Last Updated and Effective: April 2, 2018
ACCEPTANCE OF TERMS
By browsing or using the Site, or accessing links to our social media accounts or pages on third party websites, you agree to these Terms and any amendments hereto that may be published from time to time on the Site, each of which is incorporated by reference.
IF YOU LIVE IN THE UNITED STATES, BY USING THIS SITE YOU ARE AGREEING TO WAIVE YOUR RIGHT TO SUE IN COURT AND INSTEAD AGREE TO HAVE ALL DISPUTES DECIDED BY AN ARBITRATOR. BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL TO SETTLE DISPUTES RELATING TO YOUR USE OF THE SITE, AS STATED FULLY IN THE “DISPUTE RESOLUTION” SECTION BELOW.
Next Up Performance refers to Athletes Next Up Performance LLC, and is referred to herein as “Next Up Performance,” “we,” or “our.”
“Content” means logos, design, text, graphics, images, software, audio, video, works of authorship of any kind, and information and other materials that are posted, generated, provided, or otherwise available through or on the Site. We and our licensors exclusively own all right, title, and interest in and to the Content, including all associated intellectual property rights. You acknowledge that Content is protected by copyright, trademark, and other laws of the United States and foreign countries and that you will not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying Content on the Site.
“Site” means http://nextupperformance.com and other websites through which we advertise and sell our products, as well as applications for mobile, tablet, and other smart devices and application programs.
“User” means any user of the Site, regardless of whether the user registers for the Site or purchases any products from the Site, and is referred to herein as “User” or “you.”
“User Content” refers to any photographs, comments, video clips, or other Content that Users, including you, may upload to the Site. Content includes, without limitation, User Content. We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights a User may have to use and exploit their own User Content.
ELIGIBILITY TO USE THE SITE
By browsing or using the Site, you agree that you are at least thirteen (13) years of age. If you are a resident of the European Union, by browsing or using the Site, you agree that you are at least sixteen (16) years of age. If you are between thirteen (13) and seventeen (17) years of age, you must use the Site only with the permission and involvement of your parent or guardian. As long as you comply with these Terms, you may view and use our Site for your personal, non-commercial purposes. No other use of the Site is authorized.
You should seek the advice of a qualified health-care professional prior to participating in any exercise, training, workout, activity, or program featured or discussed on the Site. You expressly acknowledge that the exercises featured or discussed on the Site can be strenuous and should be scaled or done in moderation, as appropriate for you according to the advice of a qualified health-care professional. You expressly acknowledge and agree that the Content, statements, and other material made available on or through the Site: (i) are not intended to diagnose, treat, cure, or prevent any medical condition or disease; and (ii) are not in any way intended as medical advice or as a substitute for medical treatment. If you have or suspect that you have a medical condition, promptly contact your healthcare provider. Never delay seeking or disregard professional medical advice because of something you have seen or read on the Site. If you think you may have a medical emergency, call your doctor or 911 immediately.
Next Up Performance will allow users to establish a subscription account to access various features of the Site, such as registering for and competing in exercise challenges and logging training data. If you register, you agree to provide Next Up Performance with truthful, accurate, complete, and updated information. Each Site user is required to give Next Up Performance accurate payment information. If a payment does not go through, the user’s account will not be activated. Your username and password are for your personal use only. If you use the Site, 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 should not create duplicate accounts. In addition to all other rights available to Next Up Performance, including those set forth in these Terms, we reserve the right, in our sole discretion to terminate your account or your use of the Site, block or prevent future access to and use of the Site, or otherwise refuse service to you: (i) if you violate any of these Terms; (ii) for any other reason; or (iii) for no reason. Upon any such termination, your right to use the Site will immediately cease.
RULES OF CONDUCT
You must only use this Site for lawful purposes, and you must not use it in any way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Site. You may not, without our written consent (i) copy, reproduce, use, or otherwise deal with any Content on the Site; (ii) modify, distribute, or re-post any Content on the Site for any purpose; or (iii) use the Content of the Site for any commercial exploitation whatsoever.
Next Up Performance reserves the exclusive right to permit or deny the participation of any user, and to validate or invalidate any user’s scores. All decisions by Next Up Performance concerning eligibility and scoring are final and not subject to challenge or appeal. Next Up Performance shall not have any obligation to return or maintain any materials submitted as part of the qualification or registration process for the Site, exercise challenges, or training data logs.
When submitting a video challenge, the content creator must submit an easy-to-view video that does not encourage either dangerous or inappropriate behavior. The challenge video must begin with the standard phrase, “I call Next Up” before the content creator names the athletic feat they are about to accomplish. Next Up Performance reserves the right to not approve any video. The filming requirements for each exercise being tracked on the Site are listed below. The technical requirements for posted videos are available on the Site at [link].
You must submit a URL link to a website verifying an athletic accomplishment before an exercise performance will be approved. The website must clearly and accurately display that the submitted data is correct. If either the website, or the exercise performance it purports to represent, does not appear to be valid, Next Up Performance will not approve the submitted record.
You must submit a clear, easy-to-view video recording of the User completing an exercise from the Site that is verified by a URL. For lifts, the video must clearly show the weights on the bar and the repetitions completed. Partial repetitions will not be counted. Any evidence of tampering with either the submitted video or weights on the bar will lead to a permanent suspension of the User’s ability to submit any future training data to the Site in the future. For non-lifting exercises verified by video review, the User must follow the guidelines around the exercises explained on Next Up Performance’s Facebook page.
In using the Site, you further agree not to do any of the following:
- post, publish, submit, or otherwise transmit any Content that (i) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, or other intellectual property rights, or rights of publicity or privacy; (ii) is knowingly false, fraudulent, misleading, or deceptive; (iii) is defamatory, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person’s privacy, or otherwise violative of any law; or (iv) promotes illegal or harmful activities or substances;
- disrupt or interfere with the security of, or otherwise abuse, the Site or any service, systems resource, account, server, or network connected to or accessible through the Site, or affiliated or linked websites;
- disrupt or interfere with any other User’s enjoyment of the Site, or affiliated or linked websites;
- post, publish, submit or otherwise transmit through or on the Site any viruses or other harmful, disruptive, or destructive files;
- use, frame, or utilize framing techniques to enclose our trademark, logo, or other proprietary information (including, but not limited to, images found on the Site, Content, any text, or the layout/design of any page or form contained on a page) without our express written consent;
- use meta tags or other “hidden text” utilizing our name, trademark, or product name without our express written consent;
- deep link to the Site without our express written consent;
- create or use a false identity on the Site, share your account information, or allow any person besides yourself to use your account to access the Site;
- collect or store personal data about others;
- attempt to obtain unauthorized access to the Site or portions of it that are restricted from general access; and
- encourage or enable another User or individual to do any of the foregoing prohibited activities.
By accessing or using the Site you agree to comply with all applicable local, national, and international laws and regulations relating to your use of or activities on the Site. To the extent permissible by law, we will not be responsible or liable to any third party for the User Content or accuracy of any Content posted by you or any other User on the Site. We have the right to remove any User Content or posting you make on the Site if, in our sole discretion, such Content or posting does not comply with the standards set out in these Terms.
If you do not agree to these Terms, you do not have our consent to obtain information from or otherwise use the Site. Failure to use the Site in accordance with these Terms may subject you to civil or criminal penalties.
YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE SITE, AND/OR DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS WHETHER OR NOT YOU HAVE CREATED AN ACCOUNT ON THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or legal entity to these Terms and, in such event, “you” or “your” will refer and apply to that company or other legal entity.
VIOLATIONS OF RULES OF CONDUCT
Next Up Performance reserves the right to suspend or terminate your access to the Site for any reason, including but not limited to: (i) repeated submissions of inaccurate data; (ii) repeated submissions of video recordings of poor quality; or (iii) any submission of dishonest, fraudulent, or intentionally untrue data.
If we determine that you have violated the rules of conduct, Next Up Performance will deny approval of your submission and send you a warning with an explanation. Thereafter, each time we deny one of your submissions, you will receive a “strike.” Upon receiving three strikes, Next Up Performance will suspend or terminate your access to the Site.
Your access to the Site may also be suspended or terminated if you are a member of the same team from which Next Up Performance has terminated the access of two or more athletes. In such cases, your access will be suspended or terminated for as long as the remainder of the academic year. Next Up Performance will not refund User subscriptions of any member of a team whose access to the Site has been suspended or terminated.
In the event you upload any User Content to the Site, we have the right to use any and all such elements of the Content in connection with and/or as part of our business, including, but not limited to, in connection with or in any advertising in any and all media, product packaging, printed publications, presentations, promotional materials, events, and associated marketing materials, television and cinema commercials, videos, or on the Site in perpetuity throughout the world as we, in our sole discretion, see fit without further consent by, or payment to, you. By uploading User Content to the Site, you agree to grant Next Up Performance the right to use your copyright in such User Content. We also have all right, title, and interest in any and all results and proceeds from our use of the User Content to the extent permissible by law. We have the right to transfer our rights to use the User Content to any third party, including, but not limited to, any of our subsidiaries or affiliated companies.
We may alter, adopt, or edit the User Content and any further material created under these Terms, and market and exploit it entirely in our sole discretion. Upon request, you will furnish Next Up Performance with any and all documentation, substantiation, or releases necessary to verify your compliance with these provisions. We are not obligated to make use of any of your User Content or exercise any of the rights granted by these Terms.
You are responsible for all your User Content. You represent and warrant that you own all of your User Content or you have all rights that are necessary to grant Next Up Performance the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Site, nor any use of your User Content by Next Up Performance on or through the Site, will infringe, misappropriate, or violate a third party’s intellectual property rights, rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your User Content by specifically deleting it. However, in certain circumstances, some of your User Content (such as videos, posts, or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Site. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
NOTICE REQUIRED BY CALIFORNIA LAW
Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice:
The name, address, and telephone number of the provider of this service is Athletes Next Up Performance LLC, 9399 Wade Boulevard, Frisco, Texas 75035, (216) 650-2073. Complaints or requests to receive further information regarding use of this Site may be sent to the above address or to email@example.com.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210.
IMPORTANT INFORMATION FOR NEW JERSEY RESIDENTS
If you live in New Jersey, please carefully read these Terms and understand that by using the Site, in addition to the other terms and conditions herein, you agree:
- Any dispute between you and Next Up Performance us will be governed by the laws of the State of Texas and subject to the dispute resolution provisions set forth in the “Dispute Resolution” section below;
- Under the laws of the State of New Jersey, limitations on implied warranties or the exclusive limitation of certain damages as set forth below in the “DMCA/Copyright Policy,” “Disclaimers of Warranties,” “Limitations on Liability,” and “Anti-Diversion” sections may not apply to you; and
- As set forth in the “Indemnification” section below, you are responsible for any harm you cause Next Up Performance, whether it is because of your (i) User Content; (ii) violation of any applicable law that protects Next Up Performance or our legal rights or those of any third party that your actions have damaged; (iii) material uncured breaches of these Terms; (iv) infringement by you of any intellectual property rights that belong to Next Up Performance or any third party; (v) any and all activities that occur under your account, username, and password.
Our Site is controlled, operated, and administered from our offices in Texas, United States of America. We make no representation that Content on the Site is appropriate or available for use at other locations outside the United States, and access to it is prohibited from territories where the Content available through the Site are illegal. You may not use the Site or export its Content in violation of United States export laws and regulations. If you access the Site from a location outside of the United States, you are responsible for compliance with all local laws if, and to the extent, local laws are applicable.
These Terms and any action or proceeding relating thereto will be governed by the laws of the State of Texas. If any provision or part-provision of these Terms is declared invalid, unlawful, void, or for any reason unenforceable, it will be deemed severable and will not affect the validity and enforceability of the remaining provisions of these Terms, which will be enforced to the maximum extent permissible.
You will defend, indemnify, and hold harmless Next Up Performance, our affiliates, and each of our and their respective officers, directors, employees, contractors, suppliers, representatives, and agents from any and all claims, demands, liabilities, damages, losses, costs, and expenses, including, but not limited to, reasonable attorneys’ fees, that arise from or relate to (i) your access or use of the Site or Content; (ii) your User Content; (iii) violation of any applicable law that protects Next Up Performance or our legal rights or those of any third party that your actions have damaged; (iv) your violation of these Terms or any applicable law, including, but not limited to, infringement by you of any intellectual property rights owned by Next Up Performance or any third party; (v) any and all activities that occur under or in connection with your account, username, and/or password. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Next Up Performance in asserting any available defenses. YOU AGREE TO BE RESPONSIBLE FOR ALL SUCH DAMAGES, CLAIMS, OR LOSSES TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF THEY ARE CAUSED BY OUR ACTIVE OR PASSIVE NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.
COPYRIGHTS AND TRADEMARKS
The Site, including all of the Content and organization, graphics, design, compilation, magnetic translation, digital conversion, software, services, and other matters related to same, is the sole and exclusive property of Next Up Performance and protected by applicable copyright, trademark, other proprietary rights, and other laws of the United States and foreign countries. Unless expressly stated otherwise, we retain other proprietary rights in all Content and products available through the Site. Except as stated herein, none of the Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, and or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise without our prior written consent and permission of the respective copyright owner. You may not, without our express written permission or that of the respective copyright owner (i) copy, upload, publish, post, submit, or transmit any materials on any computer network or broadcast or publications media; (ii) modify the materials; or (iii) remove or alter any copyright or other proprietary notices contained in the materials. You also may not (i) sell, resell, or make commercial use of the Site, its Content, services, or products obtained through the Site; (ii) collect or use any product listings or descriptions; (iii) make derivative uses of the Site or its Content; or (iv) use any data mining, robots, or similar data gathering and extracting methods. You are not conveyed any right or license by implication, estoppel, or otherwise in or under any of our patent, trademark, copyright, or other proprietary rights of any third party.
Together with other logos and product names appearing on the Site, Next Up®, Next Up Performance®, Next Up Challenges™, Next Up Athletes™, and Next Up Go™ are registered trademarks of Next Up Performance in the United States and other countries. All other trademarks not owned by Next Up Performance that are made available by and through the Site are the property of their respective owners who may or may not be affiliated with, connected to, or sponsored by Next Up Performance. These and all of our other trademarks may not be copied, imitated, or used, in whole or in part, without our prior written permission or that of the rights holder. In addition, all page headers, custom graphics, button icons, and scripts are our service marks, trademarks, and/or trade dress, and may not be copied, imitated, or used, in whole or in part, without our prior written permission. Any other names and brands on the Site may be claimed as the property of others.
It is our policy to respect the copyright and intellectual property rights of others. We may remove content that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, we may terminate access by Users who appear to infringe the intellectual property or other rights of others.
We comply with the Digital Millennium Copyright Act (“DMCA”). If you believe we or any User of the Site has infringed your copyright in any material way, please notify Next Up Performance, and provide the following:
- an identification of the intellectual property right claimed to have been infringed;
- an identification of the material you claim is infringing so that we may locate it on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the owner or its licensee, or the agent of either of the foregoing, or the law;
- a statement by you that the above information in your notice is accurate and made under penalty of perjury; and
- that you are authorized to act on behalf of the owner of the intellectual property interest involved.
Please direct inquiries regarding intellectual property infringement issues by email to firstname.lastname@example.org, by phone at (216) 650-2073, or by writing to Next Up Performance, Athletes Next Up Performance LLC, 9399 Wade Boulevard, Frisco, Texas 75035.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any potentially infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove the applicable material along with that of the alleged infringer pending resolution of the matter. We have an absolute right to remove any such User Content or other material from the Site in our sole discretion at any time.
LINKS TO THIRD PARTY WEBSITES
The Site may contain links to third party websites or services and advertisements for third parties (collectively, the “Third Party Apps & Ads”). Such Third Party Apps & Ads are not under our control and we are not responsible for any Thirty Party Apps & Ads. We provide these Third Party Apps & Ads only as a convenience and are not responsible for the content, products, or services on or available from those Third Party Apps & Ads. You acknowledge sole responsibility for and assume all risk arising from your use of Third Party Apps & Ads.
The inclusion of a hyperlink to Third Party Apps & Ads does not imply affiliation, endorsement, or adoption by Next Up Performance of the Third Party Apps & Ads or any information contained therein.
DISCLAIMER OF WARRANTIES
OUR PRODUCTS, SERVICES, AND CONTENT ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the services or products available on the Site will meet your requirements or be available on an uninterrupted, secure, or error-free basis. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, INCLUDING ANY SERVICES PROVIDED TO YOU.
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY WARRANTIES RELATING TO OUR PRODUCTS, SERVICES, OR CONTENT, THESE TERMS AND YOUR USE OF THE SITE, INCLUDING, BUT NOT LIMITED TO, FROM YOUR PURCHASE OF ANY PRODUCTS VIA THE SITE, OR FROM THE USE OF OR INABILITY TO USE THE SITE, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR PRODUCTS PURCHASED VIA THE SITE IN THE LAST TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM OF LIABILITY. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND NEXT UP PERFORMANCE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
LIMITATIONS OF LIABILITY
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, this section does not apply to you.
TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT NEITHER NEXT UP PERFORMANCE, OUR AFFILIATES, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING PRODUCTS, SERVICES, OR CONTENT ON THE SITE WILL BE LIABLE FOR ANY CLAIMS, LOSSES, OR DAMAGES (INCLUDING, WITHOUT LIMITATION, COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES), HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY – EVEN OUR OWN ACTIVE OR PASSIVE NEGLIGENCE – ARISING IN CONNECTION WITH (I) THE SITE; (II) THE USE OR INABILITY TO USE THE SITE; (III) THE USE OF OR RELIANCE ON ANY CONTENT OR INFORMATION DISPLAYED IN OR ON THE SITE; (IV) THE PURCHASE OR USE OF ANY PRODUCTS OR SERVICES THROUGH THE SITE OR OTHERWISE; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OR LOSS OF YOUR TRANSMISSIONS OF DATA OR OTHER INFORMATION THAT IS SENT TO OR RECEIVED BY THE SITE; (VI) ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS; OR (VII) OTHERWISE UNDER THESE TERMS, WHETHER OR NOT REASONABLY FORESEEABLE, EVEN IF WE OR OUR REPRESENTATIVES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND NEXT UP PERFORMANCE. ACCESS TO THE SITE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST TWELVE (12) MONTHS TO NEXT UP PERFORMANCE FOR ANY PRODUCTS OR SERVICES SUPPLIED BY US THROUGH YOUR USE OF THE SITE OR OTHERWISE.
WE WILL NOT BE LIABLE IN ANY AMOUNT FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CONTINGENCY BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, OR WAR.
The terms of this section survive any termination of these Terms.
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, this section does not apply to you.
Notwithstanding anything to the contrary in these Terms, we reserve the right, without notice and in our sole discretion, for any reason or no reason, to terminate your ability to use the Site and to block and prevent future access to and use of the Site. You agree that we will not be liable for any termination of your use of or access to the Site.
NO THIRD PARTY BENEFICIARIES
We and you are the only parties entitled to enforce these Terms. These Terms do not and are not intended to confer any rights or remedies upon any person other than you and Next Up Performance. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions relating to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms. You also agree that if we assign, transfer, or sub-contract any of our rights or obligations under these Terms to any third party in writing, such third party may enforce the Terms that are assigned, transferred, or sub-contracted.
AGREEMENT TO ARBITRATE AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
You acknowledge and agree that both you and Next Up Performance are waiving the right to a trial by jury or to participate as a plaintiff or class representative or class member in any purported class action or representative proceeding. Further, unless we both otherwise agree in writing, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive termination of these Terms.
The parties agree that (i) these Terms memorialize a transaction in interstate commerce; (ii) the Federal Arbitration Act (9 U.S.C. §§ 1, et seq.) governs the interpretation and enforcement of this section; and (iii) this section will survive termination of these Terms.
The arbitration will be administered and governed by the Comprehensive or Expedited Arbitration Procedures of Judicial Arbitration and Mediation Services (JAMS), whichever is appropriate and in effect at the time the arbitration is initiated (the “JAMS Procedures”), which are available at http://www.jamsadr.com or by calling 1-800-352-5267.
The parties expressly agree that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration will be limited to the resolution of individual claims only.
DISPUTE NOTICE AND ARBITRATION PROCESS
Prior to initiating an arbitration proceeding, you must first send Next Up Performance a written statement setting forth your name, address, and telephone number, the facts giving rise to the dispute, and the relief requested (“Dispute Statement”). The Dispute Statement to Next Up Performance must be emailed to email@example.com. If we are unable to resolve your claim within thirty (30) days, then either party that desires to initiate an arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Procedures.
An arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. Notwithstanding this broad delegation of authority to the JAMS arbitrator, a court may determine the limited question of whether a claim or cause of action is an IP Protection Action.
ARBITRATION LOCATION AND PROCEDURE
Unless the parties otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then (i) the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary; and (ii) if there is a hearing, you may choose whether to participate in person or by telephone. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Procedures. Subject to the JAMS Procedures, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator’s decision will include the essential findings and conclusions of law upon which the arbitrator based the award. Judgment on the arbitration may be entered in any court having competent jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Disclaimer of Warranties,” and “Limitations of Liability” sections above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory and injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Next Up Performance will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
We will pay or (if applicable) reimburse you for all JAMS filing, administration, and arbitration fees for any arbitration commenced by you or Next Up Performance pursuant to the terms of this section.
TIME LIMIT FOR RESOLVING DISPUTES
The parties agree that any cause of action either may have with respect to the Site or our products, services, and Content must be commenced within one (1) year after the Dispute arises, notwithstanding any statutes of limitations to the contrary. Many states’ laws set statutes of limitations that are longer than one (1) year. If you live in a state that has statutes of limitations that are longer than one (1) year, by agreeing to these Terms, you are agreeing to shorten the time you have to bring a claim. This means that if you wait longer than one (1) year to initiate arbitration under this section, you will lose some or all rights you may have to any recovery, including the right to recover damages, in connection with a Dispute.
NOTICE TO NEW JERSEY USERS: If you live in New Jersey, your agreement to this provision shortens the time within which you may bring a Dispute.
The terms of this Dispute Resolution section survive any termination of these Terms.
RIGHT TO OPT-OUT OR REJECT FUTURE CHANGES TO DISPUTE RESOLUTION SECTION
You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section by sending a written letter to Next Up Performance, at Athletes Next Up Performance LLC, 9399 Wade Boulevard, Frisco, Texas 75035, within thirty (30) days of your first visit to and use of the Site that specifies your (i) name; (ii) mailing address; and (iii) request to be excluded from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section. In the event you opt-out consistent with the procedure set forth above, all other terms and conditions of these Terms will continue to apply. If you do not so opt-out, then the terms of this section will apply.
These Terms constitute the entire and exclusive understanding and agreement between Next Up Performance and you regarding the Site, Content, products, and services that may be provided on the Site, and these Terms supersede and replace any and all prior oral or written understandings or agreements between you and Next Up Performance regarding the Content, products, or services provided on the Site. If, for any reason, a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by Next Up Performance under these Terms, including those regarding modifications to these Terms, will be given: (i) by Next Up Performance via email; or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Next Up Performance. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Nothing in these Terms will be construed as creating a joint venture, partnership, employment, or agency relationship between you and Next Up Performance, and you do not have any authority to create any obligation on our behalf.
If you have any questions about these Terms, please contact Next Up Performance at: Athletes Next Up Performance LLC, 9399 Wade Boulevard, Frisco, Texas 75035 or firstname.lastname@example.org.