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Website Terms and Conditions of Use

Diamondback Fitness Website Terms and Conditions of Use

 

Last Updated: April 27, 2015

 

Welcome to the Diamondback Fitness website! Please read these terms of use (“terms”) carefully. These terms of use, as modified or amended from time to time, are a condition of use and govern the use of this site. All transactions between Diamondback Fitness ("Diamondback Fitness") and you ("you”) is a legally binding agreement and subject to these terms of use. IF YOU ACCESS, BROWSE, USE, OR SHOP AT WWW.diamondbackfitness.com (THE "SITE"), YOU ACCEPT THESE TERMS.

 

1. PRIVACY POLICY
Please read our privacy policy (located at www.DiamondbackFItness.com) which is incorporated into these Terms. We reserve the right to contact you in connection with our or your compliance with and performance of these Terms (including without limitation the license rights granted hereunder) or other Content posted on the Site or activities relating to the Site. You acknowledge that Diamondback Fitness may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Diamondback Fitness employees, Site users, or the public.

2. CUSTOMER SUPPORT
You may contact Diamondback Fitness’ Customer Services by sending an email to support@diamondbackfitness.com. You acknowledge that the provision of customer support is at Diamondback Fitness’ sole discretion, and that we have no obligation to provide you with customer support of any kind. We may provide you with customer support from time to time, at our sole discretion.

 

3. PRODUCT SPECIFICATIONS; PRICING; TYPOGRAPHICAL ERRORS
The products and Content offered through the Site are not a substitute for your physician’s advice or recommendations. Diamondback Fitness recommends and encourages you to discuss the use of any products or information received from this Site with your physician or other qualified medical professional prior to using or relying on them. All of the products purchased through the Site should be used in accordance to the manufacturer's instructions. You should carefully read all product packaging prior to use.

 

Diamondback Fitness cannot guarantee that any aspect or attributes of the products appearing on the Site will be accurate. If a product is not as described, your sole remedy is to return the product in unused condition. Subject to applicable law: (a) we reserve the right to change the goods advertised or offered for sale through this Site, the prices or specifications of such goods, and any promotional offers and any other Content at any time and from time to time without any notice or liability to you or any other person; (b) we cannot guarantee that goods advertised or offered for sale on this Site will be available when ordered or thereafter; (c) we reserve the right to limit quantities sold or made available for sale; (d) we do not warrant that the Content (including without limitation, workout program content, product descriptions or photographs) are accurate, complete, reliable, current or error-free; and (e) we reserve the right to cancel, to terminate or not to process orders (including accepted orders) where the price or other material information on this site is inaccurate or when we recognize abuse of our policies. If we do not process an order for such reason, we will advise you that the order has been cancelled and will either not charge you or will apply credit to the payment type used in the order. Some jurisdictions may not allow the exclusions and disclaimers of certain implied warranties, so some of the provisions of this section may not apply to you. If we are legally required to collect sales tax on merchandise you order, the tax amount will be added automatically to your purchase price. On rare occasions an error in our state sales tax database may cause the sales tax charge to be incorrect. If this happens, at any time up to one year from your date of purchase you may contact us for a refund of tax overcharges. This right to a refund is your exclusive remedy for sales tax errors.

 

4. RISK OF LOSS
All items purchased from the Site is done so pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon Diamondback Fitness’ delivery to the carrier.

 

5. ELECTRONIC COMMUNICATIONS
By your use of the Site, you agree to electronic communication for all of your transactions and communication with Diamondback Fitness. You agree that all postings, notices, disclosures, or other communications that we provide to you electronically satisfy any legal requirements that such communications be in writing.

 

6. NOTICES AND CONTACT INFORMATION; COPYRIGHT COMPLAINTS
Except as otherwise provided in these Terms, Diamondback Fitness will give you all notices by posting them on the Site, and you agree that such posting will constitute effective notice. You authorize Diamondback Fitness to send notices (including without limitation notice of subpoenas or other legal process, if any) via electronic mail as well if Diamondback Fitness decides, in its sole discretion, to do so. You agree to keep your address current and that notice provided by Diamondback Fitness to the address that you have most recently provided will constitute effective notice. Diamondback Fitness’ address for Legal Notices is:

 

Diamondback Fitness
5803 Newton Drive, Suite B
Carlsbad, CA 92008

 

Diamondback Fitness respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Diamondback Fitness with the written information regarding those rights and any alleged infringement.

 

7. MODIFICATIONS TO TERMS AND SITES
You agree that from time to time we may, at our sole discretion, modify, add or remove any or all parts of these Terms and the Privacy Policy. Such modifications will be effective immediately upon posting of the modified Terms to the Site. If the Site Terms are changed, we will post the new terms on the Site and note the date they were last updated. Any changes or modification will be effective upon posting of the Terms as revised, and your use of the Site following the posting will constitute your acceptance of the new Terms. We reserve the right from time to time to temporarily or permanently modify or discontinue, and restrict or block access to, the Site (or any part thereof) without notice.

 

8. INTELLECTUAL PROPERTY
All text, graphics, button icons, images, audio clips, and software (collectively, "Content"), belongs exclusively to Diamondback Fitness, or its affiliates, or is being used by Diamondback Fitness under license. The Content is subject to intellectual property rights, contractual or other protection. The collection, arrangement, and assembly of all Content on this Site belongs exclusively to Diamondback Fitness or its affiliates. All software used on this Site (the "Software") is the property of Diamondback Fitness, its affiliates or its Software suppliers. The Content and the Software are all protected by U.S. and international copyright laws. The trademark “DIAMONDBACK FITNESS” and all other trademarks, logos, slogans, trade names or words are registered trademarks, trademarks or service marks of Diamondback Fitness, its affiliates, suppliers, or third parties used in the Site are owned or used under license by Diamondback Fitness and its affiliated organizations. The names of third parties and their products mentioned may be their trademarks. You may not use any of the above or other trademarks displayed on the Site or in any Site content. All rights are reserved. The use of any of our trademarks or service marks without our express written consent is strictly prohibited. You may not use our trademarks or service marks in connection with any product or service in any way that is likely to cause confusion. You may not use our trademarks or service marks in any manner that disparages or discredits us. You may not use any of our trademarks or service marks in meta tags without prior explicit consent.

 

9. POSTING CONTENT ON THE SITES; REPRESENTATIONS AND WARRANTIES
Except as otherwise provided elsewhere in this Agreement or on the Site, anything that you submit or post to the Site and/or provide us, including without limitation, ideas, know-how, techniques, questions, reviews, comments, and suggestions, whether text or video (collectively, "Submissions") is and will be treated as nonconfidential and nonproprietary, and we shall have the royalty-free, worldwide, perpetual, irrevocable and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, create derivative works from such Submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such Submissions. All Submissions shall automatically become our sole and exclusive property and shall not be returned to you.

 

In addition to the rights applicable to any Submission, when you post comments or reviews to the Site, you also grant us the right to use the name that you submit with any review, comment, or other Content, if any, in connection with such review, comment, or other content. You shall not use a false e mail address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of any Submissions or Content. Diamondback Fitness may, but shall not be obligated to, remove or edit any Submissions (including comments or reviews) for any reason.

 

You agree to be liable for any Submission posted on the Site and for any transactions associated with your Submission. By displaying or publishing ("posting") any Submission on the Site, including without limitation text, audio, video, pictures, graphics, music, sound clips, images, likenesses, personal information and other works of authorship, you warrant and represent that (a) you own all rights in your content and the performance contained in your content or, alternatively, you have acquired all necessary rights in your Submission to enable you to grant to Diamondback Fitness the rights in your Submission described herein and for us to exercise the rights with respect to such content that you grant herein; (b) you are the individual pictured, depicted, and/or heard in your content, or, alternatively, you have obtained permission (and, if applicable, publicity rights) from each person (including consent from parents or guardians for any individual under the age of eighteen (18)) who appears and/or is heard in your content to grant the rights to Diamondback Fitness described herein; and (c) your content is not defamatory in nature, does not infringe the intellectual property rights, privacy, rights to publicity or any other legal or moral rights of any third party.

 

10. OWNERSHIP OF RIGHTS; LICENSE RIGHTS
You hereby grant to Diamondback Fitness a permanent, worldwide, royalty-free, freely transferable, freely sublicensable (through unlimited levels of sublicense), non-exclusive license to use, reproduce, modify, adapt, transmit, distribute, publicly perform and display (including in each case by means of a digital audio or video transmission), and create derivative works of the Submissions, in any form, media, or technology now known or later developed. You also hereby waive any moral rights you may have in such Submission under the laws of any jurisdiction. You agree that we may (but are not obligated to) display your content, and your username or your actual name (according to the preferences you select at the time that you register) along with your content. You acknowledge that the posting of your content for any period of time is sufficient consideration for the license granted herein to Diamondback Fitness.

 

11. PROHIBITED CONDUCT
You agree not to post to the Site any Content or any other materials whatsoever that is or could appear to be: (a) untrue, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive to another person's privacy or protected data, hateful, or racially, ethnically or otherwise objectionable; (b) infringing or alleged to be infringing upon a third party's intellectual property rights, including any patent, trademark, trade secret, copyright, right of publicity, or other proprietary rights of any party, including, without limitation, any Content that is the subject of any third party claim of infringement; (c) of a type that you do not have a right to transmit under any law or under contractual or fiduciary relationships, such as inside information and proprietary and confidential information; (d) unsolicited, undisclosed or unauthorized advertising; (e) software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (f) data or information obtained through access that was not authorized by the owner of the data or information, or with respect to which such posting would constitute unauthorized use; or (g) in violation of any applicable local, state, national or international law, regulation, or statute (including export laws).

 

You agree not to do, or attempt to do, any of the following, subject to applicable law: (a) alter information on or obtained from the Site; (b) tamper with postings, registration information, profiles, submissions or Content of other users; (c) use any robot, spider, scraper or other automated means or interface not provided by us to access the Site or extract data or gather or use information, such as email addresses, available from the Site or transmit any unsolicited advertising, "junk mail," "spam," or "chain letters"; (d) frame any part of the Site, or link to the Site, or otherwise make it look like you have a relationship to us or that we have endorsed you or your Content for any purpose except as expressly permitted in writing by Diamondback Fitness; (e) impersonate or misrepresent your affiliation with any person or entity; (f) bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Site (except as otherwise expressly permitted by law); (g) take any action which might impose a significant burden (as determined by us) on the Site's infrastructure or performance, or send to or otherwise impact us or the Site (or anything or anyone else) with harmful, illegal, deceptive or disruptive code such as a virus, "spyware," "adware" or other code that could adversely impact the Site or any recipient.

 

12. MONITORING OF SITE CONTENT
We are under no obligation to restrict or monitor Site Content in any way. YOU UNDERSTAND AND ACKNOWLEDGE THAT DIAMONDBACK FITNESS DOES NOT REGULARLY MONITOR THE ACCURACY OR RELIABILITY OF CONTENT AND THAT USE OF THE SITE IS AT YOUR OWN RISK. Notwithstanding the foregoing, we reserve the right to modify or remove any Content at any time. Any opinions, advice, statements, services, offers, or other information or Content expressed or made available by third parties, including other users, are those of the respective author(s) or distributor(s) and not of Diamondback Fitness. Diamondback Fitness neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than an authorized Diamondback Fitness employee acting in an official capacity. To notify us of a copyright infringement, write to us at or at our physical address:

 

Diamondback Fitness
5803 Newton Drive, Suite B
Carlsbad, CA 92008

 

Include the following (please consult your legal counsel or see Section 512(c)(3) of the Digital Millennium Copyright Act to confirm these requirements)

 

a. The physical or electronic signature of the owner or someone authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
b. A description or identification of the copyrighted work you claim has been infringed.
c. A description of the material that is claimed to be infringing, and information reasonably sufficient to allow us to find it.
d. Your address, telephone number, and e-mail address.
e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
f. A statement, under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on behalf of the owner.

 

Repeated violations of others' copyrights may result in a loss of privileges.

 

13. PROTECTION OF SITE CONTENT
The Site is protected by U.S. and international intellectual property laws, which you agree to respect. All Content on the Site, including but not limited to text, logos, icons, images, graphics, audio clips, compilations, and downloads, as well as the collection, arrangement, and assembly of such Content, is the exclusive property of Diamondback Fitness or its Content suppliers. All software used on the Site is the property of Diamondback Fitness or its software suppliers.

 

14. TERMINATION OR CANCELLATION
You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate these Terms, your access to the Site, and/or your Account, or suspend or block your access to the Site. You will still be liable for any breaches of these Terms and/or obligations incurred before the Terms end. If you use the Site after termination of these Terms, that use will constitute your agreement to the Terms then posted on the Site. The provisions entitled "Posting Content on the Site; Representations and Warranties," "Ownership of Rights; License Rights," "Indemnification," "Disclaimer of Warranties," "Exclusion of Damages; Limitation of Liability," and "Additional Terms" and the Privacy Policy will survive termination of these Terms.

 

15. DEALINGS WITH MERCHANTS; LINKS
The Site may contain advertisements, offers, or other links to other websites and resources of third parties that we do not control. Such information, as well as advertisements, may or may not be or remain wholly accurate. You acknowledge and agree that Diamondback Fitness is not responsible or liable for (i) the availability or accuracy of such sites or resources; or (ii) the content, advertising, or products or services on or available from such sites or resources. The inclusion of any link on the Site does not imply that we endorse the linked site. You use the links at your own risk. Diamondback Fitness' Privacy Policy is applicable only when you are on our Site.

 

Your correspondence or business dealings with, or participation in promotions of, third party merchants or advertisers that are found on or through the Site or which provide links on the Site, including, for example, "click to purchase" and other similar programs, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such merchant or advertiser. You waive any claim against Diamondback Fitness and agree to hold Diamondback Fitness harmless from any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such merchants or advertisers on the Site.

 

16. INDEMNIFICATION
As a condition of your access to and use of the Site, you agree to hold Diamondback Fitness, and its subsidiaries, affiliates, officers, directors, employees, agents, attorneys, and suppliers, and each of their respective successors and assigns, harmless from, and indemnify them for, all damages, costs, expenses and other liabilities, including but not limited to attorneys' fees and expenses, relating to any claim arising out of or related to: (i) your access to and use of the Site and the Content therein; (ii) your violation of these Terms (including terms incorporated into them, e.g., the Privacy Policy), and any applicable law or the rights of another person or party; (iii) any dispute you have or claim to have with one or more users of the Site; (iv) Diamondback Fitness' resolution (if any) of any dispute you have or claim to have with one or more users of the Site; (v) your improper authorization for Diamondback Fitness to collect, use or disclose any data or Content provided by you; and (vi) any disclosures made with your permission (including, without limitation, your consent that Diamondback Fitness disclose your personal information and other information collected as set forth in our Privacy Policy). Furthermore, you fully understand and agree that: (a) Diamondback Fitness will have the right but not the obligation to resolve disputes between users relating to the Site and Diamondback Fitness' resolution of a particular dispute does not a create an obligation to resolve any other dispute; and (b) Diamondback Fitness's resolution of a dispute will be final with respect to the Site.

 

17. DISCLAIMER OF WARRANTIES
THE SITE MAY CONTAIN ADVICE, OPINIONS, INSTRUCTIONS AND STATEMENTS FROM DIAMONDBACK FITNESS, ITS USERS AND OTHER CONTENT AND INFORMATION PROVIDERS. THIS CONTENT IS INTENDED TO BE USED FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU USE THE SITE AND CONTENT AT YOUR OWN RISK. THE SITE IS PROVIDED BY DIAMONDBACK FITNESS ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DIAMONDBACK FITNESS MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION OR CONTENT INCLUDED ON THE SITE. DIAMONDBACK FITNESS MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, SECURE, OR TIMELY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DIAMONDBACK FITNESS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING, TRADE, USAGE OR PERFORMANCE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, AND THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

18. EXCLUSION OF DAMAGES

LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT NEITHER DIAMONDBACK FITNESS, NOR ANY OF ITS RELATED COMPANIES, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS AND SUPPLIERS, NOR EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF PRIVACY, LOSS OF GOODWILL OR ANY OTHER LOSSES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE AGGREGATE LIABILITY TO YOU OF DIAMONDBACK FITNESS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUPPLIERS AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS EXCEED, IN TOTAL, THE AMOUNTS PAID BY YOU TO US.

 

19. MINIMUM AGE REQUIREMENT
The Site is intended for use by persons who are at least 18 years old, or the legal age required to form a binding contract in your jurisdiction if that age is greater than 18. By using the Site, you represent and warrant that you are at least 18 years old and of legal age to form a binding contract. If you are under 18, you may use the Site only with the permission and involvement of a parent or guardian.

20. ADDITIONAL TERMS
a. Severance. If any part of the Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the invalid or unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full force and effect, provided that the allocation of risks described herein is given effect to the fullest extent possible.

 

b. No Assignment. These Terms (including terms incorporated into them, e.g., the Privacy Policy) are personal to you and you may not transfer, assign or delegate them to anyone without the express written permission of Diamondback Fitness. Any attempt by you to assign, transfer or delegate these Terms without the express written permission of Diamondback Fitness will be null and void. Diamondback Fitness shall have the right to transfer, assign and/or delegate these Terms to one or more third parties without your permission.

 

c. Legal Equivalency. This electronic document and any other electronic documents, policies and guidelines incorporated herein will be: (i) deemed for all purposes to be a "writing" or "in writing," and to comply with all statutory, contractual, and other legal requirements for a writing: (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (iii) deemed an "original" when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation or administer of proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.

 

d. Jurisdiction; Choice of Law; Export Limitations. The Site is controlled by Diamondback Fitness from our offices within the United States of America. If you choose to access this Site from locations outside the U.S., you do so at your own risk and you are responsible for compliance with applicable local laws. You may not use or export anything from the Site in violation of U.S. export laws and regulations or the Terms. These Terms and all performances and claims of every nature (including without limitation, contract, tort and strict liability) relating in any way to any aspect of the Site will be governed by the laws of the State of California, U.S.A., without regard to any conflicts of laws principles that would result in the application of the law of a different jurisdiction. You and Diamondback Fitness agree to submit to the personal and exclusive jurisdiction of the courts located within San Diego County, California. Any disputes regarding such claims or arising under or related in any way to these Terms or the Site shall be heard exclusively in the appropriate forum in California. You hereby waive any claim or defense that such forum is not convenient or proper, and consent to service of process by any means authorized by California or federal law.

 

e. Limitations on Actions. Any action concerning any dispute you may have with respect to the Site must be commenced within one year after the cause of the dispute arises, or the cause of action is barred.

 

f. Paragraph Headings. The paragraph headings in these Terms are included to help make these Terms easier to read and have no binding effect.

 

g. Entire Agreement. These Terms (including terms incorporated into them, e.g., the Privacy Policy) comprise the entire agreement (the "Entire Agreement") between you and Diamondback Fitness with respect to the use of the Site and supersedes all contemporaneous and prior agreements between the parties regarding the subject matter contained herein, and neither party has relied on any representations made by the other that are not expressly set forth in the Entire Agreement.

 

h. No Waiver. The failure of Diamondback Fitness to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or Diamondback Fitness's right to act with respect to subsequent or similar breaches. We suggest that you print out a copy of these Terms for your records.

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