Welcome to The Athletico! This website located at www.theathletico.com (this "Site") is owned and operated by The Athletico, (the “Company”). The Athletico provides website features and other products and services to you when you visit, shop or purchase items from this Site, access this Site from your mobile devices, or use software provided by The Athletico in connection with any of the foregoing (collectively, “The Athletico Services”). The Athletico provides its products and services subject to these Terms of Service.
By using the The Athletico Services, you agree to these conditions. Please ready them carefully.
By accessing or using this Site, mobile application or other The Athletico product or service on any computer, mobile phone, tablet, console or other device (collectively, “Device”), you acknowledge and agree that you have read, understand and agree to be bound by these Terms of Service and any other applicable law, whether or not you are a registered member of The Athletico. You must be at least 18 years old to use this Site or Services. The Athletico may change these Terms of Service at any time without notice. When we make changes, we will post them here. Your continued use of the The Athletico Services or enrollment as a The Athletico Member shall be considered your acceptance to the revised Terms of Service. If you do not agree to these Terms of Service, please do not use this Site or any The Athletico Services and immediately cancel your The Athletico Membership by contacting one of our customer service representatives at email@example.com.
When you use any The Athletico Service, or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Site or through the other The Athletico Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
THE ATHLETICO MEMBERSHIP
THE ATHLETICO LIMITATION OF LIABILITY
JFGC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PURCHASES INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT THAT A MEMBERSHIP CREDIT OR GIFT CARD IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH MEMBERSHIP CREDIT OR GIFT CARD. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.
To make purchases through the The Athletico Services or to become a The Athletico Member you must submit credit card information. You represent and warrant to The Athletico that such information is true and that you are authorized to use the payment instrument. You will promptly update your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You authorize The Athletico to use any updated credit card information submitted by your credit card company directly to The Athletico. If you dispute any charges, you must inform The Athletico within thirty (30) days upon receipt of The Athletico’ invoice. We reserve the right to change The Athletico prices, fees or the number of Member Credits required to purchase items. Your continued use of the The Athletico Services after the price change becomes effective constitutes your agreement to pay the changed amount.
ACCOUNT CONFIDENTIALITY AND ACCESS
You are solely responsible for maintaining the confidentiality of your Account, all activities occurring under your Account and all access to and use of the The Athletico Services by anyone using your Account, whether or not such activities and access are actually authorized by you, including but not limited to all communications, transactions and obligations. You agree to accept responsibility for all activities that occur under your account. The Athletico shall not be liable or responsible for any loss or damage arising from any unauthorized use, access or any other breach of security of your Account, including but not limited to your member sign-in password and email address. You acknowledge and accept that your use of the The Athletico Services is in compliance with these Terms of Service. You further acknowledge and accept that The Athletico shall have no obligation to investigate the authorization or source of any Account activity, including purchase activity following a proper log-in to this Site or any Services, which is defined as a matching and current member sign-in and user password. You shall notify The Athletico immediately of any unauthorized access to your Account or any other unauthorized use of any The Athletico Services.
You agree that The Athletico may, without prior notice, immediately terminate, limit your access to or suspend your Account based on any of the following: (a) breach or violation of these Terms of Service; (b) upon request by law enforcement; (c) unforeseeable technical or security issues or problems; (d) extended periods of inactivity; or (e) fraudulent, deceptive or illegal activity, or any other activity which The Athletico believes is harmful to its business interests; or (f) for no reason. You agree that any termination, limitation of access and/or suspension shall be made in the The Athletico’ sole discretion and that The Athletico shall not be liable to you or any third party for the termination, limitation of access and/or suspension of your Account.
Any and all The Athletico Services may be used only for lawful purposes and are available only for your personal, noncommercial use, which shall be limited to viewing this Site, purchasing products, providing information to The Athletico, and downloading product information for your personal review. You are responsible for your own communications, including the transmission, posting, and uploading of information and are responsible for the consequences of such communications. The Athletico specifically prohibits any use of the The Athletico Service, and requires all users to agree not to use the The Athletico Services, for any of the following:
• Posting any information which is incomplete, false, inaccurate or not your own;
• Creating multiple accounts for the same user;
• Accessing data not intended for you or logging on to a The Athletico server or account, which you are not authorized to access;
• Engaging in conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation that would fail to comply with accepted Internet protocol;
• Communicating, transmitting, or posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
• Communicating, transmitting, or posting material that reveals trade secrets, unless you own them or have the permission of the owner;
• Communicating, transmitting, or posting material that infringes on any other intellectual property, privacy or publicity right of another;
• Communicating, transmitting, or transferring (by any means) information or software derived from the site to foreign countries or certain foreign nations in violation of any applicable export control laws;
• Attempting to interfere in any way with this Site’s network security, or attempting to use this Site’s service to gain unauthorized access to any other computer system;
• Communicating, transmitting, or posting material that is in violation of applicable laws or regulations;
• Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization (or succeeding in such an attempt);
• Attempting to interfere or interfering with the operation of this Site, The Athletico’ provision of services to any other visitors to this Site, The Athletico hosting provider or networks, including, without limitation, via means of submitting a virus to this Site, overloading, "flooding", "mailbombing" or "crashing" this Site;
• Forging any TCP/IP packet header or any part of the header information in any e-mail or transmission or posting to this Site.
Any and all content, comments, feedback, suggestions, ideas, concepts, photos, questions or other communications (collectively, “User Content”) that you submit or post through any The Athletico Services shall be deemed non-confidential and non-proprietary. By submitting or posting any User Content, you grant to The Athletico and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, create derivative works from, distribute, reproduce, display, or use the User Content in any commercial or non-commercial manner whatsoever. The Athletico will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. The Athletico shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content, or respond to any User Content. The Athletico retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason.
By submitting User Content, you represent and warrant that the User Content does not (i) contain false or misleading information, (ii) infringe on the intellectual property rights of any third party, (iii) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing content, (iv) contain any addresses, email addresses, phone numbers or any contact information, or (v) contain computer viruses, worms or other harmful files. You are solely responsible for the User Content and you hereby agree to indemnify and hold The Athletico and its employees, agents and affiliates harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
Prices, descriptions and availability of products are subject to change without notice. Errors may be corrected when discovered, and The Athletico reserves the right to revoke any stated offer in order to correct any errors or inaccuracies. Although The Athletico has made every effort to display our products and their colors as accurately as possible, the displayed colors of the products depend upon the monitor of the user, and The Athletico cannot guarantee that the user’s monitor will accurately portray the actual colors of the products. Products displayed may be out-of-stock or discontinued, and prices are subject to change. The Athletico is not responsible for typographical errors regarding price or any other matter.
All orders placed through any The Athletico Services are subject to The Athletico’ acceptance. This means that The Athletico may refuse to accept or may cancel any order, whether or not the order has been confirmed, for any or no reason, and without liability to you or anyone else. If your credit card has already been charged for an order that is later cancelled by The Athletico, The Athletico will issue you a refund.
CANCELLING YOUR SUBSCRIPTION
All orders placed through any The Athletico Services are final for the future month of purchase. We will not issue refunds for once a subscription has been paid, and you will receive The Athletico Services up until your next billing cycle, when your payments will cease.
INTELLECTUAL PROPERTY RIGHTS
All content, graphics, text, code and software used on or incorporated into this Site and/or any The Athletico Service, and the arrangement or integration of all such content, graphics, code and software, are subject to copyrights held by or licensed to The Athletico and all rights thereto are specifically reserved. As between you and The Athletico, (or any other company whose marks appear on any of the The Athletico Services), The Athletico (or the respective company) is the owner and/or authorized user of any registered or unregistered trademark, trade name and/or service mark appearing on any of the The Athletico Services, and is the copyright owner or licensee of the materials and content contained therein, unless otherwise indicated. The The Athletico logos, designs, titles, phrases, product names, photographs, images, videos and content and the copyrights, trademarks, service marks, trade dress and/or other intellectual property in such materials (collectively, “ Intellectual Property”) are owned by The Athletico and may be registered in Australia, The United States and internationally. You agree not to display or use the The Athletico Intellectual Property in any manner without The Athletico’ prior written permission. Nothing contained on this Site or in any of the The Athletico Services should be construed to grant any license or right to use any The Athletico Intellectual Property without the prior written consent of The Athletico.
Except as otherwise provided herein, use of the The Athletico Services does not grant you a license to any materials, content or features you may access on this Site or via the The Athletico Services and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such materials and content, features or materials, in whole or in part. Any commercial use of the The Athletico Services is strictly prohibited, except as otherwise approved by us. You may not download or save a copy of any of the materials and content or screens for any purpose except as otherwise provided by The Athletico. If you make use of the The Athletico Services, other than as provided herein, in doing so you may violate copyright and other laws of the United States and/or other countries, as well as applicable state laws, and you may be subject to liability for such unauthorized use. The information contained in the The Athletico Services including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including, but not limited to, copyright law.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
The Athletico publishes information within the The Athletico Services as a convenience to its visitors. While The Athletico attempts to provide accurate and timely information, there may be inadvertent technical or factual inaccuracies and typographical errors. We reserve the right to make corrections and changes to the The Athletico Services at any time without notice. The The Athletico products described in the The Athletico Services may not be available in your region. The Athletico does not claim that the information on this Site is appropriate to your jurisdiction or that the products described in the The Athletico Services will be available for purchase in all jurisdictions.
YOUR USE OF THE ATHLETICO SERVICES ARE AT YOUR SOLE RISK. THE ATHLETICO SERVICES AND THE PRODUCTS OFFERED THROUGH THE ATHLETICO SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE ATHLETICO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
THE ATHLETICO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, THAT THE OPERATION OF THIS SITE OR ANY OF THE ATHLETICO SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR AS TO THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, OR ANY OF THE THE ATHLETICO SERVICES, IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE, UNLESS OTHERWISE SPECIFIED IN WRITING.
THE ATHLETICO SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF, OR THE INABILITY TO USE, THIS SITE OR THE ATHLETICO SERVICES OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE ATHLETICO, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF THE ATHLETICO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE ATHLETICO SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR THE ATHLETICO SERVICES ISSUED AGAINST YOU BY THIRD PARTY FINANICAL INSTITUTIONS SUCH AS BANKS OR CREDIT CARD COMPANIES. THE ATHLETICO SHALL NOT BE LIABLE FOR ANY OVERDRAFT, LATE OR ANY OTHER CHARGES ISSUED AGAINST YOU BY A BANK OR CREDIT CARD.
CERTAIN STATE LAWS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE ATHLETICO SERVICES, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE THE ATHLETICO SERVICES.
The Athletico makes no warranties of any kind regarding any third party sites to which you may be directed or hyperlinked from the The Athletico Services. Hyperlinks are included solely for your convenience, and The Athletico makes no representations or warranties with regard to the accuracy, availability, suitability or safety of information provided in such third party sites. The Athletico does not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties through the The Athletico Services.
INDEMNITY AND RELEASE
You agree to indemnify and hold The Athletico and its parent, subsidiaries, affiliates, officers, agents and employees harmless from any and all liabilities, claims, demands, actions, suits, losses, obligations, judgments, proceedings, damages, expenses and costs (including reasonable attorneys' fees), based upon, arising from or related to (a) information or content submitted, transmitted or otherwise made available on or through the The Athletico Services by you or any other person accessing the The Athletico Services using your Account; (b) the use of, or connection to, the The Athletico Services by you or any other person accessing this Site using your Account (including negligent or wrongful conduct); or (c) your breach or attempted breach of these Terms of Service.
DISPUTES AND DISPUTE RESOLUTION
Use of the The Athletico Services, membership in the The Athletico VIP Membership Program, any purchases made through the The Athletico Services, and any controversy, claim or dispute arising out of or relating in any way to your use of the The Athletico Services, your membership in or purchases through the The Athletico Services, The Athletico VIP Membership Program and/or your Account, or products purchased through the The Athletico Services shall be governed by the laws of your home state of residence without respect to its choice (or conflict) of laws rules.
Any claim or cause of action you may have with respect to The Athletico or the The Athletico Services must be commenced within one (1) year after the claim or cause of action arose.
CLASS ACTION WAIVER
Both you and The Athletico waive the right to bring any controversy, claim or dispute arising out of or relating in any way to your use of the The Athletico Services, your membership in or purchases through the The Athletico VIP Membership Program and/or your Account, or products purchased through the The Athletico Services as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any such claim brought by anyone else. (This waiver, and the similar waiver specified for arbitration proceedings, are generally referred to herein as "the class action waiver.")
Jurisdiction and venue for any dispute shall be in Los Angeles, California. Each party submits to personal jurisdiction and venue in that forum for any and all purposes.
AGREEMENT TO PRE-ARBITRATION NOTIFICATION
These Terms of Service provide for final, binding arbitration of all disputed claims (discussed immediately below). The Athletico and you agree, however, that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings or any other proceedings authorized herein are initiated. In the event of a dispute, the claimant whether you or The Athletico shall send a letter to the other side briefly summarizing the claim and the request for relief. If The Athletico is the claimant, the letter shall be sent, via email, to the email account listed in your Account. If you are the claimant, the letter shall be sent to The Athletico, LLC, Attn: General Counsel, 800 Apollo Street, El Segundo, California 90245. If the dispute is not resolved within 60 days after the letter is sent, the claimant may proceed to initiate arbitration proceedings or any other proceedings authorized herein.
AGREEMENT TO ARBITRATE CLAIMS
Except to the limited extent noted below, use of the The Athletico Services, membership in the The Athletico VIP Membership Program, any purchases made through the The Athletico Services, and any controversy, claim or dispute arising out of or relating in any way to your use of the The Athletico Services, your membership in or purchases through the The Athletico VIP Membership Program, or products purchased through the The Athletico Services shall be resolved by final and binding arbitration between you and The Athletico.
The arbitration shall take place in Los Angeles County, California in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association. Unless either party or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten days after the American Arbitration Association acknowledges receipt of a claimant's demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in a telephone hearing. In no event shall the parties be required to travel to Los Angeles to participate in the arbitration.
If you decide to commence arbitration, the provider will require to you to pay a filing fee (which currently is $125 for claims under $10,000). If your filing fee is more than $125, The Athletico will reimburse you for any excess fee promptly after it receives notice of your arbitration. If the arbitrator ultimately rules in your favor, The Athletico will also reimburse you for the $125 base filing fee.
If the arbitrator rules in your favor in any respect on the merits of your claim and issues you an award that is greater than the value of The Athletico' last written settlement offer made before an arbitrator was selected (or greater than zero if no offer was made), then The Athletico will pay you the amount of the award or $350, whichever is greater (in addition to reimbursing you for the base filing fee).
This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction.
The arbitrator shall determine any and all challenges to the arbitrability of a claim. The arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction.
Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, and with the exception of Desk Arbitrations, the Federal Rules of Evidence shall govern the admissibility of evidence in any arbitral proceeding.
Both you and The Athletico waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else.
Notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
If a proposed class, consolidated, representative, collective, or private attorney general action arbitration is initiated notwithstanding the above prohibition and it is finally determined by the arbitrator (or a court of competent jurisdiction) that the waiver specified herein is not enforceable, then the arbitration proceedings shall be bifurcated as follows and notwithstanding any provision in the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures to the contrary: 1. The issue of arbitrability shall be determined by the Arbitrator pursuant to the applicable rules and substantive law. 2. Assuming the Arbitrator concludes that the arbitration may proceed, said arbitration shall be stayed, and the issue of whether to certify any alleged or putative class for a class action (or other representative) proceeding shall be presented to and decided by a court of competent jurisdiction. The arbitrator shall not have authority or jurisdiction to decide class certification (or any similar representative action) issues. The decision to certify or not certify a class action (or to otherwise permit the action to proceed on a representative basis) shall be appealable in the judicial proceedings consistent with the rules and law governing the appeals of interlocutory decisions or class certification (or similar) rulings specifically, if appropriate. 3. Once any issues regarding class certification (and/or similar representative requirements) have been finally decided by the court, the arbitrator will have authority to decide the substantive claims on an individual or a class (or other representative) basis, as may be determined and directed by the court.
The arbitrator(s) shall not have the power to commit errors of law or legal reasoning, make clearly erroneous factual findings, or abuse his or her discretion, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
These Terms of Service constitute the entire agreement between you and The Athletico and govern your use of the The Athletico Services, and they supersede any prior agreements between you and The Athletico. You also may be subject to additional terms and conditions that are applicable to certain parts of the The Athletico Services. The Athletico may terminate this Agreement and deny you access to the The Athletico Services at any time, immediately and without notice, if in The Athletico' sole discretion you fail to comply with any provision of these Terms of Service.
You agree that no joint venture, partnership, employment, or agency relationship exists between The Athletico and you as a result of this Agreement or your use of the The Athletico Services.
The failure of The Athletico to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. The invalidity of any term, condition or provision in these Terms of Service shall not affect the enforceability of those portions of the Terms deemed enforceable by applicable courts of law.
You may not assign the Terms or any of your rights or obligations under the Terms without The Athletico's express written consent. The Terms inure to the benefit of The Athletico's successors, assigns and licensees. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
Updated: February 2, 2016