This Service Agreement was last updated July 15,
2007
This Athletic Quest (hereafter referred to as "AQ") Internet Web Site Use
Agreement ("Agreement") is between you and ATHLETIC QUEST® A Division of
SPORTAMERICA, Inc., doing business as Athletic Quest ("AQ"), with a principal
place of business in Salt Lake County, Utah, United States of America. Use of
the Athletic Quest Internet Web Site (the "AQ Web Site" and "Web Site")
signifies your agreement to the terms and conditions of use set forth below in
this Agreement:
1. Use of Web Site Conditioned Upon Agreement. YOU AGREE TO READ THESE TERMS
AND CONDITIONS OF USE CAREFULLY BEFORE USING THE AQ WEB SITE. Your failure to
read this Agreement will not excuse you from its terms and conditions of use. If
you do not agree to these terms and conditions of use, you may not access or
otherwise use the Web Site. By using the Web Site, you acknowledge that you have
read this Agreement and that you agree to be contractually bound by it.
2. Fees. You agree to pay the membership fees according to the membership fee
schedule currently posted on the AQ Web Site, which fee schedule is incorporated
into this Agreement by this reference.
3. Returned Checks and Charge backs. AQ charges $25.00 for every returned check
and for every chargeback. AQ reserves the right to send all unresolved returned
checks and charge backs to collections. You specifically agree to pay any and
all attorneys fees and costs and all court costs incurred by AQ or its
collection agent in collecting returned checks and charge backs, including,
without limitation, enforcing any judgment. You also agree that the laws of the
State of Utah shall apply to any collection action brought under this Section 3,
and you agree to submit to the jurisdiction of the courts of Utah for any
collection action brought under this Section 3. You agree that you shall not
bring any counterclaim against AQ or action by AQ or its collection agent to
collect a returned check or chargeback, and you must resolve all disputes
initiated by you with AQ by using the procedures required under Section 26 of
this Agreement.
4. Right to Terminate. AQ reserves the right to terminate your membership if
you violate any of your obligations under this Agreement, in which case there
will be no refunds issued.
5. Right to Refuse Service. AQ reserves the right to refuse service to any
person at any time. If AQ does refuse service without alleging a breach of this
Agreement, you agree that you are only entitled to a refund of your membership
fees in proportion to the days left in your prepaid membership period (for this
purpose, each month is considered to have 30 days). A charge processing fee of
$25.00 will also be assessed.
6. Right to Modify the Agreement. AQ reserves the right, at its sole
discretion, to change, modify, add, or remove any portion of this Agreement, in
whole or in part, at any time. Notification of changes in the Agreement will be
posted on the AQ Web Site. You agree that your continued use of the Web Site
shall constitute acceptance of the revised agreement.
7. Right to Modify Web Site. AQ may change, suspend, or discontinue any aspect
of the AQ Web Site at any time, including the availability of any Web Site
feature, database, or content. AQ may also impose limits on certain features and
services or restrict your access to parts or all of the Web Site without notice
or liability.
8. Monitoring Web Site and Disclosing Information. You acknowledge that with
few exceptions transmission to and from the AQ Web Site are not confidential and
your communications may be read or intercepted by others. You acknowledge that
by submitting communications to AQ, no confidential, fiduciary, contractually
implied, or other relationship is created between you and AQ other than pursuant
to this Agreement. AQ may monitor your use of the AQ Web Site and, without
notice or permission, may freely use and disclose including, without limitation
to law enforcement agencies, any information and materials received from you or
collected through your use of the Web Site for any lawful reason or purpose. AQ
uses encryption technology to secure your credit card information, and AQ will
keep your credit card information confidential in so far as it is required to by
the law.
9. Copyright and Fair Use of Web Site Information. The contents of the AQ Web
Site are the proprietary property of AQ and are only for your personal,
non-commercial use. The Web Site is protected by copyright as a collective work
or a compilation, or both, pursuant to U.S. copyright laws, international
conventions, and other copyright laws. All materials contained on the Web Site
are owned or controlled by AQ or the party credited as the provider of the
content. You hereby transfer to AQ ownership of the copyright for any and all
profile data that you will submit or have submitted to the Web Site. You agree
that any reproduction, duplication, distribution, or transmission of the
contents of the Web Site or the Products, services offered to customers /
clients on the website without the prior written consent of AQ is prohibited.
10. User Grants License to AQ. By posting messages, uploading files, inputting
data, or engaging in any other form of communication (individually or
collectively "Communications") to the AQ Web Site, you hereby grant to AQ a
perpetual, worldwide, irrevocable, unrestricted, nonexclusive, royalty free
license to use, copy, license, sublicense, adapt, distribute, display, publicly
perform, reproduce, transmit, modify, edit, and otherwise exploit such
Communications in all media now known or hereafter developed. You hereby waive
all rights to any claim against AQ for any alleged or actual infringements of
any proprietary rights, rights of privacy and publicity, moral rights, and
rights of attribution in connection with such Communications.
11. Users Representations, Warranties, and Covenant. You represent, warrant,
and covenant that:
a. You are a student, student-athlete, coach, Athletic Director, parent,
guardian or sports participant that is using the site to further academic or
athletic endeavors;
b. All information you provide to AQ and the other Users (as defined
herein) of the AQ Web Site is current, truthful, and accurate;
c.
You shall not:
i. upload, post, transfer, transmit to, distribute, or otherwise publish
through the AQ / SA Web Site, or from the AQ / SA Products, formats, systems
and services any materials that;
ii.
restrict or inhibit any other User from using and enjoying the Web
Site;
iii.
are unlawful, threatening, harassing, humiliating, abusive,
libelous, defamatory, blasphemous, obscene, vulgar, racist, offensive,
pornographic, profane, sexually explicit, or indecent;
iv.
constitute or encourage conduct that would constitute a criminal
offense, give rise to civil liability, or otherwise violate law;
v.
violate, plagiarize, or infringe the rights of third parties,
including, without limitation, copyright, trademark, patent, rights of privacy
or publicity, or any other proprietary right of any AQ / SA Products, systems or
services;
vi.
contain a virus or other harmful component;
vii.
contain any information, software, or other material of a
commercial nature;
viii.
contain advertising of any kind, except as otherwise specifically
allowed by notices posted in the AQ Web Site, and within the restrictions
allowed by those notices, which notices are incorporated into this Agreement by
this reference; or
ix.
constitute or contain false or misleading indications of origin or
statements of fact;
d.
You shall not post any contact information, including, without
limitation, our full name, e-mail address, telephone number, street address,
except in properly designated fields in your Web Site profile;
e.
You shall not use or include hyperlinks anywhere on your Web Site profile
or include or display in your profile graphics not provided by or through the
Web Site;
f.
You shall not use the contents of your Web Site profile, its instant
messenger or chat features, the e-mail addresses obtained via AQ, or any other
feature of AQ to promote any type of product, service, or other commercial
venture unless you are specifically allowed to by notices posted in the Web Site
and within the restrictions allowed by those notices (which notices are
incorporated into this Agreement by this reference); and you agree to pay
damages to AQ in the amount of one thousand U.S. dollars ($1,000.00) for each
instance of violating this covenant or applicable notice;
g.
You shall not use AQ's services to send chain letters, junk or spam
email, or solicit illegal activity and;
h. You shall provide honest and accurate information to AQ of all data
as it relates to your personal and professional information, activities and
profiles.
i. You shall not allow anyone else to use your account,
including, without limitation, to log onto the AQ Web Site under your .
12. Users Violation of Representations, Warranties, and Covenants is Not
Protected Speech. You understand that AQ is a privately owned commercial
enterprise that is not associated with any governmental agency. Accordingly, you
understand that while using the AQ Web Site you have no governmental protected
right of privacy or right of freedom of speech, such as under the First
Amendment of the Constitution of the United States of America or any other
similar constitution or law. You also understand and agree that if you have any
such rights, you waive them while using the Web Site. Therefore, you understand
and agree that you have no right of privacy or right of freedom of speech
excusing any violation of a representation, warranty, or covenant in this
Agreement. You further understand that AQ will fully cooperate with law
enforcement officials in prosecuting internet harassment and all crimes.
13. Zero-Tolerance Policy. AQ has a zero-tolerance policy for your breach of a
representation, warranty, covenant, or any other provision of this Agreement.
You agree that if you, or anyone else who uses your account, exhibits any of
the behavior prohibited by this Agreement, your AQ account may, in its sole
discretion, be terminated and you will not be entitled to a refund. You will
receive an e-mail notification advising you of the termination of your account.
14. Right to Edit Profile. AQ has the right to edit your profile to bring it
into compliance with the terms of this Agreement. AQ reserves the right to edit
or reject photos and text that, in the sole judgment of AQ, are inappropriate
including but not limited to inappropriate content, photos, video footage,
language or other items that may be cause for termination of your agreement.
15. Users Duty to Indemnify, Defend, and Hold Harmless. You hereby agree to
indemnify, defend, and hold AQ, and its parent and all of their subsidiaries,
affiliates, and related businesses, and parties, and all of their officers,
directors, managers, owners, agents, employees, information providers,
affiliates, licensors, and licensees (individually or collectively the
"Indemnified Parties"), harmless from and against any and all losses,
liabilities, and costs (including, without limitation, attorneys fees and costs)
incurred by the Indemnified Parties in connection with any claim arising out of
any breach by you of this Agreement, including but not limited to, a breach of
any and all representations, warranties, and covenants, included in this
Agreement. You agree to cooperate as fully as reasonably required in the defense
of any claim. AQ reserves the right, at its own expense, to assume the exclusive
defense and control of any matter otherwise subject to indemnification by you,
and you shall not in any event settle any matter without the written consent of
AQ. You shall be responsible under this provision for anyone using your
account.
16. No Representation, Warranty, or Endorsement of Accuracy or Reliability. AQ
does not represent, warrant, or endorse the accuracy or reliability of any
representation, advice, opinion, statement, profile, or other information
(collectively Information) displayed or distributed through the AQ Web Site. You
acknowledge that any reliance upon any such Information shall be at your sole
risk.
17. Not Responsible for Posted Information. You agree that AQ is not
responsible for the actions of its members or visitors (collectively "Users"). AQ does not and cannot review all Information or other materials posted to the
AQ Web Site by its Users, and AQ is not responsible for any such Information and
materials posted by Users. AQ, however, reserves the right at all times to edit,
refuse to post, or to remove any Information or other materials, in whole or in
part, that in AQ's sole discretion is objectionable or in violates of this
Agreement.
18. No Endorsement of Linked Sites. The AQ Web Site may contain links and
pointers to the other related World Wide Web Internet sites, resources, and
sponsors of the AQ Web Site. Links to and from the AQ Web Site and third-party
web sites do not constitute an endorsement by AQ or any of its subsidiaries or
affiliates of any third-party web sites or their resources and contents. AQ also
disclaims any and all responsibility for content contained in any third-party
materials provided through links from the AQ Web site.
19. Interruption of Service. You understand and agree that AQ occasionally will
interrupt the AQ Web Site and take it off line to maintain and upgrade the Web
Site. You also understand that the Web Site will occasionally be interrupted as
a result of acts outside of the control of AQ or its service providers. You
agree you are not entitled to any refunds or damages for the Web Site being
temporarily unavailable.
20. User Accepts Web Site AS IS. THE AQ WEB SITE, INCLUDING, WITHOUT
LIMITATION, ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE
AVAILABLE ON OR ACCESSED THROUGH THE WEB SITE, IS PROVIDED "AS IS." TO THE
FULLEST EXTENT PERMISSIBLE BY LAW, AQ AND ITS SUBSIDIARIES AND AFFILIATES MAKE
NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE
WEB SITE OR THE MATERIALS, INFORMATION, AND FUNCTIONS MADE ACCESSIBLE BY THE
SOFTWARE USED ON OR ACCESSED THROUGH THE WEB SITE, FOR ANY Products OR SERVICES
OR HYPERTEXT LINKS TO THIRD PARTIES, OR FOR ANY BREACH OF SECURITY ASSOCIATED
WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE WEB SITE, OR ANY
LINKED SITE. FURTHER, AQ AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY
EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, FOR
NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. AQ AND
ITS PARENT, SUBSIDIARIES, AND AFFILIATES DO NOT WARRANT THAT THE FUNCTIONS
CONTAINED IN THE WEB SITE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL
BE CORRECTED, OR THAT THE WEB SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE
OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS. AQ AND ITS SUBSIDIARIES AND
AFFILIATES SHALL NOT BE LIABLE FOR THE USE OF THE WEB SITE, INCLUDING, WITHOUT
LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN.
21. Limitations of Liability. THIS SECTION DESCRIBES THE FULL EXTENT OF AQS
RESPONSIBILITY FOR ANY CLAIMS A USER MAKES FOR DAMAGES CAUSED BY THE FAILURE OF
THE AQ WEB SITE, OR ANY OTHER CLAIMS IN CONNECTION WITH AQ OR THIS AGREEMENT.
a.
If AQ's negligence causes damage to person or property, AQ will be liable
for no more than the amount of direct damages to the person or property. For any
other claim, AQ will not be liable for more than the amount of AQ's charges for
the services during the affected period. For all claims, AQ will not be liable
for indirect or consequential damages, including but not limited to, lost
opportunities, lost profits, or revenue. AQ also will not be liable for
punitive, reliance, or special damages, these limitations apply even if the
damages were foreseeable or AQ was told they were possible, and they apply
whether the claim is based on contract, tort, statute, fraud, misrepresentation,
or any other legal or equitable theory.
b. AQ will not be liable for any damages if the AQ Web Site is down,
interrupted, or there is a problem with the interconnection of the Web Site with
the services or equipment of some other party.
c. You understand that if you become dissatisfied with the AQ or the Web
Site, your sole and exclusive remedy will be to discontinue your membership in
accordance with section 3 of this Agreement.
22. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH, U.S.A., AND TO THE EXTENT OF
ENFORCING INTELLECTUAL PROPERTY RIGHTS GOVERNED BY FEDERAL LAW, THE LAW OF THE
UNITED STATES OF AMERICA, EXCLUSIVE OF ANY PROVISION OF THE UNITED NATIONS
CONVENTION ON THE INTERNATIONAL SALE OF GOODS, WITHOUT REGARD TO CONFLICTS OF
LAWS PROVISIONS. FOR ANY AND ALL ACTIONS THAT ARE ALLOWED BY THIS AGREEMENT OR
BY THE APPLICABLE RULES OF ARBITRATION TO BE BROUGHT IN A COURT, YOU HEREBY
IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS
OF THE STATE OF UTAH, LOCATED IN SALT LAKE COUNTY OR UTAH COUNTY, U.S.A. AND
HEREBY AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION
OF ANY DISPUTE ARISING UNDER THIS AGREEMENT.
23. Dispute Resolution. IT IS IMPORTANT THAT ALL USERS READ THIS ENTIRE SECTION
CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND
BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE
OR JURY OR THROUGH A CLASS ACTION. THIS SECTION 23 DOES NOT APPLY, HOWEVER, TO
AQ SEEKING TO COLLECT RETURNED CHECKS AND CHARGEBACKS UNDER SECTION 4 OF THIS
AGREEMENT.
a.
Time Limitation to Bring Claims and Disputes. YOU AGREE THAT ANY
CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT
WITHIN ONE YEAR AFTER THE DATE THE BASIS FOR THE CLAIM OR DISPUTE FIRST ARISES,
WHETHER KNOWN OR UNKNOWN AT THAT TIME. THIS TIME LIMITATION APPLIES TO ALL
MATTERS SUBMITTED TO A COURT OR ARBITRATION.
b.
Small Claims Court and Binding Arbitration. You agree to resolve all
claims of $5,000.00 or less in a small claims court located in South Jordan,
Utah, U.S.A. (In the case of court action, you agree to pay all court costs and
reasonable attorney fees incurred by AQ necessary to enforce its rights under
this Agreement.) All other disputes arising out of or related to this Agreement
(whether based in contract, tort, statute, fraud, misrepresentation, or any
other legal or equitable theory) must be resolved by final and binding
arbitration. This includes any dispute based on any product, service, or
advertising having a connection with this Agreement and any dispute not finally
resolved by a small claims court. The arbitration will be conducted by one
arbitrator using the procedures described below. If any portion of this Dispute
Resolution section is determined to be unenforceable, then the remainder shall
be given full force and effect.
c.
Rules of Arbitration. The arbitration of any dispute involving more than
$5,000.00 shall be conducted in accordance with the Commercial Arbitration Rules
of the American Arbitration Association ("AAA"), as modified by this Agreement,
which are in effect on the date a dispute is submitted to the AAA. At your
expense, you have the right to be represented by counsel in an arbitration. In
conducting the arbitration and making any award, the arbitrator shall be bound
by and strictly enforce the terms of this Agreement and may not limit, expand,
or otherwise modify its terms.
d.
No Joiner Allowed. NO DISPUTE MAY BE JOINED WITH ANOTHER LAWSUIT OR IN AN
ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON OR BE RESOLVED ON A CLASS-WIDE
BASIS. YOU WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS
AGREEMENT.
e.
Duty to Attempt to Resolve Disputes. Before you take a dispute to
arbitration or to small claims court, you must first contact AQ or write to AQ
and give it an opportunity to resolve the dispute. If the dispute cannot be
satisfactorily resolved within sixty days from the date you or AQ is notified by
the other of a dispute, then either party may, as the case may be, file a small
claims case or contact the AAA in writing at American Arbitration Association
and request arbitration of the dispute.
f.
Arbitration Information and Filing Procedure. Information about the
arbitration process and the AAAs Arbitration Rules and its fees are available
from the AAA on the Internet at www.adr.org or
by contacting AQ at customerservice@athleticquest. The arbitration shall be
based only on the written submissions of the parties and the documents submitted
to the AAA relating to the dispute, unless either party requests that the
arbitration be conducted using the AAA’s telephonic, online, or in-person
procedures. Any in-person arbitration will be conducted in Salt Lake City, Utah.
Any arbitration shall remain confidential. Neither you nor AQ may disclose the
existence, content, or results of any arbitration or award, except as may be
required by law or to confirm and enforce an award.
g.
Fees and Expense of Arbitration. You must pay the applicable AAA filing
fee when you submit your written request for arbitration to the AAA. The AAAs
filing fee and administrative expenses for a document arbitration will be
allocated according to the AAA’s Rules. If you elect an arbitration process
other than a document (or desk) arbitration, you must pay your allocated share
of any higher administrative fees and costs for the process you select. Unless
applicable substantive law provides otherwise, each party will pay its own
expenses to participate in the arbitration, including attorney’s fees and
expenses for witnesses, document production, and presentation of evidence. The
prevailing party may, however, seek to recover the AAAs fees and the expenses of
the arbitrator from the other party.
h.
Exceptions to Informal Dispute Resolution and Arbitration. The
requirement of attempting to informally resolve the matter will not apply if:
(i) the expiration of the statute of limitations for a cause of action is
imminent or (ii) injunctive or other equitable relief is necessary to enjoin an
ongoing injury or to mitigate damages. Further, the requirement that matters be
submitted to arbitration shall not prohibit a party from seeking injunctive
relief pending arbitration. Further, AQ may at its sole discretion discontinue a
User’s membership, including, without limitation, a user’s instant messenger and
chat use, and remove the User’s profile pending the resolution of any dispute
with a User.
24. Entire agreement. This Agreement, which incorporates the membership fees
schedule and notices contained on the AQ Web Site, constitutes the entire
agreement between AQ and you with respect to your use of the Web Site.
25. Severability. If for any reason an arbitrator or a court of competent
jurisdiction finds any provision of the Agreement, or portion thereof, to be
unenforceable, that provision shall be enforced to the maximum extent
permissible so as to effect the intent of the provision, and the remainder of
this Agreement shall continue in full force and effect.
26. Headings. The headings of the sections and their subsections contained in
this Agreement are for the convenience of the reader only and do not modify the
provisions of this Agreement.
27. Waiver. You agree that any waiver by AQ of any breach of this Agreement
must be in writing and signed by an authorized agent of AQ and shall neither be
a waiver of any subsequent breach nor of any underlying obligation.
28. Binding Effect. You agree that this Version P-1.01 of the Agreement is
effective as of April 1, 2004. You also agree to be bound by this version and,
if applicable, previous version of this Agreement no matter which entity
currently owns or operates the AQ Web Site and no matter which entity collected
your membership fees.
29. Survival of Terms. If for any reason your membership or your rights as a
User of the AQ Web Site terminate while this Agreement is in effect, the
provisions of the following sections will survive that termination and continue
according to their terms:
a. Section 3 Returned Checks and Charge backs;
b. Section 8 Monitoring Web Site and Disclosing Information;
c. Section 9 Copyright and Fair Use of Web Site Information;
d. Section 10 User Grants License to AQ;
e. Section 11 Users Representations, Warranties, and Covenant;
f. Section 12 Users Violation of Representations, Warranties, and Covenants
is Not Protected Speech;
g. Section 14 Right to Edit Profile;
h. Section 15 Users Duty to Indemnify, Defend, and Hold Harmless;
i. Section 16 No Representation, Warranty, or Endorsement of Accuracy or
Reliability;
j. Section 17 Not Responsible for Posted Information;
k. Section 18 No Endorsement of Linked Sites;
l. Section 20 User Accepts Web Site AS IS;
m. Section 21 Limitations of Liability;
n. Section 22 Choice of Law;
o. Section 23 Dispute Resolution;
p. Section 27 Waiver;
q. Section 28 Binding Effect;
r. Section 29 Survival of Terms.