows or reasonably should know cannot be legally obtained in such manner, falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of software or other material.
(p)
The user will not use any automated system, software, or device to generate or send unsolicited communications to, from, through or on behalf of the SERVICE.
(q)
The user will not collect personally identifiable information, including without limitation account names and email addresses, from the SERVICE.
(r)
The user will not use any automated system, software, or device or manual means for collecting any statistic or other data, content or information, even if it does not contain any personal information, from the SERVICE.
(s)
The user will not defeat or interfere with any security feature of the SERVICE and will not interfere with or disrupt the SERVICE, or attempt to do so.
(t)
The user will not alter or modify any content or component of the SERVICE.
(u)
The user will not reproduce, duplicate, copy, sell, trade, resell or exploit, for any commercial purpose, any content or any component of the SERVICE, or any use of or any access to the SERVICE, without the prior written permission of TREAM.
6.2.
If you choose a username that, in OUR sole discretion, is obscene, indecent, abusive or that might otherwise subject US to public disparagement or scorn, WE reserve the right, without prior notice to you, to automatically change your username, delete your posts from the SERVICE, deny you access to the SERVICE, or any combination of these options.
6.3.
Unauthorized access to the SERVICE is a breach of these Terms and Conditions of Use and a violation of the law.
6.4.
WE have the right, but not the obligation, to take any of the following actions in OUR sole discretion at any time and for any reason without giving you any prior notice:
(a)
Restrict, suspend, or terminate your access to all or any part of the SERVICE;
(b)
Change, suspend, or discontinue all or any part of the SERVICE;
(c)
Refuse, move, or remove any material that you submit to the SERVICE for any reason;
(d)
Refuse, move, or remove any content that is available on the SERVICE;
(e)
Deactivate or delete your accounts and all related information and files in your account;
(f)
Establish general practices and limits concerning use of the SERVICE.
You agree that TREAM will not be liable to you or any third party for you taking any of these actions.
7. Subscription Based Services
7.1.
Some of the services provided within the SERVICE may require you to register a user account and pay a subscription fee, as described in the specific conditions included where those services are offered.
7.2.
Unless otherwise noted, all currency references are in U.S. dollars and all fees quoted on the SERVICE include the value added tax (VAT) applicable in your country.
7.3.
WE may, upon notice if required by applicable laws, at any time change the amount of, or basis for determining, any fee or charge, or institute new fees or charges.
7.4.
You agree to pay all fees and charges that you incur. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable.
7.5.
To the extent TREAM incurs any fees as it relates to chargebacks on your account, WE reserve the right to pass these fees on to you. All charges and/or fees are final and non-refundable, unless specifically determined and authorized by TREAM.
8.1.
Users may create an account on the SERVICE as a “trainer” (hereinafter referred to as a “TRAINER”) and receive access to features and properties of the SERVICE reserved for such “trainers”.
8.2.
The SERVICE provides the TRAINERS with the ability to upload user content to the SERVICE for commercial purposes. TRAINERS may upload to the SERVICE:
(a)
text descriptions of themselves and their work and content in the “About” section;
(b)
still images with text descriptions; and
(c)
videos with text descriptions (hereinafter collectively referred to as “TRAINER CONTENT”).
8.3.
When submitting still images or video TRAINER CONTENT, the TRAINER must specify if such content shall either be:
(a)
free to watch by all users of the SERVICE; or
(b)
shall be premium content only available as part of the subscription based services (hereinafter collectively referred to as “PREMIUM TRAINER CONTENT”).
The specification made by the TRAINER when uploading shall be final and cannot be changed later.
8.4.
TRAINERS shall receive a remuneration for uploading still image and video PREMIUM TRAINER CONTENT. The amount of the remuneration is calculated by TREAM using a confidential algorithm and shall correspond to the overall revenue generated by the SERVICE from subscription based services minus a profit share retained by TREAM. The algorithm may be changed by TREAM from time to time without the TRAINER’s consent, but will, in any event, consider success metrics achieved by the respective TRAINER, such as active followers, and its PREMIUM TRAINER CONTENT, including video views and recommendations. The TRAINER shall not be entitled to disclosure of the algorithm and the exact calculation of the remuneration, which shall remain TREAM’s exclusive business secret.
8.5.
Remuneration will begin to accumulate once PREMIUM TRAINER CONTENT has been uploaded to the SERVICE. TRAINERS will be notified by TREAM on a monthly basis of the net amount of remuneration available for payout, provided it exceeds a total balance of 50 (fifty) U.S. dollars. TRAINERS must submit a tax invoice to TREAM, including value added tax (VAT), if applicable, using the submitting function of the SERVICE. All payment processing is handled by the third party payment processing company BrainTree. Payments issued to TRAINERS will take approximately 10-15 (ten to fifteen) days and are only made in U.S. dollars.
8.6.
TRAINER CONTENT uploaded through the SERVICE will generally be made public. The TRAINER consents to the public dissemination of all TRAINER CONTENT the TRAINER submits through the SERVICE for the time period ending 30 (thirty) days after the TRAINER has canceled his status as a TRAINER. The TRAINER understands that once made public TRAINER CONTENT will be in the public domain and cannot be made private again, even after TREAM takes down the TRAINER CONTENT from the SERVICE after cancellation of the status as a TRAINER. The TRAINER understands and agrees that TRAINER CONTENT the TRAINER communicates using the SERVICE may be recorded, stored, copied and/or retransmitted by TREAM.
8.7.
The TRAINER acknowledges that it is solely responsible for the TRAINER CONTENT that the TRAINER posts, publishes, uploads, displays or otherwise communicates through the SERVICE and for the consequences of posting, publishing, uploading or displaying any TRAINER CONTENT.
8.8.
The TRAINER agrees that it will not use the SERVICE to post, transmit, or share TRAINER CONTENT that the TRAINER did not create or that the TRAINER does not have permission to use, share and publish through the SERVICE. The TRAINER confirms that it has all intellectual property rights (including without limitation copyright and trademark rights), licenses, and permissions that are needed to use, post, publish, upload or display on the SERVICE and to authorize TREAM to use the TRAINER CONTENT the TRAINER provides in the manner described in these Terms and conditions of Use. By submitting, uploading or posting TRAINER CONTENT, the TRAINER warrants that it does not infringe upon any intellectual property rights of another person.
8.9.
The TRAINER herewith grants US and OUR AFFILIATES a perpetual, worldwide, irrevocable, royalty-free, nonexclusive, sub-licensable license to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish the respective TRAINER CONTENT and subsequent versions of the respective TRAINER CONTENT for the purposes of:
(a)
displaying the TRAINER CONTENT on the SERVICE;
(b)
distributing the TRAINER CONTENT, either electronically or via other media, to users seeking to download or otherwise acquire it; and/or
(c)
storing the TRAINER CONTENT in a remote database accessible by end users, for a charge. This license shall apply to the distribution and the storage of the TRAINER CONTENT in any form, medium, or technology now known or later developed.
8.10.
It is the sole responsibility of the TRAINERS, not TREAM, to control, manage, protect, and enforce their own TRAINER CONTENT. All customer comments, complaints, concerns, inquiries, or questions should be directed to the TRAINERS directly, and not to, or through, TREAM.
8.11.
TREAM does not confirm any of the TRAINER’s purported identities and properties, including their holding of any particular education, licenses and concessions. All users of the SERVICE are solely responsible for determining the identity and suitability of the TRAINERS you contact through your use of the Service. TREAM further makes no representations, offers no assurances, and does not investigate any of the TRAINER’s backgrounds, capabilities, certificates, professionalism, legal compliance, morality, character, actions, or demeanor and you hereby acknowledge that you assume the risk of any encounter or interaction with such persons. WE encourage all users to communicate with the TRAINERS personally and conduct independent research as necessary prior to any encounter or interactions.
9. Content of the Service
9.1.
The SERVICE includes a combination of content that WE create, of content that OUR AFFILIATES or partners create, and of TRAINER CONTENT. All materials published on the SERVICE other than TRAINER CONTENT, including, but not limited to, written content, photographs, graphics, images, illustrations, marks, logos, sound or video clips, and Flash animation, are protected by OUR copyrights or trademarks or those of OUR AFFILIATES.
9.2.
TREAM and/or its AFFILIATES own or have obtained valid license to all of the information on the SERVICE, and you do not acquire any ownership rights by accessing, downloading or printing any of the information contained herein.
9.3.
Information on the SERVICE may be accessed, downloaded and printed for your personal, non-commercial home use only. TREAM does not transfer either the title or intellectual property rights to any of the images, files or accompanying data, and TREAM retains full and complete title and intellectual property rights of all of its collective data on the SERVICE. If you are a company user, you may not access, download and print information on the SERVICE.
9.4.
If you download or print information from the SERVICE:
(a)
you must retain all copyright and other proprietarynotices on all copies of the downloaded or printed information; and
(b)
you may not modify the information, or reproduce, publicly display, distribute or otherwise use the information for any public or commercial purpose.
9.5.
The use of any information from the SERVICE on any other website or networked computer environment (including for purposes of embedding or establishing a link to the SERVICE) is prohibited and TREAM expressly reserves the right to disable any unauthorized use of information or links to the SERVICE by such third party.
9.6.
Nothing on the SERVICE should be construed to grant any license or right in or to any trademarks, logos or other intellectual property rights. All rights are reserved by the owners of each trademark, service mark, logo, or other intellectual property, except as otherwise described in these Terms and Conditions of Use.
9.7.
TREAM does not grant you any express or implied right under any patents, trademarks, copyrights, or trade secret information, other than the limited right to access, download and print information as described above.
9.8.
The content on the SERVICE includes, among other things, product reviews, white papers, stock quotes and health information. It also includes information about products and services offered by parties other than TREAM, such as product descriptions, specifications, pricing, availability, and performance. WE do not guarantee the accuracy, the integrity, or the quality of the content on the SERVICE, and you may not rely on any of this content. Without limitation, WE are not responsible for any postings by TRAINERS and other users within the SERVICE.
9.9.
You may be exposed to content on the SERVICE that you find offensive, indecent, or objectionable or that is inaccurate or not suitable for you and your level of physical fitness, but you bear all risks associated with using that content. WE have the right, but not the obligation, to remove, without prejudice, any content that may, in OUR sole discretion, violate these Terms and Conditions of Use or that is otherwise objectionable.
10.1.
As a convenience to you, WE may provide links on the SERVICE operated by other entities, including the TRAINERS and OUR AFFILIATES. These sites are beyond OUR control, and these other sites may have practices or policies that are different from those described in these Terms and Conditions of Use or OUR Privacy Policy. TREAM and its AFFILIATES make no representations or warranties regarding these other websites or any information appearing on such sites. In addition, links from such sites do not imply that TREAM or its AFFILIATES sponsor or endorse these other sites or any of the products or services described therein.
10.2.
WE do not sell, resell, or license any of the products or the services that WE or TRAINERS review, list, or advertise on the SERVICE, and WE disclaim any responsibility for or liability related to them. Your correspondence or related activities with TRAINERS and other third parties, including payment transactions and goods-delivery transactions, are solely between you and that third party. You agree that WE will not be responsible or liable for any loss or damage of any sort incurred as the result of any of your transactions with third parties. Any questions, complaints, or claims related to any product or service should be directed to the appropriate vendor.
10.3.
You acknowledge that TREAM has not reviewed and does not endorse the content of all sites linked to from the SERVICE and is not responsible for the content or actions of any other sites linked to from the SERVICE. Linking to any other service or site from the SERVICE, thus, is done at your sole risk.
11. Indemnification
You hereby agree to indemnify, defend and hold TREAM and all of its AFFILIATES as well as all other users of the SERVICE harmless from and against any and all liability, losses, costs, and expenses (including attorneys’ fees) incurred by TREAM or any AFFILIATE in connection with any claim, including, but not limited to, claims against you for defamation, violation of rights of publicity and/or privacy, copyright infringement, or trademark infringement.
12. Submissions by You
12.1.
WE request that you not send US any unsolicited confidential or proprietary information, including trade secrets, ideas, concepts or know-how owned by yourself of any third party.
12.2.
If, despite OUR request, you or someone acting on your behalf furnishes US with unsolicited information, you acknowledge that TREAM will be under no obligation to treat such information confidentially and TREAM and its AFFILIATES will have a perpetual, unrestricted, irrevocable, worldwide, royalty-free license to use, reproduce, display, transmit and distribute such information, including for commercial purposes.
13. Warranties and Disclaimers
13.1.
The SERVICE and its content are distributed on an “as is, as available” basis. Any material that you download or otherwise obtain through the SERVICE is at your own discretion and risk and you will be solely responsible for any damages (including, without limitation, any lost profits, business interruption, loss of information or programs or other data) to your computer system that results from your download of any such material or from the use of, or the inability to use, the material and functions of the SERVICE.
13.2.
Neither WE nor any of our AFFILIATES make any warranty, either express or implied, including, without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose, as to the content on the SERVICE, its accuracy and completeness, and the reliability of any advice, opinion, statement or other information displayed or distributed through the SERVICE, including by TRAINERS. Any reliance on such advice, opinion, statement or other information will be at your sole risk.
13.3.
WE and our AFFILIATES also make no warranty, either express or implied, that:
(a)
the SERVICE will meet your requirements;
(b)
the SERVICE will be uninterrupted, timely, secure or error free;
(c)
the results that may be obtained from the use of the SERVICE will be accurate, reliable, satisfactory or suitable for any particular purpose;
(d)
the quality of any products, services, information or other material that you purchase or obtain through the SERVICE will meet your expectations; and
(e)
any errors will be corrected.
13.4.
You expressly agree that you will assume the entire risk as to the quality and the performance of the SERVICE and the accuracy and completeness of its content.
13.5.
Some countries do not allow the exclusion of certain warranties or the limitation of liability. Therefore, the above-described exclusions and limitations may not apply to you. In such countries, our liability and that of our AFFILIATES shall be limited to the greatest extent permitted by applicable laws.
14. Term and Termination
14.1.
Any subscription shall run for the period selected by you when making the subscription or at any time thereafter. After the initial term, the subscription to the respective subscription based part of the SERVICE will be extended by a subscription period of the same length as the initial period, unless amended by you or terminated in due time by you or TREAM.
14.2.
You may terminate the subscription at any time without cause. You may deliver notice of termination using the contact form available through the SERVICE at any time.
14.3.
TREAM may, in its sole discretion, terminate your subscription and your access to the SERVICE in general, delete any information that you have placed in your account, and/or prohibit you from using the SERVICE, at any time, with or without notice, and for any reason, including but not limited to violation of these Terms and Conditions of Use.
15. Applicable Law
The SERVICE generally can be accessed online from all countries around the world. Each of those countries has laws that may differ from those of Hong Kong, where TREAM is registered. By accessing the SERVICE, you and TREAM agree that the laws of Hong Kong, without regard to its conflicts of laws principles, will exclusively apply to all disputes based on, arising out of, or relating to your use of the SERVICE or any information it contains.
16. Digital Millennium Copyright Act
16.1.
TREAM respects the intellectual property rights of others and in an attempt to comply with all relevant laws has certain legally mandated procedures regarding the allegations of copyright infringement that may occur on the SERVICE. TREAM’s policy is to investigate any allegations of copyright infringement brought to its attention.
16.2.
Our designation agent under the Digital Millennium Copyright Act (the “ACT”) for the receipt of any notification of claimed infringement, which may be given under the ACT is as follows:
16.3.
If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated by the SERVICE and you want TREAM to delete, edit, or disable the material in question, you must provide TREAM with all of the following information:
(a)
a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
(b)
identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(c)
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit TREAM to locate the material;
(d)
information reasonably sufficient to permit TREAM to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted;
(e)
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
(f)
a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
17. Dated Information
The information presented on the SERVICE is or was current as of the “Effective Date” shown below. While TREAM may periodically update or correct information presented on the SERVICE, such information may include typographical errors and/or technical inaccuracies and/or omissions. TREAM makes no representation or warranty as to the accuracy of any information at the SERVICE and expressly disclaims any obligation to update such information. TREAM also reserves the right to make additions, deletions or modifications to any information at any time and from time to time without any prior notice.
18. Changes
TREAM reserves the right, in its sole but reasonable discretion, to amend or modify these Terms and Conditions of Use and OUR Privacy Policy from time to time without notice to you. Such amendment shall be effective beginning on the date it is posted and any amended dispute resolution terms shall not apply to any dispute of which the parties had actual notice prior to the date of the amendment. Your continued use of the SERVICE following the posting of such amendment will mean that you accept these Terms and Conditions of Use and OUR Privacy Policy, as amended.
19. Miscellaneous
19.1.
OUR failure to exercise or enforce any right or provision of these Terms and Conditions of Use shall not constitute a waiver of such right or provision.
19.2.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the SERVICE or these Terms and Conditions of Use must be submitted or filed within six (6) months after such claim or cause of action arose or be forever barred.
19.3.
These Terms and Conditions of Use, including all terms, conditions, and policies that are incorporated into these terms by reference, constitute the entire agreement between you and TREAM and govern your use of the SERVICE, superseding any prior understandings or agreements, oral or written, that you may have with US.
19.4.
TREAM operates the SERVICE from its offices within Hong Kong. TREAM makes no representation that materials on site are appropriate or available for use in other locations. If you access the SERVICE from outside of Hong Kong, you are responsible for compliance of such access with all local laws.
19.5.
If any provision of these Terms and Conditions of Use or OUR Privacy Policy is determined to be unlawful, void or for any reason unenforceable, then that provision will be deemed severable from these Terms and Conditions of Use or OUR Privacy Policy and will not affect the validity and enforceability of any remaining provisions.
Effective Date: February 1st, 2019