Please read this Terms and Conditions of Use Agreement (the “Agreement”) carefully as it sets forth the conditions of use of the PROSTANTZ website (the “Website”) and is a legally binding agreement between you, personally, and any entity on whose behalf you are using the Website (collectively “You” and/or “Your”) and PROSTANTZ BASEBALL ACADEMY LLC and its subsidiaries and affiliates (collectively the “Company”). If You do not agree to the terms and conditions of this Agreement, You should immediately cease all usage of the Website. Company reserves the right, at any time, to modify, alter, or update the terms and conditions of this Agreement without prior notice to You. Modifications shall become effective immediately upon being posted on the Company website. Your continued use of the Website after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. Except as provided in this paragraph, this Agreement may not be amended.
1. Use of Website
The Website may be used by, and membership or participation in any online accounts, is limited to individuals who can form legally binding contracts under applicable law. You must (i) provide all equipment necessary for Your own Internet connection, including computer and/or table and/or mobile device and modem, and (ii) provide for Your access to the Internet. Subject to the terms and conditions mentioned herein, You are hereby granted a limited, non-exclusive, non-transferable, restricted license solely for the purpose of using the Website to receive services provided by or through the Website. No other right, title or interest is granted in, and to the Website. You shall not modify the Website, except as may be authorized, nor adapt, translate, reverse engineer, decompile, disassemble, and/or otherwise attempt to discover the source code of the software, nor take any other steps to discover the confidential information and/or trade secrets contained in the Website.
2. Intellectual Property
All content included or available through the Website, including the Website design, text, graphics, interfaces, and the selection and arrangements thereof, and all trademarks, copyrights, database rights and other intellectual property rights related to it belong to Company or a third party. Any use of materials on or from the Website, including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Company is strictly prohibited.
3. Representations and Warranties
You represent and warrant to Company that: (i) You have the full power and authority to enter into and perform your obligations under this Agreement; (ii) Your assent to and performance of Your obligations under this Agreement does not constitute a breach of or conflict with any other agreement or arrangement by which You are bound, or any applicable laws, regulations or rules; (iii) all information provided by You on Your account is accurate and current and will be updated by You to remain current; (iv) this Agreement constitutes legal, valid and binding obligations on You, enforceable in accordance with its terms and conditions; (v) You will not infringe the patent, copyright, trademark, trade secret, right of publicity or other intellectual property or proprietary right of any third party in Your use of the Website; (vi) You will comply with all applicable laws, rules and regulations in Your use of the Website, as well as the agreed upon terms of this Agreement; and (vii) You understand and acknowledge that Company may terminate this Agreement at any time in its sole discretion.
Additionally, You acknowledge that although individuals associated with the Company may be licensed healthcare providers and/or athletic trainers, such individuals will not be providing You with individualized healthcare and/or training advice. You understand and agree that it is Your responsibility to speak with a healthcare provider as to whether participation in any Company program related to physical exercise or stretching is advisable in light of Your health background. You understand that if You experience any injury, condition, or impairment that may cause You pain, fatigue, shortness of breath, or chest discomfort, then You should contact a healthcare provider for medical advice.
By performing any exercise, stretch or other physical activity based on the Company website, You represent and agree that (i) You are physically capable of participating in a strength and flexibility training exercise program and using the equipment associated with such training and (ii) You have either (a) had a physical examination and been given a physician’s permission to participate in this training program, or (b) decided to participate in this training program without the approval of a physician solely at Your own risk.
4. Disclaimer of Warranties
The Website is provided by Company on an “as is” and on an “as available” basis. To the fullest extent permitted by applicable law, Company makes no representations or warranties of any kind, express or implied, that the Website or the use thereof (i) will be free from defects, inaccuracies or errors, (ii) will be uninterrupted or secure (iii) will meet Your requirements or (iv) will operate in the configuration or with the other software You use. Company disclaims all warranties with regard to the Website or information provided through the Website, including the implied warranties of merchantability and fitness for a particular purpose, and non-infringement.
5. Limitation of Liability and Release
COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE WEBSITE, OR ITS USE, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF COMPANY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE OR THE SERVICES EXCEED $500.00. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
PLEASE BE AWARE THAT COMPANY IS NOT A COVERED ENTITY WITHIN THE MEANING OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) OF 1996 AND RELATED LAWS. THIS MEANS THAT COMPANY IS NOT BOUND BY HIPAA TO PROVIDE THE SAME PROTECTIONS FOR ANY INFORMATION THAT YOU PROVIDE TO US IN THE SAME MANNER THAT YOUR DOCTOR IS REQUIRED TO PROTECT INFORMATION YOU MAY PROVIDE TO HIM OR HER.
You understand that any exercise program, whether or not requiring the use of exercise equipment, is a potentially hazardous activity involving certain risks of injury, including, but not limited to, abnormal changes in blood pressure; fainting; unintended loss of balance; a heart attack; stroke; serious neck and spinal injuries; injuries to bones, joints and muscles; other serious disability; or death. You understand that part of the risk involved in undertaking any activity or program is relative to Your own state of fitness or health (physical, mental, or emotional) and to the awareness, care and skill that You use in such activity. You agree to expressly assume and accept any and all risks of injury, regardless of severity, or death, that result due to Your use of the Website or participation in any Company exercise program.
You understand that the Company will NOT be responsible for any medical costs associated with any injury You may sustain.
You agree to forever waive, release, discharge, and hold harmless the Company, its affiliates, and their agents, heirs, assigns, contractors, and employees from any and all claims, demands, damages, rights of action or causes of action, present or future, arising out of or connected with Your participation in any exercise, stretch or program offered, explained, contained in or otherwise disclosed on the Website. This release includes any injuries resulting from any instruction given, including any negligent instruction or failure to provide supervision.
You agree to indemnify and hold Company, its officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of Your use of the Website, the violation of this Agreement, or infringement by You of any intellectual property or any other right of any person or entity.
7. Modifications and Interruption to Services
Company reserves the right to stop providing the Website with or without notice to You. Company shall not be liable to You or any third party should Company exercise its right to stop providing the Website. You acknowledge and accept that Company does not guarantee continuous, uninterrupted or secure access or use of the Website and operation of the Website and may be interfered with or adversely affected by numerous factors or circumstances outside of Company’s control.
8. Third-Party Sites and Information
9. Fees and Payments
As consideration for any purchase You make on the Website, You shall pay Company all applicable fees and taxes, including any monthly, annual or other recurring subscription fee. Company (or our third-party payment processor) shall charge Your credit card, bank account, or other approved payment facility that you provide during the registration process for (i) the full payment of the fees and any applicable taxes, and (ii) all recurring subscription fees, as applicable, and You hereby consent to the same. You agree that your subscription, if any, shall automatically renew for additional and recurring terms equal to the duration of the initial term of the applicable subscription unless You provide Company written notice of Your intent to terminate the subscription at least 30 days prior to the end of the then existing subscription term. You must provide current, complete, and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number, and expiration date) to keep Your account current, complete, and accurate, and You must promptly contact us if Your credit card is lost or stolen, or if You become aware of a potential breach of account security (such as an unauthorized disclosure or use of Your sign-in name or password). We reserve the right to charge any renewal card issued to You to the same extent as the expired card. If payment is not received from Your credit card issuer, You hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of Your credit card may charge You a foreign transaction fee or related charges, which You will be responsible to pay. You are advised to check with Your bank and credit card issuer for details.
10. Governing Jurisdiction and Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without giving effect to any principles of conflicts of law. You agree that this Agreement is made and partially performed in the State of Colorado, and that venue for any action at law or in equity arising out of or relating to this Agreement shall be exclusively limited to the state or federal courts located in the State of Colorado. You hereby consent and submit to the exercise of personal jurisdiction over you by such courts for the purpose of litigating any such action, and waive any defenses of lack of minimum contacts or forum non conveniens.
11. Compliance with Laws
You assume all knowledge of applicable law and are responsible for compliance with any such laws. You shall not use or access the Website in any way that violates applicable state, federal, or international laws, regulations or other government requirements. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. You agree not to upload, post, email, transmit, or otherwise make available any content that (i) is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech, (ii) discloses any sensitive information about another person, including that person’s email address, postal address, phone number, credit card information, or any similar information, or (iii) is intended to “stalk”, threaten or otherwise harass another person.
12. Other Terms