IMPORTANT – READ CAREFULLY BEFORE PROCEEDING
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE PURCHASING. BY INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, YOU ("Subscriber") ACKNOWLEDGE AND AGREE TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT FOR ACCESS TO AND THE USE OF PRODUCTS (as defined below) PROVIDED BY THE QUICK BOARD, LLC (the "Company"). IF SUBSCRIBER IS NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, SUBSCRIBER SHOULD PROMPTLY EXIT FROM THIS WEBSITE AND REFRAIN FROM ACCESSING OR USING ITS PRODUCTS. BY USING OR ACCESSING THE PRODUCTS, SUBSCRIBER AGREES TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS.
IF SUBSCRIBER HAS NOT REACHED THE LEGAL AGE OF MAJORITY, OR IS OTHERWISE NOT PERMITTED BY LAW TO BE A PARTY TO THIS AGREEMENT, SUBSCRIBER ACKNOWLEDGES THAT THE COMPANY IS PROVIDING THE WEBSITE WITH THE IMPLICIT UNDERSTANDING THAT SUBSCRIBER’S LEGAL GUARDIAN IS NOT OPPOSED TO SUBSCRIBER’S ACCESS TO OR USE OF THE WEBSITE. THE COMPANY RESERVES THE RIGHT TO DISCONTINUE SUBSCRIBER&rsquoS ACCESS TO OR USE OF THE WEBSITE IN THE EVENT SUBSCRIBER DOES NOT OTHERWISE COMPLY WITH THE TERMS AND CONDITIONS CONTAINED HEREIN. IN RESPONSE TO THE CHILDREN’S ONLINE PRIVACY PROTECTION ACT ("COPPA"), THE COMPANY DOES NOT KNOWINGLY COLLECT THE PERSONAL INFORMATION OF CHILDREN UNDER THE AGE OF THIRTEEN (13) AND REQUIRES THAT SUBSCRIBERS BE AT LEAST THIRTEEN (13) YEARS OLD TO ACCESS OR USE THE COMPANY’S PRODUCTS.
1. GRANT OF RIGHTS TO USE PRODUCTS.
Effective upon acceptance of this Agreement, the Company hereby grants to Subscriber a personal, nonexclusive, nontransferable, revocable license to access and use the Products (as defined below) for Subscriber’s non-commercial use. Subscriber shall have no right to sell, resell, reproduce, duplicate, copy, distribute, create derivative works of or exploit for commercial purposes, any portion of the Products, access to the Products, or use of the Products nor make any claim that Subscriber does have such right. The revocable license provided by the Company hereunder may allow Subscriber to access various online athletic performance enhancing and fitness services and products (collectively, the "Products"). Unless explicitly stated otherwise, any new features provided by the Company that augment or enhance the current Products shall also constitute "Products" and shall be subject to these terms and conditions. Subscriber is solely responsible for obtaining all equipment and approvals necessary for connection to the World Wide Web and all charges associated with such connection, including, but not limited to, obtaining a PC and modem or other access device, having access to the World Wide Web and paying phone services charges.
2. THE COMPANY’S PROPRIETARY RIGHTS.
As between the parties, the Company shall retain all right, title and interest to the Products including all copyrights, trademarks, patents and all other intellectual property rights thereto. Subscriber may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Products for any purpose whatsoever. Subscriber may not allow any third party access to or use of the Products for any purpose whatsoever. The copyright notices and other proprietary legends shall not be removed from the Products, and no right to use any trademark is granted under this Agreement. Subscriber may not grant any sublicense, lease or other right in the Products to any third party. All rights not expressly granted under this Agreement are retained by the Company.
3. SUBSCRIBER REGISTRATION.
Subscriber agrees to provide true, accurate, current and complete data to the Company upon subscribing to thequickboard.com and at subsequent times as requested by the Company. If Subscriber provides data that is, or that the Company suspects to be, false, inaccurate, not current or incomplete, the Company has the right to suspend or terminate Subscriber’s access to and refuse any and all current or future use of all Products, or any portion thereof. Subscriber shall maintain and promptly update the registration data as applicable, including, but not limited to a change in address, change in credit card account status (e.g., closed account, maximum credit use) or change in expiration date of credit card account. Upon completion of all registration information and acceptance of this Agreement, Subscriber will receive a password, user ID, and if applicable, a PIN. Subscriber is solely responsible for maintaining the confidentiality of Subscriber’s password and PIN and will be responsible for all transactions and activities that occur as a result of Subscriber’s disclosure of such password and/or PIN, whether or not such transactions and/or activities were authorized by Subscriber. Subscriber shall not give account information to third parties and shall at all times be responsible and liable for any transactions or activities that occur on Subscriber’s account. Subscriber shall immediately notify the Company of any unauthorized use of Subscriber’s account or of any other breach of security.
4. TERMINATION AND REFUND.
SUBSCRIBER’S RIGHTS TO CHANGE OR END THIS AGREEMENT
Subscriber may terminate its rights to receive Products hereunder by providing written notice to the Company. If Subscriber terminates its rights to receive Products hereunder in the manner prescribed above, Subscriber will be billed through the end of the billing cycle in which such rights are terminated. Upon any termination of Subscriber’s right to receive Products hereunder, Subscriber shall immediately cease use of the Products, and the Company shall have no further obligations whatsoever to Subscriber. Any change in the delivery or administration of the Products requested by Subscriber shall be subject to the Company’s sole and absolute discretion and the provisions of this Agreement. The Company will refund the membership fee within the first thirty (30) days of the account creation if Subscriber wishes to cancel its membership account. If Subscriber cancels after the first thirty (30) days of the account creation, Subscriber will be billed through the end of the current billing cycle and no refund will be issued.
Cancellations of accounts must be submitted in writing to thequickboard.com attention customer support from the email address that was used to create the account. The customer support email address is conveniently located on the website. Cancellations may also be sent to:
The Quick Board, LLC
615 Oakleaf Office Lane, Suite 3
Memphis, TN 38117
THE COMPANY’S RIGHTS TO CHANGE OR END THIS AGREEMENT
To maintain or improve the Products, to prevent fraud, or for any other reason determined by the Company, the Company, in its sole and absolute discretion, may restrict, suspend, terminate or modify Subscriber’s access to or use of the Products with or without notice. Without limiting the generality of the foregoing, the Company may restrict, suspend or terminate Subscriber’s access to or use of Products with or without notice for reasons including, without limitation, if Subscriber (i) incurs charges that cannot be billed; (ii) exceeds any credit limit; (iii) makes a false statement to the Company; (iv) interferes with the Company’s customer service or other business operations; (v) becomes insolvent or goes bankrupt; or (iv) breaches any part of this Agreement. The Company may also restrict, suspend or terminate Subscriber’s access to or use of Products with or without notice for reasons including, but not limited to, situations where (i) Subscriber’s credit information cannot be verified; (ii) the Company believes or suspects that Subscriber’s account is being misused, or used by anyone far unlawful activity; (iii) the Company believes or suspects that the use of Subscriber’s account adversely affects or has the potential to affect service to other customers; or (iv) the Company believes or suspects that the use of Subscriber’s account adversely affects or has the potential to affect the Company’s operations.
Upon any termination in accordance with the foregoing, the Company may immediately deactivate or delete Subscriber’s account, including all related information and files associated therewith, and/or bar any further access to or use of the Products. The Company shall not be liable to Subscriber or any third party for any reason for terminating this Agreement or access to the Products or for modifying this Agreement and/or the Products.
5. WARRANTY DISCLAIMER.
THE PRODUCTS PROVIDED HEREUNDER ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PRODUCTS ARE FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OF PROPRIETARY RIGHTS. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE PRODUCTS SHALL BE BORNE SOLELY BY SUBSCRIBER.
THE COMPANY MAKES NO WARRANTY THAT THE PRODUCTS WILL MEET SUBSCRIBER’S REQUIREMENTS, OR THAT THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE PRODUCTS WILL BE CORRECTED. THE COMPANY IS NOT RESPONSIBLE FOR PRODUCTS THAT ARE LOST OR MISDIRECTED DUE TO INTERRUPTIONS OF OR FLUCTUATIONS IN THE WEBSITE OR THE INTERNET IN GENERAL.
THE COMPANY DOES NOT MAKE ANY WARRANTY PERTAINING TO ANY GOODS OR SERVICES PURCHASED, OBTAINED, SECURED OR ACQUIRED THROUGH OR FROM THE PRODUCTS.
THE COMPANY DOES NOT WARRANT OR GUARANTEE ANY RESULTS OR SUCCESS THROUGH OR FROM THE USE OF THE PRODUCTS. USE OF THE PRODUCTS ARE AT SUBSCRIBER’S SOLE RISK AND DISCRETION, AND THE COMPANY WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER OR SUBSCRIBER’S PROPERTY.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM THE COMPANY, ITS EMPLOYEES, OR THROUGH OR FROM THE PRODUCTS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO SUBSCRIBER.
6. LIMITATION OF LIABILITY.
IN NO EVENT SHALL THE COMPANY BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY. THE COMPANY’S LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER FOR THE PRODUCTS, IF ANY. The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
7. RELEASE AND ASSUMPTION OF RISK.
Subscriber agrees to assume any and all risks incidental to or arising from accessing and/or using the Products. Subscriber understands and acknowledges that the risks attendant to the access and use of the Products will vary from Product to Product but that such risks may include minor injuries (e.g., scratches, bruises and sprains), major injuries (e.g., eye injury, loss of sight, joint or back injuries, broken bones, heart attacks or concussions), or even catastrophic injuries (e.g., paralysis or death). On behalf of Subscriber and on behalf of Subscriber’s heirs, executors, personal representatives, administrators, and assigns, Subscriber releases and forever waives, discharges, and covenants not to bring any cause of action with respect to any and all liabilities, claims, actions, damages, costs or expenses of any type or nature whatsoever arising from, but not limited to, access to or use of the Products. The released parties are the Company, related and affiliated companies, and the officers, directors, governors, employees, agents, representatives, successors and assigns of each of the foregoing entities.
Subscriber understands that its access to and use of the Products is voluntary, and Subscriber is electing to access and use Products at its own risk. Subscriber understands that there are risks inherent in the Products, and Subscriber knowingly assumes such risks. Having consulted with its physician(s) as needed, Subscriber declares that Subscriber is physically fit and has the requisite skill level required to access and use the Products. Subscriber further assumes responsibility for its own medical treatment and the resultant costs and expenses arising therefrom, if such need arises, and Subscriber specifically releases any and all third parties aiding in such treatment from all liability, claims, actions, damages, costs or expenses of any type or nature whatsoever.
Subscriber shall indemnify and hold harmless the Company, its directors, officers, employees and agents from and against all liabilities, losses, costs, expenses (including reasonable attorneys’ fees), and damages resulting from any negligent acts, omissions or willful misconduct by Subscriber, Subscriber’s access to or use of the Products and/or any breach of the terms and conditions of this Agreement by Subscriber.
9. INTERNATIONAL USE.
The Company makes no representation that the Products or other materials on the website are appropriate or available for use in locations outside the United States, and accessing and/or using such Products or other materials from territories where their contents are illegal is prohibited. Subscriber agrees to comply with all applicable foreign and domestic laws, rules and regulations regarding the transmission of technical data exported from or imported to the United States or the country in which Subscriber resides.
10. MODIFICATION OF PRODUCTS.
During the term of this Agreement, the Company may modify or discontinue access to or use of the Products at any time with or without notice to Subscriber. Without limiting the generality of the foregoing, the Company may, from time to time, with or without notice and at its sole and absolute discretion, establish or change various practices, limitations and restrictions for accessing or using such Products, including without limitation (i) how often all or a part of the Products or account may be accessed; (ii) the duration of any access to the Products or account; and (iii) any other matter related to the administration of the Products. Subscriber agrees that the Company shall not be responsible or liable in any way for deactivation or deletion of accounts or for loss of emails, audio clips, voice mails, uploads, communications, postings, data or information as a result of, or arising out of, access, use or administration of the Products, whether or not Subscriber is given prior notice thereof. The Company may terminate accounts that are inactive for an extended period of time. The Company shall not be liable to the Subscriber or any third party for any reason for modifying or terminating the Products, in whole or in part. The Company shall not be responsible or liable in any way for any information or data loss in connection with the Products.
11. MODIFICATION OF AGREEMENT.
The Company reserves the right to change the terms and conditions of this Agreement by posting a revised version of the Agreement of Terms and Conditions or by creating a successor site. Use of the Products signifies Subscriber’s agreement to all terms, conditions and notices contained or referenced herein. Continued use of any part of the Products following the posting of any changes to this Agreement constitutes acceptance of those changes, and all changes shall thereupon become binding upon the Subscriber. If Subscriber does not agree to the changes, Subscriber shall immediately cease all use of the Products.
12. RULES AND REGULATIONS.
Subscriber shall not use the Products to create or distribute any images, sounds, messages or other materials, which are obscene, harassing, racist, malicious, fraudulent, infringing or libelous, nor use the Products for any activity that may be considered to be or are unethical, immoral, violative of any third party’s rights or illegal. Subscriber agrees to abide by all rules, regulations, procedures and policies promulgated by the Company as well as all applicable local, state, national, foreign and international laws and regulations. Subscriber is solely responsible for any and all acts or omissions that occur under Subscriber’s account or password. By way of example, and not as a limitation, Subscriber agrees not to (i) use the Products in connection with chain letters, junk email, voice mail, fakes, spamming or any duplicative or unsolicited messages (commercial or otherwise); (ii) create a false identity or forge another individual or entity’s email address; (iii) violate any U.S. or foreign law regarding the transmission of technical data or software exported from the website; (iv) interfere with or disrupt any networks connected to the website or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the website, other accounts, computer systems or networks connected to the website, through password mining or any other means; or (vi) interfere with another member’s use and enjoyment of the website or the Products contained therein.
13. ELECTRONIC TRANSACTIONS.
Subscriber agrees that, by entering into transactions with the Company, Subscriber affirms consent to receive all information, copies of agreements and correspondence ("Documents") from the Company in an electronic format and to also send information to the Company in an electronic format, either through Subscriber’s account or via email, at the Company’s sole and absolute discretion. Subscriber agrees that the Company may send information via email or other electronic means to Subscriber and that such emails or other correspondence shall not constitute "Spam." Subscriber further agrees not to use the website for chain letters, junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process and not to engage in any unsolicited email practices in relation to the Products. Subscriber agrees to treat any such electronic Documents received from the Company or sent to the Company as being legally equivalent to any "written" information Subscriber would receive or send in print or by postal mail. Subscriber’s transactions with the Company indicate that Subscriber agrees to treat all electronic Documents received from or sent to the Company as having full legal enforceability and legal effect. In any situation where Subscriber’s signature may be required to process a transaction, compliance with a commercially reasonable attribution procedure agreed to or adopted by the parties or established by law for authenticating a record shall authenticate the record. Without limiting the foregoing, the parties agree that if Subscriber enters the username of Subscriber’s account and enters the password or PIN associated with the account, such process shall constitute a legally-binding signature by Subscriber. Subscriber acknowledges and agrees that the Company will not be responsible for Subscriber’s failure to receive any electronic Documents, and in the event Subscriber is expecting to receive some electronic Documents that in fact Subscriber does not receive, Subscriber will notify the Company immediately. Subscriber further acknowledges and agrees that Subscriber’s responsibilities or the methods by which the Company sends Subscriber electronic Documents may be altered from time to time, at the Company’s sole and absolute discretion, and the Company will give Subscriber advance notice of such changes. Subscriber agrees that Subscriber will take all reasonable measures to protect the security and confidentiality of all user names, passwords and/or PINs issued hereunder and will inform the Company immediately if Subscriber discovers that any of these items have been disseminated (intentionally or accidentally) to third parties. Subscriber agrees that Subscriber will review Subscriber’s transaction(s) carefully prior to accepting them and that once Subscriber accepts any transaction, it will be final, binding upon Subscriber and unchangeable in any way.
14. BILL PAYMENT.
Subscriber shall be required to pay annual subscription charges as stated by the Company. There may also be enhanced or additional charges and fees if Subscriber requests a change in the delivery or administration of any Products as well as applicable taxes, surcharges, assessments and government fees for any specialized Products Subscriber accesses or uses. Any of the foregoing charges and fees may be billed to Subscriber at any time the Company determines in its sole and absolute discretion. Subscriber will pay the Company for all charges and fees billed to Subscriber’s account, whether or not Subscriber incurred such charges and fees or was the user of the account. Subscriber has the right to dispute charges on Subscriber’s bill, but only if Subscriber notifies the Company of the dispute within thirty (30) days after the applicable billing date. If Subscriber fails to notify the Company of any dispute within such thirty (30) day period, Subscriber shall have irrevocably waived the right to dispute any such charge. Subscriber must pay all charges on time until the dispute is resolved. If the dispute is resolved in Subscriber’s favor, the Company will refund the disputed amounts to Subscriber.
The Company will charge Subscriber the rates in effect under Subscriber’s subscription plan, plus any enhanced or additional charges and fees incurred at the time of subscription or thereafter, as such rates may be updated by the Company from time to time. Some charges and fees (such as, but not limited to, surcharges) may accumulate in Subscribers account before Subscriber is charged for such amounts, or such amounts may be charged to Subscriber as assessed. If Subscriber has enrolled in a then-current subscription plan and chooses to change the plan, and if there are one or more days remaining on Subscriber’s current subscription, Subscriber will be credited for those days in the calculation of Subscriber’s charges. Subscriber’s billing cycle starts on the day the subscription purchase is successfully processed. If there is a change in subscription plan, there may be a resulting change in Subscriber’s billing date.
Subscriber agrees that all payments will be made to the Company via credit or debit card issued by a U.S. bank, including MasterCardÂ®, VISAÂ®, American ExpressÂ® or DiscoverÂ®. The Company may change the credit cards accepted at any time in its sole and absolute discretion. Subscriber’s name and address as it appears on Subscriber’s thequickboard.com account must also be on the credit account from which payment is made. If Subscriber provides a credit card number that the Company accepts for payment of Subscriber’s monthly bills, Subscriber is authorizing the Company to charge the amounts Subscriber owes, then or later, to that credit card account and to demand immediate payment from the card issuer. Subscriber also agrees to pay, under the terms of Subscriber’s agreement with the card’s issuer, the amounts charged to Subscriber’s credit card. Every time Subscriber accesses or uses the Products, Subscriber re-affirms that the Company is authorized to charge Subscriber’s card. Subscriber agrees to authorize the Company to charge purchases made online to the credit card account supplied to the Company when the subscription was initiated or to the card that the Company has on file when the purchase is made. Subscriber agrees to pay all costs and expenses, including without limitation attorneys’ fees, incurred by the Company to collect any monies due under terms of this Agreement.
15. THIRD PARTY ADVERTISER.
Subscriber may enter into transactions with advertisers of the Products. Such transactions shall be between Subscriber and the respective advertisers, and the Company shall have no responsibility or liability in connection with any such transaction or the information, goods or services provided by any such advertiser.
This Agreement, including any documents incorporated herein by reference, merges all prior written and oral communications and defines the entire agreement of the parties concerning access, use and/or administration of the Products. In the event any portion of this Agreement shall be held illegal, void or ineffective, the remaining portions hereof shall remain in full force and effect and such illegal, void or ineffective provisions shall be construed, as nearly as possible, to reflect the intentions of the parties. All notices under this Agreement shall be in writing and delivered by email or in writing. This Agreement shall be construed in accordance with the laws of the State of Tennessee without regard to its conflict of law provisions. Each party submits to the exclusive jurisdiction of the state and federal courts located in Tennessee and irrevocably waives any right that such party may have to assert that such forum is not convenient or that any such court lacks jurisdiction. Subscriber agrees and acknowledges that any breach of the provisions contained in this Agreement shall cause the Company irreparable harm and that the Company may seek and obtain injunctive relief as well as all other remedies available to the Company in law and in equity.
Subscriber shall not transfer or assign this Agreement or Subscriber’s rights under this Agreement. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties, their successors, permitted assigns and legal representatives.
The failure of the Company to exercise its rights under this Agreement will not be construed as a waiver of such rights, nor will it in any way affect the validity of this Agreement. The provisions of this Agreement relating to intellectual property ownership, restrictions on use or disclosure of the Products, disclaimers of warranties, limitations of liability and indemnification shall survive termination or expiration of this Agreement for any reason.
The U.N. Convention for the Sale of Goods shall not be applicable to all or any portion of this Agreement or the Products.
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
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