All sales by Athletes’ Performance, Inc. (“EXOS”) are made solely upon the following terms and conditions:
- YOU HEREBY REPRESENT AND WARRANT TO EXOS THAT YOU ARE A HEALTH OR FITNESS PROFESSIONAL, THAT YOU HAVE THE KNOWLEDGE AND EXPERIENCE TO USE INSTRUCTIONAL PRODUCTS IN A SAFE AND EFFECTIVE MANNER, AND THAT YOU WILL IN FACT USE SUCH INSTRUCTIONAL PRODUCTS ONLY IN AN SAFE AND EFFECTIVE MANNER. YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS EXOS AND ITS AFFILIATES FROM AND AGAINST ANY CLAIMS, DEMANDS, THREATS, SUITS OR PROCEEDINGS ARISING FROM OR IN CONNECTION WITH ANY BREACH OF THE FOREGOING WARRANTIES, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH ANY DAMAGE TO PERSONS OR PROPERTY.
- You hereby agree to pay the full price for Instructional Products by credit card according to the terms of this Contract. You further agree that such payment is a condition on acceptance of any order from you and delivery of the Instructional Products to you. EXOS may deliver the Instructional Products to you in tangible format on DVDS or other media, or via download from the Internet servers on which such Instructional Products are stored. In cases where EXOS delivers Instructional Products in tangible format, you agree to notify EXOS within ten (10) days of any damaged Instructional Products received by you, and in such case EXOS shall replace any such damaged Instructional Products promptly. In cases where EXOS delivers Instructional Products via download, you agree to provide all necessary information to EXOS to enable such download. Subject to the foregoing, all Instructional Products are deemed accepted by you upon delivery. All sales are final and you may not return Instructional Products for refund.
- You hereby agree that Instructional Products are the copyrighted material of EXOS or its licensors, and you shall take no action inconsistent with the rights of EXOS or its licensors with respect thereto.
- Delivery terms and prices for Instructional Products are subject to change without notice from EXOS. Any tax, excise or other charge imposed or levied by any governmental or taxing authority (other than on EXOS’s income) in respect of the Instructional Products shall be added to the purchase price hereunder and be paid by you.
- Either party may terminate this Contract for any reason or no reason upon notice to the other party. Your obligation to pay for any Instructional Products ordered by you, and your obligations to indemnify EXOS, shall survive any termination of this Contract. The parties understand and agree that EXOS has no obligation to accept any order from you.
- EXOS PROVIDES THE INSTRUCTIONAL PRODUCTS AND ALL DELIVERABLE ITEMS HEREUNDER ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXOS HEREBY DISCLAIMS ANY AND ALL WARRANTIES INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Some states do not allow certain limitations on warranties, so the above limitation may not apply to you.
- UNDER NO CIRCUMSTANCES SHALL EXOS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, WHETHER OR NOT EXOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED, WHETHER FROM NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR THE SALE, USE OR HANDLING OF THE INSTRUCTIONAL PRODUCTS. Some states do not allow certain limitations on damages, so the above limitation may not apply to you
- You may not assign this Contract in whole or in part without the prior, written consent of EXOS. Any purported assignment in derogation of the foregoing shall be void. EXOS may assign this Contract in whole or in in part upon notice.
- You agree that any dispute, controversy or claim arising out of, or relating to, this Contract or the Instructional Products shall be settled by confidential arbitration in Maricopa County, Arizona, in accordance with Commercial Arbitration Rules (including without limitation the Supplementary Procedures for Consumer-Related Disputes) of the American Arbitration Association’s (“AAA”) then in effect. A single arbitrator with knowledge of electronic commerce and the health and fitness industry will conduct the arbitration and that arbitrator may grant injunctions or other relief in such dispute or controversy. The parties will mutually agree upon such arbitrator, but if the parties have not agreed on an arbitrator within thirty (30) days of the date of the notice of intention to arbitrate, the AAA will select the arbitrator from its list of commercial arbitrators. The arbitrator will conduct a single hearing no longer than one (1) day in duration for the purpose of receiving evidence and will render a decision within fifteen (15) days after the conclusion of the hearing. The decision of the arbitrator will be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any State or Federal court. Although the cost of the arbitrator will be borne by EXOS, all other expenses of arbitration will be paid by the party who incurred them.
- This Contract and any Instructional Products provided hereunder will be governed by the laws of the State of Arizona, without regard to any laws that would direct the choice of another state’s laws and, where applicable, shall also be governed by the Federal laws of the United States. Subject to Section 10, you irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the Federal or State courts in the State of Arizona for any dispute or litigation arising out of, or relating to, the use or purchase of any Instructional Product from EXOS, and waive any objection to the laying of venue of any such litigation in the courts located in Maricopa County, Arizona and you agree not to claim that such litigation brought therein has been brought in an inconvenient forum.
- Any waiver of any rights by EXOS under this Contract must be in writing, signed by EXOS, and any such waiver shall not operate as a future waiver of any rights. In the event any portion of this Contract is found to be illegal or unenforceable, such portion shall be severed from this Contract, and the remaining terms shall be separately enforced. Your use of the Instructional Products shall at all times comply with all applicable laws, rules and regulations. This Contract is the entire agreement between the parties with respect to this subject matter, and supersedes any and all prior or contemporaneous or additional communications, negotiations or agreements with respect thereto. You will indemnify and hold EXOS and its affiliates harmless from any claim, demands, threats, suits or proceedings, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Contract, or your violation of any law or regulation, or the rights of any third party.
Copyright Athletes’ Performance, Inc. 2014 All Rights Reserved.
Version 1.0 March, 2014