Terms of Service
Welcome to ACTIVE GearUp.
Please read the Agreements carefully. They cover important information about future changes to the Agreements, limitations of liability, privacy information, a class action waiver, and resolution of disputes by arbitration instead of in court.
The use of our Site indicates your unconditional acceptance of these Agreements. We reserve the right, in our sole discretion to update or revise these Agreements. Your continued use of our Site following the posting of any changes to the Agreements constitutes acceptance of those changes.
Use of the Site:
- Transmit via or through the Site any information, data, text, images, files, links, or software except in connection with your authorized use of this Site or otherwise in response to specific requests for information by us.
- Introduce to the Site or any other computer or Site viruses, worms, Trojan horses and /or harmful codes.
- Obtain unauthorized access to any computer system.
- Impersonate any other person including but not limited to, a registered user of this Site or an employee of ACTIVE GearUp.
- Invade the privacy or violate any personal or proprietary right, including intellectual property rights, of any person or entity.
- Misrepresent the identity of a user or use a false e-mail address.
- Tamper with or obtain access to this Site or any component of this Site.
- Conduct fraudulent activities.
- Collect or harvest information regarding other users of the Site for any reason whatsoever, including, without limitation, for sending such users unsolicited commercial email.
The Site is available to members who are 13 years and older and who have not been suspended or removed by ACTIVE GearUp for any reason. By becoming a member you represent that you are of legal age. If you do not qualify, you may not use the Site. As a member, you agree to provide true accurate, current and complete information about yourself as prompted by the Site's registration form. Members may not have more than one active account.
Additional Terms and Conditions:
Additional terms and conditions may apply to specific portions of the Site or your membership which terms are made part of these Terms by reference. You agree to abide by such other terms and conditions. If there is a conflict between these Terms and the terms posted or emailed for, or applicable to, a specific portion of the Site or your membership, the latter terms shall control with respect to your use of that portion of the Site or your membership.
You acknowledge and agree that the content materials and other components (including but not limited to logos, graphics, button icons and page headers) available on the Site are the property of ACTIVE GearUp and are protected by copyrights, trademarks, service marks or other proprietary rights and laws. You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit publicly display, publicly perform, publish, adapt, edit or create derivative works from content or materials on the Site. Use of the content and materials for any purpose not expressly permitted in these Terms is prohibited. ACTIVE GearUp relies upon a network of independent vendors who supply some of the goods advertised on the Site and in some cases, drop ship them directly to the member. We are not liable for any infringement of copyrights, trademarks, trade dress or other proprietary or intellectual property rights arising out of content posted on or transmitted through the Site, or items advertised on the Site, by our vendors.
In the event a ACTIVE GearUp product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, ACTIVE GearUp shall have the right to refuse or cancel any orders placed for product or service listed at the incorrect price. ACTIVE GearUp shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, ACTIVE GearUp shall issue a credit to your credit card account in the amount of the incorrect price.
Term and Termination
These terms and conditions are applicable to you upon your accessing the Site and/or completing the registration or shopping process. These terms and conditions, or any of them, may be modified or terminated by ACTIVE GearUp without notice at any time for any reason. The provisions relating to Copyrights and Trademarks, Disclaimer, Claims, Limitation of Liability, Indemnification, Applicable Laws, Arbitration and General, shall survive any termination.
Links to Third-Party Websites:
No Implied Endorsements: This Site may contain links to other websites on the internet. You acknowledge that we have no control over such websites and that we are not responsible for the accuracy, content, legality or any other aspect of any linked website. In no event shall any reference to any third party, third party website or third party product or service be construed as an approval or endorsement by us of that third party, third party website or of any product or service provided by a third party.
User Blogs, Chat Rooms, Message Boards:
ACTIVE GearUp may, but is not obligated to, monitor or review any areas on the Site where users transmit or post Communications or communicate solely with each other, including but not limited to chat rooms, bulletin boards or other user forums, and the content of any such Communications. ACTIVE GearUp, however, will have no liability related to the content of any such Communications, whether or not arising under the laws of copyright, trademarks, libel, privacy, obscenity, or otherwise.
Any comments, ideas, notes, postings, messages suggestions or other communications or information posted on the Site submitted to ACTIVE GearUp, or otherwise communicated in connection with your use of the Site (collectively ,"Submissions") shall be and remain the exclusive property of ACTIVE GearUp with no further compensation to you. As such we will own exclusively all such rights, titles and interests and shall not be limited in any way in the use, commercial or otherwise, of any Submissions. UNDER NO CIRCUMSTANCES SHALL ANY DISCLOSURE OR ANY SUBMISSION TO ACTIVE GearUp CREATE ANY OBLIGATION OR LIABILITY ON THE PART OF ACTIVE GearUp. YOU ARE WAIVING ANY AND ALL RIGHTS THAT YOU MAY HAVE IN THE SUBMISSION AND YOU AGREE THAT ANY SUBMISSIONS BY YOU WILL NOT VIOLATE ANY RIGHT OF ANY THIRD PARTY, INCLUDING COPYRIGHT TRADEMARK PRIVACY OR OTHER PERSONAL OR PROPRETARY RIGHTS. YOU ALSO AGREE THAT NO SUBMISSION BY YOU WILL BE OR CONTAIN LIBELOUS OR OTHERWISE UNLAWFUL, ABUSIVE OR OBSCENE MATERIAL. YOU ARE AND SHALL REMAIN SOLEY RESPONSIBLE FOR THE CONTENT OF ANY SUBMISSIONS YOU MAKE. YOU REPRESENT AND WARRANT TO ACTIVE GearUp THAT ACTIVE GearUp IS FREE TO IMPLEMENT THE SUBMISSION IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY ACTIVE GearUp, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY. ACTIVE GearUp takes no responsibility and assumes no liability for any content submitted or posted by you or any third party.
By using this Site, you agree to indemnify, hold harmless and defend ACTIVE GearUp their respective officers, directors, employees, successors, agents, subsidiaries, partners, contractors, vendors, manufacturers, distributors, representatives and affiliates from any claims, damages losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys' fees, resulting directly or indirectly from a claim (including without imitation, claims made by third parties for infringement of intellectual property rights) by a third party that arises in connection with (1) your use or misuse of the Site; (2) your breach of the Terms; or (3) your violation of any law or the rights of a third party. You agree to cooperate as fully as reasonably required in the defense of any claim. ACTIVE GearUp reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
Disclaimer of Warranty:
THE SITE, ITS CONTENT AND ALL TEXT, IMAGES MERCHANDISE AND OTHER INFORMATION ON, ACCESSIBLE FROM OR AVAILABLE THROUGH THIS SITE ARE PROVIDED ON AN "AS AVAILABLE" AND "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT SPECIFICALLY, BUT WITHOUT LIMITATION, ACTIVE GearUp DOES NOT WARRANT THAT (1)THE INFORMATION AVAILABLE ON THIS SITE IS FREE OF ERRORS; (2)THE FUNCTIONS CONTAINED ON THIS SITE WILL BE UNINTERRUPTED OR FREE OF ERRORS; (3) DEFECTS WILL BE CORRECTED OR (4) THIS SITE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Limitation of Liability:
IN NO EVENT SHALL ACTIVE GearUp OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE BE LIABLE TO ANY USER OF THE SITE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITE OR OTHERWISE, EVEN IF ACTIVE GearUp HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. IN NO EVENT SHALL THE TOTAL LIABILITY OF ACTIVE GearUp OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THIS SITE WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT YOU PAID TO ACTIVE GearUp IN CONNECTION WITH THE APPLICABLE EVENT, PROMOTION OR BOUTIQUE GIVING RISE TO SUCH LIABILITY. WITHOUT LIMITING THE FOREGOING , IN NO EVENT SHALL ACTIVE GearUp OR THEIR RESPECTIVE OFFICERS DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE HAVE ANY LIABILITY FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR OTHERWISE INCURRED IN CONNECTION WITH THE LOSS OF ANY DATA OR INFORMATION CONTAINED IN YOUR ACCOUNT OR OTHERWISE STORED BY OR ON BEHALF OF ACTIVE GearUp.
You hereby acknowledge that the preceding paragraph shall apply to all content, merchandise and services available through the Site. Because some states do not allow limitations on implied warranties or the exclusion or limitation of certain damages in such states some or all of the above disclaimers or exclusions may not apply and liability will be limited to the fullest extent permitted by applicable law.
We make no representation that information on this Site is appropriate or available for use outside the United States. Those who choose to access this Site from outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Risk of Loss:
The items purchased from our Site are shipped by a third party carrier pursuant to a shipment contract. As a result, risk of loss and title for such items pass to you upon our delivery to the carrier.
Each claim or statement about the effectiveness of ACTIVE GearUp products and/or each claim or statement comparing the effectiveness of ACTIVE GearUp products to the effectiveness of other products is expressly limited to the United States, unless otherwise disclosed on the Site.
ACTIVE GearUp is not affiliated with websites or third parties that sell or advertise our products without a written agreement with us. ACTIVE GearUp reserves the right to void all service, return, and other policies for orders and ACTIVE GearUp products that were purchased through unauthorized sellers. ACTIVE GearUp is not responsible for any representations by unauthorized sellers.
Unavailability of Site; Termination; Fraud:
We may alter, suspend, or discontinue this Site in whole or in part, at any time and for any reason, without notice or cost. We may in our sole discretion, terminate or suspend your use or access to all or part of the Site, or your account or membership for any reason, including without limitation, breach of these Terms. If at any time, we notify you that your access to and/or use of the Site or your account is terminated, you must cease and desist from all such access and/or use immediately. We reserve the right to cancel, delay, refuse to ship, or recall from the shipper any order if fraud is suspected. In the event these Terms or your membership or account are terminated the restrictions regarding intellectual property matters, the representations and warranties, indemnities, and limitations of liabilities set forth herein (as well as any other of your obligations which by their nature should survive termination) will survive termination.
Misuse, Fraud or Misrepresentation in connection with ACTIVE GearUp Promotions or Invite a Friend program:
ACTIVE GearUp' referral invite a Friend program is designed to reward existing members ("Sponsors") for referring new members to ACTIVE GearUp awarding the Invite a Friend Credit when the new member makes his or her first purchase of $50 or more in merchandise, excluding shipping and taxes. Accordingly, Sponsors are only entitled to receive referral Credits upon the initial purchase of ACTIVE GearUp merchandise by a new member introduced for the first time to ACTIVE GearUp by the Sponsor. The receipt by any Sponsor of referral Credit by any means other than as a result of the initial purchase of ACTIVE GearUp merchandise by a new member introduced to ACTIVE GearUp by the Sponsor shall be a violation of these terms and conditions, shall be null and void, subject to immediate cancellation, and may subject the member or Sponsor to civil and/or criminal penalties under applicable law.
In addition, from time to time ACTIVE GearUp may run promotions designed to attract new members or increase sales. In connection with these promotions, any person that receives credits, coupons, prizes or other benefits from ACTIVE GearUp by using multiple user accounts or email addresses, using false names, impersonating others, or through the use of any other fraudulent or misleading conduct, shall forfeit any credits, coupons, prizes or benefits obtained through such means, and may be liable for civil and/or criminal penalties under applicable law.
Copyright Infringement: Notice and Take Down Procedures:
If you believe that any materials on this Site infringe your copyright, you may request that they be removed. This request must bear a signature of the copyright holder or an authorized representative and must : (a) identify the allegedly infringing materials; (b) indicate where on the Site the infringing materials are located; (c) provide your name and contact information; (d) state that you have a good faith belief that the materials are infringing; (e) state that the information in your claim is accurate; and (f) indicate that "under penalty of perjury" you are the lawful copyright owner or are authorized to act on the owner's behalf. Our contact for copyright issues relating to this Site is: Copyright Agent: ACTIVE GearUp, PO Box 12959 San Luis Obispo, CA 93406, firstname.lastname@example.org.
Choice of Law, Arbitration and Venue:
This Agreement and any claim or controversy relating to or arising from the use of the Site or Services, including, but not limited to, any transactions made or entered into at the Site or Services, any information, content, products, services or promotions herein contained or provided from the Site or Services, or any functionality, software or programming contained or provided at or from the Site or Services (hereafter, "Claims"), shall be governed by the laws of the State of California without regard to principles of conflicts of law and, as applicable, the laws of the United States of America.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CAUSE OF ACTION OR CLAIM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ARISES, OR THE CAUSE OF ACTION OR CLAIM SHALL BE FOREVER BARRED.
YOU AGREE TO ARBITRATE ANY AND ALL CLAIMS, INCLUDING ALL STATUTORY CLAIMS, AND ANY STATE OR FEDERAL CLAIMS. BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR USE OR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE OR SERVICES, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. All Claims shall be decided by one arbitrator pursuant to this provision and the commercial arbitration rules and procedures of JAMS, Inc. at their offices located in Orange County, California. For more information on JAMS and/or the rules of JAMS, visit http://www.jamsadr.com. All Claims shall be brought solely in the parties' individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The arbitrator may not consolidate more than one person's Claims, and may not otherwise preside over any form of a representative or class proceeding with respect to any such Claims. NEITHER PARTY SHALL BE PERMITTED TO OBTAIN AWARDS FOR AND, TO THE EXTENT PERMITTED BY LAW, EACH PARTY HEREBY WAIVES (A) ALL RIGHTS TO CLAIM PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL, ENHANCED, INDIRECT OR CONSEQUENTIAL DAMAGES AND ANY OTHER DAMAGES, OTHER THAN FOR ACTUAL OUT-OF-POCKET EXPENSES, AND (B) ALL RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED. The decision of the arbitrator shall be final and binding. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, shall be conducted in the Superior Court of the State of California, in and for the County of San Luis Obispo or, where applicable, the federal District Court sitting in the County of Los Angeles, State of California. Likewise, in the event that this arbitration agreement is for any reason held to be unenforceable, any litigation shall be commenced only in the federal court located in Los Angeles County or state court located in San Luis Obispo County, California. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
BY USING THE SITE OR SERVICES IN ANY MANNER, YOU AGREE TO THE TERMS OF THE ABOVE ARBITRATION AGREEMENT. IN DOING SO, YOU GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND ANY CLAIMS BETWEEN YOU AND US. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING.
Posted on June 20, 2012