UPDATED: MAY 21, 2013
Welcome to our website, a website available via the Internet to the general public (the “Website”). This Website provides certain information and content relating to Athletes’ Performance, Inc. (“API”) or its affiliates’ business and may include access to wellness, training, fitness and nutrition information and content. The Website and its information and contents and related services are owned by either API or its affiliate (as applicable to a specific entity, “Company”). These are the terms and conditions that govern your (“You”, “Your” or “User”) use of the Website.
By accessing and/or using the Website, or otherwise availing Yourself of the services and information and content offered through the Website, You agree to be bound by this Terms of Service (hereinafter “TOS”) in effect at the time of each such access or other use of the Website. This TOS applies to You and all other users of this Website, regardless of whether they are members or merely visitors, and applies to any and all entities or persons on whose behalf any User acts.
You acknowledge that Company may, from time to time, and in its sole discretion and without notification to You, modify this TOS. Your access and/or use of this Website indicates Your agreement to be governed by this TOS. It is Your responsibility to apprise Yourself of any revisions or modifications each time you visit or use the Website. If You do not so agree, You are not authorized to access or use the Website in any manner.
Company is the provider of access to the Website, which may contain customized sports and conditioning training, wellness and nutrition advice in addition to details related to our various product and service offerings. Company has created the Website to provide Users with online access to this information, products and services. The products, services, features and information that a User may avail himself/herself of via the Website are collectively referred to as the “Services.”
II. TERMS AND CONDITIONS
A. USER TO PROVIDE INTERNET ACCESS
In order to access the Website and/or use the Services, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, You must provide all equipment necessary to make such connection to the World Wide Web.
B. WEBSITE INTENDED FOR ADULTS
Unless you have express permission from your parent(s) and/or guardian, You must be 18 years old or older to access, purchase from, or otherwise use any Services via the Website. No one under 13 years old is permitted to use or access the Website.
Company makes no guarantees regarding the availability of the Website or the Services (including the availability of any specific Services). Company reserves the right, in its sole discretion, to discontinue the Website or Services and/or modify the contents of the Website or the terms of the Services as Company sees fit, including but not limited to, the price for Services, descriptions, and other e-commerce related information and/or functionality. You agree that Company will not be liable to You for any such discontinuance or modification of the Website or the Services.
D. AUTHORIZED USE & PASSWORDS
Company grants You a limited license to access and make personal use of the Website for purposes and uses that are legal and that are permitted by this TOS. Other than page caching and/or podcasts, You are not authorized to download or modify the Website or any portion of it, except with express, prior written consent of Company. This license does not include and specifically prohibits any resale or commercial use of this site or its contents (except for Your purchase of Services); any derivative use of this site or its contents; any downloading or copying of account information for the benefit of another person or merchant; or any use of data mining, robots, or similar data gathering and extraction tools. You may not post or transmit through the Website any material that (i) infringes, misappropriates or otherwise violates the rights of any person or entity, including intellectual property rights; and/or (ii) that is unlawful, threatening, harassing, hateful, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, or embarrassing to another user or any other person or entity, sexually-explicit, or is otherwise objectionable in Company’s sole discretion, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violates any law, or which contains advertising or any solicitation with respect to products or services. You are also prohibited from using the Website in any way that restricts or inhibits any other Website user from using or enjoying the Website consistent with the letter and intent of this TOS. Any unauthorized use terminates the permission or license granted by Company in relation to the Website immediately. If applicable, You are responsible for maintaining the confidentiality of Your account and password and for restricting access to Your computer, and You agree to accept responsibility for all activities that occur under Your account or password. You agree to immediately notify us of any unauthorized use of Your account or any other breach of security of which You become aware. Company reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
E. LINKING (TO & FROM) THE WEBSITE; ADVERTISERS
1. LINKED-TO SITES
Company may, from time to time, provide via the Website, links to other websites or resources and/or advertisements or other such promotional materials for third-parties. Because Company has no control over the content of linked-to sites or the quality of the goods or services offered via these linked-to sites, User acknowledges and agrees that Company is not responsible for and in no way guarantees or endorses: (a) the availability of linked-to sites or resources; (b) the accuracy, value, or completeness of any content available at or through the linked-to sites; or (c) the goods or services offered via these third-party sites.
Accordingly, User acknowledges and agrees that Company shall not be responsible or liable to User in any manner, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on the content of any linked-to Websites and/or the quality of any goods or services offered by or through any linked-to third-party site.
G. PROHIBITION AGAINST HARMFUL TRANSMISSIONS & APPROPRIATE USE OF WEBSITE
You, as a User, agree You are responsible for all of your communications and postings, including, but not limited to, comments, commentary, suggestions, resumes, job postings and otherwise (“User Content”). You agree that You will not upload, post, e-mail, or otherwise transmit to the Website or to any other User any messages, programs, or other materials (including, but not limited to, Trojan Horses, viruses, worms, and the like) that contain software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or telecommunications equipment or collect or mine information about this site or other users. Company does not have an obligation to assess or guarantee the accuracy or appropriateness of the communications or postings, even if Company elects, in its sole discretion, to do so or to attempt to do so from time to time. Company is not responsible for any User Content or actions or omissions in response to User Content.
You may not, and You agree that You will not, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Website. You may not violate or attempt to violate the security of the Website, including, without limitation, unauthorized access of data; circumventing authentication mechanisms; or interfering with the Website in any way. You may not use any engine, software, tool, agent or other device or mechanism (including but not limited to, browsers, spiders, avatars or BOTs/intelligent agents) to navigate or search the Website other than as provided through the Website and/or a standard third party browser (e.g., Firefox, Safari, Chrome, Internet Explorer). You may not “frame” this Website or display the Website’s content through any other URL or in conjunction with another company name or trademark. You shall not copy the HTML code that the Company creates to generate its webpage.
H. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; RISK OF LOSS
1. WARRANTIES DISCLAIMED
NEITHER COMPANY NOR ANY OF ITS SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, ASSIGNEES, OR AGENTS WARRANT THAT THE SERVICES OR THE INFORMATION PROVIDED VIA THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS IS EXPRESSLY SET FORTH ELSEWHERE HEREIN, THE SERVICES ARE MADE AVAILABLE “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR OTHERWISE, ALL SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED. TO THE EXTENT ALLOWED BY LAW, NEITHER COMPANY NOR ANY OF ITS SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, ASSIGNEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES SUFFERED BY YOU OR ANY OTHER PARTY ARISING OUT OF OR RELATED TO (A) YOUR USE OF THE WEBSITE OR SERVICES, (B) THE OPERATION OR MALFUNCTION OF THE WEBSITE OR SERVICES, OR (C) YOUR PURCHASE OF SERVICES (OR ANY OTHER PRODUCTS OR SERVICES) VIA THE WEBSITE, AND, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AS TO (A) THROUGH (C).
2. LIMITATION OF LIABILITY
TO THE EXTENT ALLOWED BY LAW, COMPANY SHALL HAVE NO LIABILITY FOR UNAUTHORIZED THIRD-PARTY ACCESS FOR ALTERATION, THEFT OR DESTRUCTION OF ANY INFORMATION CONTAINED AT THE WEBSITE THROUGH ACCIDENT OR THROUGH FRAUDULENT OR WRONGFUL MEANS OR DEVICES. IN ANY EVENT, THE LIABILITY OF COMPANY TO YOU OR ANY OTHER USER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO AND SHALL IN NO EVENT EXCEED THE SUM OF THE GREATER OF ONE-HUNDRED DOLLARS ($100.00) OR, IN THE EVENT THAT YOUR DISPUTE OR CLAIM ARISES FROM YOUR PURCHASE OF SERVICES VIA THE INTERNET, THE COST OF SUCH DISPUTED SERVICES (I.E., THE AMOUNT YOU PAID TO COMPANY FOR SUCH SERVICES). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, NON-INFRINGEMENT, AND OTHER CAUSES OF ACTION OR ALLEGATIONS.
NOTE: SOME JURISDICTIONS EITHER DO NOT ALLOW OR OTHERWISE LIMIT THE PERMISSIBLE SCOPE OF DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THE TWO PRECEDING PARAGRAPHS. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING THEREIN MAY NOT APPLY TO YOU.
3. RISK OF LOSS, RETURNS & REFUNDS
Some Services purchased from the Website are made pursuant to a shipment contract. The risk of loss and title for such Services passes to You upon delivery to Company’s carrier. Company does not take title to any returned items until the item arrives at our fulfillment center. Company may, in its sole discretion, issue a refund without requiring a return.
I. HEALTH DISCLAIMER
This Website may provide sports training, wellness, physical training, fitness, nutrition and other related information, applications, and content. If so, then it is intended only to assist users in their personal training, wellness, physical fitness, nutrition and sports efforts. Company is not a medical organization and cannot – and does not – give You medical advice or a medical diagnosis. Nothing contained in this Website should be construed as medical advice or a medical diagnosis. Any information and reports generated by Company should not be interpreted as a substitute for physician consultation, evaluation, treatment, or good sense and personal judgment about one’s own condition.
The risk of injury from participation in a fitness regimen and/or from the performance of any exercise is significant, including the potential for catastrophic injury or death. You should and must consult a medical professional before undertaking any fitness regimen or exercise program, including any exercises or techniques set forth or described on this Website. Any text, pictures, and description set forth in this Website is for educational purposes only (e.g., the information illustrates and explains various fitness-related and exercise techniques) and does NOT advise that You or any other particular Website user undertake or perform any particular technique or exercise. You agree that You will not undertake or perform any exercise or technique described in this Website until and unless You consult with and are cleared by a medical doctor in relation to such participation.
The Website is not intended for use by minors, pregnant women, or individuals with any type of health condition and/or health problem. As are all Users, such individuals are specifically warned to seek professional medical advice prior to initiating any form of sports training, physical training, or exercise regimen.
You agree to indemnify, defend, and hold harmless It, its directors, officers, members, employees, assignees, and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including, without limitation, reasonable attorneys’ fees and costs, to the extent that such action is based upon a claim that: (i) would constitute a breach of any of Your representations, warranties, or agreements hereunder; (ii) arises out of or relates to Your use of the Website; and/or (iii) arises out of Your acts or omissions.
In the event that one or more of the words, phrases, sentences, clauses, sections, subdivisions or subparagraphs contained herein shall be held invalid, this TOS shall be construed as if such invalid portion had not been inserted. In the event that any invalid language is severed under this paragraph, the severed language shall be comprised of the smallest unit possible such that the severance of the unit results in a valid provision (e.g., a single item in a list will be severed rather than the entire list, a clause will be severed rather than the entire sentence, etc.).
L. ENTIRE AGREEMENT
This TOS sets forth and contains the entire agreement with regard to the matters set forth herein between You and Company. There are no promises, terms, conditions, or obligations other than those contained herein. This TOS supersedes all previous communications, representations, or agreements, either verbal or written, between and among the parties with respect to the subject matter hereof.
M. CHOICE OF LAW
This TOS, and any disputes arising from, relating to, or touching upon the TOS and/or the subject-matter hereof, shall be construed under and governed by the law of the State of Arizona. All contracts resulting from or relating to this Website, including Member Agreements, as well as all information and advice provided herein, shall be deemed to have been formed, entered into, executed, and/or given/communicated in the State of Arizona.
N. VENUE; PERSONAL JURISDICTION; SERVICE OF PROCESS
Any dispute arising out of, concerning, or relating to this TOS or the subject-matter hereof, shall exclusively be brought, if at all, only in the courts located in Phoenix, Arizona. By accessing and using the Website, You (and any person or entity on whose behalf you act) hereby agree and consent to the exclusive jurisdiction and venue of any state or federal court located in Phoenix, Arizona and You hereby waive and release now and forever any defense to that assertion of jurisdiction, including lack of personal jurisdiction and forum non-conveniens. You (and any person or entity on whose behalf you act) agree to service of process for any claim arising out of or related to this TOS via a national private carrier (e.g., FedEx, UPS), and hereby waive personal service.
O. HEADINGS FOR CONVENIENCE ONLY
The headings used herein are for convenience only. The headings do not purport to define, limit, or extend the scope or intent of the language of the sections and the paragraphs to which they pertain.
The waiver by one party of a breach of any provision of this TOS by the other party shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision by the other party. The failure of a party at any time to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same.
Q. MARKS & MATERIAL
The Website contains copyrighted material, trademarks and other proprietary information which may include text, software, photos, video, graphics, music and sound. The entire contents of the Website are copyrighted by Company and are subject to United States and international copyright laws. Company owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. Except as otherwise expressly permitted under copyright law or expressly allowed herein, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of Company and the copyright owner, if other than Company. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. You acknowledge that You do not acquire any such ownership rights by downloading copyrighted material or otherwise using the Website. Without the owner’s prior written permission, You agree not to display or use in any manner (other than as set forth in this TOS), any trademarks or content found on the Website.
R. COPYRIGHT COMPLAINTS
Company respects the intellectual property of others – and expects others to respect Company’s intellectual property. If you believe that your work has been copied or otherwise appears on this Website in a way that constitutes copyright infringement, please notify us immediately in writing (via certified mail, return receipt requested, or via overnight delivery service) at the following address:
2629 E. Rose Garden Lane
Phoenix, AZ 85050
Please direct all inquiries and other communications relating to the Website and/or the Services to:
2629 E. Rose Garden Lane
Phoenix, AZ 85050
Or contact us at http://www.teamexos.com/contact-us.
T. LOCAL LAWS
You warrant and agree that Your access to and use of the Website is in compliance with the laws governing such access, use, and related conduct in Your geographic region.
U. PROHIBITED CONDUCT
Use of the Website or the corresponding Services for any use or reason other than the intended and permissible uses described or implied herein is expressly prohibited. Any such misuse may constitute violation of state and federal civil and criminal laws and may result in civil and/or criminal prosecution.
Furthermore, without limiting other remedies, Company may immediately issue a warning and/or temporarily or indefinitely suspend or terminate Your privilege to use and access the Website if You: (1) breach this TOS; and/or (2) take actions that Company believes may result in legal liability for You, for It, or for other Website users. Company reserves the right to deny access to the Website and/or any elements of the Website to any person at any time and for any reason, as allowed by law.
V. ADDITIONAL E-COMMERCE PROVISIONS
If the Website includes e-commerce functions, the following terms and conditions shall apply. Company attempts to be as accurate as possible. However, Company does not warrant that the descriptions of the Services or other content of any Service is accurate, complete, reliable, current, or error-free. If any Service offered by Company itself is not as described, your sole remedy is to return it in unused condition. All features, content, specifications, products and prices of Services described or depicted on this Website are subject to change at any time without notice. Company cannot confirm the price of any Services until You order. Despite our best efforts, a small number of the items in our catalog of Services may be mispriced. If the correct price of an item sold is higher than the stated price, Company will, at Company’s discretion, either contact You for instructions before shipping or cancel Your order and notify You of such cancellation. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. Company makes all reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color You see will depend on your computer system, and Company cannot guarantee that Your computer will accurately display such colors. The inclusion of any Services on this Website at a particular time does not imply or warrant that these Services will be available at any time. By placing an order, You represent that the Services ordered will be used only in a lawful manner. All videocassettes, DVDs and similar products sold are for private, home use (where no admission fee is charged), non-public performance and may not be duplicated. While it is Company’s practice to confirm orders by email, the receipt of an email order confirmation does not constitute Company’s acceptance of an order or Company’s confirmation of an offer to sell a Service. We reserve the right, without prior notice, to limit the order quantity on any Services and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
IF YOU DO NOT AGREE TO THE TERMS SET FORTH ABOVE, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE WEBSITE IN ANY WAY – AND ARE, THEREBY, PROHIBITED FROM ACCESSING THIS SITE. YOU MUST EXIT THE WEBSITE IMMEDIATELY.