TERMS OF USE AGREEMENT

Last updated: December 19, 2018.

 

CES Performance, Inc. (d/b/a Athlete Training and Health) is pleased to make our site located at https://athletetrainingandhealth.com available to you or otherwise view the Service. This Service allows: (a) you to register for training services; (b) view the information we make available about health and fitness; or (c) simply view this Service. We prepared this Agreement to help explain the terms that apply to your use of this Service. Please read this Agreement carefully before using the Service. You must read and agree this Agreement before using the Services.  If you do not agree to the terms of this Agreement, you may not use the Services.

Table of Contents

 

  1. Your Use of this Service and Affirmative Representations
  2. Rules Governing Contributions and Interactive Features
  3. Grant of License to Us for Contributions
  4. Use and Protection of User Name and Password
  5. Fees
  6. Our Intellectual Property Rights
  7. Our Management of this Service/User Misconduct
  8. Risk of Harm
  9. Term and Survival
  10. Modifications
  11. Third Party Services
  12. Disputes Between Users
  13. Disputes with Us, Choice of Law and Forum
  14. Disclaimers
  15. Limited Liability
  16. Liquidated Damages
  17. Indemnity
  18. Copyright Policy
  19. Miscellaneous

 

1. Your Use of this Service and Affirmative Representations.

 

When you use this Service, you represent that: (a) the information you submit is truthful and accurate; (b) you will update your contact information if it changes so that we can contact you; (c) your use of this Service and your use of services available on this Service do not violate any applicable law or regulation; (d) you are the age of majority under applicable law, and in all cases not under the age of 18; and (e) you will comply with the rules for making Contributions (as defined in Section 2 below) to this Service, as discussed in Section 2 below. You further represent and warrant that you will comply with all local rules regarding acceptable Contributions. If you are under the age of majority under applicable law, and in all cases under the age of 18, you may not use the Service.

2. Rules Governing Contributions and Interactive Features.

 

This Service may provide features that enable you to communicate with others or submit content. Please read our Privacy Policy, available at https://athletetrainingandhealth.com to understand your privacy protections. You are entirely responsible for the content of, and any harm resulting from, any of your submissions to this Service. When you create or make available a Contribution, you represent and warrant that you:

(a) own or have sufficient rights to submit your Contributions, on or through this Service;

(b) will not post Contributions that violate our or any other person’s privacy rights, publicity rights, intellectual property rights (including without limitation copyrights) or contract rights;

(c) have fully complied with any third-party licenses relating to Contributions, agree to pay all royalties, fees and any other monies owning any person by reason of Contributions that you posted to or through this Service;

(d) will not post Contributions that: (i) are defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable; (ii) incite, encourage or threaten immediate physical harm against another, including but not limited to, Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contain material that solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner;

(e) will not post Contributions that contain advertisements or solicit any person to buy or sell products or services (other than our services);

(f) will not use this Service for any unauthorized commercial or business-related purpose, including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, advertising or offering to sell products or services (whether or not for a profit), soliciting others (including solicitations for contributions or donations), or engaging in unauthorized framing of, or linking to, this Service without our express written consent;

(g) will not post Contributions that constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on our or others’ computers or equipment, designated to enable you or others to gather information about or monitor the on-line or other activities of another party;

(h) will not use any software or device that allows another person or entity to access, monitor or copy, any element of the Services using a robot, spider, scraper or other automated means or manual process;

(i) will not transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on this Service or the networks or services connected to this Service, including without limitation, hacking into this Service, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;

(j) will not impersonate any other person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;

(k) will not circumvent or disable any content protection system or digital rights management technology used with the Service; decompile, reverse engineer, disassemble or otherwise reduce the Service to a human-readable form; remove identification, copyright or other proprietary notices; or access or use the Service in an unlawful or unauthorized manner or in a manner that suggests an association with our products, services or brands; and

(l) will not use the Service in violation of United States export control and economic sanctions requirements.

3. Grant of License to Us for Contributions.

 

We do not claim any ownership right in the Contributions that you submit to our Service. After posting your Contributions on the Service, you continue to retain any rights you may have in your Contributions, including any intellectual property rights or other proprietary rights associated with your Contributions, subject to the license you grant to us below.

We need a license from you so that we can use your Contributions on this Service or elsewhere. By making a Contribution to this Service, you grant us a perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to us), fully-paid, royalty-free (meaning that we are not required to pay you to use your Contribution), sub-licensable (so that we can use affiliates, subcontractors and other partners such as wireless carriers and hosted service providers to make the Service available to you) and worldwide (because the Internet and this Service are global in reach) license to use, modify, create derivative works of, publicly perform, publicly display, reproduce and distribute the Contribution in connection with the Service, our business or the promotion thereof in any media formats and through any media channels now known or hereafter devised.

 

4. Use and Protection of User Name and Password.

 

You are responsible for maintaining the confidentiality of your user name and password, if applicable. You are responsible for all uses of your account, whether or not actually or expressly authorized by you.

 

5. Fees

 

Fees may apply for certain services as specified on the Site. Please see our site for more information about this.

 

6. Our Intellectual Property Rights.

 

All of the content on this Service, the copyrights, trademarks, service marks, and logos contained on this Service, are owned by or licensed to us and are subject to copyright, trademark and other intellectual property rights under United States and foreign laws and international conventions. The Service and Materials are for your information and personal use only and not for commercial exploitation. We reserve all rights not expressly granted in and to this Service and the Materials. If you download, print or otherwise copy the Materials for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the materials. You agree that you will not circumvent, disable or otherwise interfere with security related features of this Service or features that prevent or restrict use or copying of any Materials or enforce limitations on use of this Service or the Materials on this Service. You further agree not to access this Service by any means other than through the interface that we provide, unless otherwise specifically authorized by us in a separate written agreement.

 

7. Our Management of this Service/User Misconduct.

7.1 Our Service Management. We may, but are not required to: (a) monitor or review this Service for violations of this Agreement and for compliance with our policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates this Agreement; (c) refuse, restrict access to or the availability of, or remove or disable (to the extent technologically feasible) any Contribution or any portion thereof (i) that may violate this Agreement, the law or any of our policies or are excessive in size or burdensome without prior notice to you or (ii) upon receipt of court order to do so; and (d) manage this Service in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of this Service.

7.2 Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY DENY ACCESS TO AND USE OF THIS SERVICE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.

7.3 Risk of Harm. Please note that there are risks, including but not limited to the risk of physical harm, of dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you post on this Service and that you give to other Service users. You are discouraged from using your real name and image as your user name and profile photo on the App. You assume all risks associated with dealing with other users with whom you come in contact through this Service. We expect that you will use caution and common sense when using this Service.

 

8. Risk of Harm.

 

You are entirely responsible for determining whether it is safe for you or your child to participate in the training services offered by means of our site.

Carefully consider your and your child’s personal health conditions before participating in any training services, and consult your medical if you have any questions.

 

9. Term and Survival.

 

This Agreement shall remain in full force and effect while you use this Service. You may terminate your use or participation at any time, for any reason, by following the instructions here. Upon termination of your Service account for any reason, we will close your account, and you will no longer be able to retrieve materials contained in the account. Even after your use and participation is terminated, this Agreement will remain in effect, including sections: 1-9 and 11-19.

 

10. Modifications.

 

The Internet and technology are rapidly changing. Accordingly, we may modify this Agreement from time to time. We will contact you if we do so, which is why it is important that you notify us immediately if your email address changes. If you are a registered user, you will be asked to click to accept the new agreement the next time you log on to this Service in order to be able to use the interactive portions of this Service. We will also put any revised versions of this Agreement on this Service with a notice advising of the change. It is therefore important that you regularly check this Service for any announcements about revisions and keep your contact information current to ensure you are informed of any changes.

 

11. Third Party Services.

 

This Service may contain links to other websites. We do not own or operate the Third Party Services, and we have not reviewed, and cannot review, all of the material, including goods or services, made available through Third-Party Services. The availability of these links on this Service does not represent, warrant or imply that we endorse any Third Party Services or any materials, opinions, goods or services available on them. Third party materials accessed through or used by means of the Third Party Services may also be protected by copyright and other intellectual property laws. THIS AGREEMENT DOES NOT APPLY TO THIRD PARTY SERVICES. BEFORE VISITING A THIRD PARTY SERVICE BY MEANS OF THIS SERVICE OR A LINK LOCATED ON THIS SERVICE, USERS SHOULD REVIEW THE THIRD PARTY SERVICE’S TERMS AND CONDITIONS, PRIVACY POLICY AND ALL OTHER SERVICE DOCUMENTS, AND INFORM THEMSELVES OF THE REGULATIONS, POLICIES AND PRACTICES OF THESE THIRD PARTY SERVICES.

 

12. Disputes Between Users.

 

You are solely responsible for your conduct. You agree that we cannot be liable for any dispute that arises between you and any other user. If you have a dispute with one or more users, you release us from claims, demands, liabilities, costs, or expenses and damages (actual and consequential of every kind and nature, known and unknown, arising out of or in any way connected with such disputes). In entering into this release, you expressly waive any protections (whether statutory or otherwise) to the extent permitted by applicable law that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

 

13 Disputes with Us, Choice of Law and Forum.

 

YOU AND WE AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN Houston, texas. YOU AND WE FURTHER AGREE THAT ANY DISPUTES SHALL BE RESOLVED UNDER THE SUBSTANTIVE LAW OF THE STATE OF texas (EXCLUSIVE OF ITS CHOICE OF LAW PROVISIONS). THE CONVENTION FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY.

 

14. Disclaimers.

 

THE SERVICE, ALL CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS PROVIDED THROUGH SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING THIS SERVICE, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY CONTRIBUTIONS, CONSUMERS OR ANY OTHER MATERIALS OR ITEMS AVAILABLE ON OR LINKED TO BY THIS SERVICE, INCLUDING WITHOUT LIMITATION, CONTENT HOSTED ON THIRD PARTY SERVICES, OR THAT WE BELIEVE CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS TO BE ACCURATE, USEFUL OR NON-HARMFUL. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THIS SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THIS SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU AGREE THAT YOUR USE OF THIS SERVICE AND SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED IN CONNECTION WITH THIS SERVICE AND YOUR USE THEREOF.

 

WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THIS SERVICE’S CONTENT, THE CONTENT OF ANY SERVICE LINKED TO THIS SERVICE, CONTRIBUTIONS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THIS SERVICE OR LINKED TO BY THIS SERVICE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE OR SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THIS SERVICE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THIS SERVICE BY ANY THIRD PARTY, (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THIS SERVICE, OR (G) YOUR DECISION TO USE THE SERVICES.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

 

15. Limited Liability.

 

IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THIS SERVICE, CONTRIBUTIONS, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $250.00.

 

16. Liquidated Damages.

 

You acknowledge and agree that spam is harmful to a Service, service or network and causes injury, including damage to reputation and goodwill, which is difficult to measure. As a reasonable estimation of harm, you agree to pay us $50 for each unsolicited commercial email or other unsolicited commercial communication that you send from, to or through this Service.

 

17. Indemnity.

 

You agree to indemnify and hold us, our subsidiaries, affiliates, and licensors and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of this Service, Content or Materials in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above.

 

18. Copyright Policy.

 

If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have otherwise been violated, please refer to our DMCA Notice, and follow the instructions in the DMCA Notice for submitting a takedown request to us.

We will investigate the matter and, after such investigation and in our sole discretion, we will promptly remove any infringing content from the Site. Similarly, if you believe that any content on the Site violates any proprietary or other right of yours (other than your copyrights), please contact us using the contact information in the DMCA Notice and describe your concerns or complaint.

 

19. Miscellaneous.

19.1 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of this Service and supersedes any prior or contemporaneous understandings and agreements between you and us related to the subject matter hereof.

19.2 Independent Contractors. Nothing in this Agreement shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.

19.3 No Third Party Beneficiaries. This Agreement is between you and us. There are no third-party beneficiaries to this Agreement.

19.4 Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.

19.5 Non-Waiver. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision.

19.6 Severability. This Agreement operates to the fullest extent permissible by law. If any provision or part of a provision of this Agreement is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

19.7 Assignment. You may not assign your rights under this Agreement to any third party; we may assign our rights under this Agreement without condition.

19.8 Notice for California Users. Under California Civil Code Section 1789.3, California users of the Site are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.