Read these terms carefully and completely as they set forth your rights and obligations with respect to your access to and use of the Site. If you do not wish to be bound by the Terms, you may not access or use the Site. By using this Site, you represent and warrant that you are of legal age to form a binding contract with PERFORMIX. If you do not meet all of these requirements, you must not access or use the Site.
The Terms may be updated and modified by us from time to time without notice to you by posting revised Terms on the Site. You can review the most current version of the Terms at any time by clicking on the Terms link from any page on the Site. Your continued use of the Site following the posting of revised Terms means that you accept and agree to the changes.
PERFORMIX has the right, but not the obligation, to take any of the following actions without providing any prior notice to you:
- change or terminate all or any part of our Services;
- disable any user name, password or other identifier, whether chosen by you or provided by us;
- restrict or terminate your access to all or any part of our Services; or
- refuse, move, or remove any content that is available on the Site and any material that you submit to the Site.
ACCESS TO THE SITE
The Site is available only to individuals and entities who can form legally-binding contracts under applicable law. Without limiting the foregoing, you must be 13 years of age or older to register for and/or use the Site. If you do not qualify, you may not use the Site. PERFORMIX reserves the right to deny access and/or registration to the Site to anyone at any time in its sole and absolute discretion.
In consideration of your use of the Site and/or the Services, you agree to be subject to certain obligations. For any personal information that you provide to us through the Site, you agree to provide true, accurate, current and complete information about yourself as prompted and you further agree that you will not use the Site for any purpose that is unlawful or prohibited by these Terms. If you provide any information that is untrue, inaccurate, incomplete or not current, or if PERFORMIX has reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current, PERFORMIX has the right to refuse you any and all current or future use of the Site (or any portion thereof).
You may use the Site only for lawful purposes and in accordance with these Terms. You must not misuse this Site. You will not: commit or encourage a criminal offense; transmit or distribute a virus, trojan, worm, logic bomb or any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene; hack into any aspect of the Site or Service; corrupt data; cause annoyance to other users; infringe upon the rights of any other person’s proprietary rights; send any unsolicited advertising or promotional material, commonly referred to as “spam”; or attempt to affect the performance or functionality of any computer facilities of or accessed through this Site. Breaching this provision would constitute a criminal offense and PERFORMIX will report any such breach to the relevant law enforcement authorities and disclose your identity to them.
We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of this Site, or to your downloading of any material posted on it, or on any SITE linked to it.
DISCLAIMER REGARDING USE OF THE SITE
THE CONTENT CONTAINED ON THE SITE (INCLUDING ANY MATERIALS DOWNLOADED OR PURCHASED FROM THE SITE) WAS CREATED FOR THE PURPOSES OF EDUCATION AND INFORMATION ONLY AND DOES NOT CONSTITUTE MEDICAL ADVICE. ACCORDINGLY, THE INFORMATION SET FORTH ON THE SITE (OR IN ANY MATERIALS DOWNLOADED OR PURCHASED FROM THIS SITE) IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR TREATMENT. BEFORE TAKING ANY DIETARY SUPPLEMENTS OR IMPLEMENTING ANY METHODS OR TECHNIQUES PRESENTED IN ANY OF THE INFORMATION, PLEASE CONSULT YOUR PHYSICIAN. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING TREATMENT BECAUSE OF SOMETHING YOU HAVE SEEN ON THE SITE. ALL FORMS OF EXERCISE PRESENT RISK OF INJURY, AND, BY USING THE INFORMATION ON THIS SITE, YOU AGREE AND ACKNOWLEDGE THAT PERFORMIX, ITS AFFILIATES AND ALL PARTIES INVOLVED WITH THE PRODUCTION OF THE INFORMATION ON THE SITE MAKE NO REPRESENTATION OR WARRANTY AS TO THE INFORMATION PROVIDED ON THE SITE AND CANNOT AND WILL NOT BE HELD RESPONSIBLE FOR ANY LOSS OR INJURY THAT RELATES TO, OR OCCURS DURING YOUR USE OF, THE INFORMATION PROVIDED ON THIS SITE.
USE OF INTERACTIVE AREAS
The Site may allow you to submit, post or upload videos, images, files, information, postings, tags, comments, messages, and other text (“Content”). The Site also may contain areas that allow for user interaction, including blogs, forums, bulletin board services, chat areas or other message and communications features (“Interactive Areas”). You are entirely responsible for all content that you upload, post, email or otherwise transmit via the Site. You agree to post only messages, comments or other information that are proper, lawful, and related to the particular Interactive Area. In addition, but without limitation, you may not post content or engage in any other activity on the Site that:
- defames, threatens, abuses or otherwise violates the legal rights of others;
- is harmful to children, profane, obscene, indecent or racially or ethnically offensive;
- infringes another’s rights to intellectual property, publicity, or privacy;
- collects or stores personal information about other Site users;
- contains advertisements, promotions, commercial solicitations, contests or surveys (unless you have our written consent to do so);
- contains, transmits or disseminates spam, chain letters, or information intended to assist in the placement of a bet or wager;
- contains, transmits or disseminates viruses, corrupted files, or any other similar software or programs that may:
- damage or adversely affect the operation of another’s computer, the Site, or any software, hardware or other related equipment; or
- disrupts or otherwise interferes with the Site or the networks or servers used by PERFORMIX
- impersonates any person or entity or misrepresents your connection or affiliation with a person or entity; or constitutes illegal activity.
PERFORMIX reserves the right (but not the obligation) to review, edit, or delete any Content you post to this Site and to terminate your access to the Site or to any Interactive Area at any time without notice for any reason whatsoever.
SUBMISSIONS TO INTERACTIVE AREAS AND LICENSING OF CONTENT
You acknowledge that all Interactive Areas are public and not private communications; therefore, any information or content you post to an Interactive Area may be read by others. PERFORMIX recommends that you avoid posting or otherwise disseminating any personally identifiable information in the Interactive Area.
PERFORMIX does not endorse or control the content, messages or information found in any Interactive Area and, therefore, PERFORMIX specifically disclaims any liability with regard to the Interactive Areas and any actions resulting from your participation in them.
You acknowledge and agree that PERFORMIX may preserve any submissions to the Site and may also disclose submissions if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms; (iii) respond to claims that any submission violates the rights of third parties; or (iv) protect the rights, property, or personal safety of PERFORMIX, the Site, its users and the public.
By submitting Content to the Interactive Areas, or otherwise to the Site or PERFORMIX or its affiliates (including, without limitation, via email), you agree that such Content and any geographical identification metadata (geotags) or other metadata, attributes, features or characteristics relating to the Content (“Metadata”) is non-confidential for all purposes. If you submit, post or upload any Content to the Site or if you submit any business information, idea, concept or invention to PERFORMIX or the Site, you automatically grant, or warrant that the owner of such Content or intellectual property has expressly granted, PERFORMIX, a royalty-free, fully paid-up, perpetual, irrevocable, world-wide, nonexclusive license to use, copy, process, adapt, transmit, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, display and sublicense the Content and Metadata relating to the Content in any media or medium, or any form, format, or forum now known or hereafter developed (the “License”). You agree that this License includes the right for PERFORMIX to make such Content available to other companies, organizations or individuals who partner with PERFORMIX for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to these Terms regarding Content use. If you wish to keep any Content, information, Metadata, ideas, concepts or inventions private or proprietary, do not post or submit them to the Interactive Areas, PERFORMIX or the Site. You agree that in the event PERFORMIX receives any royalties, compensation or other payments associated with exercising the rights granted to it under the License, you shall not claim any right to any portion of such royalties, compensation or other payments. You further agree that PERFORMIX may, in its sole discretion, use any Content for which it has a License in a manner that may link to, refer to or reference your name, such as use of your Content on the Site or an affiliated or partner SITE.
You acknowledge and agree that PERFORMIX may archive, preserve, store or use any Content and Metadata you submit, post or upload to the Site and may also disclose that Content and Metadata if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms; (iii) respond to claims that any Content or Metadata violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of PERFORMIX, the Site, its users and the public.
LIMITS ON LIABILITY
In no event will PERFORMIX, its affiliates or their licensors, service providers, employees, agents, officers or directors be liable for:
- the contents of any communication, message, or information posted by you or other third parties;
- the content of any SITE not controlled, owned, or operated by PERFORMIX that is accessed from or linked to this Site;
- the content, services or information provided by any SITE purporting to be operated by PERFORMIX or its affiliates, but not actually affiliated with, controlled, owned, or operated by PERFORMIX;
- any damages or injury caused by, including but not limited to, any failure of performance, error, omission, interruption, defect, delay in operation of transmission, computer virus, or line failure; and
- any direct, indirect, incidental, special, punitive or consequential damages arising out of or relating to use of or inability to use the Site, even if PERFORMIX has been advised of the possibility of such damages, including but not limited to, loss of profits, loss of data or loss of use damages. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
If you are dissatisfied with any portion of the Site, or with any of these Terms, your sole and exclusive remedy is to discontinue using the Site.
All offers, invitations, discounts, promotional codes, packages and pricing found on the Site are subject to change at any time. The information on the Site may contain inaccuracies and typographical errors, including, but not limited to, inaccuracies relating to pricing or availability that are applicable to your transaction. PERFORMIX shall not assume any responsibility or liability for any such inaccuracies, errors or omissions, and shall have no obligation to honor transactions or information affected by such inaccuracies. PERFORMIX reserves the right to make changes, corrections, cancellations and/or improvements to the information on the Site, and to the products and packages described on the Site, at any time without notice, including after confirmation of a transaction.
It is solely your responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, statements, representations, services, and other information provided through the Site. You acknowledge that you may not rely on any content on the Site. PERFORMIX does not endorse or represent the reliability, accuracy or quality of any information, or non-PERFORMIX goods, services or products displayed or advertised on the Site. We make no representations or warranties, express or implied, with respect to the information provided on this Site.
Although we hope that you will find the material on this Site informative, the material and links to third-party SITEs and resources that may be included on the Site are provided for informational purposes only. Providing links to these sites by us should not be interpreted as endorsement or approval by PERFORMIX of the organizations sponsoring these sites or their products or services. We make no representations or warranties, express or implied, with respect to the information provided on this Site or any third-party SITE which may be accessed by a link from this Site, including any representations or warranties as to accuracy or completeness. Because PERFORMIX has no control over third-party SITEs and resources, you acknowledge and agree that PERFORMIX is not responsible for the information and contents of such third-party SITEs and does not endorse and is not responsible or liable for any content, statements, representations, advertising, products, services or other materials on or available from such sites or resources. You further acknowledge and agree that PERFORMIX shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused in connection with your use or reliance on any such content, information, goods, or services available on or through any such site or resource. If you decide to access any of the third party SITEs linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such SITEs.
You acknowledge and agree that content contained in the Site or information presented to you through the Site may be protected by copyright, trademark, or patent law, or other proprietary rights and laws. Except as expressly authorized by PERFORMIX or its affiliates, you agree not to modify, distribute, copy, reproduce or create derivative works based on the proprietary portions of this Site, in whole or in part. You may not reverse engineer, decompile, or disassemble the Site or its underlying technologies, except to the extent the foregoing restriction is expressly prohibited by applicable law. Those portions of the Site owned by PERFORMIX are the copyright of PERFORMIX. All rights reserved. You agree that all of PERFORMIX’s trademarks, trade names, service marks, logos and service names are trademarks and are property of PERFORMIX (the “PERFORMIX Marks”). You agree not to display or use in any manner the PERFORMIX Marks, without the express prior written permission of PERFORMIX.
NO REPRODUCTION OR RESALE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Site, use of the Site, or access to the Site.
You agree to indemnify, defend and hold PERFORMIX, its affiliates and its and their respective directors, officers, employees, agents, and other partners harmless from and against any claims, demands, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees), made by any third party due to or arising out of your use of the Site, your connection to the Site, your violation of the Terms or your infringement of any intellectual property or other right of any other person or entity.
PERFORMIX does not assume responsibility to you or others for any failure by PERFORMIX to enforce the provisions contained in these Terms.
You agree that PERFORMIX, in our sole discretion and with or without notice, may terminate your use of the Site (or any part thereof) for any reason, including, without limitation, for lack of use or if PERFORMIX believes that you have violated or acted inconsistently with the letter or spirit of the Terms. PERFORMIX may also in its sole discretion and at any time discontinue providing the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site under any provision of the Terms may be effected without prior notice, and acknowledge and agree that PERFORMIX may immediately bar any further access to the Site. Further, you agree that PERFORMIX shall not be liable to you or any third party for any termination of your access to the Site.
You acknowledge that PERFORMIX may establish general practices and limits concerning your use of the Site. You agree that PERFORMIX has no responsibility or liability for the failure of the Site and the deletion of other content maintained or transmitted by the Site. PERFORMIX reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Site (or any part thereof) with or without notice. You agree that PERFORMIX shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site. You further acknowledge that PERFORMIX reserves the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE AND INFORMATION AND MATERIAL IN THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITH RESPECT TO THE SITE AND INFORMATION AND MATERIAL IN THE SITE, PERFORMIX, EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE SITE WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS, OR OTHER HARMFUL SOFTWARE OR HARDWARE. YOU HEREBY ACKNOWLEDGE THAT THE SITE MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF THE SITE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DISRUPTION, AND THEREFORE PERFORMIX EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SITE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY OR PERFORMANCE CAUSED BY SUCH FACTORS.
- PERFORMIX MAKES NO WARRANTY THAT (i) THE SITE AND INFORMATION AND MATERIAL THEREIN WILL MEET YOUR REQUIREMENTS, (ii) THE FUNCTIONS CONTAINED IN THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR INFORMATION AND MATERIALS THEREIN WILL BE ACCURATE, RELIABLE, OR AVAILABLE, (iv) ANY ERRORS IN THE SITE OR INFORMATION OR MATERIALS THEREIN WILL BE CORRECTED, AND (v) THE SITE AND ITS CONTENTS AND SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF ANY VIRUSES OR OTHER HARMFUL COMPONENTS.
- ANY MATERIAL, INFORMATION, PRODUCTS OR SERVICES DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PERFORMIX OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”.
IF YOU ARE ACCESSING THE SITE FROM NEW JERSEY, YOU (i) ASSUME ALL RISKS OF LOSSES OR DAMAGES RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE; (ii) IRREVOCABLY WAIVE ALL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) THAT MAY OCCUR AS A RESULT OF YOUR USE OF THE SERVICE; AND (iii) EXPRESSLY AGREE TO RELEASE AND DISCHARGE PERFORMIX, AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE SITE OR ANY CONTENT; AND (iv) YOU VOLUNTARILY GIVE UP OR WAIVE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST PERFORMIX FOR LOSSES OR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, INCLUDING ANY CLAIM BASED ON ALLEGED NEGLIGENCE ON THE PART OF PERFORMIX AND ITS AGENTS AND EMPLOYEES. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS “WAIVER AND RELEASE” AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.
NOTICE AND PROCEDURE FOR COPYRIGHT INFRINGEMENT CLAIM
Pursuant to 17 U.S.C. Section 512, as amended by Title II of the Digital Millennium Copyright Act (the “Act”), PERFORMIX reserves the right, but not the obligation, to terminate your right to use the Site if PERFORMIX determines in its sole and absolute discretion that you are involved in any activity that may be infringing, including alleged acts of infringement, regardless of whether the material or activity is ultimately determined to be infringing. PERFORMIX accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. In addition, pursuant to 17 U.S.C. Section 512(c), as amended, PERFORMIX has implemented or will implement procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. The designated agent of PERFORMIX to receive notification of claimed infringement is:
South Cherokee St.
Denver, CO 80223
PERFORMIX respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the designated agent listed above with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Site; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
DISPUTE RESOLUTION; ARBITRATION; CHOICE OF LAW
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
YOU AGREE THAT BY USING THE SITE, CONTENT, OR ANY PRODUCT, YOU AND PERFORMIX ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AND PERFORMIX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
YOU AND PERFORMIX AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, YOUR USE OF THE SITE OR YOUR AND PERFORMIX’S DEALINGS WITH ONE ANOTHER SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION. THE ARBITRATION WILL BE CONDUCTED BY JUDICIAL ARBITER GROUP, INC. (“JAG”) USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAG ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF JAG. IF JAG IS UNABLE OR UNWILLING TO ARBITRATE A DISPUTE, THEN THE DISPUTE MAY BE REFERRED TO ANY OTHER ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND PERFORMIX AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT. FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, THE ARBITRATOR, YOU, AND PERFORMIX MUST ABIDE BY THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (B) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN LAS VEGAS, NEVADA. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. NEITHER YOU NOR PERFORMIX WILL BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU AND PERFORMIX UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU AND PERFORMIX ARE EACH WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
YOU AND PERFORMIX AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THE ARBITRATION PROVISION—I.E. WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION—SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THESE TERMS TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDING MUST BE BROUGHT EXCLUSIVELY IN THE STATE COURTS OF COMPETENT JURISDICTION OR THE UNITED STATES DISTRICT COURT LOCATED IN DENVER, COLORADO, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS ON LIABILITY AND DAMAGES INCLUDED IN THESE TERMS. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF YOUR USE OF THE SERVICE AND YOUR RELATIONSHIP WITH PERFORMIX. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1-16 (“FAA”), AND NOT BY STATE LAW. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG OR BY CALLING 800-778-7879.
IF YOU WISH TO OPT-OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF WHEN YOU FIRST USE THE SERVICE OR SUBMIT THROUGH THE SERVICE A REQUEST FOR INFORMATION, YOU MUST SEND US A LETTER STATING “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” AT THE FOLLOWING ADDRESS:
221 South Cherokee St.
Denver, CO 80223
In the event you opt out of the arbitration provision, that the Terms and the relationship between you and PERFORMIX shall be governed by and construed in accordance with the laws of the State of Colorado without regard to its conflict of laws analysis. You and PERFORMIX hereby irrevocably and unconditionally submit to the jurisdiction of courts located within the county of Denver, Colorado, or the United States District Court for the District of Colorado for purposes of all legal proceedings arising out of or relating to the Terms and agree not to commence any legal proceedings related thereto except in such court. You and PERFORMIX irrevocably waive, to the fullest extent permitted by law, any objection that you/it may now or hereafter have to the laying of the venue of any proceeding brought in any such court or any claim that a legal proceeding commenced in such court has been brought in an inconvenient forum.
The owner of the Site is based in the state of Colorado in the United States. We provide this Site for use only by persons located in the United States. We make no claims that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
PERFORMIX’s failure to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by PERFORMIX in writing.
If any provision of these Terms is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable, and the remaining provisions shall constitute the parties’ agreement.
SPECIAL TERMS PROVIDING EXPRESS CONSENT TO RECEIVE CALLS AND TEXT MESSAGES
- You warrant and represent to PERFORMIX that you are either the account owner of any mobile or residential phone numbers you provide to PERFORMIX, or you have the express permission of the account holder to provide such numbers (“Provided Numbers”).
- You expressly consent that we may call any Provided Number or text any Provided Number with account, marketing and advertising messages made using an automatic telephone dialing system or an artificial or prerecorded voice to any mobile or residential phone numbers you provide from PERFORMIX or any of its agents.
- You also understand that consent to receive calls and text messages is not a requirement for your use of this Site. You may revoke your consent at any time.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Terms or use of the Site must be filed within two (2) years after such claim or cause of action arose or be forever barred.
The section headings and sub-headings contained in the Terms are for convenience only and have no legal or contractual effect.