This Service Agreement was last updated July 15,
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.