Welcome to the Athletes’ Performance, Inc., a Delaware entity (“API”) Website (the “Website”), a website available via the Internet to the general public. This Website provides, among other information and data, access to API's training, fitness and nutrition content. The Website and its contents and related services are owned by API and/or its affiliates and licensors.
You acknowledge that API may, from time to time, and in its sole discretion and without notification to You, modify this AUP. Your access and/or use of this Website indicates Your agreement to be governed by this AUP. It is Your responsibility to apprise Yourself of any such revision 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.
API is the provider of access to a Website containing customized sports and conditioning training and nutrition advice in addition to details related to our various product offerings. API has created the Website to provide Users with online access to this information. The 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.
API makes no guarantees regarding the availability of the Website or the Services (including the availability of any given Service). API 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 it sees fit, including but not limited to, the price for Services, descriptions, and other e-commerce related information and/or functionality. You agree that API will not be liable to You for any such discontinuance or modification of the Website or the Services.
D. Authorized Use
API grants You a limited license to access and make personal use of the Website for purposes and uses that are legal and that are otherwise permitted by this AUP. 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 API. This license does not include and specifically prohibits any resale or commercial use of this site or its contents (except for Your purchase of goods and/or 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) violates or infringes in any way upon the rights of others, including intellectual property rights; and/or (ii) that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate 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 AUP.
Any unauthorized use terminates the permission or license granted by API in relation to the Website immediately.
E. Linking (To & From) the Website; Advertisers
1. Linked-To Sites
API 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 API 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 API 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; (c) the goods or services offered via these third-party sites.
Accordingly, User acknowledges and agrees that API 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. API does not have an obligation to assess or guarantee the accuracy or appropriateness of the communications or postings, even if API elects, in its sole discretion, to do so or to attempt to do so from time to time. You agree not to send communications or make postings that infringe upon or breach another party’s intellectual property rights, contract rights or other rights. You agree not to send inappropriate communications or make inappropriate postings, including, but not limited to, communications and postings that are obscene, defamatory, threatening, harassing, abusive, hateful, or embarrassing to another user or any other person or entity, sexually-explicit, solicitations of business, chain letters or pyramid schemes. API 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 webpages
H. Disclaimer of Warranties; Limitation Of Liability
1. Warranties Disclaimed
NEITHER API NOR ANY OF ITS SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OFFICERS, DIRECTORS, 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 API NOR ANY OF ITS SERVICE PROVIDERS, INFORMATION PROVIDERS, LICENSORS, EMPLOYEES, OFFICERS, DIRECTORS, 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 SERVICES, OR (C) ARISING IN ANY WAY FROM OR RELATING TO YOUR PURCHASE OF API PRODUCTS (OR ANY OTHER PRODUCTS) 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, API SHALL HAVE NO LIABILITY FOR UNAUTHORIZED THIRD-PARTY ACCESS TO OR 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 API 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 API 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.
I. Health Disclaimer
This Website provides sports training, physical training, fitness, nutrition and other information, applications, and content published over the Internet and is intended only to assist users in their personal physical fitness, nutrition and sports efforts. API 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. The information and reports generated by API 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. The 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 API, its directors, officers, 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, to the extent that such action is based upon a claim that: (i) if true, 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 negligence, willful misconduct, or other breach of this Agreement.
In the event that one or more of the words, phrases, sentences, clauses, sections, subdivisions or subparagraphs contained herein shall be held invalid, this Agreement 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 Agreement sets forth and contains the entire agreement with regard to the matters set forth herein between You and API. There are no promises, terms, conditions, or obligations other than those contained herein. This Agreement supersedes all previous communications, representations, or agreements, either verbal or written, between and among the parties with respect to the subject matter hereof (API Website access and use).
M. Choice Of Law
This Agreement, and any disputes arising from, relating to, or touching upon the Agreement and/or the subject-matter hereof, shall be construed under and governed by the law of the State of New York. 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 been formed, entered into, executed, and/or given/communicated in the State of Massachusetts.
N. Venue; Personal Jurisdiction; Service of Process
Any action at law, suit in equity, or other judicial proceeding concerning, relating to, or touching upon in any way this Agreement or the subject-matter hereof, shall be brought or commenced, if at all, only in the courts of Massachusetts. By accessing and using the Website, You (and any person or entity on whose behalf you act) hereby submit to personal jurisdiction in Massachusetts in any action by or against You and waive and release now and forever any defense to that assertion of jurisdiction that might otherwise exist. 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 AUP 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 Agreement 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 API 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 API Website are subject to United States copyright laws. API 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 API and the copyright owner, if other than API. 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 AUP), any trademarks or content found on the Website.
R. Copyright Complaints
API respects the intellectual property of others – and expects others to respect API’s intellectual property. If you believe that your work has been copied or otherwise appears on this API 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 contact address set forth below.
Please direct all inquiries and other communications relating to the Website and/or the Services to:
600 Cordwainer Drive
Norwell, MA 02061
or contact us online at http://www.athletesperformance.com/about/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, API 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 AUP; and/or (2) take actions that API believes may result in legal liability for You, for API, or for other Website users. API 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
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.
This policy addresses what Personal Information (defined below) is and how API uses Personal Information that API collects from this Website and may otherwise receive from You. Personal Information is information about You that is personally identifiable (such as Your name, physical address, email address, phone number, etc).
B. Information Collection and Use
API does not rent, sell, or share Personal Information about You with other people or companies except to provide or offer services You have requested, when API has Your permission, or under the following circumstances: (i) API responds to subpoenas, court orders, or other legal process, or to establish or exercise its legal rights or defend against legal claims; (ii) API believes it is necessary to share information, including Personal Information, in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of the API policies or these terms and conditions, or as otherwise required by law; (iii) API outsources certain services or functions related to this Website and the disclosure of Your Personal Information is necessary for API to provide the services related to this Website; or (iv) API transfers Your Personal Information to its successor in interest related to the sale of its business or this Website or a merger.
C. Confidentiality and Security
i. API uses commercially reasonable protections to safeguard Your Personal Information. These measures are intended to protect against the loss, misuse, or alteration of the information under our control; however, API cannot guarantee that our security measures will prevent parties (such as “hackers” or other bad actors) from illegally obtaining or misusing Personal Information.
ii. Although API takes reasonable security measures to protect Your Personal Information, API must interact with third party servers and systems (for example, to support Your requests, provide services, and process Your transactions). API strives to work with only reputable third party vendors to provide those services, yet API is not responsible for any acts or omissions of third party vendors.
D. Registration and Password
To access some of the content, information, and services at the Website, You may be required to register by providing certain information and creating a user name and password to access (or log in). You are responsible for maintaining the confidentiality of Your user name and password. You shall be responsible for all uses of Your user name(s) and password(s). You agree to immediately notify API of any unauthorized use of Your user name(s) and/or password(s).
E. Public Forums, Indemnification, Release & Content License From You
Any information that You disclose in public areas of this Website (or, of course, the Internet in general) may become public information. You should exercise caution when deciding to disclose personal information in such areas. Any and all information posted or contributed to any element of the Website may be used by API in any manner, and the act of contributing information or other content constitutes a perpetual, royalty free, worldwide license for API (and its affiliates and successors) to use, reproduce, distribute, perform, display and make derivative works from such information and content. By submitting content or information to this Website, You represent and warrant that such information and content does not infringe upon or violate any person’s or company’s rights, and You agree to indemnify, defend and hold harmless API, its affiliates, officers, directors, employees and contractors for any damages or liability that arise out of or related to Your contribution of content or information. You promise not to sue or make a claim against API or its affiliates, officers, directors, employees or contractors and You hereby waive any and all claims against such parties for any liability or damages arising out of or related to the acts or omissions of other users or contributors to this Website.
F. Cookies; Pixel Tracking
ii. In addition to using Cookies, the Website may employ “pixel tracking”, a common process which may be used in connection with advertisements on other sites. Pixel tracking involves the use of pixel tags that are not visible to the user and consist of a few lines of computer code. Pixel tracking measures the effectiveness of advertisements and compiles aggregate and specific usage statistics. A “pixel tag” is an invisible tag placed on certain pages of websites that is used to track an individual user’s activity. We may access these pixel tags to identify activity and interests that may allow us to better match our goods, services, and other offers with Your interests and needs. For example, if You visit our Website from an advertisement on another website, the pixel tag will allow the advertiser to track that its advertisement brought You to the Website. If You visit our Website, and we link You to another website, we may also be able to determine that You were sent to and/or transacted with a third party website. This data is collected for use in our marketing and research.