Last Updated on March 2, 2024
CAREFULLY BEFORE USING THIS ONLINE OR MOBILE APPLICATIONSERVICE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS,
INCLUDING, BUT NOT LIMITED TO, WAIVERS OF RIGHTS, LIMITATION OF LIABILITY, AND YOUR INDEMNITY TO US.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURTS,
JURY TRIALS, OR CLASS ACTIONS, AND LIMITS THE REMEDIES AVAILABLE IN THE EVENT OF A DISPUTE.
Welcome and thank you for using a service provided by Athletic Performance Tools, LLC. or its subsidiaries or
and govern your use of our website, or mobile application, and any of our other products and services in connection
Certain aspects of the Service may be subject to additional terms and conditions, which may include, among other things,
particularized age requirements, codes of conduct, and payment or subscription terms (collectively, "Additional Terms").
When Additional Terms are made available in connection with any aspect of the Service, those Additional Terms also apply
to your use of that aspect of the Service and control in the event of a conflict with these Terms.
By accessing or using the Service, you agree to be bound by these Terms and any applicable Additional Terms
(which are incorporated herein by reference) and acknowledge our collection and use of your information as described in the
Terms, do not access or use the Service.
1. Updated to Terms
We reserve the right, in our sole discretion, to modify these Terms (including applicable Additional Terms) from time to time.
You agree that we may notify you of modified terms or policies by posting them on the Service, and agree that your continued
use of the Service after such notice constitutes your agreement to the modified terms, which will govern your ongoing use of
Any modifications to these Terms will supersede the prior version for all activity occurring after the revised version has
been made available.
2. Basic Terms
By accessing, previewing, or otherwise using the Service in any manner, you represent and warrant that you have sufficient
legal capacity to enter into this Agreement or, if you lack such capacity (for instance, if you are a minor), that you have
obtained parental or guardian consent to do so. You represent and warrant that you have read, understand, and agree to abide
by these Terms and any applicable Additional Terms, and that you have read and understand the data collection and use
3. The APT Service
APT grants you access to the Services for your personal, non-commercial use solely as provided by these Terms and as expressly
applicable Additional Terms. The Service may allow you to view, and access certain content, including graphics, photos, and text
(collectively, "Content"). Such use may be limited (for example, by subscription level) and will require your explicit concent
The Service and Content are protected by copyrights, or other intellectual property rights that are owned by APT. Any unauthorized
use of Content or any other aspect of the Service, or any portion thereof, will constitute a violation of the Terms, and APT reserves
the right to terminate the Service. Violation of this Agreement in any manner automatically terminates the Service herein and
obligates you to cease all use of the Service and Content.
Except as expressly provided herein, APT does not grant you any other express or implied right or license in or to the Service or
Content and all right, title, and interest that APT has in the Service and Content are retained by APT, including the right to modify,
discontinue, or temporarily suspend any or all of the Service at any time, with or without notice.
No aspect of the Service constitutes legal, financial, medical, or other category of professional advice.
4. User Accounts
You may be required or permitted to create a user account in order to access or use certain aspects of the Service.
If you open an Account or otherwise access the Service on behalf of a company, organization, or other entity (a "Business User"),
then you represent and warrant that you have the authority to also bind the Business User to these Terms, and hereby do so,
and both you and the Business User will be responsible for any breach of this Agreement. You acknowledge and agree that you
have no ownership or other proprietary interest in any Account. You agree that all of the details you provide in connection
with your Account are about yourself or an applicable Business User and not about another individual or entity
(whether real or fictitious), and that such details will be maintained by you as correct, current, and complete.
Investigations, Suspensions, and Termination
You agree that APT has the right, in our sole discretion, to investigate any actual or suspected violation of these Terms
and to suspend or terminate your Account and refuse you access to your Account, the Service, or the Content (or any portion
thereof) for any reason, including if APT believes the information you provide is not correct, current, or complete, or that
you have otherwise violated this Agreement or any applicable law. You agree that APT may report your conduct, activity, or
identity to law enforcement or other appropriate authorities, take appropriate legal action against you, respond to subpoenas
or other requests for information regarding your Account or use of the Service, or otherwise take action to protect our
rights and the rights of any third party as well as other Account holders. BY ACCEPTING THESE TERMS, YOU WAIVE ANY CLAIMS
RESULTING, DIRECTLY OR INDIRECTLY, FROM ANY ACTION TAKEN BY APT DURING OR AS A RESULT OF THESE INVESTIGATIONS.
You are responsible for all activity occurring under your Account, including all activities or transactions conducted
through the use of your Account. You are responsible for maintaining the confidentiality of your Account username and password,
and agree not to disclose your username and password to anyone. You agree not to transfer, or otherwise convey your Account or
the right to use your Account to anyone. You agree that APT will not be liable for any loss you may incur as a result of
someone else using your Account, either with or without your knowledge. You also agree that any information you provide is
offered at your own risk, and that APT cannot guarantee its protection from unauthorized access. If you have reason to believe
that your Account is no longer secure, you must: (i) promptly change your password; and (ii) immediately notify us of the
problem through email to [email protected]. APT may require you to change your Account username and/or password.
5. Paid Services
Certain aspects of the Service may require payments. If you use those aspects of the Service, you agree to the applicable pricing
and payment terms. Such terms will be displayed in connection with that aspect of the Service requiring payment. APT may update
pricing and payment terms at any time and in its sole discretion, with any changes to subscription fees taking effect upon the
conclusion of your current subscription term unless otherwise specified.
All payment transactions are administered by a third-party payment processor or third-party store (for example, Google Play, Stripe).
APT expressly disclaims any liability for the processing of any transactions by a third party, including any errors in invoicing or
payment processing or any breach in security with respect to your payment information associated with the third-party's handling of
the transaction. APT is not responsible or liable to you for any credit card, bank-related, or other financial service charges
and fees related to your transactions. You represent and warrant that all payment information you provide is correct, current, and
complete. You agree to pay all applicable charges (including any applicable taxes) billed to your chosen payment method.
We reserve the right to refuse or cancel transactions, including due to pricing or other typographical errors.
All purchases are final and no refunds are available unless otherwise specified in applicable Additional Terms,
including where your account is terminated or suspended preventing your access to paid aspects of the Service, such as any remaining
subscription terms. Subscriptions have no monetary value and are purchases of only a limited, personal, non-transferrable, non-exclusive,
non-assignable, and fully revocable license to access the applicable portion of the Service. Unless otherwise specified (at initial
sign-up or subsequently), subscriptions may renew automatically for up to the initial subscription term at a rate not exceeding the
rate for the prior subscription period. If you sign up for a free trial subscription (if available), you will be automatically billed
at the then-current rate at the conclusion of the free trial. You may cancel any automatically renewing subscription by using that
aspect of the Service you used to set up your subscription, unless another cancellation method is specified in applicable
6. Third-Party Services
The Service may link to, integrate with, or incorporate third party content, sites, services, or platforms, including advertisers,
online merchants, and social networks (collectively, "Third Party Services"). APT does not endorse and is not responsible for
Third Party Services, whether in terms of their correctness, accuracy, validity, propriety, reliability, legality, security,
or otherwise, and APT disclaims all liability in connection therewith. References to Third Party Services do not imply endorsement
of any Third Party Services by APT or any association with its operators. Your dealings with Third Party Services are solely between
you and the applicable Third Party Services. To learn more about Third Party Services, consult the Third Party Services' respective
7. User Content
Certain aspects of the Service may invite or otherwise allow you to submit or post a variety of content to the Service, such as
text (including comments, forum posts, and training details), images, videos, and other information, either directly to the
Service or through a Third Party Service (collectively, "User Content"). Your User Content remains your own, unless as otherwise
may be provided in Additional Terms. Please be aware, however, that User Content is not confidential by default and may be accessible
by other users and the public but can be set as private in the User Settings. Moreover, by submitting or posting User Content to the
Service (either directly or through a Third Party Service) you grant APT a royalty-free, perpetual, irrevocable, non-exclusive,
sublicensable, assignable, unrestricted, worldwide license to use the User Content, together with all consents or waivers including
a publicity rights waiver and a waiver of moral rights (if any) in favor of APT necessary to reproduce, distribute, publicly perform,
publicly display, transmit, communicate to the public, modify and make derivative works of the User Content, by any means and in all
media formats and channels now known or hereafter devised in perpetuity, and to advertise and promote such use, without further notice
to, or permission from, you or any other person, and without compensation or reference to you or any other person.
Please retain copies of all User Content as APT is under no obligation to store or return any User Content to you. Your submission of
User Content will not be subject to any obligation of confidentiality, attribution, or otherwise. You are solely responsible for your
User Content. APT only acts as a passive conduit for User Content, and will not be liable for any use, disclosure, or exposure of any
User Content, including possibly objectionable or offensive User Content, to you, any other user, or any third party. APT is under no
obligation to monitor User Content or use of the Service. However, APT has the right to monitor or moderate User Content, in our sole
discretion, and to enforce our or a third party's intellectual property rights in any User Content. APT reserves the right to discard
or remove User Content from the Service in its sole discretion and without any liability whatsoever.
You represent and warrant the following as to your User Content:
- You have obtained the written consent of every identifiable individual featured in your User Content (or, in the case of minors,
consent of the minor's parent or guardian) to use that person's name, voice, and/or likeness (as applicable) in connection with
the Service and pursuant to these Terms.
- Your User Content does not infringe, violate, or misappropriate any third-party intellectual property rights, including copyrights,
trade secrets, or trademarks.
- Your User Content, as used in connection with the Service, will not violate any applicable laws or regulations or infringe or
violate any rights of a third party, including third-party publicity or privacy rights.
- APT may exercise the rights to your User Content granted herein without any liability, including for payment of royalties, residuals,
guild fees, or the like, to you or any third party.
8. Code of Conduct
You agree that you will not use the Service to upload, post, or otherwise distribute any User Content that:
- constitutes or promotes illegal activity;
- is infringing, libelous, defamatory, abusing, harassing, or threatening;
- contains any obscene, pornographic, racist, or otherwise offensive material;
- exploits or harms children, directly or indirectly, including by exposing them to inappropriate material or asking them for any personal information;
- promotes any commercial activity, including promoting goods or services or soliciting donations, except as may be specifically authorized by applicable Additional Terms;
- is subject to confidentiality or non-disclosure obligations;
- includes any visible logos or trademarks that belong to third parties;
- disguises its source or origin, or misrepresent its author, by modifying metadata or other identifiers; or
- links to any third-party sites or services that would violate the standards contained in this list.
In using the Service you also agree not to:
- attempt to interfere with the operation of the Service in any way;
- copy, reproduce, distribute, transfer, sell, license, publish, enter into a database, display, perform publicly,
modify, create derivative works of, upload, edit, post, link to, frame, transmit, rent, lease, lend or sublicense, scrape, crawl, or in any way
exploit any part of the Service (except: (a) as authorized herein; or (b) in the case of public search engines, which are granted a revocable
right to crawl publicly accessible portions of the Service in compliance with instructions posted on applicable "robots.txt" files and without
circumventing any technical barriers, for the sole purpose of creating public searchable indexes, but not caches or archives);
- use any viruses, worms, bug exploits, or similar data-gathering and extraction tools on the Service, or frame any
portion of the Service, or attempt to tamper, hack, corrupt, or impair the administration or security of the Service;
- assign, pledge or transfer any of your rights or obligations under this Agreement to any person or entity without
APT's prior written consent which may be withheld in APT's sole discretion (and any such purported assignment, pledge, or transfer without
such prior written consent will be null and void);
- use any tools designed to compromise security or digital rights management technology (including password guessing
programs, cracking tools, or network probing tools) in connection with the Service;
- use the Service for any commercial purposes, including sending "spam" or any malicious or disruptive communications;
- decompile, reverse engineer, disassemble, or otherwise reduce the code used in any Apps, other software, or
digital rights management feature on the Service into a readable form in order to examine the construction of such software or to copy or
create other products based (in whole or in part) on such software or any feature of the Service or piece of Content available on the Service; or
- intercept, record, or modify network communications transmitted between any Apps, software, or digital rights
management features and APT's networks or systems.
9. Submissions and Feedback
Please be aware that APT welcomes submissions of concepts, creative ideas, suggestions, and other potential creative content ("Submissions"). APT reserves
the rights to submitted concepts, creative ideas, suggestions, or other potential creative content. In the event you do send us a Submission, you
understand and agree that your Submission does not create any fiduciary relationship between you and APT and that we are under no obligation to refrain
from using the Submission (in whole or in part), to keep it confidential, or to compensate you for our use of it.
10. International Use
APT makes no representation that every aspect of the Service is appropriate or available for use in any particular jurisdiction. When you choose to
access and use the Service, you agree that:
- you do so on your own initiative and at your own risk;
- you will not use the Service if you are prohibited from receiving products, services, or software originating from the United States;
- you are responsible for complying with local laws and regulations, if and to the extent local laws and regulations are applicable; and
- you specifically agree to comply with all applicable laws and regulations concerning the transmission of technical data exported from the country in which you reside.
If there is a conflict between any of the terms herein and your rights in your place of residence, your rights under applicable law will control as to
those specific terms.
11. Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, APT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. APT DOES NOT WARRANT THAT THE SERVICE WILL BE AVAILABLE,
UNINTERRUPTED, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF
VIRUSES OR OTHER HARMFUL COMPONENTS. APT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE,
INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY WEBSITE, APP, PLATFORM, OR SERVICE LINKED TO THE SERVICE,
WHETHER IN TERMS OF THEIR CORRECTNESS, ACCURACY, VALIDITY, PROPRIETY, RELIABILITY, LEGALITY, SECURITY, OR OTHERWISE. APT MAKES NO WARRANTIES THAT YOUR
USE OF THE SERVICE, INFORMATION, SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY WEBSITE, APP, OR SERVICE LINKED TO FROM
THE SERVICE WILL NOT INFRINGE THE RIGHTS OF OTHERS; AND APT ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH SERVICES, INFORMATION,
SOFTWARE, CONTENT, OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICE OR ANY OTHER WEBSITE, APP, PLATFORM OR SERVICE LINKED TO THE SERVICE. IF APPLICABLE
LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT
PERMITTED BY APPLICABLE LAW.
12. Disclaimer of Warranties
APT DOES NOT ACCEPT ANY LIABILITY FOR ANY LOSS OR DAMAGE (DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR OTHERWISE)
ARISING FROM YOUR USE OR INABILITY TO USE THE SERVICE. IN NO EVENT WILL APT'S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SERVICE OR THESE TERMS
EXCEED THE GREATER OF THE AMOUNT (IF ANY) PAID BY YOU TO APT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100.
THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY TO ALL ACTIONS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER
CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF APT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE
EXTENT PERMITTED BY APPLICABLE LAW.
SUBJECT TO SECTION 14 OF THIS AGREEMENT (DISPUTE RESOLUTION), TO THE EXTENT PERMITED BY APPLICABLE LAW, ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF
OF THE RELEVANT EVENTS. A DISPUTE IS COMMENCED IF IT IS FILED IN AN ARBITRATION OR, IF THE DISPUTE IS NON-ARBITRABLE, A COURT OF COMPETENT JURISDICTION,
DURING THE ONE-YEAR PERIOD. IF YOU OR WE PROVIDE NOTICE OF A DISPUTE UNDER SECTION 14 (DISPUTE RESOLUTION), THE ONE-YEAR PERIOD IS TOLLED FOR 60 DAYS
FOLLOWING RECEIPT OF THE NOTICE OF DISPUTE (ALTHOUGH FOR THE SAKE OF CLARITY, IT MAY BE FURTHER EXTENDED IF YOUR DISPUTE, CLAIM OR CONTROVERSY IS PART
OF A MASS FILING AS CONTEMPLATED IN SECTION 14.9). EXCEPT AS SET FORTH IN SECTION 14, YOU AND WE EACH WAIVE-THAT IS, GIVE UP-THE RIGHT TO PURSUE ANY
DISPUTE, CLAIM OR CONTROVERSY THAT IS NOT FILED WITHIN ONE YEAR AND ANY RIGHT YOU OR WE MAY HAVE HAD TO PURSUE THAT DISPUTE, CLAIM OR CONTROVERSY IN ANY
FORUM IS PERMANENTLY BARRED.
You agree to indemnify and hold harmless APT and its directors, officers, shareholders, parents, subsidiaries, affiliates, partners, agents, and licensors
(collectively, the "Indemnified Parties") from and against all losses, expenses, damages and costs, including reasonable attorney fees and costs,
resulting from: (i) your breach of any of the representations, warranties, and agreements made hereunder; (ii) your use of the Service;
(iii) your placement or transmission of any User Content onto the Service; (iv) any use of your Account in violation of this Agreement or your failure
to fulfill any obligations incurred through the use of your Account by you or a third party; or (v) your willful misconduct.
14. Dispute Resolution
We endeavor to resolve customer concerns quickly and to the customer's satisfaction. Please contact us via email to [email protected]
In the unlikely event that you're not satisfied with customer service's solution, and you and APT are unable to resolve a dispute through the
Informal Dispute Resolution Procedures below, we each agree to resolve the dispute through binding arbitration or small claims court instead of in
courts of general jurisdiction.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery
than in court, and is subject to very limited review by courts. Unless expressly limited by this Dispute Resolution provision, arbitrators can award the
same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations
and class actions are not permitted. In arbitration you may be entitled to recover attorneys' fees from us to the same extent as you would be
(1) Claims Subject to Arbitration
: To the fullest extent permitted by applicable law, APT and you agree to arbitrate all disputes and claims between us,
except for claims arising from bodily injury or that pertain to enforcing, protecting, or the validity of your or our intellectual property rights
(or the intellectual property rights of any of our licensors, affiliates and partners). This Arbitration Agreement is intended to be broadly interpreted.
It includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud,
misrepresentation or any other statutory or common-law legal theory;
- claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
- claims for mental or emotional distress or injury not arising out of physical bodily injury;
- claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- claims that may arise after the termination of this Agreement.
References to "APT", "you", "we" and "us" in this Arbitration Agreement include our respective predecessors in interest, successors, and assigns, as well
as our respective past, present, and future parents, subsidiaries; those entities and our respective agents, employees, licensees, licensors, and providers
of content as of the time your or our claim arises; and all authorized or unauthorized users or beneficiaries of Services under this or prior Agreements
between us. Notwithstanding the foregoing, either party may elect to have claims heard in small claims court seeking only individualized relief, so long
as the action is not removed or appealed to a court of general jurisdiction. This Arbitration Agreement does not preclude you from bringing issues to the
attention of federal, state, or local agencies. You agree that, by entering into this Agreement, you and we are each waiving the right to participate in a
class action and to a trial by jury to the fullest extent permitted by applicable law. This Agreement evidences a transaction in interstate commerce, and
thus the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration provision. This Arbitration Agreement
shall survive termination of this Agreement.
(2) Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures
: You and we agree that good-faith, informal efforts to
resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or
file a claim in small claims court must first send to the other a written Notice of Dispute ("Notice
"). A Notice from you to APT must be
emailed to [email protected]
"). Any Notice must include (i) the claimant's name, address, and email address;
(ii) a description of the nature and basis of the claim or dispute; (iii) if you are submitting the Notice, any relevant facts regarding your use of
the Service, including the name of the relevant Service (e.g., the Web site, App, or other Service at issue), whether you have created an account with or
receive any emails associated with the Service; (iv) a description of the nature and basis of the specific relief sought, including the damages sought,
if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the
contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person's dispute.
After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended
by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement
conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). You and we agree that the
parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually-convenient time and to seek to reach a
resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received
(or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small
claims court rules).
Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating
arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage
in the informal dispute resolution procedures set forth in this Subsection 14.2. All of the Mandatory Pre-Arbitration Notice and Informal Dispute
Resolution Procedures are essential so that you and APT have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements
has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the
arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion
of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively
closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.
(3) Arbitration Procedure: The arbitration will be governed by applicable rules of National Arbitration & Mediation ("NAM") (including
the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) ("NAM Rules")), as
modified by this Arbitration Agreement, and will be administered by NAM. (If NAM is unavailable or unwilling to do so, another arbitration provider shall
be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. §5.)
The NAM Rules are available online at www.NAMADR.org, by calling NAM at 1-800-358-2550, or by requesting them in writing at the Notice Address. You may
obtain a form to initiate arbitration at: https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting
You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration
Notice and Informal Dispute Resolution Procedures requirements referenced in Section 14.2 and that they are a party to the Arbitration Agreement enclosed
with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration
(and their counsel, if represented).
All issues are for the arbitrator to decide, except as otherwise expressly provided herein and except as to issues relating to the scope and enforceability
of the Arbitration Agreement or whether a dispute can or must be brought in arbitration (including whether a dispute is subject to this Arbitration
Agreement or a previous arbitration provision between you and APT), which are for a court of competent jurisdiction to decide. The arbitrator may consider
but shall not be bound by rulings in other arbitrations involving different customers.
Unless we and you agree otherwise, or the applicable NAM Rules dictate otherwise, any arbitration hearings will take place in the county (or parish) of
your billing address and you and a APT representative will be required to attend in person. At the conclusion of the arbitration proceeding, the
arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The
arbitrator's decision is binding only between you and APT and will not have any preclusive effect in another arbitration or proceeding that involves a
different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
As in court, you and APT agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are
complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor
brought for an improper purpose. The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or
applicable federal or state law, against all appropriate represented parties and counsel.
Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in
court, including awards of attorneys' fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall
bear their own attorneys' fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the
defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of
Civil Procedure 11(b)).
(4) Arbitration Fees: The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator,
and hearing fees) will be governed by the applicable NAM Rules, unless you qualify for a fee waiver under applicable law. If after exhausting any
potentially available fee waivers, the arbitrator finds that the arbitration fees will be prohibitive for you as compared to litigation, we will pay as
much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being
cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or brought for an
improper purpose or asserted in bad faith. You and we agree that arbitration should be cost-effective for all parties and that any party may engage with
NAM to address the reduction or deferral of fees.
(5) Confidentiality: Upon either party's request, the arbitrator will issue an order requiring that confidential information of either
party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a
proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent
permitted by law.
(6) Offer of Settlement: In any arbitration between you and APT, the defending party may, but is not obligated to, make a written
settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted.
The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award
is issued in the other party's favor and is less than the defending party's settlement offer or if the award is in the defending party's favor, the other
party must pay the defending party's costs incurred after the offer was made, including any attorney's fees. If any applicable statute or case law
prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which
the party bringing the claim may be entitled for the cause of action under which it is suing.
(7) Requirement of Individualized Relief: The arbitrator may award declaratory or injunctive relief only in favor of the individual party
seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the
arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative, class, or private attorney
general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class,
representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to
a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then the parties agree such a claim or
request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated. You
agree that any arbitrations between you and APT will be subject to this Section 14 and not to any prior arbitration agreement you had with APT, and,
notwithstanding any provision in this Agreement to the contrary, you agree that this Section 14 amends any prior arbitration agreement you had with APT,
including with respect to claims that arose before this or any prior arbitration agreement.
(8) Opt Out of Future Changes
: Notwithstanding any provision to the contrary, if APT makes any future change to this Arbitration Agreement
(other than a change to the Notice Address), you may reject any such change by sending APT an email to [email protected]
within 30 days of the posting
of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number,
(iv) if applicable, the username or email address associated with any potential account or newsletter; and (v) the approximate date of your initial use of
the relevant Service. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your
behalf. It must include a statement, personally signed by you, that you wish to reject the change to the Arbitration Agreement. This is not an opt out of
(9) Mass Filing:
If, at any time, 25 or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other
party or related parties by the same or coordinated counsel or entities, consistent with the definition and criteria of Mass Filings ("Mass Filing") set
forth in NAM's Mass Filing Supplemental Dispute Resolution Rules and Procedures ("NAM's Mass Filing Rules," available at
https://www.namadr.com/resources/rules-fees-forms/), you and we agree that the additional procedures set forth below shall apply. The parties agree that
throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing.
The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable
limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Pre-Arbitration Notice and
Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements in Section 14.2, until your
claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Stage One: Counsel for the claimants and counsel for APT shall each select 25 claims per side (50 claims total) to be filed and to proceed
in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless
the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be
assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process.
After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a
retired federal or state court judge, and APT shall pay the mediator’s fee.
Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for APT shall each select 50
claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural
changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties
agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in
connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this
second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired
federal or state court judge, and you agree that you shall pay the mediator's fee.
Stage Three: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for APT shall each select 100
claims per side (200 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural
changes the parties agreed to in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be
assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process.
Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all
remaining claims with a retired federal or state court judge.
If your claim is not resolved as part of the staged process identified above, either:
: You and APT may separately or by agreement, opt out of arbitration and elect to have your claim heard in court consistent
with the Agreement. You may opt out of arbitration by providing your individual, personally signed notice of your intention to opt out by sending APT an
email to [email protected]
. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on
your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 days after the conclusion of Stage 3
or the elective mediation associated with Stage 3. APT may opt your claim out of arbitration by sending an individual, personally signed notice of its
intention to opt out to your counsel within 14 days after the expiration of your 30 day opt out period. Counsel for the parties may agree to adjust these
Option Two: If neither you nor APT elect to have your claim heard in court consistent with Option One, then you agree that your claim
will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 200,
then 200 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual
arbitrations as part of a staged process. If the number of remaining claims is fewer than 200, then all of those claims shall be filed and proceed in
individual arbitrations. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in
connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each
set of 200 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the
parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator) to
explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources,
and resolve the remaining claims.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing,
prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of
competent jurisdiction determines that they are not enforceable as to your claim, then your claim shall proceed in a court of competent jurisdiction
consistent with this Agreement.
You and APT agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and
sincere disputes between us. You and APT acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties
further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases.
(10) Severability: If any portion of this Arbitration Agreement is found to be void, invalid, or otherwise unenforceable, then that
portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the
original provision, or portion thereof, as closely as possible. The remainder of this Arbitration Agreement shall continue to be enforceable and valid
according to the terms contained herein.
15. Class Action and Jury Trial Waiver
You and APT agree that, to the fullest extent permitted by law, each party may bring claims (whether in court or in arbitration) against the other only in
an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general,
or representative proceeding. This means that you and APT may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any
other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their
own individual claim. This also means that you and APT may not participate in any class, collective, consolidated, private attorney general, or
representative proceeding brought by any third party. Notwithstanding the foregoing, you or APT may participate in a class-wide settlement.
To the fullest extent permitted by law, you and APT waive any right to a jury trial.
16. General Terms
- Governing Law and Venue
This Agreement shall be governed by the laws of the State of Ohio, without regard to conflict of law principles. Any dispute that is not
subject to arbitration under Section 14 (Dispute Resolution) of the Agreement, or any issues involving arbitrability or enforcement of any
provisions under Section 14 shall be brought in the appropriate state or federal court located in Butler County, Ohio; and we and you each
irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in Butler County, Ohio for the adjudication of
all non-arbitral claims.
- Force Majeure
APT will not have any liability to you by reason of any delay or failure to perform any obligation hereunder if the delay or failure to
perform is occasioned by force majeure, which refers to any act of God, storm, fire, casualty, unanticipated work stoppage, power outage,
satellite failure, strike, lockout, labor dispute, civil disturbance, riot, war, national emergency, Governmental action, or other cause
beyond its control.
- No Waiver
No failure or delay by APT in exercising its rights under this Agreement will constitute a waiver of those rights, nor will any partial
assertion of any such rights preclude further assertion of the same.
Except as specified in Section 14 (Dispute Resolution), if any portion of this Agreement shall be unlawful, void, or for any reason
unenforceable, then that portion shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any
remaining provisions or portions thereof.
The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
Unless the context of this Agreement clearly requires otherwise:(a) references to the plural include the singular, the singular the plural,
and the part the whole; (b) "or" has the inclusive meaning frequently identified with the phrase "and/or;" (c) "including" has the inclusive
meaning frequently identified with the phrase "including but not limited to" or "including without limitation;" and (e) references to
"hereunder", "herein", or "hereof" relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation, or
agreement, including this Agreement, will be deemed to include such statute, rule, regulation, or agreement as it may be modified, varied,
amended, or supplemented from time to time.
Any provision herein which by its nature contemplates your continued observance following termination of this Agreement will survive
termination of this Agreement.
- Entire Agreement
This Agreement, including any applicable Additional Terms, is the entire agreement between the parties relating to the matters contained herein.
17. Copyright Agent
If you believe that any User Content or other material on the Service infringes your copyright rights, please forward the following information in writing
to our Copyright Agent at the address listed below, in conformance with the Digital Millennium Copyright Act of 1998 ("DMCA"):
- Your name, address, telephone number, and (if available) email address;
- A description of the copyrighted work that you claim has been infringed;
- The exact URL or a description of each place where alleged infringing material is located;
- A statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
- Your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
- A statement by you that the information in your notice is accurate and, under penalty of perjury, that you are authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed.
The above information must be submitted to APT's Copyright Agent at the following address:
Athletic Performance Tools, LLC.
Attention: Copyright Agent
4780 Stillwell Rd.
Oxford, Ohio 45056
Tel: (513) 786-6464
Email: [email protected]
If we are notified that any User Content infringes another's intellectual property rights, we may remove such User Content pursuant to the DMCA.
In accordance with the DMCA, we have a repeat infringer policy and reserve the right to terminate your Account for submitting infringing User Content in
violation of these Terms once or on a repeated basis.
We strive to make the content on this website usable by all visitors, including those with disabilities. If you are having difficulty using this website,
with or without assistive technology, please contact us at [email protected]
. To enable us to respond in a manner most helpful to you, please indicate
the nature of your difficulty using the website, the specific web address (URL link) at issue, and your full contact information, including email address
and phone number. Thank you for helping us make your online experience more enjoyable.
19. Contact Us
You may contact us at the addresses specified herein for specific requests, or contact Customer Service with general inquiries.
IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY ALL OF THE FOREGOING TERMS, PLEASE DO NOT ACCESS OR USE THE SERVICE.